DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY
Final Draft

FAMILY LAW
MUBARAT Divorce by mutual consent in Muslim
law

Submitted

To:-

Compiled By:Ms.

Samreen

Hussain

Arjun Gupta.
Asstt.

Professor

(LAW)

Roll No. 31

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RMLNLU

Faculty.

4TH Sem. Sec. A

ACKNOWLEDGEMENT

My Family Law project and presentation was based on the topic Divorce by mutual
consent in Muslim Law Mubarat .
I would really like to thank Ms. Samreen Hussain (Associate Professor Law, RMLNLU)
for giving me such wonderful topic to research on and prepare a research paper. She
also guided me throughout the process of the making of the draft.
I would also like to thank God for giving me strength to complete my final draft. I
would like to thank my mother for encouraging me to work on the topic. Last but
not the least I would like to thank my friends who helped me to find more on the
topic and prepare a research paper of my best efforts.

ARJUN GUPTA
ROLL NO. 31

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Table of Contents

1.
2.
3.
4.
5.
6.
7.

INTRODUCTION.4
HISTORY OF DIVORCE5
CONCEPT OF MUBARAT.6
CASES DISCUSSED.7
QUESTIONNAIRE8
CONCLUSION9
BIBLIOGRAPHY10

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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 permitted 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 better 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
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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.

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 permitted to
divorced parties three distinct and separate periods in which they might try to reconcile their
differences but should all attempts 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

1 Bhartiya V. P. Muslim Law, ed. 5, pp. 104.

2 Ibid.
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power. But experience shows that greater suffering is endangered by the husbands
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 Baqrah3, 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 attempted 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
3 The Holy Quran,Text,Translation and Commentary by Abdullah Yousaf Ali,Sh.Mohammad
Ashraf Publishers & book sellers, Surah Al-Baqrah
4 Ibid.
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acceptance by the 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 Din6 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 Quran) 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
5 Bhartiya V. P. Muslim Law, ed. 5.
6 AIR 1945 Lah. 51
7 http://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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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 wifes 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 getting 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.
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
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wanted to spit on each others faces. Such dislike between the spouses should prove to be
a reasonable ground for the spouses to get divorce by mubarat.

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.

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BIBLIOGRAPHY
For making the project/research paper the following sources have been reffered to:
BOOKS

Bhartiya, V. P. Muslim Law. Lucknow: Eastern Book Company, ed. 5, 2014.

Kohli, H. D. Muslim Law Cases and material Delhi: Universal Law Publication.

ONLINE SOURCES

http://heinonline.org/HOL/Page?
handle=hein.journals/modlr30&div=32&g_sent=1&collection=journals

[Accessed on 20th March 2015.]

The Holy Quran,Text,Translation

Ali,Sh.Mohammad Ashraf Publishers & book sellers, Surah Al-Baqrah

http://alhassanain.com/english/book/book/beliefs_library/religions_and_sects/the_ori

and

Commentary

by Abdullah

Yousaf

gin_of_shitte_islam_and_its_principles/008.html [Accessed on 19th March 2015]

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