From very early the muslim women have been at the mercy of there husband for almost everything especially in matrimonial issues which is the most important time for any person in almost every religion but society took sympathy and decided to step up for their women in dire need of support.This bring us to the state of marriage of muslim women in india which was recently the talk of the town during the infamous triple talak issue but what a lot of people might not know especially of different religion is that there are different ways spouses can have a divorce, some are initiated by only husband, some by only wife and one of them is mubarat which is mutual consent by both parties and can also be said to be the only law leaning towards equality among both parties rather than just husband most of the time.
Mubarat falls under the muslim personal law (shariat) application act, 1937 which can also mean getting free.There are different types of divorce in muslim law which can be initiated by only the husband, only wife or by either party and the divorce which can be initiated by either party is also called divorce by mutual consent or mubarat.
In shias, mubarat is mainly opted to set themselves free when both the parties are annoyed or have burdensome bonds with each other. For sunnis, all mutual rights and legal obligations come to an end.
Divorces can be initiated in three ways, one can be initiated by the husband known as talaq-ul-sunnat,talaq-ul-biddat,illa and zahar. talaq-i-tafweez, lian and khula is the second way initiated by the wife and third is mubarat, the way where both parties have the right.Mubarat is dissolution of marriage by mutual consent which can be initiated by either party. The proposal is made by one spouse and accepted by the other spouse.
In Sabah Adnan Sami Khan v. Adnan Sami Khan, 2010 iddat has been explained as,
“Iddat” has been described in Mulla’s Mahomedan Law, as the period during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or death to remain in seclusion, and to abstain from marrying another husband. The abstinence is imposed to ascertain whether she is pregnant by the husband, so as to avoid confusion of the parentage. When the marriage is dissolved by divorce, the duration of the iddat, if woman is subject to menstruation, is three course; if she is not so subject, it is three Lunar months. If the woman is pregnant at the time, the period terminates upon delivery. When the marriage is dissolved by death, the duration of the iddat is four months and ten days. If the woman is pregnant at the time, the iddat lasts for four months and ten days or until delivery, whichever period is longer (See : section 257, Chapter XIV in Mulla’s Mahomedan Law). The period of iddat prescribed by Muslim Law is 90 days.
The traditionally established rights of women regarding maintenance after dissolution of marriage, during iddat, are enforceable under the statutory laws of various Muslim countries.Wife gets maintenance during the iddat period and it’s not necessary for the husband to provide maintenance to the wife since the divorce was by mubarat but can also differ from case to case or if agreed beforehand by the parties. In the infamous mohd ahmed khan vs shah bano case supreme court ruled that divorced muslim women are entitled to claim maintenance from her husband under section 125 Cr.pc after the expiry of the iddat period as long as she does not remarry.
Under the Muslim Law, Mehr (dower) means money or property which the wife is entitled to receive from the husband in consideration of the marriage but this consideration is not the same as that of the civil contract. Dower is an obligation imposed upon the husband as a mark of respect for the wife. The major object of the dower is to provide wife for her subsistence after the dissolution of her marriage so that she may not become helpless after the death of the husband or termination of marriage by divorce. Mehr has also been considered as the part of maintenance while fixing the amount of maintenance under Section 125 of Criminal Procedure Code, 1973.
Since there is no clear cut definition as per Muslim Personal Laws regarding the dower (Mehr) amount, different High Courts and Supreme Court of India in different cases rendered different conceptions relating to Mahr.
Consideration can be in any form such as money or property, which can also be decided by the parties involved.There is a consideration which is given by one spouse to the other but since this is divorce by mutual consent there is no necessity for the wife to give up or offer anything to the husband.
Mubarat is considered an irrevocable from of divorce.An irrevocable divorce takes effect immediately after pronouncement of talaq unlike revocable divorce which takes effect after the iddat period.In the Hasan form it is mentioned a page 153, the procedure consists of three successive pronouncements during three consecutive of tuhr(period between two menstruation cycle).Therefore, we find the learned Author has made a distinction between single pronouncement of talaq and the talaq consisting of three successive pronouncements. According to the learned Author single pronouncement was the most former by no less a person than the Holy Prophet.
In Faiz Badruddin Tyabji’s ‘Muslim Law’. Fourth Edition, paragraph 143 on page 158 it is stated that pronouncement of talaq in the Ahsan mode is revocable. That means in the case of single pronouncement the marriage is revocable if during the period of idda, the husband co-habits with the wife. The Author has mentioned in paragraph 144 on page 159 the other form which is called Hasan and in which, there should be three successive pronouncements made during consecutive tuhrs (periods of purity) when after the third pronouncement, the divorce becomes irrevocable.
Nowhere in law or customs it is mentioned that parties need to give a reason for divorce. Parties do not have to disclose or have a reason for the divorce. If they think they are not having a good and happy life with each other they can just have a mubarat without giving any reason to anyone else.
Since muslim marriages are a contract form of marriage unlike hindu marriages there is no restriction on getting married again.There is no law stopping both parties from getting married again but if the husband wants to remarry his wife, the wife has to observe an iddat period to get officially married again.
A divorce can be judicial and extra judicial. In judicial divorces,court separate the husband and wife with them having not much say under the grounds established by law, custom or practices such as impotency,insanity,cruelty, failure to maintain the marriage for 2 years,conversion of one party into another religion, false accusation of adultery,husband sentenced to imprisonment,failure to perform marital obligation.Extra judicial means outside judicial proceedings or out of court authority, mubarat just like other forms of talaq is extra judicial and does not in general need interference of the court and the matters are also resolved without judicial proceedings as long as both spouses give their consent.
Supreme Court in the case of Mst. Zohara Khatoon v. Mohd. Ibrahim, (1981) 2 SCC 509, submits that mubarat is a form of extra-judicial divorce based on mutual consent under Islamic Law and same is valid, as it remains untouched by the Dissolution of Muslim Marriages Act.
The court gave a clear distinction between khula and mubarat as quoted below:-
“Sub-section (3) deals with Mubarat. A mubarat divorce like Khula, is a dissolution of marriage by agreement, but there is a difference between the origin of the two. When the aversion is on the side of the wife, and she desires a separation, the transaction is called Khula. When the aversion is mutual, and both the sides desires aseparation, the transaction is called mubarat. The offer in a mubarat divorce may proceed from the wife, or it may proceed from the husband, but once it is accepted, the dissolution is incomplete (sic) and it operates as a talak-i-bain as in the case of Khula. Sub-section (4) of provides that as in talaq, so in Khula and mubarat, the wife is bound to observe the iddat. In the commentary in Mulla’s Mahomedan Law, the distinction between Khula and Mubarat is clearly brought out. Khula means to put off, as a man is said to Khoola his garment when he puts it off. In law it is the laying down by a husband of his right and authority over his wife for an exchange, while Mubarat means mutual release. In respect of Pakistan, the distinction between Khuja and Mubarat is stated as follows:—
“In Khula, the marriage is dissolved by an agreement between the parties for a consideration paid, or to be paid, by the wife to the husband, it being also a necessary condition that the desire for separation should come from the wife. Where the desire for separation is mutual, there too dissolution by mutual agreement for a consideration to be paid by the wife to the husband is lawful, but it is described in that case as mubarat.”
Supreme Court in the case of Mst. Zohara Khatoon Vs. Mohd. Ibrahim, (1981) 2 SCC 509, submits that mubarat is a form of extra- judicial divorce based on mutual consent under Islamic Law and same is valid, as it remains untouched by the Dissolution of Muslim Marriages Act.
The Madras High Court in para No.17 of the judgmentas made following observations :-
“Once the Family Court is satisfied that mubaraat is executed by both the parties, it shall declare the matrimonial status of such parties. Hence, this Court is of the considered view that the Family Court is bound to entertain a petition for declaration of the status based on mubaraat.”
Mubarat is a significant step towards equality between husband and wife, which is not often seen in many muslim marriage laws, and it allows both partners to end their unhappy marriage without much interference from the court and not much to expect from the other party.It represents advancement in the direction of equality.
- Dr.paras diwan, muslim law in modern india, 91 (14th ed,2021)
- Sabah Adnan Sami Khan v. Adnan Sami Khan, 2010 SCC OnLine Bom 446
- Maintenance of Women and Children Under Muslim Law: Legislative Trends in Muslim Countries, 45 JILI (2003) 409
- Rakesh Kumar Singh (2010) Law of dower (Mahr) in India, Journal of Islamic Law and Culture, 12:1, 58-73, DOI: 10.1080/1528817X.2010.528594
- Masroor Ahmed v. State (NCT of Delhi), 2007 SCC OnLine Del 1357
- Banu and Ors. vs. Kutubuddin Sulemanji Vimanwala (05.10.1994 – BOMHC) : MANU/MH/0983/1994
- Sk. Taslim Shaikh Hakim v. State of Maharashtra, 2022 SCC OnLine Bom 757
- SCC online
- Tripaksha litigation
- Dr. paras diwan, muslim law in modern india, 14th ed, 2021
- NASEEM, MOHAMMAD FAROGH. “MAINTENANCE OF DIVORCED WIVES: INDIAN SUPREME COURT VS. SHARI’AT.” Islamic Studies, vol. 27, no. 3, 1988
By-Surbhi Singh, 1st year,campus law center, faculty of law, university of delhi