Gujarat HC Upholds Muslim Couple's Right to Divorce via Mubaraat, Overrules Family Court's Rejection

Gandhinagar- In a recent judgment, the Gujarat High Court has ruled that a Muslim couple can dissolve their marriage through mutual consent (Mubaraat) without a written agreement, setting aside a Family Court order that had dismissed their petition for being "not maintainable." The bench of Justices A.Y. Kogje and N.S. Sanjay Gowda held that Muslim Personal Law recognizes Mubaraat as a valid form of divorce based on mutual aversion, and a formal written contract is not a prerequisite.

The appellants, a husband and wife from Rajkot, had married in March 2021 as per Islamic rites in Bihar. They had three children but faced severe marital discord, leading to separation for over a year. Despite attempts at reconciliation, the couple mutually agreed to end their marriage via Mubaraat, a form of divorce under Muslim Personal Law (Shariat) Application Act, 1937.

However, the Rajkot Family Court dismissed their petition, stating that a written Mubaraat agreement was mandatory and that the suit was "not maintainable in its present form." The couple then approached the Gujarat High Court, arguing that Islamic law does not require a written contract for Mubaraat.

Key Observations by the Gujarat High Court

The High Court extensively examined Quranic verses, Hadith, and Islamic legal texts to conclude that Mubaraat is a recognized form of divorce by mutual consent, differing from Khula (where the wife initiates divorce).

• "Mubaraat signifies a mutual discharge from marriage claims. It involves an element of mutual consent, and no written agreement is required under Shariat."

• "The Family Court erred in holding that a written Mubaraat agreement is sine qua non. Neither Quran nor Hadith mandates such a formality."

• "When both parties mutually agree to dissolve the Nikah, the marriage stands dissolved under Muslim Personal Law."

The Court cited Supreme Court precedents and rulings from Delhi and Karnataka High Courts, which have upheld Mubaraat as a valid divorce method. It also referenced Islamic scholars like Dr. Paras Diwan and Maulana Muhammad Ali, who clarified that Mubaraat is irrevocable and requires no formal documentation.

Setting aside the Family Court’s order, the High Court remanded the case back, directing it to decide the matter within three months. The judges emphasized that Section 7 of the Family Courts Act empowers it to declare marital status, including divorce by mutual consent.

The ruling is a landmark affirmation of personal law rights, ensuring that Muslim couples are not burdened with unnecessary legal formalities when seeking divorce by mutual consent. It also aligns with Quranic principles of amicable separation, offering a smoother legal pathway for estranged couples.

What is Mubaraat

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.

In ‘Mubarat’, the feature is that both the parties desire divorce. The offer for separation in ‘Mubarat’ may proceed either from the wife or from the husband.

Essentials

• The husband or the wife, either of them can make the offer.

• The other spouse must accept the divorce proposal.

• Once it is accepted by the other partner, it becomes irremediable.

• Iddat period is mandatory before the divorce is approved.

• 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.

Is mubarat equal to talaq?

• Mubarat is not equivalent to talaq. 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.

• Also, in talaq, the husband takes the initiative of divorce but in mubarat the initiation of divorce can be from wife’s side too.