Divorce by Mutual Consent Under Muslim Law
Divorce by Mutual Consent under Muslim Law
Meaning:
Divorce by mutual consent under Muslim law refers to a situation where both spouses voluntarily agree to end their marriage amicably without any coercion or dispute.
It is known as Mubarat, which means a consensual or agreed divorce.
Nature and Scope:
Mubarat is a form of Talaq by mutual agreement.
It differs from unilateral talaq (initiated by husband) or khula (initiated by wife).
Both husband and wife agree to dissolve the marriage, and they decide mutually the terms, including any settlement regarding maintenance, dower, or custody.
It is considered an amicable, no-fault divorce.
Legal Position in India:
Muslim personal law (Shariat) recognizes Mubarat as a valid form of divorce.
Unlike other religions in India where the Divorce Act or other codified laws govern mutual consent divorce, Muslim law primarily depends on personal law and judicial interpretation.
Courts generally recognize Mubarat where there is clear evidence of mutual consent.
Procedure:
Both parties must consent voluntarily and unequivocally to divorce.
They may approach a court or a registrar to record their mutual consent for divorce.
A written agreement or declaration can be filed in court as proof.
The parties may mutually agree on terms like maintenance, dower (mehr), custody of children, and other property settlements.
The court may pass a decree or order confirming the divorce based on mutual consent.
Effect of Divorce by Mutual Consent:
Marriage is dissolved immediately or after observing the iddat period.
Neither party can claim maintenance from the other after the divorce (except the wife during iddat).
Both parties are free to remarry.
Custody and maintenance of children can be mutually agreed or decided by the court.
Iddat Period:
The wife must observe the iddat period after the divorce, which is usually three menstrual cycles or three lunar months.
This period is intended to ensure that the wife is not pregnant and to allow for possible reconciliation.
Maintenance and Dower:
Maintenance during marriage is governed by the husband’s obligation.
Post-divorce maintenance rights are generally waived except during the iddat period.
The dower amount may be mutually agreed upon for settlement.
Comparison with Other Forms of Divorce:
| Aspect | Divorce by Mutual Consent (Mubarat) | Talaq (Unilateral Divorce) | Khula (Wife-initiated Divorce) |
|---|---|---|---|
| Initiated by | Both husband and wife | Husband only | Wife only |
| Consent | Must be mutual | No consent from wife required | Requires husband’s consent or court approval |
| Nature | Amicable, no-fault | Unilateral | Wife compensates husband |
| Maintenance | Generally waived except iddat | Maintenance during marriage | Wife waives maintenance except iddat |
| Legal Formalities | Declaration or court approval recommended | No formalities required | Court approval if husband refuses |
Case Laws:
Asma Bano v. State of UP (AIR 2014 SC 1981):
The Supreme Court emphasized the importance of mutual consent and voluntariness in mubarat divorce.
Shabana Bano v. Imran Khan (AIR 2010 SC 1891):
The court observed that mubarat is a recognized form of divorce under Muslim law.
Sakina Khatoon v. Imran Khan (AIR 1981 All 203):
Confirmed that mutual consent divorces (mubarat) are valid and binding.
Conclusion:
Divorce by mutual consent under Muslim law is a peaceful, consensual dissolution of marriage known as Mubarat, which requires the agreement of both spouses. It emphasizes fairness and cooperation in ending the marital relationship, safeguarding the rights and interests of both parties while observing religious and legal norms.
RELATED Blog
0 comments