Family Court can declare extra judicial Muslim Divorce

Family Court can endorse extra judicial divorce

Kerala High Court (HC) in Asbi K N v Hashim M U has formulated some guidelines for the Family Court to be followed when any party files a petition seeking its endorsement to an extrajudicial divorce duly concluded under Muslim Personal Law. The judgement was delivered on 12 October 2021.

The HC declared the nature of enquiry and trial procedures to be made by the Family Court in such cases. The courts can declare such marital status under Section 7 of the Family Court Act, 1984.

Kinds of extra judicial divorce for Muslims

The unilateral extrajudicial divorce under Muslim Personal law is complete when either of the spouses pronounces talaq, talaq-e-tafweez or khula, in accordance with Muslim Personal Law. Similarly, the extrajudicial divorce by mubaarat mode is complete as and when both spouses enter into a mutual agreement.

Such divorces are legally valid

In fact, the seal or certificate of the court is not necessary to give legal validity to any of these modes of extra-judicial divorce. But the Family Court can make an endorsement of such marriage for the purpose of having a public record of such divorce.

Detailed enquiry is not necessary in such cases

In order to make an endorsement of such extrajudicial divorce for having a public record, the Family Court does not need to make a detailed enquiry.

A detailed enquiry is neither essential nor desirable in a proceeding initiated by either of the parties to endorse an extrajudicial divorce and to declare the marital status.

What the Family Court has to ascertain?

The Family Court has to simply ascertain whether a valid pronouncement/declaration of talaq or khula was made and it was preceded by an effective attempt of conciliation.

No further enquiry as in the case of adversarial litigation like chief examination and cross-examination of the parties are not at all contemplated in such proceedings.

If the Court is prima facie satisfied that there was a valid pronouncement of talaq/khula/talaq-e-tafweez, it shall endorse the same and declare the status of the parties.

Family court should declare marital status

The HC judgement states that in such cases the Family Court should pass a formal order declaring the marital status without any delay.

If any of the parties want to challenge the extrajudicial divorce, they are free to challenge it in accordance with law before the appropriate court.

The declaration granted by the Family Court u/s 7(d) of the Family Act endorsing the extrajudicial divorce shall be subject to the final outcome of such proceedings if any.

HC judgement itself is on such a declaration petition

The High Court was adjudicating upon a plea filed by a Muslim woman. She contended that she was not given a proper opportunity by the Family Court to contest the original petition filed by her husband on merit. Her husband, the respondent herein, had divorced the petitioner by pronouncing talaq in accordance with the personal law and got a legally valid extra-judicial divorce. Thereafter, he moved the Family Court to declare that their marriage has been dissolved, based on the divorce under the personal Muslim law.

Procedure to be followed in declaring the status

On receipt of the petition by Family Court under Section 7(d) of Family Court Act, the Family Court shall issue notice to the respondent.

After service of summons or appearance of the respondent, the Family Court shall formally record the statement of both parties. The parties shall also be directed to produce talaq nama/khula nama (if pronouncement/declaration is in writing)/mubaarat agreement.

The Family Court shall thereafter on perusal of the recitals in talaq nama/khula nama/ communication of talaq, khula or talaq-e-tafweez (if available) and the statement of the parties, ascertain whether there was a legally valid pronouncement of talaq/khula/talaq-e-tafweez.

In the case of mubaarat, the Family Court shall ascertain whether the parties have executed and signed mubaarat agreement.

On prima facie satisfaction that there was a valid pronouncement of talaq, khula, talaq-e-tafweez, as the case may be, or valid execution of mubaarat agreement, the Family Court shall proceed to pass an order endorsing the extrajudicial divorce and declaring the status of the parties without any further enquiry.

Summary trial proceedings to be followed

The enquiry to be conducted by the Family Court shall be summary in nature treating it as an uncontested matter.

The Family Court shall dispose of the petition within one month of the appearance of the respondent. The period can be extended for valid reasons.

If any of the parties is unable to appear at the Court personally, the Family Court shall conduct an enquiry using video conferencing facility.

Further reading

  1. Asbi K N v Hashim M U : OP (FC) 476 of 2021
  2. The Family Court Act, 1984