1

BAHRIA UNIVERSITY
ISLAMABAD

Subject: (IPL-1)
Topic: LEGAL STATUS OF DISSOLUTION OF MARRIAGE WITH
MUTUAL CONSENT OF PARTIES UNDER ISLAMIC LAW
Submitted To: Ms. Zartasha
Submitted By:
1) Rida e Zahra (Introduction and Modes of Divorce)
2) Muhammad Salal Khan (Divorce by Mutual Agreement (1)Khula)
3) Jahangir Shah ((2)Mubarat)
4) Abdul Razzaq (Difference between Khula and Mubarat)
5) Fareeha Jamil (Dissolution of Marriage According to Muslim Marriage Act
1939 – Section 02) (What will be the legal effects of divorce)
6) Mumtaz (Conclusion)
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TABLE OF CONTENTS:
INTRODUCTION (Rida e Zahra)……………………………………………………………………...1

MODES OF DIVORCE ..........................................................................................................................3

DIVORCE BY HUSBAND .....................................................................................................................4

TALAQ ........................................................................................................................................4

Express Talaq: .............................................................................................................................5

Talaq e Ahsan: .............................................................................................................................5

Talaq e Hasan ..............................................................................................................................5

Talaq e Biddat:.............................................................................................................................5

ILA:..............................................................................................................................................5

ZIHAR: ........................................................................................................................................5

DIVORCE BY WIFE ..............................................................................................................................6

TALAQ E TAFWEEZ .................................................................................................................6

LIAN: ...........................................................................................................................................6

DIVORCE BY MUTUAL AGREEMENT .............................................................................................6

KHULA:(M.Salal Khan) .............................................................................................................6

Mubarat:(Jahngir Khan)...............................................................................................................7

DIFFERENCE BETWEEN MUBARAT AND KHULA(Abdul Razzaq) ..............................................7

DISSOLUTION OF MARRIAGE ACCORDING TO MUSLIM MARRIAGE ACT 1939(Fareeha

Jamil) .......................................................................................................................................................8

WHAT WILL BE THE LEGAL EFFECTS OF DIVORCE ...................................................................9

CONCLUSION (Mumtaz).......................................................................................................................9
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LEGAL STATUS OF DISSOLUTION OF MARRIAGE WITH

MUTUAL CONSENT OF PARTIES UNDER ISLAMIC LAW

INTRODUCTION
The combination of husband and wife is necessary for a happy married life. Therefore, Islam
describe that the breach of marriage contract should be avoided except in unfortunate
circumstances. One way of dissolution of marriage is by way of divorce. Under the Muslim
Law, it can be done by act of both parties or by order of the court of Law.

The Holy Prophet PBUH stated that among the things which have been permitted by Law,
the divorce is the worst. It should be avoided as soon as possible but there are certain
circumstances in which it becomes impossible for parties to carry on the marriage then it is
better for them to get separated rather than to live in hatred towards each other. 1

MODES OF DIVORCE
A husband can divorce his wife without giving any reason. The pronouncements of such
words are necessary which show his intentions to disown the wife. It is done by talaq but the
husband can also divorce his wife through Ila or Zihar which are different from Talaq. The
wife cannot divorce the husband except in a case where the Husband has delegated such
powers to the wife due to mutual agreement. A wife can also divorce the husband by Khula
or Mubarat.

Following are the categories of divorce under the Muslim Law.

• Extra Judicial Divorce

• Judicial Divorce.

The Extra Judicial Divorce is further divided into the types.

• By husband i.e. Talaq, Ila, Zihar

• By Wife i.e. Talaq-e-Tafweez, Lian

1
Share Slide, 'Dissolution Under Muslim Law' (Dissolution Of
Marriage, 2018) <https://www.slideshare.net/satyavrat1994/divorce-under-muslim-law> accessed 19 April
2020
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• By Mutual Agreement i.e. Khula And Mubarat 2

DIVORCE BY HUSBAND
• TALAQ: Talaq basically means dissolution. It’s literal meaning is setting
free. Under Muslim Law, it means freedom from the bond of marriage. In
legal sense, it means dissolution of marriage by husband by pronouncing
appropriate words.

According to Sunnis, talaq can be expressed or implied but according to Shia

school of thought, they only recognize express and delegated talaq.

Following are the conditions for a valid talaq.

• Capacity: Only a person of sound mind which has attained age of puberty can
pronounce talaq. A person who is minor or have unsound mind cannot talaq
and a talaq given by minor or unsound mind is void. Furthermore, a guardian
cannot give talaq on the behalf of minor. In case if the husband is lunatic then
the talaq given by him in the period of (Lucid Interval) will be valid. When it
comes to insane person, if the insane person has no guardian then the Qazi or
Judge have right to Dissolve the marriage.
• Free Consent: The husband consent in pronouncing talaq should be of free
consent except in Hanfi law. The Hanfi School consider the talaq valid which
is given under undue influence, fraud and intoxication etc.
• Shia And Sunni Law: Under both schools, the talaq pronounced due to undue
influence, fraud or intoxication is void and it does not dissolve the marriage.

According to Sunni Law, the husband can pronounce talaq by oral words or in writing. Any
expression which show his intentions to break the marriage is sufficient and the witnesses are
not necessary in Sunni Law but according to Shia School, the talaq should be pronounced
orally except where the husband is unable to speak. If the husband can speak but gives in
writing then it will be void and the presence of two witnesses is necessary in Shia Law.

Furthermore, the words of talaq should clearly show the intention of husband to dissolve the
bond of marriage. If the words are not clear then it will be void.

2
ibid
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• Express Talaq: It is a form where the husband clearly utter I have divorced you. It
has two categories.

It is categorized into:

❖ Talaq e Ahsan: It is a most proper form of talaq. It basically consist of single

pronouncement of divorce which is made in the period of tuhr i.e. ( Period Of
Cohabitation). And if the husband does not cohabit with his voice during the iddat
period ( 3 months ) then the marriage will be dissolved and if the husband resume
cohabitation before the completion of iddat or say that I have retained you then it
will result it revocation of divorce.
❖ Talaq e Hasan: It is proper form of talaq. In this form, the husband have to
pronounce talaq during three tuhrs. If the conjugal rights are resumed then talaq is
cancelled. It becomes revocable if the husband resume cohabitation before the 3rd
pronouncement.
❖ Talaq e Biddat: It means sinful. It consist only under Sunni law and Shia law
don’t recognize it. There is no time for reconciliation. In this form, the husband
pronounce talaq talaq talaq three times and marriage is dissolved.

• ILA: In this form, the husband take a oath that he will not cohabit with his wife. By
following the oath, the husband does not cohabit with the wife for a period of 4
months then the marriage dissolves and it is not revocable but if the husband resume
cohabitation before the expiry of 4 months then the marriage does not dissolve.
But according to Shia school, they don’t consider Ila as a divorce without the order of
court of Law. According to them, after the expiry of 4 months, the wife is entitled for
Judicial divorce.
• ZIHAR: In this form, the husband consider his wife within his prohibit relations by
saying that from today you are like my mother or sister and does not cohabit with the
wife for 4 months then after the expiry of 4 months the Zihar is complete and wife can
go the court for judicial divorce. If the husband revoke it before the expiry of 4
months then husband have to free a slave, give food to 60 needy people or observe a
fast for 4 months.3

3
Gupta Setu, 'Concept of Divorce' [2015] 1(1-9) Divorce Under Muslim Law
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DIVORCE BY WIFE
• TALAQ E TAFWEEZ: In this form of divorce, the husband can delegate his power
of divorce to the wife absolutely or condition, temporarily or permanently. A
permanent delegation is revocable but temporary delegation of power is not
revocable.
• LIAN: The wife have right to divorce if the husband if the husband put false charges
of adultery against his wife which leads to character elimination then wife have the
power to ask for divorce.

DIVORCE BY MUTUAL AGREEMENT

There are two forms of divorce by mutual agreement which are Khula and Mubarat and in
one of them, a wife has to part with her dower or with part of some property.

❖ KHULA:Khula basically means that to get rid of each other. In khula, the wife
seek divorce from her husband by surrendering the dower. If the husband gives
consent then it results in an irrevocable divorce and the wife have to observe the
iddat period i.e. 3 months.

Quran lays down about khula “And if you fear they (Husband And Wife ) may not be able to
keep within the limits of Allah, in that case it is no sin for either of them if the women
releases herself by giving something to the husband”

Following are the essentials for a valid khula.

1) Competence of parties: It basically means that both spouses should have sound mind
and they should have attained age of puberty.
2) Free consent: it means that the offer made by wife and acceptance made by husband
should be with free consent of both parties.
3) Formalities: The offer of khula should be made by wife and it should be accepted by
husband either in oral or in writing and it should be made in one sitting which means
that at one place of meeting.
4) Consideration: For khula, the wife have to give something to the husband i.e. she have
to surrender her mahr.
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❖ Mubarat: The literal meaning of Mubarat is to obtain release from each other. In
Mubarat, both husband and wife seek divorce from each other happily. In
Mubarat, the offer can be made by the husband or by the wife.

According to the Sunni school, when the parties enters intro Mubarat, all their rights and
duties comes to an end. According to Shia school, the word Mubarat should follow the word
talaq and the pronouncement should be in Arabic unless the parties are not able to pronounce
Arabic words then intentions to divorce should be clear and according to both Shia and Sunni
School, the Mubarat is considered as irrevocable divorce and the wife have to observe the
iddat period like she do in Khula.

According to Hanfi Law, the Mubarat is equal to one irrevocable pronouncement of talaq
which makes it necessary for both spouses to contract a fresh marriage with each other if they
want to resume a marital relationship.

If the offer of Mubarat is made by the husband then it cannot be taken back. It depends on the
wife to accept the offer or to reject the offer but if the offer of Mubarat is made by the wife
then it can be taken back before the acceptance is made by the husband. As Mubarat require
consent of both parties so if any party lack intention to dissolve the marriage then it can be
void.4

DIFFERENCE BETWEEN MUBARAT AND KHULA

When it comes to the difference, there is not much difference between the both. In Khula, the
wife seeks divorce from the husband by surrendering the dower or Mahr and husband gives
the consent but in Mubarat, the offer can be made by the husband or by the wife and they
both desire to end their marriage relationship. So when husband and wife enters into a
Mubarat, then their rights and duties as husband and wife comes to an end. 5

There are certain questions regarding Mubarat which are discussed below.

• Whether Mubarat is equal to talaq: After confirming from Islamic scholars and
experts, it has been stated that Mubarat is not equal to talaq and it is a separate thing.
In talaq, husband can revoke the divorce and there is a chance to live again together

4
ibid
5
Law Iqbal, 'Distinction Between Khula And Mubarat' (Iqbal law
services, 2019) <http://iqballawservices.com/distinction-between-khulla-and-mubarratmutual-
divorce/> accessed 19 April 2020
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but Mubarat cannot be revoked and the offer can be made by either one of them or
both.
• On the question of consideration: There is no consideration given by either party as
it is a divorce by mutual consent of husband and wife but the wife have to observe the
iddat period i.e. for 3 months.
• Divorce by consent: As Mubarat is a divorce by consent of both husband and wife.
So if a husband refuse to divorce then it will be considered as zulm done by the
husband on wife and then the Qazi at the court will give the final decision i.e. whether
to give the wife divorce or not.
• Mubarat can be obtained on which grounds: If the husband and wife fail to live
happily with each other and they develop extreme hatred towards each other than
Mubarat can be obtained on following grounds. 6

DISSOLUTION OF MARRIAGE ACCORDING TO MUSLIM MARRIAGE

ACT 1939
Section 2 of the Muslim Marriage Act 1939 state that a women which is married under
Muslim Law shall have a right to go for judicial divorce on the following grounds.

• If whereabouts of husband is not known for 4 years: It basically means that if the
husband went missing for a period of 4 years then a wife can file a suit along with the
name and addresses of all the legal heirs of the husband upon his death for dissolution
of marriage. Then the court issue notice to all people to appear in the court as if they
have any knowledge about the husband. If no one knows about the husband then the
court give decree to this effect which becomes effective after 6 months and in case if
before the expiry of 6 months, the husband came back then the marriage is not
dissolved.
• That the husband has failed to provide maintenance for 2 years: It is the legal
duty of husband to provide maintenance to his wife. In case if he fails to do so then
the wife can get divorce on this ground. In case if the wife is living alone without any
legal excuse then she is not entitled for judicial divorce in the case of husband failure
to maintain her because it was her own conduct to live separate.

6
Gupta Arjun, 'Divorce by mutual consent - Mubarat' (Divorce by Mutual Consent, 22
March) <https://arjungupta1993.wordpress.com/2015/03/22/divorce-by-mutual-consent-in-muslim-law-
mubarat/> accessed 19 April 2020
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• That the husband has been sentenced to imprisonment for period of 7 years: If
the sentence of the husband becomes final then the wife right for judicial divorce
begins. As a result, the court can give decision in her favour only after the expiry of
the date of appeal by husband or when the husband appeal is dismissed.
• That the husband fail to perform his marital obligation for 3 years: There are
certain conjugal rights for a women. But if the husband was impotent at the time of
marriage and continue to be, then a wife can go for judicial divorce and wife has to
prove that husband was impotent at that time of marriage and continue to be till filing
of suit.
• That the husband treats her with cruelty: If the husband assaults her, force her to
live an immoral life, dispose of her property of if he has more than one wives and
does not treat equal7

WHAT WILL BE THE LEGAL EFFECTS OF DIVORCE

Following will be the legal effects of divorce under Muslim Law.

• Cohabitation between spouses becomes unlawful.

• Wife have to observe iddat period for 3 months and if she is pregnant at that time then
iddat period last till she give birth to her child and if the divorce was before
consummation then there is no need for wife to observe iddat period.
• During the iddat period, it is the duty of her former husband to maintain her.
• The husband has to pay unpaid dower immediately to his divorced wife.
• Both spouses are free to conduct another marriage. 8

CONCLUSION
If the husband demands a divorce then the divorced wife keeps her mahr and all the gifts and
property which was given under the marriage contract. Moreover, she is also given the child
support and then the child custody is settled by the family courts. The women right to get
divorce is limited as compared to men. Men can divorce their women easily whenever they
want at their will but women can only ask for divorce when husband’s inability to support her

7
Lawyers Pakistan, 'Dissolution Of Muslim Marriage Act 1939' (Pakistan Lawyers Easy Access To Justic, 2
March 2019) <https://pakistanlawyer.com/2019/04/06/dissolution-of-muslim-marriages-act-1939/> accessed 19
April 2020
8
Share Slide, 'Dissolution Under Muslim Law' (Dissolution Of
Marriage, 2018) <https://www.slideshare.net/satyavrat1994/divorce-under-muslim-law> accessed 19 April
2020
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life is admitted. As a result, this controversial religious practice is challenged by those

promoting liberal interpretations of Islam.

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