Gujarat HC rules in Muslim couple’s favour, sets aside Rajkot Family Court ruling on divorce

Gujarat High Court has clarified that under Muslim law, if a couple mutually decides to dissolve their nikah (marriage), they are free to do so through an oral agreement without the need for a written contract. Muslim Personal Law recognises the dissolution of marriage by mutual consent between husband and wife.

Based on this premise, a division bench of Justices A Y Kogje and N S Sanjay Gowda struck down as illegal a ruling by the Rajkot Family Court that had rejected a Muslim couple’s plea for divorce by mutual consent.

After studying literature and previous judgments on marriage dissolution under Muslim Personal Law, the high court found that there is no requirement for a written agreement to end a nikah through mutual consent, nor is there any tradition of recording such agreements or maintaining a register for this purpose.

The court also clarified that when two Muslims enter into a nikah, it is recorded in a register maintained locally by a recognised religious body. However, this is merely a record, and the nikahnama issued based on it only declares the marriage contract between two Muslims – it is not mandatory under personal law. Therefore, for divorce under Muslim law, expressing mutual consent is sufficient to dissolve the marriage.

The bench added that in the present case, when both husband and wife had agreed to end the marriage, their application before the Family Court was only to confirm the fact of divorce and formally declare the dissolution. The Rajkot Family Court erred in treating a written contract as a mandatory condition, as such a requirement is not supported by the Quran, Hadith, or established Muslim customs. The high court ruled that the Family Court’s reasoning regarding mandatory registration of such divorces was flawed. Allowing the couple’s appeal, the court set aside the lower court’s order.