# Arshad Husain v. Shahneela Nishat

- **Citation:** (2024) 12 ILRA 53
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-06
- **Case number:** First Appeal No. 111 of 2019
- **Bench:** Vivek Chaudhary, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arshad-husain-v-shahneela-nishat-51245
- **Pages:** 6

## Headnote

Civil Law - Family Court Act, 1984 -
Section 19 - Criminal Procedure Code,
1973 - Sections 125 & 127 - Muslim
Personal Law (Shariat) Application Act,
1937 - Section 2:- Appeal - challenging the
judgment of family court - whereby a
declaration case filed by the husband for
declaration
of
matrimonial
status
was
dismissed - husband claiming that he had
given triple talaq to his wife - the Family
Court found no evidence that the Talaq was
pronounced during the non-menstrual period
or that reconciliation efforts were made,
relying on judgment of Apex court in case of
Shayara Bano v. Union of India (which
declared instant Triple Talaq unconstitutional)
dismissed the declaration case - first appeal -
court finds that, during pendency of the
instant appeal, both parties entered into a
mutual agreement (Mubara'at), agreeing to
withdraw all pending cases and dissolve their
marriage by mutual consent - court verified
the mutuality and voluntariness of the
agreement - Held, under Shariyat Law, a
marriage
can
be
dissolved
by
mutual
agreement between the husband and wife -
but, it does not affect the liability of husband
to maintain here wife or children as per the
agreement - hence, in the light of the facts
that they agreed to dissolve the marriage,
subject to payment of Rs. 30 Lacks by the
husband to the wife, no useful purpose would
be served by remitting the matter back to the
family
court
for
further
proceeding
-
accordingly, the appeal is disposed of in terms
of the Mubara'at agreement, the marriage
was declared dissolved, - impugned judgment
is set aside - direction issued for issue a
decree of divorce. (Para - 8, 9, 11, 12)

First Appeal Allowed. (E-11)

List of Cases cited:

## Text

12 All. Arshad Husain Vs. Shahneela Nishat
53

2. Sri Prasoon Rai, the present
District Backward Class Welfare Officer,
Fatehpur is discharged.

30. The Court officer shall take into
custody Sri Rajnish Chandra, the present
Special Secretary, Department of Social
Welfare, Government of Uttar Pradesh,
Lucknow, who is present in the Court
today, and shall keep Sri Rajnish Chandra
in his custody in the Court till the rising of
the Court at 01:00 p.m.

31. As the order dated 4.3.2024 passed
by the Writ Court has been fully complied,
no further orders are required to be passed.
The contempt application is disposed of
accordingly.
 ----------
(2024) 12 ILRA 53
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2024

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

First Appeal No. 111 of 2019

Arshad Husain ...Appellant
Versus
Shahneela Nishat ...Respondent

Counsel for the Appellant:
Shafiq Mirza, Ali Akhtar Zaidi

Counsel for the Respondent:
Mohd. Mustafizul Haq

Civil Law - Family Court Act, 1984 -
Section 19 - Criminal Procedure Code,
1973 - Sections 125 & 127 - Muslim
Personal Law (Shariat) Application Act,
1937 - Section 2:- Appeal - challenging the
judgment of family court - whereby a
declaration case filed by the husband for
declaration
of
matrimonial
status
was
dismissed - husband claiming that he had
given triple talaq to his wife - the Family
Court found no evidence that the Talaq was
pronounced during the non-menstrual period
or that reconciliation efforts were made,
relying on judgment of Apex court in case of
Shayara Bano v. Union of India (which
declared instant Triple Talaq unconstitutional)
dismissed the declaration case - first appeal -
court finds that, during pendency of the
instant appeal, both parties entered into a
mutual agreement (Mubara'at), agreeing to
withdraw all pending cases and dissolve their
marriage by mutual consent - court verified
the mutuality and voluntariness of the
agreement - Held, under Shariyat Law, a
marriage
can
be
dissolved
by
mutual
agreement between the husband and wife -
but, it does not affect the liability of husband
to maintain here wife or children as per the
agreement - hence, in the light of the facts
that they agreed to dissolve the marriage,
subject to payment of Rs. 30 Lacks by the
husband to the wife, no useful purpose would
be served by remitting the matter back to the
family
court
for
further
proceeding
-
accordingly, the appeal is disposed of in terms
of the Mubara'at agreement, the marriage
was declared dissolved, - impugned judgment
is set aside - direction issued for issue a
decree of divorce. (Para - 8, 9, 11, 12)

First Appeal Allowed. (E-11)

List of Cases cited:

1. Shayara Bano Vs Union of India, reported in
(2017) 9 SCC 1,

2. Zohara Khatoon Vs Mohd. Ibrahim, (1981) 2
SCC 509,

3. Asbi .K.N Vs Hashim M.U. - 2021 SCC Online
Ker 3945,

4. Shabnam Parveen Ahmad Vs Mohammed
Saliya Shaikh, 2024 SCC OnLine Kar 39.

(Delivered by Hon'ble Vivek Chaudhary, J.
&
Hon'ble Om Prakash Shukla, J.)
54 INDIAN LAW REPORTS ALLAHABAD SERIES

(1) Heard Shri Ali Akhtar Zaidi,
learned
Counsel
representing
the
appellant/husband
and
Shri
Mohd.
Mustafizul
Haq,
learned
Counsel
representing the respondent/wife.

(2) This appeal under Section 19 of the
Family Courts Act, 1984 has been filed by
the husband/appellant, seeking to quash the
judgment and order dated 04.07.2019
passed by the learned Principal Judge,
Family
Court,
Lucknow,
whereby
Declaration Case No. 214 of 2019 filed by
the husband/appellant for declaration of
matrimonial status of the parties has been
dismissed at the admission stage.

(3) Facts of the case are that the
marriage between the appellant and the
respondent was solemnized on 12.01.2002
in accordance with Islamic Rites and
Rituals. It was the case of the appellant that
after marriage, the behaviour of his wife
was not good as his wife was having affair
with a police officer, on account of which
his wife visited her parental house
frequently. With the connivance of the said
police officer, his wife had lodged frivolous
complaint against him and her behaviour
became cruel. Ultimately, on 02.07.2018,
she went to parental home and since then,
she is living there only. Despite efforts
made by him for reconciliation, settlement
between them was not arrived and
ultimately he gave triple talaq to his wife
in accordance with muslim law. In this
background, the appellant had instituted the
declaration case, bearing No. 214 of 2019,
seeking to declare the matrimonial status of
the parties, before the Family Court,
Lucknow.

(4) The learned Family Court, Lucknow,
heard the aforesaid declaration case at
admission stage and has returned a finding
that though the husband claimed to have
given triple talaq in the month of March,
April and May, but there was neither any
endorsement to the fact that first, second and
third talaq were given by the husband during
the non-menstrual period of the wife nor
there was any endorsement to the fact that
any effort for reconciliation preceded Talaq.
By recording these findings and placing
reliance upon the judgment of the Apex
Court rendered in Shayara Bano v. Union of
India : (2017) 9 SCC 1, the learned Family
Court has dismissed the declaration case vide
judgment and order dated 04.07.2019 at the
admission stage, which is assailed in the
present appeal.

(5) During the hearing of the present
appeal, learned Counsels for the parties have
drawn attention to Annexure SSA-1 of the
second supplementary affidavit, which is a
Mubara'at
(mutual
agreement)
dated
15.06.2024 entered into between the parties.
This mutual agreement was also filed in the
proceedings under Section 125 of the Cr.P.C.
initiated by the respondent (wife), bearing
Case No. 358 of 2018. The agreement
provides that both parties will withdraw all
pending cases between them, and the
marriage shall be dissolved by mutual
consent,
subject
to
the
payment
of
Rs.30,00,000/- (Rupees Thirty Lakhs) by the
husband to the wife in three installments.
Learned Counsel for the appellant submits
that both the parties are living separately and
the husband has already paid the entire sum
of Rs.30,00,000/- in three installments and
requests that the present appeal be disposed
of in terms of the mutual agreement, thereby
dissolve the marriage between the parties by
consent.

(6) Mohd. Mustafizul Haq, learned
Counsel representing the respondent/wife
does not dispute the aforesaid mutual
12 All. Arshad Husain Vs. Shahneela Nishat
55
agreement dated 15.06.2024 and states that
Rs.30,00,000/- has been paid to the wife by
the husband/appellant in three installments
and the respondent has no objection to
declare the marriage of the parties dissolve
in terms of the mutual agreement dated
15.06.2024.

(7) Muslim Personal Law (Shariat)
Application Act, 1937, governs marriage
and divorce for Muslims in India. Section 2
of the Act explicitly recognizes various
forms of divorce, including Mubara'at,
Khula, Talaq, and Faskh.

(8) Under Shariyat Law, a marriage
can be dissolved by mutual agreement
between the husband and wife. This mutual
dissolution may take the form of khula or
mubara'at. Mubara'at, a form of mutual
consent, is a valid and recognized method
for dissolution of marriage. It allows both
spouses to agree to terminate their marital
relationship
without
requiring
judicial
intervention, as long as their intentions are
clear and unambiguous. The process begins
when one spouse proposes the dissolution,
and the other spouse agrees. Once both
parties affirm their intention to end the
marriage, the divorce takes effect, but it
does not affect the liability of husband to
maintain her wife or children as per the
agreement. We have also gone through the
law laid down by the Supreme Court in the
case of Zohara Khatoon v. Mohd.
Ibrahim,
(1981)
2
SCC
509,
and
reaffirmed by subsequent judgments, the
irrevocability of mubara'at takes effect
once the intention of both parties to
dissolve the marriage is established, in para
22 of the judgment, the Supreme Court has
made following observations:-

"22.In these circumstances we
are,
therefore,
satisfied
that
the
interpretation put by the High Court on the
second limb of clause (b) is not correct.
This seems to be borne out from the
provisions of Mahomedan law itself. It
would appear that under the Mahomedan
law there are three distinct modes in which
a Muslim marriage can be dissolved and
the relationship of the husband and the wife
terminated so as to result in an irrevocable
divorce:

(1)
Where
the
husband
unilaterally gives a divorce according to
any of the forms approved by the
Mahomedan law viz. talak ahsan, which
consists of a single pronouncement of
divorce during tuhr (period between
menstruations) followed by abstinence from
sexual intercourse for the period of iddat;
or talak ahsan which consists of three
pronouncements
made
during
the
successive tuhrs, no intercourse taking
place between three tuhrs;..............

(2) By an agreement between the
husband and the wife whereby a wife
obtains divorce by relinquishing either her
entire or part of the dower. This mode of
divorce is called "khula" or mubarat. This
form of divorce is initiated by the wife and
comes into existence if the husband gives
consent to the agreement and releases her
from the marriage tie. Where, however,
both parties agree and desire a separation
resulting in a divorce, it is called mubarat.
The gist of these modes is that it comes into
existence with the consent of both the
parties particularly the husband because
without his consent this mode of divorce
would be incapable of being enforced. A
divorce may also come into existence by
virtue of an agreement either before or
after the marriage by which it is provided
that the wife should be at liberty to divorce
herself in specified contingencies which are
of a reasonable nature and which again are
agreed to by the husband. In such a case
56 INDIAN LAW REPORTS ALLAHABAD SERIES
the wife can repudiate herself in the
exercise of the power and the divorce
would be deemed to have been pronounced
by the husband. This mode of divorce is
called "tawfeez" (vide: Mulla's Principles
of Mahomedan Law, § 314, p, 300).
....................." (emphasis added)

(9) When parties approach a court
seeking formal recognition of their divorce
through mubara'at, the court's primary role
is to verify the mutuality and voluntariness
of the agreement. Upon satisfaction, the
court is obligated to endorse the dissolution
and declare the marital status of the parties
as divorced. The High Court of Kerala at
Ernakulam in the case of Asbi .K.N versus
Hashim M.U. reported in 2021 SCC
OnLine Ker 3945 in paragraphs 4 and 5 of
the said judgment is reproduced herein
below:-

"4.The Division Bench of this
Court in X v.Y (2021 (2) KHC 709) has
held that the Family Court in exercise of
the jurisdiction under Explanation (d) of
S.7 of the Act is competent to endorse an
extrajudicial divorce to declare the marital
status of a person. It was made clear in the
said judgment that in the matter of
unilateral dissolution of marriage invoking
khula and talaq, the scope of enquiry
before the Family Court is limited and in
such proceedings, the Court shall record
the khula or talaq to declare the marital
status of the parties after due notice to
other party. In the matter of mubaraat, the
Family Court shall declare the marital
status without further enquiry on being
satisfied that the dissolution was effected
on mutual consent. It was observed that
such matter shall be disposed treating it as
uncontested matter without any delay by
passing a formal order declaring the
marital status. It was further held that if
any
person
wants
to
contest
the
effectiveness of khula or talaq, it is open for
such person to contest the same in
appropriate manner known under the law.

5.The
unilateral
extrajudicial
divorce under Muslim Personal law is
complete when either of the spouse
pronounce/declare talaq, talaq-e-tafweez
or khula, as the case may be, in accordance
with Muslim Personal Law. So also
extrajudicial divorce by mubaarat mode is
complete as and when both spouses enter
into mutual agreement. The seal of the
Court is not necessary to the validity of any
of these modes of extra judicial divorce.
The endorsement of extrajudicial divorce
and consequential declaration of the status
of the parties by the Family Court invoking
S.7(d) of the Act is contemplated only to
have a public record of the extrajudicial
divorce. Hence, 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. The Family Court has to
simply
ascertain
whether
a
valid
pronouncement/declaration of talaq or
khula was made and it was preceded by
effective attempt of conciliation. In the case
of khula, it has to be further ascertained
whether there was an offer by the wife to
return the "dower". It could be ascertained
by perusal of the recitals in talaq
nama/khula nama or its communication (if
it is in writing) or by recording the
statement of the parties. No further enquiry
as in the case of an adversarial litigation
like
chief
examination
and
crossexamination of the parties are not at all
contemplated in such a proceedings. If the
Court is prima facie satisfied that there was
valid pronouncement of talaq/khula/talaqe-tafweez, it shall endorse the same and
declare the status of the parties. In the case
of mubaarat,
if
the
Court
is prima
12 All. Arshad Husain Vs. Shahneela Nishat
57
facie satisfied that mubaarat agreement has
been executed and signed by both parties, it
shall endorse the same and declare the
status of the parties. The Court shall pass
formal order declaring the marital status
without any delay. If any of the parties
want to challenge the extrajudicial divorce
by talaq,
khula,
mubaarat or talaq-etafweez mode, he/she is free to challenge
the same in accordance with law in
appropriate
forum.
The
declaration
granted by the Family Court u/s 7(d)
endorsing the extrajudicial divorce shall be
subject to the final outcome of such
proceedings, if any. We consider it
desirable
to
formulate
the
following
guidelines to be followed by the Family
Court in a petition filed u/s 7(d) of the Act
to endorse an extrajudicial divorce under
Muslim Personal Law and to declare the
marital status of the parties to the
marriage.

(i) On receipt of the petition, the
Family Court shall issue notice to the
respondent.

(ii) After service of summons or
appearance of the respondent, as the case
may be, 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.

(iii) 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 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.

(iv) On prima facie satisfaction
that
there
was
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 order endorsing the
extrajudicial divorce and declaring the
status of the parties without any further
enquiry.

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

(vi) 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.

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

(10) The Karnataka High Court in
Shabnam
Parveen
Ahmad
v.
Mohammed Saliya Shaikh, 2024 SCC
OnLine Kar 39 in paragraph no. 9 of the
said judgment held as under:-

"9.
Having
considered
the
contentions advanced and in view of the
decisions which are relied on by the
learned
counsel
appearing
for
the
appellants we are of the opinion that the
finding of the Family Court that the Family
Court is not empowered to consider the
application for Divorce by mutual consent
when the parties are Muslims cannot said
to be the correct proposition. In view of the
fact that the parties have entered into
Mubarat agreement and have decided to
dissolve the marriage entered into between
them by the said agreement, we are of the
opinion that the prayer sought for by the
parties i.e., for a declarationas to the
dissolution of marriage ought to have been
granted by the Family Court."
58 INDIAN LAW REPORTS ALLAHABAD SERIES

(11) In the present case, the facts are
undisputed that the parties are living
separately
and
have
entered
into
a
Mubara'at agreement dated 15.06.2024,
wherein they mutually agreed to dissolve
the marriage, subject to the payment of
Rs.30,00,000/- by the husband to the wife.
It is also undisputed that the sum of
Rs.30,00,000/- has been paid in full by the
husband, and both the appellant and
respondent
have
consented
to
the
dissolution of the marriage. In light of these
facts, this Court finds that no useful
purpose would be served by remitting the
matter back to the Family Court for further
proceedings.

(12) Accordingly, the present appeal is
disposed of in terms of the mutual
agreement (mubara'at) dated 15.06.2024.
The decree of divorce in terms of mutual
agreement/consent dated 15.06.2024 is
granted by declaring dissolution of the
marriage between the parties. Let a decree
be prepared accordingly.

(13) The judgment and order dated
04.07.2019 passed by the learned Principal
Judge, Family Court, Lucknow, in Case
No. 214 of 2019 is hereby set aside.

(14) The suit for the declaration of
matrimonial status is decreed.

(15) The matrimonial status of the
parties is declared as "divorced" under
Muslim Personal Law and in accordance
with
their
mutual
agreement
dated
15.06.2024.
----------
(2024) 12 ILRA 58
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2024

BEFORE
THE HON'BLE KSHITIJ SHAILENDRA, J.

First Appeal No. 136 of 2024

Naveen Chand Jain ...Appellant
Versus
Manav Sharma ...Respondent

Counsel for the Appellant:
Anjali Sinha, Rahul Sahai

Counsel for the Respondent:
Nipun Singh

A. Civil Law - Civil Procedure Code,1908 -
Order VII - Rule 11 - Rejection of plaint -
Cause of action - Relevance of its
determination - Property was sold by the
defendant making his status as stranger -
Effect - Held, cause of action to claim
injunction against a stranger is certainly
recognized under the law and, therefore,
the view taken by the trial court that
after
the
defendant
had
sold
the
property, the plaint did not disclose a
cause of action against him, is certainly
erroneous
-
There
exists
no
circumstance warranting rejection of
plaint by invoking Order 7 Rule 11 (d)
CPC at this stage and there can be
adjudication of all the aspects after
framing proper issues and holding fullfledged trial. (Para 15 and 23)

B. Civil Law - Specific Relief Act, 1963 -
Section 41(h) - Injunction, grant of -
Principle of equally efficacious remedy
and its exception - Held, injunction
cannot
be
granted
when
equally
efficacious relief can be obtained by any
other usual mode of proceeding, however,
the exception carved out to the said
provision is that it would not apply when
there is a case of breach of trust. (Para
20)

First appeal allowed. (E-1)

List of Cases cited:

1. Balram Singh Vs Kelo Devi; 2022 SCC Online
SC 1283