Kabuliyatnama is an agreement is lawful under the provisions of Mohomedan Law as it provides for a dissolution of marriage by agreement in the form of ‘Khula’ or ‘Mubarat’. Section 319, Mulla’s Principles of Mohomedan Law (Eighteenth Edition) by Hidayatullah, provides for divorce by Khula and Mubarat. Sub-section (1) of the said Section provides that a marriage may be dissolved not only by Talaq, which is the arbitrary act of the husband, but also by agreement between the husband and the wife. A dissolution of marriage by agreement may take form of Khula or Mubarat. Sub-section (2) provides that a divorce by Khula is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. In such a case the terms of the bargain are matters of arrangement between the husband and wife, and the wife may, as the consideration, release her dyn-mahr (dower) and other rights, or make any other agreement for the benefit of the husband. Failure on the part of the wife to pay the consideration for the divorce does not invalidate the divorce, though the husband may sue the wife for it.
A Khula divorce is effected by an offer from the wife to compensate the husband if he releases her from his marital rights, and acceptance by the husband of the offer. Once the offer is accepted, it operates as a single irrevocable divorce (talak-i-bain), and its operation is not postponed until execution of the Khulanama (deed of Khula). Sub-section (3) deals with Mubarat. A mubarat divorce like Khula, is a dissolution of marriage by agreement, but there is a different 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 a separation, 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 Khula 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 separate 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.”
It is further provided in the said Commentary that where the wife asked for divorce and the husband did not seek the severance of the marital tie, and by compromise the marriage was severed, it was held that this was a case of Khula and not mubarat.
Section 320 provides for effect of Khula and Mubarat divorce and it is provided that unless it is otherwise provided the contract, a divorce effected by Khula or mubarat operates as a release by the wife of her dower, but it does not affect the liability of the husband to maintain her during her iddat, or to maintain his children by her.
We may refer to the decision reported in AIR 1945 Lah 51, Mr. Umar Bibi v. Mohammad Din, where the distinction between different forms of divorce under Mahomedan Law were considered, and it was observed that the act of divorce in Khula is as much an act of husband (whether directly by dissolving the marriage himself or indirectly by conferring the power on the wife so to do) as it would be in Mubarat (i.e. mutual release) and in an ordinary divorce effected at his sweet will or pleasure without even necessarily a knowledge on the part of the wife that the marriage was being terminated. The difference in these divorce merely lies in the fact that while the desire to separate and for emancipation emanates in the case of Khula from the wife only, it is a result of mutual arrangement between the parties in Mubarat and in execution of his one-sided desires to bring the matrimonial bond to an end in third case. It is further stated that similarly Durr-ul-Mukhtar in its Chapter on Khula (page 261 Calcutta edition) describes that the term by word ‘Izalat’ which means ‘removal’ and states its requisites to be similar to a divorce and its nature being that of an oath on his (i.e. the husband’s) part as it is a divorce by accepting property which it would not be valid for him to retract. It is further stated that Khula or release is on the part of the wife an exchange with property and therefore it is right (or possible) for her to retract before the husband’s acceptance and it is valid for the wife to have an option of revoking it even for more than three days.