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.

1
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

2
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

3
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

4
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

5
 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.

6
 ………………………………

………………………………

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.

7
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

8
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

9
 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

10
 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.

11
 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

12
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

14
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…”

16
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

17
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,

18
 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

19
 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

20

Digitally signed by :-
ABHISHEK GUPTA
High Court of Judicature at Allahabad