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Judgment
Mr. A.M. Shaffique, J.—This Original Petition is filed challenging Ext.P3 by which a compromise petition filed by the parties to the case had been rejected by the Family Court observing that a compromise entered into between the parties to dissolve the marriage by a decree of Court is against law and public policy.
Parties are Muslims and the OP was filed by the wife seeking for divorce under Section 2(iv) and (viii)(a) of the Dissolution of Muslim Marriage Act. During the pendency of the OP, parties entered into a compromise which is produced as Ext.P2 (IA No.51/2017). By virtue of the agreement, the parties decided that there is no objection in granting a decree dissolving the marriage between them. Other materials relating to the gold ornaments etc., were also finally settled between them. When the OP(FC) No.115/17 compromise petition was filed before the Court, the Court observed that there is no provision in the Act to dissolve a marriage other than on the ground specified under Section 2.
Learned counsel submits that Muslim marriages can be settled by mutual consent as well and it is clearly provided under Section 2(ix) that dissolution of marriage is possible. In fact a marriage between a Muslim pair can be dissolved in the form of an agreement also as provided which is permitted as khula and mubara''at. Commentary of Mulla Principles of Mahomedan Law, 20th Edition refers to the same under para 319, which reads as under:-
"319. Khula and mubara'' at (1) A marriage may be dissolved not only by talak, which is the arbitrary act of the husband, but also by agreement between the husband and wife. A dissolution of marriage by agreement may take the form of khula or mubara'' at."
As far as the agreement is concerned, it can also be termed as khula which is executed between the parties and therefore in terms of Section 2(ix), the residuary clause, the Court is entitled to grant a decree. OP(FC) No.115/17
Accordingly, this Original Petition is allowed as under:-
(i) Ext.P3 is set aside.
(ii) The Family Court shall take note of the agreement between the parties in IA No.51/2017 and issue a decree of divorce as sought for in the compromise.
(iii) The presence of the parties may be dispensed with for the purpose of granting a decree.