Mubara’at is a form of Islamic divorce where both spouses mutually agree to end their marriage due to mutual dissatisfaction. Unlike Khula, it is initiated by either party and requires no compensation.
Introduction
The concept of mubara'at involves both the husband and wife mutually agreeing to dissolve the marriage, typically due to mutual dissatisfaction. Unlike khula, where the desire to separate originates primarily from the wife, mubara'at involves mutual aversion and agreement for separation. Either spouse can propose the dissolution, and once the offer is accepted by the other party, the marriage is irrevocably dissolved (talak-i-bain), similar to khula.
Under mubara'at, the wife is often required to give up her dower, though this is not obligatory. Since both parties equally seek separation, there is no requirement for either to compensate the other. Like other forms of divorce under Islamic law, the wife must observe the waiting period (iddat) following the divorce, and all mutual rights and obligations between the spouses cease, except for the husband's duty to maintain the wife during the iddat and his children by her. The Shariat Act of 1937 recognizes both khula and mubara'at.
Mubara’at Divorce: Mutual Consent Dissolution of Marriage
Mubara’at is a form of divorce under Islamic law where both the husband and wife mutually agree to terminate their marriage. Unlike Khula, which often involves the wife seeking divorce with compensation, Mubara’at is characterized by the mutual desire of both parties to end the marriage without necessarily involving any form of compensation or return of Mahr (dower), although the terms can be decided by mutual consent.
Initiation and Mutual Consent
One of the primary features of Mubara’at is that it can be initiated by either spouse. This distinguishes it from Talaq, where only the husband has the unilateral right to divorce. In Mubara’at, both parties must agree to dissolve the marriage due to mutual aversion or irreconcilable differences, and the process can be initiated by the wife or the husband. Once both parties agree, the divorce becomes irrevocable.
Terms and Conditions
The divorce process in Mubara’at requires mutual consent not only for the dissolution but also for any terms associated with it. These terms could include:
- Custody of children
- Division of financial assets
- Any other relevant issues such as future obligations or maintenance during the Iddat period (waiting period before remarriage)
The negotiation of terms ensures that both parties agree on all issues before the divorce is finalized, reducing the need for further legal disputes.
Execution and Formal Documentation
Once an agreement is reached between both parties, the Mubara’at divorce is executed, and the marital bond is dissolved. The process typically does not require judicial intervention unless there are disputes regarding the agreed-upon terms. However, like other forms of divorce, it is important that the divorce is formally documented. Proper documentation helps ensure legal recognition of the divorce and provides a safeguard against future legal complications.
Documents required in Muslim Mutual Divorce
- Address proof of husband and wife
- Marriage certificate
- passport size photographs of the marriage of the couple
- Evidence proving spouses have been living separately for more than 1 year
- Evidence relating to the failed attempts of reconciliation
- Income tax statements of the couple for the last 3 years
- Details of profession and present remuneration of the couple
- Information relating to family background of the couple
- Details of properties and other assets owned by the couple
Key Legal Requirements
- Offer and Acceptance: Either party can offer the divorce, and once the other party accepts, the divorce is final.
- Iddat: The wife is required to observe the Iddat period, a waiting period before she can remarry. During this time, the husband may be obligated to provide financial support.
- Irrevocability: Once Mubara’at is accepted by both parties, it is irrevocable, unlike Talaq, which can sometimes be revoked.
Grounds for Mubara’at
Mubara’atis typically sought when both parties mutually experience aversion or dislike and agree that remaining married is not in their best interest. It is often used when:
- There is mutual dissatisfaction in the marriage.
- Both parties agree that separation is necessary.
- Divorce is seen as the best solution for both parties to move forward.
The case of Mobd. Abdul Zahl Abmed v Marina Begum[1] highlights that although Mubara’at is not explicitly provided under statutory law, courts can grant divorce by mutual consent if it aligns with the legal grounds for divorce. The decision emphasizes that even without an explicit statutory provision, courts may grant a divorce when both parties have agreed to separate, provided the grounds for divorce are satisfied.
Difference between Khula and Mubara’at
The key differences between Khula and Mubara’at are as follows:
Conclusion
Mubara’at is a mutually agreed-upon dissolution of marriage in Islamic law, providing a structured process for couples who find themselves in irreconcilable relationships. It offers a respectful and amicable approach to divorce, ensuring that both parties can negotiate terms and move forward peacefully.
[1] AIR 1999 GAUHATI 28.
