Bahria University Islamabad

Department of Law

Islamic Personal Law Assignment

TOPIC: LEGAL STATUS OF DISSOLUTION OF MARRIAGE WITH

MUTUAL CONSENT OF PARTIES UNDER ISLAMIC LAW

Submitted to:

Ma’am Zartasha

Submitted by:

1) Rida e Zahra
2) Muhammad Salal Khan
3) Jahangir Shah
4) Abdul Razzaq
5) Fareeha Jamil
6) Mumtaz
Table of Contents
INTRODUCTION .................................................................................................................................1

MODES OF DIVORCE ........................................................................................................................1

DIVORCE BY HUSBAND ...................................................................................................................2

• TALAQ .......................................................................................................................................2

• Express Talaq: ...........................................................................................................................2

❖ Talaq e Ahsan: ...........................................................................................................................3

❖ Talaq e Hasan .............................................................................................................................3

❖ Talaq e Biddat: ...........................................................................................................................3

• ILA: .............................................................................................................................................3

• ZIHAR: .......................................................................................................................................3

DIVORCE BY WIFE ............................................................................................................................4

• TALAQ E TAFWEEZ ..............................................................................................................4

• LIAN: ..........................................................................................................................................4

DIVORCE BY MUTUAL AGREEMENT ..........................................................................................4

KHULA: .............................................................................................................................................4

MUBARAT: ...........................................................................................................................................5

CASE LAWS RELATED TO MUBARAT .........................................................................................5

➢ MST. UMER BIBI V MUHAMMAD DIN AIR 1945 LAHORE .............................................5

➢ MST. SAYEEDA KHANAM V. MUHAMMAD SAMI PLD 1952 LAHORE ........................6

DISSOLUTION OF MARRIAGE ACCORDING TO MUSLIM MARRIAGE ACT 1939 ..........7

WHAT WILL BE THE LEGAL EFFECTS OF DIVORCE.............................................................8

CONCLUSION ......................................................................................................................................8

BIBLIOGRAPHY ..................................................................................................................................9
 LEGAL STATUS OF DISSOLUTION OF MARRIAGE WITH
MUTUAL CONSENT OF PARTIES UNDER ISLAMIC LAW

INTRODUCTION
The combination of husband and wife is necessary for a happy married life. Therefore, Islam
describe that the breach of marriage contract should be avoided except in unfortunate
circumstances. One way of dissolution of marriage is by way of divorce. Under the Muslim
Law, it can be done by act of both parties or by order of the court of Law.

The Holy Prophet PBUH stated that among the things which have been permitted by Law,
the divorce is the worst. It should be avoided as soon as possible but there are certain
circumstances in which it becomes impossible for parties to carry on the marriage then it is
better for them to get separated rather than to live in hatred towards each other.1

MODES OF DIVORCE
A husband can divorce his wife without giving any reason. The pronouncements of such words
are necessary which show his intentions to disown the wife. It is done by talaq but the husband
can also divorce his wife through Ila or Zihar which are different from Talaq. The wife cannot
divorce the husband except in a case where the Husband has delegated such powers to the wife
due to mutual agreement. A wife can also divorce the husband by Khula or Mubarat.

Following are the categories of divorce under the Muslim Law.

• Extra Judicial Divorce

• Judicial Divorce.

The Extra Judicial Divorce is further divided into the types.

• By husband i.e. Talaq, Ila, Zihar

• By Wife i.e. Talaq-e-Tafweez, Lian

1
Share Slide, 'Dissolution Under Muslim Law' (Dissolution Of
Marriage, 2018) <https://www.slideshare.net/satyavrat1994/divorce-under-muslim-law> accessed 19 April
2020

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 • By Mutual Agreement i.e. Khula And Mubarat.

DIVORCE BY HUSBAND
• TALAQ: Talaq basically means dissolution. It’s literal meaning is setting free.
Under Muslim Law, it means freedom from the bond of marriage. In legal sense,
it means dissolution of marriage by husband by pronouncing appropriate words.

According to Sunnis, talaq can be expressed or implied but according to Shia school
of thought, they only recognize express and delegated talaq.

Following are the conditions for a valid talaq.

• Capacity: Only a person of sound mind which has attained age of puberty can
pronounce talaq. A person who is minor or have unsound mind cannot talaq and
a talaq given by minor or unsound mind is void. Furthermore, a guardian cannot
give talaq on the behalf of minor. In case if the husband is lunatic then the talaq
given by him in the period of (Lucid Interval) will be valid. When it comes to
insane person, if the insane person has no guardian then the Qazi or Judge have
right to Dissolve the marriage.
• Free Consent: The husband consent in pronouncing talaq should be of free
consent except in Hanfi law. The Hanfi School consider the talaq valid which
is given under undue influence, fraud and intoxication etc.
• Shia And Sunni Law: Under both schools, the talaq pronounced due to undue
influence, fraud or intoxication is void and it does not dissolve the marriage.

According to Sunni Law, the husband can pronounce talaq by oral words or in writing. Any
expression which show his intentions to break the marriage is sufficient and the witnesses are
not necessary in Sunni Law but according to Shia School, the talaq should be pronounced orally
except where the husband is unable to speak. If the husband can speak but gives in writing then
it will be void and the presence of two witnesses is necessary in Shia Law.

Furthermore, the words of talaq should clearly show the intention of husband to dissolve the
bond of marriage. If the words are not clear then it will be void.

• Express Talaq: It is a form where the husband clearly utter I have divorced you. It has
two categories.

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 It is categorized into:

❖ Talaq e Ahsan: It is a most proper form of talaq. It basically consist of single

pronouncement of divorce which is made in the period of tuhr i.e. ( Period Of
Cohabitation). And if the husband does not cohabit with his voice during the iddat
period ( 3 months ) then the marriage will be dissolved and if the husband resume
cohabitation before the completion of iddat or say that I have retained you then it
will result it revocation of divorce.
❖ Talaq e Hasan: It is proper form of talaq. In this form, the husband have to
pronounce talaq during three tuhrs. If the conjugal rights are resumed then talaq is
cancelled. It becomes revocable if the husband resume cohabitation before the 3rd
pronouncement.
❖ Talaq e Biddat: It means sinful. It consist only under Sunni law and Shia law don’t
recognize it. There is no time for reconciliation. In this form, the husband pronounce
talaq talaq talaq three times and marriage is dissolved.

• ILA: In this form, the husband take a oath that he will not cohabit with his wife. By
following the oath, the husband does not cohabit with the wife for a period of 4 months
then the marriage dissolves and it is not revocable but if the husband resume
cohabitation before the expiry of 4 months then the marriage does not dissolve.
But according to Shia school, they don’t consider Ila as a divorce without the order of
court of Law. According to them, after the expiry of 4 months, the wife is entitled for
Judicial divorce.
• ZIHAR: In this form, the husband consider his wife within his prohibit relations by
saying that from today you are like my mother or sister and does not cohabit with the
wife for 4 months then after the expiry of 4 months the Zihar is complete and wife can
go the court for judicial divorce. If the husband revoke it before the expiry of 4 months
then husband have to free a slave, give food to 60 needy people or observe a fast for 4
months.2

2
Gupta Setu, 'Concept of Divorce' [2015] 1(1-9) Divorce Under Muslim Law

3|Page
DIVORCE BY WIFE
• TALAQ E TAFWEEZ: In this form of divorce, the husband can delegate his power
of divorce to the wife absolutely or condition, temporarily or permanently. A permanent
delegation is revocable but temporary delegation of power is not revocable.
• LIAN: The wife have right to divorce if the husband if the husband put false charges
of adultery against his wife which leads to character elimination then wife have the
power to ask for divorce.

DIVORCE BY MUTUAL AGREEMENT

There are two forms of divorce by mutual agreement which are Khula and Mubarat and in
one of them, a wife has to part with her dower or with part of some property.

KHULA:

Khula basically means that to get rid of each other. In khula, the wife seek divorce from
her husband by surrendering the dower. If the husband gives consent, then it results in an
irrevocable divorce and the wife have to observe the iddat period i.e. 3 months.

Quran lays down about khula

“And if you fear they (Husband And Wife ) may not be able to keep within the limits
of Allah, in that case it is no sin for either of them if the women releases herself by giving
something to the husband”

Following are the essentials for a valid khula.

1) Competence of parties: It basically means that both spouses should have sound mind
and they should have attained age of puberty.
2) Free consent: it means that the offer made by wife and acceptance made by husband
should be with free consent of both parties.
3) Formalities: The offer of khula should be made by wife and it should be accepted by
husband either in oral or in writing and it should be made in one sitting which means
that at one place of meeting.
4) Consideration: For khula, the wife have to give something to the husband i.e. she have
to surrender her mahr.

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MUBARAT:
The word Mubarat is taken from Arabic which means “to obtain release from each
other”. In Mubarat, both the parties husband and wife are willing to dissolve the marriage.
Therefore, in Mubarat the offer for separation may come from either Husband and wife to be
accepted by the other. So who takes initiative here is Irrelevant here. One of the most
important feature is that here both the parties are equally interested in the dissolution of
marriage so no party is legally bound to compensate the other by giving some consideration.

It takes effect as one irrevocable divorce and without the help of the court and it is
complete as soon as it is accepted by the other party. Now here there are two schools of thoughts
in this regard. Under Hanafi law, Mubarat is equivalent to one irrevocable pronouncement of
talaq, and all their rights and duties comes to an end. making it necessary for the parties to
contract a fresh marriage with each other if they wish to resume a marital relationship. But Shia
School of thought is a little different in this regard. According to them the Mubarat word shall
be followed by the word Talaq, and the pronouncement shall be made in Arabic unless
the parties are not able to pronounce Arabic words and the intentions to divorce should be
clear. But in both schools it is irrevocable form of dissolution and the observance of Iddat is
necessary.

CASE LAWS RELATED TO MUBARAT

Earlier this concept of Mubarat and Khula were not recognized and distinguished before
the creation of Pakistan. It was in this case that the concept of Mubarat was recognized and
brought to the forefront.

➢ MST. UMER BIBI V MUHAMMAD DIN AIR 1945 LAHORE 3

It had its bases from the the time and judgements of second Caliph Hazrat Umar (R.A).

“So, the second khalifa, Umar, shut up a petitioning wife in 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,

3 https://sahsol.lums.edu.pk/law-journal/womans-right-unilateral-divorce-under-islamic-law

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 “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. 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.

➢ MST. SAYEEDA KHANAM V. MUHAMMAD SAMI PLD 1952 LAHORE 4

In this case, 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”. It was the case of Mubarat so consideration
issue was settled to be paid by the wife to the husband in Khula but not in Mubarat.

DIFFERENCE BETWEEN MUBARAT AND KHULA

When it comes to the difference, there is not much difference between the both. In
Khula, the wife seeks divorce from the husband by surrendering the dower or Mahr and
husband gives the consent but in Mubarat, the offer can be made by the husband or by the wife
and they both desire to end their marriage relationship. So when husband and wife enters into
a Mubarat, then their rights and duties as husband and wife comes to an end.

There are certain questions regarding Mubarat which are discussed below.

• Whether Mubarat is equal to talaq: After confirming from Islamic scholars and
experts, it has been stated that Mubarat is not equal to talaq and it is a separate thing.
In talaq, husband can revoke the divorce and there is a chance to live again together but
Mubarat cannot be revoked and the offer can be made by either one of them or both.
• On the question of consideration: There is no consideration given by either party as
it is a divorce by mutual consent of husband and wife but the wife have to observe the
iddat period i.e. for 3 months.

4https://www.iiu.edu.pk/wp-content/uploads/downloads/journals/ilr/volume1/num-
1/Article_1_Vol1_1_010817.pdf

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 • Divorce by consent: As Mubarat is a divorce by consent of both husband and wife. So
if a husband refuse to divorce then it will be considered as zulm done by the husband
on wife and then the Qazi at the court will give the final decision i.e. whether to give
the wife divorce or not.
• Mubarat can be obtained on which grounds: If the husband and wife fail to live
happily with each other and they develop extreme hatred towards each other than
Mubarat can be obtained on following grounds.5

DISSOLUTION OF MARRIAGE ACCORDING TO MUSLIM

MARRIAGE ACT 1939
Section 2 of the Muslim Marriage Act 1939 state that a women which is married under
Muslim Law shall have a right to go for judicial divorce on the following grounds.

• If whereabouts of husband is not known for 4 years: It basically means that if the
husband went missing for a period of 4 years then a wife can file a suit along with the
name and addresses of all the legal heirs of the husband upon his death for dissolution
of marriage. Then the court issue notice to all people to appear in the court as if they
have any knowledge about the husband. If no one knows about the husband then the
court give decree to this effect which becomes effective after 6 months and in case if
before the expiry of 6 months, the husband came back then the marriage is not
dissolved.
• That the husband has failed to provide maintenance for 2 years: It is the legal duty
of husband to provide maintenance to his wife. In case if he fails to do so then the wife
can get divorce on this ground. In case if the wife is living alone without any legal
excuse then she is not entitled for judicial divorce in the case of husband failure to
maintain her because it was her own conduct to live separate.
• That the husband has been sentenced to imprisonment for period of 7 years: If the
sentence of the husband becomes final then the wife right for judicial divorce begins.
As a result, the court can give decision in her favour only after the expiry of the date of
appeal by husband or when the husband appeal is dismissed.

5
Gupta Arjun, 'Divorce by mutual consent - Mubarat' (Divorce by Mutual Consent, 22
March) <https://arjungupta1993.wordpress.com/2015/03/22/divorce-by-mutual-consent-in-muslim-law-
mubarat/> accessed 19 April 2020

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 • That the husband fail to perform his marital obligation for 3 years: There are
certain conjugal rights for a women. But if the husband was impotent at the time of
marriage and continue to be, then a wife can go for judicial divorce and wife has to
prove that husband was impotent at that time of marriage and continue to be till filing
of suit.
• That the husband treats her with cruelty: If the husband assaults her, force her to
live an immoral life, dispose of her property of if he has more than one wives and does
not treat equal6

WHAT WILL BE THE LEGAL EFFECTS OF DIVORCE

Following will be the legal effects of divorce under Muslim Law.

• Cohabitation between spouses becomes unlawful.

• Wife have to observe iddat period for 3 months and if she is pregnant at that time then
iddat period last till she give birth to her child and if the divorce was before
consummation then there is no need for wife to observe iddat period.
• During the iddat period, it is the duty of her former husband to maintain her.
• The husband has to pay unpaid dower immediately to his divorced wife.
• Both spouses are free to conduct another marriage.

CONCLUSION
If the husband demands a divorce then the divorced wife keeps her mahr and all the
gifts and property which was given under the marriage contract. Moreover, she is also given
the child support and then the child custody is settled by the family courts. The women right to
get divorce is limited as compared to men. Men can divorce their women easily whenever they
want at their will but women can only ask for divorce when husband’s inability to support her
life is admitted. As a result, this controversial religious practice is challenged by those
promoting liberal interpretations of Islam.

6
Lawyers Pakistan, 'Dissolution Of Muslim Marriage Act 1939' (Pakistan Lawyers Easy Access To Justic, 2
March 2019) <https://pakistanlawyer.com/2019/04/06/dissolution-of-muslim-marriages-act-1939/> accessed 19
April 2020

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BIBLIOGRAPHY

• http://www.shiavault.com/books/al-mizan-an-exegesis-of-the-qur-an-volume-
four/chapters/2-volume-4-surah-baqarah-verses-228-242
• https://sahsol.lums.edu.pk/law-journal/womans-right-unilateral-divorce-under-islamic-law
• https://www.iiu.edu.pk/wp-content/uploads/downloads/journals/ilr/volume1/num-
1/Article_1_Vol1_1_010817.pdf
• https://www.pakistanlawsite.com/
• https://www.jstor.org/

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