7/16/2020 Divorce by Mutual Consent in Muslim Law – MUBARAT | arjungupta

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Divorce by Mutual Consent in Muslim Law –

MUBARAT

March 22, 2015March 22, 2015 arjungupta1993

INTRODUCTION

Firm union of the husband and wife is a necessary condition for a happy family life. Islam therefore,
insists upon the subsistence of a marriage and prescribes that breach of marriage contract should be
avoided. Initially no marriage is contracted to be dissolved but in unfortunate circumstances the
matrimonial contract is broken. One of the ways of such dissolution is by way of divorce. Under Muslim
law the divorce may take place by the act of the parties themselves or by a decree of the court of law.
However in whatever manner the divorce is effected it has not been regarded as a rule of life. In Islam,
divorce is considered as an exception to the status of marriage. The Prophet declared that among the
things which have been permi ed by law, divorce is the worst. Divorce being an evil, it must be avoided
as far as possible. But in some occasions this evil becomes a necessity, because when it is impossible for
the parties to the marriage to carry on their union with mutual affection and love then it is be er to
allow them to get separated than compel them to live together in an atmosphere of hatred and
disaffection. The basis of divorce in Islamic law is the inability of the spouses to live together rather than
any specific cause (or guilt of a party) on account of which the parties cannot live together.

There are two forms of divorce by mutual consent, in both the woman has to part with her property.
One is the “khula” divorce and the other one is the “mubarat” form of divorce. In mubarat, the feature
is that both the parties desire divorce. Thus, the proposal may emanate from either side. In mubarat
both, the husband and the wife, are happy to get rid of each other . Among the Sunnis when the parties
to marriage enter into a mubarat all mutual rights and obligations come to an end. The Shia law is
stringent though. It requires that both the parties must bona fide find the marital relationship to be
irksome and cumbersome. Among the Sunnis no specific form is laid down, but the Shias insist on a
proper form. The Shias insist that the word mubarat should be followed by the word talaq, otherwise no
divorce would result. They also insist that the pronouncement must be in Arabic unless the parties are
incapable of pronouncing the Arabic words. Intention to dissolve the marriage should be clearly
expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other requirements are the same as in
khula and the wife must undergo the period of iddat and in both the divorce is essentially an act of the
parties, and no intervention by the court is required.

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History of Divorce in Muslim Law:

Among the pre – Islamic Arabs, the power of divorce possessed by the husband was unlimited. They
could divorce their wives at any time with or without any reason. They could also revoke their divorce,
and divorce again whenever they felt convenient. They could arbitrarily accuse the wife of adultery and
dismiss them while they themselves would go exempt from any responsibility of maintenance or legal
punishment.

The prophet of islam looked on these customs of divorce, with extreme disapproval and regarded their
practice as calculated to undermine the foundation of society. However, the existing condition of the
society was very difficult to abolish. Accordingly, he allowed the exercise of the power of divorce to
husbands under certain conditions. He permi ed to divorced parties three distinct and separate periods
in which they might try to reconcile their differences but should all a empts at reconciliation prove
unfruitful, then in the third period the divorce becomes effective.[1]

The reforms of Prophet Mohammad marked a new departure in the history of Eastern legislation. He
restrained the unlimited power of divorce by the husband and gave to the woman the right of obtaining
the separation on reasonable grounds.

An effective check placed by Islam on frequent divorce and remarriage was that in case of irrevocable
separation, it is essential for remarriage that the wife should marry another man, and this marriage
should be consummated before divorce and the wife should observe the period of iddat. This new
procedure rendered the divorce to fewer in number as compared to before that time.[2]

The greatest defect of the Islamic system is the absolute power given to the husband to divorce his wife
without any reasonable cause. Dower to some extent restricts the use of this power. But experience
shows that greater suffering is endangered by the husband’s withholding divorce than by his
irresponsible exercise of the right.

MUBARAT:

The literal meaning of the word Mubarat is ‘obtaining release from each other.’ It is said to take place
when the husband and wife, with mutual consent and desire, obtain release and freedom from their
married state. The offer for separation in mubarat may proceed either from the wife or from the husband
and as soon as it is accepted dissolution is complete. It takes effect as one irrevocable divorce without the
aid of the court. Under Hanafi law, mubarat is equivalent to one irrevocable pronouncement of talaq,
making it necessary for the parties to contract a fresh marriage with each other if they wish to resume a
marital relationship.

According to the holy Quran; the basis of Mubarat is Surah – al – Baqrah[3], it is given in the
book, “that there is danger in mubarat, just as with all forms of divorce, to which the parties might act
hastily, then repent, and again wish to separate. To prevent such capricious action repeatedly, a limit is
prescribed. Two divorces (with a empted reconciliation in between) are allowed. After that the parties
must definitely make up their minds, either to dissolve their union permanently or to live together in
mutual love and forbearance”.[4] If the husband is the one who makes the initial offer of a mubarat, his
offer may not be retracted. It is up to the wife, then, to either accept or reject this offer. This is primarily
because this offer by the husband is deemed equivalent to an oath of repudiation, which becomes
effective immediately when the wife signifies her acceptance of the offer. On the other hand, if the wife
makes the initial offer of a mubarat, she may retract her offer at any time before acceptance by the

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husband. Since mubarat requires consent of both parties to the marriage contract, the agreement to
divorce may be voidable if either or both the parties lacked the necessary intent or have been induced
into acceptance by fraud or duress.

While in the Khula divorce, the request proceeds from the wife to be released and the husband agrees for
certain consideration, usually the mahr, in mubarat apparently both are happy at the prospect of being
rid of each other. No formal form is insisted on for mubarat by the Sunnis. The offer may come from
either side. When both the parties enter into mubarat all mutual rights and obligations come to an end.
[5]

At first in the Indian sub – continent the form of Khula talaq and mubarat were not recognised as form of
a valid talaq acoording to law. It was in the case of Mst. Umar Bibi v Muhammad Din[6] that the concept
of mubarat was recognised and brought in the fore front.

“So, the second khalifa, Umar, shut up a petitioning wifein a filthy room for three days and three nights
in order to determine the extent of revulsion. On being taken out, the Khalifa enquired as to how she
had fared, and she replied, “By Allah, these three days have been the only days of peace of my life since
marriage.”

The divorce was subsequently given in this case. The judge relied on the spoken words of the wife.[7]
The judge decided that even where there was mutual dislike or extreme incompatibility of temperament
between husband and wife there can be mubarat, sukoon, and rehmat in the married life (declared to be
objectives of marriage by the Qur’an) with the procreation of children.

In the case of Mst. Sayeeda Khanam v. Muhammad Sami[8], it was decided that “incompatibility of
temperaments, aversion or dislike cannot form a ground for a wife to seek dissolution of her marriage at
the hands of a Qazi or court, but is to be dealt with under the powers possessed by the husband and the
wife under Muslim law, as parties to the marriage contract”. This case defined khula as dissolution of a
marriage by agreement between the parties for a consideration paid or to be paid by the wife to the
husband. It was necessarily a case of mubarat.

Some relevant contentions made:

1. On whether mubarat is equivalent to talaq: it has been discussed profoundly and confirmed by the
Islamic experts that mubarat is not equivalent to talaq, but a category separate. In talaq, the
husband/spouses can revoke the divorce and can live peacefully again but mubarat is an irrevocable
form of divorce and cannot be reverted back.

Also in talaq, the husband takes the initiative of divorce but in mubarat the initiation of divorce can be
from wife’s side too.

2. On the question of consideration: on the question of consideration; it has been confirmed that
because it is a divorce by mutual consent; no consideration should be given to either of the spouses.
Also the period of iddat has to be observed by the wife before ge ing separated.

3. Divorce by consent: it has been confirmed that, the divorce of mubarat should be affiliated from both
the sides, if the husband refuses to divorce his wife then the concept of mubarat would fail, and it
would be zulm done by the husband on her wife. In such cases, the qazi present at the courts would
have their final say.

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4. On what grounds can mubarat be claimed by the spouses: if the spouses develop extreme, intense
dislike for each other, in one case it was confirmed that the spouses wanted to spit on each other’s
faces. Such dislike between the spouses should prove to be a reasonable ground for the spouses to get
divorce by

Conclusion

From the research paper made and studied about the concept and procedure of mubarat as a concept of
divorce in muslim law, it has been known that a wife can also ask for divorce by the husband under the
twin concepts of khula and mubarat. The wife under the Islamic law has been given an equal opportunity
like the husband to initiate and pronounce divorce on her husband. If the husband gives the consent
then the divorce under mubarat is commenced. There is no question of consideration it being a mutual
break up of marriage tie.

The spouses can ask for divorce under mubarat if there is a continuous hatred between them and they are
failing to continue their marriage bond. Relevant cases show that how the concept of mubarat evolved in
the Indian sub – continent.

The divorce under mubarat have always been considered as separate from the normal talaq.

[1] Bhartiya V. P. “Muslim Law”, ed. 5, pp. 104.

[2] Ibid.

[3] ‘The Holy Quran’,Text,Translation and Commentary by Abdullah Yousaf Ali,Sh.Mohammad Ashraf
Publishers & book sellers, Surah Al-Baqrah

[4] Ibid.

[5] Bhartiya V. P. “Muslim Law”, ed. 5.

[6] AIR 1945 Lah. 51

[7] h p://heinonline.org/HOL/Page?
handle=hein.journals/modlr30&div=32&g_sent=1&collection=journals (h p://heinonline.org/HOL/Page?
handle=hein.journals/modlr30&div=32&g_sent=1&collection=journals)

[8] PLD 1952 (WP) Lah 113 (FB)

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