A.F.R.

Reserved

Neutral Citation No. - 2024:AHC:149103-DB

In Chamber

Case :- FIRST APPEAL No. - 495 of 2024

Appellant :- Smt Hasina Bano

Respondent :- Mohammad Ehsan

Counsel for Appellant :- Bhriguram Ji,Shashi Shekhar Maurya

Counsel for Respondent :- Nilesh Kumar Dubey

Hon'ble Vivek Kumar Birla,J.

Hon'ble Syed Qamar Hasan Rizvi,J.

(Per: 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.

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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. 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

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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

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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’ in-original 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. 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

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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 out-of-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

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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, 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.

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………………………………

………………………………

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, 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.

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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

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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 cross-examination of the parties are not

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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-e-tafweez 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

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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 area to which

the jurisdiction of the Family Court extends.

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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

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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.”

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

13

jhfr fjokt ds vuqlkj fnukad 18-12-1984 dks lEiUu gqvk FkkA ;kphx.k

fnukad 16-07-1990 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

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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 prima-

facie satisfied that the parties with their free will have duly entered a

mubara’at agreement, it shall endorse the same and declare the divorced

15

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 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…”

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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

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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,

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:

“In light of above discussion, it is clear that when a Court is

seized of a situation where no limitation stands provided

either by specific applicability of the Limitation Act or the

special statute governing the dispute, the Court must

undertake a holistic assessment of the facts and circumstances

of the case to examine the possibility of delay causing

prejudice to a party. When no limitation stands prescribed it

would be inappropriate for a Court to supplant the

legislature’s wisdom by its own and provide a limitation,

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more so in accordance with what it believes to be the

appropriate period. A court should, in such a situation

consider in the facts and circumstances of the case at hand, the

conduct of the parties, the nature of the proceeding, the length

of delay, the possibility of prejudice being caused, and the

scheme of the statute in question. It may be underscored here

that when a party to a dispute raises a plea of delay despite no

specific period being prescribed in the statute, such a party

also bears the burden of demonstrating how the delay in itself

would cause the party additional prejudice or loss as opposed

to, the claim subject matter of dispute, being raised at an

earlier point in time.” (emphasis supplied by us)

30. In the present case, having regard to the factual matrix of the case, as

taken note of above, the parties to the suit cannot be said to have

transgressed the boundaries of reasonable time in approaching the

learned Family Court having jurisdiction by jointly filing the suit for

declaration as to their matrimonial status, for the obvious reason that the

parties by way of mubara’at put an end to their marital-tie by mutually

agreeing on their own free will, all the more the factum of divorce in the

instant case is not in dispute giving rise to the cause of action being of

recurring nature. Thus, the prayer sought for by the parties by jointly

filing the Suit for declaration of their matrimonial status as divorced

ought to have been granted by the learned Family Court. The finding

recorded by the learned Additional Principal Judge, Family Court,

Jhansi that Suit in question is barred by limitation having being

instituted after a lapse of about 20 years from the date of

commencement of the dissolution of marital-tie, is unsustainable in the

eyes of law, in the teeth of the categorical provision as stipulated under

Section 29(3) of the Limitation Act, 1963 and also not being in

consonance with the parameters laid down by the Hon’ble Supreme

Court of India, as narrated in the preceding paragraphs, regarding the

assessment of the reasonableness of the length of delay, if any.

Accordingly, the order of dismissal of the Suit dated 10.10.2023 based

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upon the unwarranted findings recorded in the impugned judgment is

liable to be set-aside.

Order

1. The appeal is allowed. The impugned judgment and order dated

10.10.2023 and the decree dated 19.10.2023 passed by the Additional

Principal Judge, Family Court, Jhansi in Declaration Case No.687 of

2021, are hereby set-aside. The Suit for declaration of the matrimonial

status is decreed. Accordingly, the matrimonial status of the parties is

hereby declared as ‘divorced’.

2. However, the parties to bear respective cost.

3. Since this appeal has been decided with the mutual consent of the

parties, hence no useful purpose would be served to retain the original

‘Talaqnama Tehreer’ dated 07.03.2000 on record. Accordingly, the

Registry is directed to return the same in-original to the appellant after

retaining a photocopy of the same on record, in accordance with the

Rules.

4. The Registry is further directed to return the lower court record to the

court concerned.

Order Date :- 12.9.2024

Abhishek Gupta

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