# Smt. Hasina Bano v. Mohammad Ehsan

- **Citation:** (2024) 9 ILRA 1286
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-12
- **Case number:** First Appeal No. 495 of 2024
- **Bench:** Vivek Kumar Birla, Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-hasina-bano-v-mohammad-ehsan-52539
- **Pages:** 14

## Headnote

Civil Law - Family Court Act, 1984 -
Section 19, - Criminal Procedure Code,
1973 - Sections 125 & 127 - Limitation
Act, 1963 - Section - 29(3) - Evidence Act,
1872 - Sections 54 & 58 - Dissolution of
Muslim Marriages Act, 1939 - Section 2(ix)
- Appeal - against dismissal of - suit for
declaration of the 'matrimonial status' as
Divorce by way of mubara - court finds that, -
the marriage between the appellant and the
respondent, solemnized on 18.12.1984, and
their subsequent separation on 16.07.1990 -
they mutually agreed to divorce on 15.11.1999,
which was formalized in a notarized document
titled "Talaqnama Tehreer" on 07.03.2000 - the
Family Court dismissed their suit for declaration
of their matrimonial status due to the non-filing
of the original "Talaqnama" as well as the delay
in filing the suit - held, the Family Court's
decision
was
unwarranted
and
not
in
accordance with the law, as there is no
prescribed limitation period for such suits under
the Family Courts Act, 1984 - hence, impugned
order & decreed are hereby quashed - and with
the mutual consent of the parties, the suit for
declaration of the matrimonial status of the
parties is hereby declared as 'divorced' - the
appeal is allowed. (Para - 30, 30-1, 30-3)
First Appeal Allowed. (E-11)

List of Cases cited:
9 All. Smt. Hasina Bano Vs. Mohammad Ehsan
1287

## Text

_Characters 0–39,639 of 44,802. This is a partial read: ask again with offset=39639 for what follows._

1286 INDIAN LAW REPORTS ALLAHABAD SERIES
taking over possession over the plaintiff's
land by the State and the appellant, joining
hands together and with the aid of the
entire State machinery at district and
secretariate
level
by
manipulating
documents, one after another, has resulted
in depriving the plaintiff and his legal heirs
of
user,
occupation,
possession
and
utilisation of their immovable property for
a period of more than 32 years, this Court
thinks it just and proper to award
exemplary cost and damages against both
the defendants. The Court quantifies the
same as Rs.10,00,000/- (rupees ten lacs).

43.

The
second
appeal,
accordingly, stands dismissed with cost of
Rs.10,00,000/- (Rupees ten lacs) to be
jointly borne by the appellant and the State
Government and its functionaries in equal
share. The cost shall be deposited before
the Executing Court within a period of
three months from the date of this decision
and the same shall be immediately released
by the Executing Court in favour of legal
representatives of plaintiff-Bhola without
furnishing any security. It shall be open for
the State Government to fix liability and
responsibility
upon
any
individual
official(s) to bear cost but, in any case, it
shall be deposited and paid in the manner
as directed above. The Executing Court
shall,
within
six
months
henceforth,
execute the decree in toto alongwith decree
of cost, if not deposited by the judgment
debtors, as directed above.

44. All pending applications stand
disposed off.

45. Office to forthwith prepare
decree based upon this judgment.
----------
(2024) 9 ILRA 1286
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.09.2024

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

First Appeal No. 495 of 2024

Smt. Hasina Bano ...Appellant
Versus
Mohammad Ehsan ...Respondents

Counsel for the Appellant:
Bhriguram Ji, Shashi Shekhar Maurya

Counsel for the Respondents:
Nilesh Kumar Dubey

Civil Law - Family Court Act, 1984 -
Section 19, - Criminal Procedure Code,
1973 - Sections 125 & 127 - Limitation
Act, 1963 - Section - 29(3) - Evidence Act,
1872 - Sections 54 & 58 - Dissolution of
Muslim Marriages Act, 1939 - Section 2(ix)
- Appeal - against dismissal of - suit for
declaration of the 'matrimonial status' as
Divorce by way of mubara - court finds that, -
the marriage between the appellant and the
respondent, solemnized on 18.12.1984, and
their subsequent separation on 16.07.1990 -
they mutually agreed to divorce on 15.11.1999,
which was formalized in a notarized document
titled "Talaqnama Tehreer" on 07.03.2000 - the
Family Court dismissed their suit for declaration
of their matrimonial status due to the non-filing
of the original "Talaqnama" as well as the delay
in filing the suit - held, the Family Court's
decision
was
unwarranted
and
not
in
accordance with the law, as there is no
prescribed limitation period for such suits under
the Family Courts Act, 1984 - hence, impugned
order & decreed are hereby quashed - and with
the mutual consent of the parties, the suit for
declaration of the matrimonial status of the
parties is hereby declared as 'divorced' - the
appeal is allowed. (Para - 30, 30-1, 30-3)
First Appeal Allowed. (E-11)

List of Cases cited:
9 All. Smt. Hasina Bano Vs. Mohammad Ehsan
1287
1. Shayara Bano Vs U.O.I., reported in (2017) 9
SCC 1,

2. Skh. Hafiz Skh. Habib Vs St. of Mah. - 2009
(1) AIR Bom R 345,

3. St. of Punjab & ors.Vs Bhatinda District
Cooperative Milk Producers Union - (2007) 11
SCC 363,

4. M/S North Eastern Chemicals Industries (P)
Ltd. & anr.Vs M/S Ashok Paper Mill (Assam) Ltd.
& anr.- AIR 2024 SU.P.reme Court 436,

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

6. Ajaib Singh Vs The Sir hind Cooperative
Marketing
Cum-Processing
Service
Society
Limited & ors.- in (1999) 6 SCC 82.

(Delivered by Hon'ble Syed Qamar Hasan
Rizvi, J.)

On the application for condonation
of delay

As per the report submitted by
the Registry, the present appeal under
Section 19 of the Family Court Act,
1984 is barred by limitation as the same
has been preferred by the appellant
beyond 148 days of the prescribed
limitation period. The cause of delay as
explained by the appellant in the present
application for condonation of delay
duly supported by an affidavit is found
satisfactory.
The
learned
counsel
appearing on behalf of the respondent
has no objection against the aforesaid
condonation of delay. Accordingly, delay
in filing this appeal is condoned.

The
present
application
for
condonation of delay having application
No. 01 of 2024 is allowed.

On the Memo of Appeal
1. Heard Sri Bhriguram Ji Pandey
along with Sri Shashi Shekhar Maurya,
learned counsels for the appellant and Sri
Nilesh Kumar Dubey, learned counsel
appearing for the respondent.

2. The present appeal under
section 19 of the Family Court Act, 1984
has been filed, inter alia, praying for setting
aside the impugned judgment and order
dated 10.10.2023 and also the decree dated
19.10.2023 passed by the Additional
Principal Judge, Family Court, Jhansi in
Declaration Case No. 687/2021 whereby
the 'Suit for declaration of the matrimonial
status' of the parties has been dismissed. It
has also been prayed that this Court may, in
exercise of its appellate jurisdiction allow
the said Suit, by declaring the matrimonial
status of the parties as 'divorced' by way of
mubara'at, as recognised under the Muslim
Personal Law.

3. Facts of the case that are culled
out from the material available on record is
that the marriage between the appellant and
the
respondent
was
solemnised
on
18.12.1984
in
accordance
with
the
recognised rites and customs of the Hanafi
Muslim school of thought. The appellant in
support of her stand filed a copy of the
'nikahnama' as Annexure No. 1 along with
the stay application duly supported by an
affidavit.

4. There is no dispute of the fact
that out of their wedlock, a child was born
in the year 1991 but due to some
matrimonial dispute the parties preferred
staying separately, giving rise to litigation.
From the pleadings, it transpires that a case
under section 125 Cr.P.C. was filed by the
appellant which was registered as Case No.
194/1990 and a case under Section 127
Cr.P.C. was also registered as Case No.
1288 INDIAN LAW REPORTS ALLAHABAD SERIES
43/1994. Further, a criminal case under
Sections 498A, 323, 504, 506 I.P.C. was
also filed in the Court of Chief Judicial
Magistrate, Jhansi which was registered as
Case No. 2454 of 1997 (Haseena Bano
versus Ehsan). However, after a lapse of
time, a settlement took place between the
parties, out of Court and the aforesaid
litigation came to an end. It is the admitted
case of the parties to the present appeal that
they are living separately since 16.07.1990
and on the intervention and persuasion of
some respected persons of the society, the
parties resorted to put an end to their
marital tie and finally on 15.11.1999, they
decided to accord divorce on the basis of
mutual
consent
and
dissolved
their
marriage by way of mubara'at as per the
established principles under the Muslim
Personal Law. Thereafter, on 07.03.2000
the appellant and the respondent reduced
the aforesaid divorce in writing by means
of a jointly signed notarised document
titled as "Talaqnama Tehreer".

5. The parties to this appeal jointly
filed a Suit being Declaration Case No.687 of
2021 before the competent Family Court at
Jhansi,
seeking
declaration
of
their
matrimonial status. However, the said Suit
was dismissed by the learned Additional
Principal Judge, Family Court, Jhansi, vide
order dated 10.10.2023, on the ground of
default of non-filing of the said 'Talaqnama'
in-original by the plaintiffs along with the list
of
documents
submitted
in
the
Suit
proceeding and also on the ground of delay in
filing the Suit that having being instituted
after a lapse of about 20 years from the date
of its commencement of the dissolution of
marriage.

6. We have heard the learned
Counsels for the parties and perused the
record.
7. It is submitted by the learned
counsel for the appellant that since
16.07.1990, the appellant has been living
separately. The divorce between the parties,
by way of mutual consent (mubara'at) on
07.03.2000 is undisputed as the same has
never been challenged before any court of
law. But the authorities at different forum,
unnecessarily demands a formal declaration
of the said dissolved matrimonial status
(divorce) issued from the competent court
of law. Having no other option but to
approach the court of law for redressal of
the said grievance, appellant and the
respondent jointly filed a Suit being
Declaration Case No. 687 of 2021 before
the competent Family Court at Jhansi
seeking declaration of the aforesaid duly
dissolved marriage. However, the said Suit
has been illegally dismissed by the learned
Additional Principal Judge, Family Court,
Jhansi, vide order dated 10.10.2023.

8. The contention of learned
counsel for the appellant is that the learned
Court
below,
although,
has
neither
disbelieved the solemnisation of the
marriage between the parties that took
place on 18.12.1984 nor their separation
since 16.07.1990. The dissolution of
marriage by way of mubara'at (divorce
by mutual consent) on 15.11.1999 which
was reduced in writing in the form of
'Talaqnama Tehreer' on 07.03.2000 is not
in dispute; but the learned court below
dismissed the said Suit in the most
mechanical
manner,
vide
impugned
judgement and order dated 10.10.2023 on
the unwarranted/technical grounds of
non-availability of the 'Talaqnama' inoriginal on record and the Suit in
question having been instituted after a
lapse of about 20 years from the date of
commencement of the dissolution of
marriage.
9 All. Smt. Hasina Bano Vs. Mohammad Ehsan
1289
9. It has also been asserted on
behalf of the appellant that the learned
Court below did not appreciate the
statements of the witnesses who were
examined before the Court on 22.11.2021,
evidence as placed by the appellant and the
factual matrix of the case, in as much as,
the fact that the Suit has been jointly filed
by the parties seeking declaration of their
matrimonial status as 'divorced' where the
same is not at all disputed. The next
submission advanced by the learned
counsel appearing on behalf of the
appellant is that since the factum of divorce
is not disputed in the instant case and under
the Muslim Law, there is no legal mandate
of a written divorce (mubara'at) the
Talaqnama dated 07.03.2000 in the instant
case, is at the best a memorial, further the
same is not a disputed document, as such,
under the facts of the case there is no
requirement of Talaqnama in-original as per
Section 54 of the Indian Evidence Act,
1872, but the learned Court below has
dismissed the said Suit without taking into
consideration the settled legal position of
law. Further, the provisions of the Indian
Limitation Act are not attracted in the
instant case and the learned court below has
misconstrued the law on the subject.

10. The aforesaid facts as narrated
on behalf of the appellant-plaintiff have not
been disputed by the learned counsel for
the respondent.

11. For better appreciation of the
case, it would be apt to go through the law
on the subject matter i.e. divorce by way of
mubara'at as provided under the Muslim
Personal law.

12. Under the Mohammadan Law,
divorce by mutual consent is called
mubara'at; and it may take place as an outof-court divorce. The word mubara'at is in
a linguistic form indicates mutual and joint
or common initiative of the parties. The
Muslim Personal Law (Shariat) Application
Act, 1937 refers to this form of divorce
where the parties to a Muslim marriage,
may by their joint initiative and mutual
consent decide to put an end to the marital
tie, either unconditionally or subject to
conditions mutually agreed upon. Both the
parties, so agreeing to a divorce by mutual
consent should be major and sane and both
should be acting by their own free will.
There is no condition that the marriage
should have lasted for a particular duration.
The ijab (proposal) for mubara'at may
emanates from either party; and the other
party's qubul (acceptance) of the same will
make the transaction complete. It is
pertinent to mention here that mubara'at
may be effected orally or by writing and
with or without a qazi's intervention. No
reason for separation need be mentioned in
the oral or written agreement entered into,
between the parties, for the said purpose. A
mubara'at agreement cannot incorporate
any such condition that affects the right of
any person than the parties to marriage. For
convenience the relevant provision of The
Muslim Personal Law (Shariat) Application
Act, 1937 is quoted below:

2. Application of Personal
Law to Muslims.-Notwithstanding
any custom or usage to the
contrary, in all questions (save
questions relating to agricultural
land)
regarding
intestate
succession, special property of
females,
including
personal
properly inherited or obtained
under contract or gift or any other
provision
of
Personal
Law.
marriage, dissolution of marriage,
including talaq, ila, zihar, lian,
1290 INDIAN LAW REPORTS ALLAHABAD SERIES
khula and mubaraat, maintenance,
dower, guardianship, gifts, trusts
and trust properties, and wakfs
(other than charities and charitable
institutions and charitable and
religious endowments) the rule of
decision in cases where the parties
are Muslims shall be the Muslim
Personal Law (Shariat).

13. The Hon'ble Supreme Court of
India while dealing with the issue of rights
of Muslim women regarding the dissolution
of marriage, in the case of Shayara Bano
versus Union of India, reported in (2017) 9
SCC 1, has been pleased to elaborate the
provisions of the Section 2 (ix) of The
Dissolution of Muslim Marriages Act, 1939
(Act VIII of 1939) which provides that a
woman married under the Muslim Law
shall be entitled to obtain a decree for the
dissolution of her marriage on the ground
which is recognised as valid for the
dissolution of marriages under Muslim
Law.

For ready reference, the relevant
paragraph of the said judgment is quoted
hereinafter:

145. A close examination of
Section 2, extracted above, leaves
no room for any doubt, that custom
and usage, as it existed amongst
Muslims,
were
sought
to
be
expressly done away with, to the
extent the same were contrary to
Muslim Personal Law. Section 2
also
mandated,
that
Muslim
Personal Law (Shariat) would be
exclusively adopted as "... the rule
of
decision..."
in
matters
of
intestate
succession,
specIal
property of females, including all
questions
pertaining
to
"...
personal property inherited or
obtained under contract or gift or
any other provision of "Personal
Law", marriage, dissolution of
marriage, including talaq, ila,
zihar, lian, khula and mubaraat,
maintenance, dower, gifts, trusts
and trust properties, and wakfs...".
Section 3 added to the above list,
"...
adoption,
wills
and
legacies...",
subject
to
the
declaration expressed in Section 3.
....................................
....................................
291. If
the
Muslim
Personal Law (Shariat) Application
Act, 1937, had incorporated the
manner
in
which
questions
regarding
intestate
succession,
special
property
of
females
including
personal
property
inherited or obtained under contract
or gift or matters such as marriage,
dissolution of marriage, including
talaq, ila, zihar, lian, khula and
mubaraat,
maintenance,
dower,
guardianship, gifts, trusts and trust
properties, and wakfs (as in Section 2
thereof), had to be dealt with, as per
Muslim Personal Law-"Shariat"
according to the petitioners, it would
be quite a different matter. All the
same, the Shariat Act did not describe
how the above questions and subjects
had to be dealt with. And, therefore,
for settlement of disputes amongst
Muslims, it would need to be first
determined what the Muslim Personal
Law, with reference to the disputation,
was. Whatever it was, would in terms
of Section 2 of the 1937 Act, constitute
"the rule of decision".

14. It is worth mentioning that
'The Dissolution of Muslim Marriages Act,
9 All. Smt. Hasina Bano Vs. Mohammad Ehsan
1291
1939 was enacted to give Muslim women
the right to divorce on certain conditions,
besides the Muslim Personal Law (Shiariat)
Application Act, 1937 was legislated so
that specific personal law be made
applicable to the Muslims, in certain
matters, eliminating the customary usages
of localised nature.

15. The Dissolution of Muslim
Marriages Act, 1939 assimilates principles
of Muslim Personal Law in codified form.
It would not be out of place to say that the
Holy Quran has provided ample safeguards
to women who are commanded to be dealt
with fairly on 'equitable terms', when a
dispute of some sort arises between
husband and wife. It is notable that prior to
the coming into force of 'The Dissolution
of Muslim Marriages Act, 1939'; Muslim
woman had a right to file a Suit before a
qazi or a judge, having authority and
sanction from the State or governing
agency in the area.

16. It is pertinent to flag at this
stage that the Family Court, in exercise of
its jurisdiction as per Explanation (b) of S.7
of the Family Courts Act, 1984, is duly
competent to endorse an extra-judicial
divorce and declare matrimonial status of a
person. Therefore, in the case of mubara'at,
the Family Court is competent to declare
'divorce', on being satisfied that both the
parties, so agreeing to dissolve their
marital-tie by mutual consent are major and
sane are acting by their own free will. The
declaration of the matrimonial status of the
parties
by
the
Family
Court
as
contemplated under Section 7 of the Family
Courts Act, 1984, is a judicial endorsement
of even the extra-judicial divorce.

17. The extra-judicial divorce by
way of mubara'at is complete, the moment
spouses enter into a lawful mutual
agreement
to
put
an
end
to
their
matrimonial tie. In the case of mubara'at, if
the Court is prima-facie satisfied that the
parties
have
duly
entered
into
a
mubara'at agreement, it shall endorse the
same and declare the status of the parties as
divorced by passing an order to that effect
as provided under Section 7 of the Family
Courts Act, 1984. Needless to observe that
it is always open to the parties to challenge
the validity of the aforesaid divorce in
accordance with law before the competent
forum and in the event where the divorce
itself is held legally unsustainable by
competent
authority
the
declaration
endorsing the extra-judicial divorce made
under Section 7 of the Family Courts Act,
1984 shall abide the said decision.

18. The said issue has been dealt
with in detail by 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. For ready reference,
paragraphs 4 and 5 of the said judgment is
reproduced hereinbelow:

"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
1292 INDIAN LAW REPORTS ALLAHABAD SERIES
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 cross-examination
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/talaq-e-tafweez,
it
shall endorse the same and declare
the status of the parties. In the case
of mubaarat, if the Court is prima
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
9 All. Smt. Hasina Bano Vs. Mohammad Ehsan
1293
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."

19. Now, having dealt with the
legal aspect of mubara'at under the Muslim
Personal Law, it would be apt to deal with
the findings as recorded by the learned
Additional Principal Judge, Family Court,
Jhansi, vide the impugned judgment and
order dated 10.10.2023, regarding the delay
in filing the Suit for declaration of the
dissolution of marriage. From a bare
perusal of The Family Courts Act, 1984, it
is abundantly clear that no period of
limitation is prescribed for a Suit or
proceeding for declaration of matrimonial
status of the parties as provided under the
Explanation appended to Section 7 of the
Family Courts Act, 1984. For convenience,
Section 7 of the Family Courts Act, 1984 is
quoted below:

"7. Jurisdiction. - (1)
Subject to the other provisions of
this Act, a Family Court shall-
(a) have and exercise all
the jurisdiction exercisable by any
district court or any subordinate
civil court under any law for the
time being in force in respect of
suits and proceedings of the nature
referred to in the explanation; and
(b) be deemed, for the
purpose
of
exercising
such
jurisdiction under such law, to be a
district court or, as the case may be,
such subordinate civil court for the
1294 INDIAN LAW REPORTS ALLAHABAD SERIES
area to which the jurisdiction of the
Family Court extends.
Explanation -- The suits
and proceedings referred to in this
sub-section
are
suits
and
proceedings
of
the
following
nature, namely:-
(a) a suit or proceeding
between the parties to a marriage
for a decree of nullity of marriage
(declaring the marriage to be null
and void or, as the case may be,
annulling
the
marriage)
or
restitution of conjugal rights or
judicial separation or dissolution of
marriage;
(b) a suit or proceeding for
a declaration as to the validity of a
marriage or as to the matrimonial
status of any person;
(c) a suit or proceeding
between the parties to a marriage
with respect to the property of the
parties or of either of them;
(d) a suit or proceeding for
an
order
or
injunction
in
circumstances arising out of a
marital relationship;
(e) a suit or proceeding for
a declaration as to the legitimacy of
any person;
(f) a suit or proceeding for
maintenance;
(g) a suit or proceeding in
relation to the guardianship of the
person or the custody of, or access
to, any minor.
(2) Subject to the other
provisions of this Act, a Family
Court shall also have and exercise-
(a)
the
jurisdiction
exercisable by a Magistrate of First
Class under Chapter IX (relating to
order for maintenance of wife,
children and parents) of the Code
of Criminal Procedure, 1973 (2 of
1974); and
(b) such other jurisdiction
as may be conferred on it by any
other enactment."

20. Looking into the factual matrix
of the case, this Court is of the view that
when the dissolution of marriage between
the parties by way of mubara'at to put an
end to their marital tie, by mutually
agreeing on their own free will is not in
dispute; the appellant and the respondent
were duly examined by the learned Trial
Court on 22.11.2021 as Witnesses (PW-1 &
PW-2)
wherein
they
admitted
the
dissolution of their marriage as well as the
execution of a jointly signed notarised
"Talaqnama Tehreer" dated 07.03.2000, the
finding recorded by the learned Additional
Principal Judge, Family Court, Jhansi to the
effect that the said 'Talaqnama' in-original
has not been filed by the appellant-plaintiff
along with the list of documents, is totally
unwarranted, and not sustainable in the
light of Section 58 of the Indian Evidence
Act, 1872, which provides as under:

"58. Facts admitted need
not be proved- No fact need not be
proved in any proceeding which the
parties thereto or their agents agree
to admit at the hearing, or which,
before the hearing, they agree to
admit by any writing under their
hands, or which by any rule of
pleading in force at the time they
are deemed to have admitted by
their pleadings.
Provided that the Court
may, in its discretion, require the
facts
admitted
to
be
proved
otherwise
than
by
such
admissions."
9 All. Smt. Hasina Bano Vs. Mohammad Ehsan
1295
21. Here it is also relevant to
mention that the 'Talaqnama Tehreer' dated
07.03.2000 in-original has been filed by the
appellant as additional evidence before this
Court
through
an
application
dated
27.05.2023, which has been allowed vide
order dated 29.05.2024, as the same has not
been disputed by the respondent.

22. Now, coming to the other
finding returned by the learned Additional
Principal Judge, Family Court Jhansi,
leading to the dismissal of the Suit that the
Suit in question is barred by limitation as
the same was instituted after a lapse of
about
20
years
from
the
date
of
commencement of the dissolution of
marriage is concerned, it would be apposite
to quote the relevant portion of the
impugned judgement and order dated
10.10.2023, which are reproduced as under:

^^3- ;kphx.k us viuk viuk 'kiFk
i= izLrqr dj dFku fd;k fd e/; rykd
gks pqdh gSA ;g okfn;k la0 1 dks
1]10]035@- :- izkIr gks pqds gS vc muds
e/; fdlh izdkj dk ysu nsu 'ks"k ugha gSA
4- ;kphx.k ds c;ku vafdr fd,
x, ,oa mUgsa lquk x;kA
5- ?kks"k.kkRed okn rFkk ;kphx.k
ds }kjk 'kiFki= o ekSf[kd lk{; ij fd;s
x;s dFku ds voyksdu ls ;g fofnr gksrk
gS fd ;kphx.k dk fookg eqfLye jhfr
fjokt ds vuqlkj fnukad 18-12-1984 dks
lEiUu gqvk FkkA ;kphx.k fnukad 16-071990 ls vyx vyx jg jgs gSA ;kphx.k ds
e/; vc dksbZ ysu nsu cdk;k ugha gSA
ftjg esa Hkh ih-MCyw&1] ih-MCY;w-&2 us dgk
gS fd ;kphx.k ds e/; fnukad 07-03-2000
dks eqfLye jhfr fjokt ds vuqlkj rykd gks
x;h ftlds laca/k esa ;kphx.k us rykd ukek
rgjhj dh Nk;kizfr izLrqr dh gS tks u lwph
ls nkf[ky gS vkSj u gh izekf.kr gSaA rykd
ukesa dh Nk;k izfr bl Lrj ij xzkg; ugh
gSA ;kphx.k ds vuqlkj mHk;i{k dk fnukad
7-3-2000 dks rykd gks pqdk gSA rFkk mlh
fnu rgjhj ukek cuok fy;k x;kA mDr
mn~?kks"k.kkRed okn fnukad 24-08-2021 dks
rykd gksus dh frfFk ls yxHkx 20 o"kZ ckn
lafLFkr fd;k x;k gS tks ifjlhek vf/kfu;e
1963 ls ckf/kr gSA vr% mDr okn ifjlhek
fof/k ls ckf/kr o vfHkizekf.kr lk{; u gksus
ds dkj.k Lohdkj fd, tkus ;ksX; ugha gSA
vkns'k
;kphx.k }kjk izLrqr ?kks"k.kkRed
okn fujLr fd;k tkrk gSA i=koyh
fu;ekuqlkj nkf[ky n¶rj gksA"

23.

The
aforesaid
finding
regarding the delay in seeking the relief of
declaration, leading to the dismissal of Suit
is unsustainable in view of the fact that the
Suit was instituted on the joint initiative of
the appellant and the respondent, wherein it
is the admitted case of the appellant as well
as the respondent that they are living
separately since 16.07.1990 and there
survives no conjugal relationship between
them. They decided to dissolve their
marriage on 15.11.1999, with their mutual
consent, by way of mubara'at as per the
Muslim Personal Law. Thereafter, on
07.03.2000,
the
appellant
and
the
respondent executed a jointly signed
notarised
document
as
"Talaqnama
Tehreer".

24. The Explanation appended to
the Section 7 of The Family Courts Act,
1984
bestows
jurisdiction
upon
the
concerned Family Court to entertain the
suit or proceeding for declaration as to the
validity of a marriage or as to the
matrimonial status of person concerned.
The Family court Act, 1984 does not
prescribe any period of Limitation in
respect of the suit or proceeding for
declaration of the matrimonial status of the
parties. Further, Section 29(3) of the
Limitation Act, 1963 very categorically
stipulates that 'save as otherwise provided
in any law for the time being in force with
respect to marriage and divorce, nothing in
1296 INDIAN LAW REPORTS ALLAHABAD SERIES
this Act shall apply to any suit or other
proceeding under any such law'. For ready
reference Section 29 of the Limitation Act,
1963 is quoted below:

"29- Savings.-(1) Nothing
in this Act shall affect section 25 of
the Indian Contract Act, 1872 (9 of
1872).
(2) Where any special or
local law prescribes for any suit,
appeal or application a period of
limitation different from the period
prescribed by the Schedule, the
provisions of section 3 shall apply
as if such period were the period
prescribed by the Schedule and for
the purpose of determining any
period of limitation prescribed for
any suit, appeal or application by
any special or local law, the
provisions contained in sections 4
to 24 (inclusive) shall apply only in
so far as, and to the extent to
which, they are not expressly
excluded by such special or local
law.

(3)
Save
as
otherwise
provided in any law for the time
being in force with respect to
marriage and divorce, nothing in
this Act shall apply to any suit or
other proceeding under any such
law.
(4) Sections 25 and 26 and
the definition of "easement" in
section 2 shall not apply to cases
arising in the territories to which
the Indian Easements Act, 1882(5of
1882(, may for the time being
extend."

25. The present case being a claim
for declaration of matrimonial status of the
parties as 'divorced' is undisputed, it is a
well settled law that where the legal status
of the parties is a continuing course of
event, a continuing and recurring cause of
action accrues each day. As has been
addressed in the preceding paragraphs the
declaration of the matrimonial status of the
parties
by
the
Family
Court
as
contemplated under Section 7 of the Family
Courts Act, 1984, is a judicial endorsement
of the extra-judicial divorce. In the case
of mubara'at,
if
the
Court
is primafacie satisfied that the parties with their free
will
have
duly
entered
a
mubara'at agreement, it shall endorse the
same and declare the divorced status of the
parties by passing an appropriate order to
that effect. Such a proceeding is not akin to
the adversarial litigation. The claim for the
declaration of the parties' marital-status,
strikes at the very core of society and if
such an undisputed declaratory claim is
elongated and haunted by the technical
ground of delay, the aim, object and the
very spirit of the said welfare legislation
shall be adversely sacrificed. It is settled
principle of law that when substantial
justice and technical consideration are
pitted against each other, the substantial
justice shall prevail over the technical
consideration. However, it goes without
saying that the courts are not to take a
liberal approach in condonation of delay in
the absence of sufficient cause. In any case,
it would be unnecessary to delve into this
debate any further in the light of the
categorical provision as stipulated under
Section 29(3) of the Limitation Act, 1963
that deals with the extent of applicability of
Limitation Act to any suit or proceeding
under any law with respect to marriage and
divorce. Accordingly, in view of the
deliberations made herein above it is
apparent that in view of the express
restriction as contemplated under the said
9 All. Smt. Hasina Bano Vs. Mohammad Ehsan
1297
Section
29(3)
no
provision
of The
Limitation Act, 1963 shall come in the way
to put any bar in respect of the suit or
proceeding for declaration of matrimonial
status as provided under Section 7 of the
Family Courts Act, 1984.

26. It would be appropriate at this
stage to note that the Hon'ble Supreme
Court in the case of Ajaib Singh versus
The Sirhind Co-Operative Marketing
Cum-Processing Service Society Limited
and Others, reported in (1999) 6 SCC 82,
has been pleased to observe that,

"11... It is not the function
of the court to prescribe the
limitation where the Legislature in
its wisdom had thought it fit not to
prescribe any period. The courts
admittedly interpret law and do not
make laws. Personal views of the
Judges presiding the court cannot
be stretched to authorise them to
interpret law in such a manner
which would amount to legislation
intentionally left over by the
Legislature..."
The High Court of Bombay
(Nagpur Bench) in the case of Skh.
Hafiz Skh. Habib versus State of
Maharashtra, reported in 2009 (1)
AIR Bom R 345, has held as under:
"26. If the law intends not
to prescribe limitation, it means so,
and this omission will have to be
respected as conscious omission
and there are no grounds coming
forward permitting to fill in the
alleged omission taking shelter of
Article 137 of the Limitation Act.
The law of Limitation has no
application to the right of a Muslim
Woman filing an application u/s.
3(1)(a) of the Muslim Women
(Protection of Rights on Divorce)
Act, 1986, it being a right of
recurring nature, and bar of
limitation is not laid down.
27. In these premises, this
Court holds that the Law of
Limitation has no application to the
right of a Muslim woman filing an
application under Section 3(1)(a)
of the Muslim Women (Protection
of Rights on Divorce) Act, 1986, it
being a right of recurring nature,
and bar of limitation is not laid
down."

27. Having come to the conclusion
that The Family Courts Act, 1984 does not
prescribe any specific limitation for filing a
suit or proceeding for declaration as to the
matrimonial status of any person, it would
be apt to consider whether the length of
delay as noticed by the learned Court
below, in filing the Suit in question could
be a valid ground for rejection of the same.

28. On the question as to whether
in the absence of an expressly prescribed
limitation under the Statute, can a suit or
proceeding be entertained, irrespective of
any passage of time? The Hon'ble Supreme
Court dealing with such a situation has held
that in the absence of a prescribed statutory
limitation, approaching the court, is to be
done within 'reasonable time'. There is a
catena of judgments where the Hon'ble
Supreme Court has been pleased to hold
that where the concerned Statute does not
prescribe
the
limitation,
the
rights
conferred therein must be exercised within
a 'reasonable time'. The issue of no express
limitation being provided under the statute
has captured the attention of the Hon'ble
Apex Court in the case of State of Punjab
and others versus Bhatinda District
Cooperative Milk Producers Union,
1298 INDIAN LAW REPORTS ALLAHABAD SERIES
reported in (2007) 11 SCC 363, wherein
the Hon'ble Apex Court has been pleased
to observe as under:

"18. It is trite that if no
period of limitation has been
prescribed, statutory authority must
exercise its jurisdiction within a
reasonable period. What, however,
shall be the reasonable period
would depend upon the nature of
the statute, rights and liabilities
thereunder
and
other
relevant
factors."

29.

For
the
purpose
of
determination of time period to be the
'reasonable period' the Hon'ble Apex Court
has provided the yard stick, in the case of
M/S North Eastern Chemicals Industries
(P) Ltd. and another versus M/S Ashok
Paper Mill (Assam) Ltd. and another,
reported in AIR 2024 Supreme Court 436,
wherein the Hon'ble Supreme Court has
been pleased to hold that in the absence of
a particular period of time being prescribed
under the statute, the same would be
governed by the principle of 'reasonable
time', for which, by virtue of its very
nature, no straitjacket formula can be laid
down and it is to be determined as per case
and circumstances of each case. The
parameter for determining the 'reasonable
time' in a particular case has been laid
down by the Hon'ble Supreme Court in the
following manner: