Written Agreement Not Essential For Divorce By 'Mubaraat', Mutual Verbal Consent Of Muslim Couple Sufficient: Gujarat High Court

The Gujarat High Court has ruled that under Muslim law, when a couple mutually decides to dissolve their marriage i.e. Mubaraat, they are at liberty to do so through mutual verbal consent without drawing up a written agreement. 

For context, under Muslim law process of Mubaraat refers to divorce/dissolution of marriage through mutual consent between the husband and wife. The court was hearing an appeal jointly filed by the husband and wife challenging an April 19 family court order by which, family suit was dismissed treating it as not maintainable. They claimed that family court had committed in error in declaring that dissolution of the parties' marriage by way of 'mubaraat' is not maintainable.

A division bench of Justice AY Kogje and Justice NS Sanjay Gowda after perusing literature on the subject as well as judgments, in its order held:

"Therefore, in the opinion of the Court, when parties to the Muslim marriage come to an agreement to mutually dissolve their Nikah, they are at liberty to do so and by virtue of this mutual agreement, the Nikah stands dissolved. In the available literature as referred in the preceding paras, there is nothing to suggest that there has to be a written agreement of Mubaraat nor there is a practice prevailing regarding maintaining of the register to record such agreement for mutually dissolved Nikah".

The court said that it is conscious of the fact that when two Muslims entered into Nikah, the same is registered with the register maintained locally by the body recognized by the religious institution.

However the bench said that a Register is merely a register maintained and the Nikahnama issued on the basis of such register is only a declaration of an agreement between two Muslims to enter into Nikah; however, such registration is not an essential to the personal law.

The bench said that for the purpose of Mubaraat, the "expression of a mutual consent" to dissolution of Nikah is "sufficient to dissolve the Nikah in itself".

"Therefore, in the facts of the present case when both the husband and wife to the Nikah had decided upon to dissolve the marriage by Mubaraat, according to the pleadings to the said fact, then the suit filed before the Family Court was only for the purpose of recognizing the fact of 'Mubaraat' and declaring the dissolution of the Nikah entered into by both the parties by mutual consent. An error is therefore, committed by the Family Court in holding that for written agreement for mutually dissolving the Muslim Law by Mubaraat is a sine qua non as the same is not subscribed to any verse of Quran, Haddit or the practice followed amongst the Muslims under the personal law," the bench observed.

The court said that the logic given by the Family Court with regard to registering of a Muslim marriage under a register to treat it as a written contract is erroneous.

The bench said that such a register and Nikahnama only recognizes the agreement entered into between parties to the marriage by uttering the words “Kabul” in presence of the witness.

This the bench said does not make a Nikahnama or registration of a Nikah part of an essential process of Nikah. 

"Similarly, there is no process by which the written agreement is essential requirement for Mubaraat," the bench underscored. 

Setting aside the order the court remanded the matter back to the family court to consider the family suit treating it to be maintainable and to proceed on merits.

Considering the age and future prospects of both the parties, the bench directed the Family Court to conclude the proceedings as expeditiously as possible preferably within 3 months from the date of receipt of the high court order. 

It allowed the appeal. 

Case title: X vs. None

Click Here To Read/Download Order 

Citation: 2025 LiveLaw (Guj) 132