Rajasthan High Court Issues Guidelines For Family Courts On Mutual Consent Divorce Under Muslim Personal Law

The Rajasthan High Court has directed that guidelines be framed for Family Courts in the State while dealing with petitions seeking declaration of divorce through Mubarat (mutual divorce) under Muslim Personal Law, holding that courts cannot deny relief or compel parties to undergo a full-fledged matrimonial trial once dissolution by mutual consent is established.

The Court noted that such petitions are routinely rejected by Family Courts in the State.

Accordingly, a bench of Justice Arun Monga and Justice Yogendra Kumar Purohit set aside the impugned order of the Family Court and observed, “In somewhat similar circumstances, Delhi High Court framed certain guidelines for the family Courts at Delhi. We are of same view that Delhi High court guidelines ought to be kept in mind by learned Family Courts in Rajasthan while dealing with petitions filed under Section 7 of the Family Courts Act, 1984 seeking declaration with regard to status of marriage under through extra-judicial means under Muslim Personal Law. Having had the benefit thereof, it is deemed appropriate similar exercise is carried out for the state of Rajasthan as well”.

The bench further noted that “Mubaarat is thus a mutual divorce where both spouses agree to dissolve the marriage. The conditions include that both parties must be major and acting voluntarily. The agreement must be genuine and free from coercion. The parties may execute a Mubaarat agreement, which is a private document recording their mutual consent. The Court’s role is to endorse the agreement and declare the marital status as dissolved, often after a summary verification of the agreement and statements. The process is considered complete when the spouses enter into a lawful mutual agreement, and the court’s endorsement records this fact”.

Advocate Vishal Sharma appeared for the petitioner, and Advocate Ravindra Kumar Purohit appeared for the respondent.

In the present matter, the parties, both Muslims, were married according to Muslim rites on 27 February 2022 in Rajasthan. Due to serious matrimonial differences, the parties separated. During the subsistence of the marriage, the husband pronounced talaq on three separate occasions, 08-06-2024, 08-07-2024, and 08-08-2024 each during a distinct tuhr, which was accepted by the wife.

Subsequently, on 20-08-2024, the parties executed a written Mubarat (mutual divorce) agreement, duly stamped, recording dissolution of marriage by mutual consent. The wife received mehr and a lump-sum amount towards maintenance, and both parties acknowledged that there was no possibility of reconciliation. The wife thereafter approached the Family Court seeking a declaration that the marriage stood dissolved under Muslim Personal Law.

However, the Family Court rejected the petition on two grounds: first, it held that the wife had failed to prove cruelty, as she did not furnish specific instances or detailed particulars, and her general allegations were found insufficient to grant divorce on that ground. Second, the Court held that the talaq was invalid because it was not proved to have been pronounced in the presence of two witnesses, relying on precedents applicable to Shia law, and consequently refused to recognise the dissolution of marriage or grant a declaratory relief.

Subsequent to which, the High Court then held that the Family Court’s finding on cruelty was not perverse, and therefore did not interfere with the conclusion that cruelty was not proved. However, it clarified that failure to prove cruelty did not defeat the wife’s claim, as dissolution was otherwise established under Muslim Personal Law.

On the issue of talaq and Mubarat, the High Court held that the Family Court had committed a clear error of law. It said that the requirement of pronouncement of talaq in the presence of two witnesses applies to Shia law, whereas the parties were governed by Sunni law, under which such a requirement is not mandatory. The High Court further held that once both parties admitted the triple pronouncement during successive tuhrs and the execution of a voluntary Mubarat agreement, the Family Court was bound to exercise jurisdiction under Section 7 of the Family Courts Act, 1984 and declare the marital status accordingly.

The Court observed that Section 2(ix) of the Dissolution of Muslim Marriages Act, 1939 expressly permits dissolution on any ground recognised under Muslim personal law, and extra-judicial divorce such as Mubarat squarely falls within this provision

Allowing the appeal, the Bench declared the marriage dissolved and directed that Family Courts follow the above approach in similar cases, reinforcing the principle that law cannot be used to prolong marriages that have already ceased to exist in fact and in law.

Cause Title: Ayasha Chouhan v. Waseem Khan [Neutral Citation: 2026:RJ-JD:1211-DB]

Appearance:

Petitioner: Advocate Vishal Sharma

Respondent: Ravindra Kumar Purohit

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