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MUSLIM LAW

UNIT 18 & 19: WHO IS A MOHAMMEDAN: MARRIAGE IN MUSLIM LAW

MUSLIM LAW:

WHO IS A MAHOMEDAN?

● The essence of Mahomedanism (Islam: Peace) consists in the faith that


there is only one God and that Mohammed is his Prophet.
● A person becomes a Mahomedan usually by birth to parents professing
Mahomedanism.

CONVERSION TO ISLAM

EFFECT ON MARRIAGE

● Suppose a Hindu married woman becomes a convert to Islam.


● This does not put an end to the previous marriage.
● Under the Mahomedan Law also a woman cannot marry again while her
husband is alive.
● So, if the convert marries again she is punishable for bigamy.
● But if the Hindu convert to Islam is a married male, governed by the Hindu
Marriage Act, 1955, which has introduced monogamy, it is doubtful whether he
can marry again though Mahomedan Law permits polygamy.

RELIGIOUS CONVERSION FROM ISLAM

● If a Mahomedan husband becomes a convert to another religion the marriage is


automatically at an end.
● So, the wife can without applying to a court for dissolution of the marriage, marry
another husband.
● But the apostasy of the wife does not itself put an end to the marriage.
● She can remarry only after obtaining the dissolution of the former marriage (See
Section 4 of the Dissolution of Muslim Marriage Act, 1939).

MARRIAGE- PRE-ISLAMIC POSITION

Before the birth of Islam, there were several traditions in Arab. These traditions were
having several unethical processes: -

1. Buying of a girl from parents by paying a sum of money.


2. Temporary marriages.

3. Marriage with two real sisters simultaneously.

4. Freeness of giving up and again accepting women

These unethical traditions of society needed to be abolished; Islam did it and brought a
drastic change in the concept of marriage.

MARRIAGE (NIKAH) IN MUSLIM LAW

● A Civil Contract - Mahomedan Law regards marriage as a civil contract. A


person of sound mind who has attained puberty can enter into a contract of
marriage.
● Puberty is presumed on the completion of the 15 year.
● The marriage proposal is made in the presence of adult witness (2 males or 1
male and 2 females) and it should be accepted at the same meeting.

CAPACITY FOR MARRIAGE

The general essentials for marriage under Islam are as follows: -

1. Every Mahomedan of sound mind and who has attained puberty can marry.
Where there is no proof or evidence of puberty the age of puberty is fifteen
years.

2. A minor and insane (lunatic) who has not attained puberty can be validly
contracted in marriage by their respective guardians.

3. Consent of party is a must. A marriage of a Mahomedan who is of sound

4. mind and has attained puberty, is void, if there is no consent.

CONDITIONS FOR A VALID MARRIAGE

● A Mahomedan man cannot have more than four wives at the same time.
● In case of plurality of wives there should not be unlawful conjunction, which
exists when two women are so related that if one of them is a male, they cannot
lawfully marry, e.g., two sisters.
● A Mahomedan male can marry not only a Mahomedan woman but also a
Kitabia.
● Having more than one husband at the same time is not permitted as per Muslim
Law.
● Mahomedan cannot marry certain related.
● By Consanguinity, e.g., daughter, mother, sister, niece etc.
● By Affinity, e.g., son’s wife.
● By Fosterage, e.g., sister’s foster-mother

ESSENTIALS OF A MUSLIM MARRIAGE

● A Muslim marriage requires proposal ‘Ijab’ from one party and acceptance
‘Qubul’ from the other side. This must be done in one sitting/meeting. The
proposal and acceptance must both be expressed.
● The marriage must be effectively immediate. If the Wali says I will marry her to
you after two months, there is no marriage.
● The two parties must be legally competent; i.e. they must be sane and adult.
● The women must not be from the forbidden class.
● The consent given must be free consent.
● There must be two male or one male & two female witnesses, who must be sane
and adult
● Mahomedan was present & hearing during the marriage proposal and
acceptance. (Not needed in Shia law)

KINDS OF MUSLIM MARRIAGE

1. Valid Marriage

2. Void (Batil) marriage

3. Irregular (Fasid) Marriage

4. Muta Marriage

ASPECTS OF MARRIAGE

1. Valid or Sahih Marriage- Under the Muslim law, a valid marriage is that which
has been constituted in accordance with the essential condition.

2. Irregular or Fasid Marriage- Those marriages which are outcome of failures on part
parties in nonfulfillment of pre-requisites.

● A marriage without witness (Not under Shia Law)


● Marriage with fifth wife.
● Marriage with a women undergoing Iddat.
● Marriage with a fire-worshipper.
● Marriage outcome of bar of unlawful conjunction.
3. Void or Batil Marriage- A marriage which is unlawful from it’s beginning. It does not create
any civil rights or obligations between the parties.
● Marriage through forced consent.
● Plurality of husband.
● Marriage prohibited on the ground of consanguinity.
● Marriage prohibited on the ground of affinity.
● Marriage prohibited on the ground of fosterage.

4. Muta Marriage- Muta marriage is a temporary marriage. Muta marriage is recognized in Shia
only. Sunni law doesn’t recognize it.

The essentials of Muta marriage are:-


1. The period of cohabitation should be fixed.
2. Dower should be fixed.
3. If dower specified, term not specified, it could amount to permanent or regular marriage.
4. If term fixed dower not specified, it amounts to void marriage.

Lawful obligations which arise after marriage under Muslim Personal Law
1. Mutual intercourse legalized and the children so born are legitimate.
2. The wife gets power to get ‘Mahr’.
3. The wife entitles to get maintenance.
4. The husband gets right to guide and prohibit the wife’s movement (for valid reasons
only).
5. Right of succession develops.
6. Prohibition of marriage due to affinity.
7. Women bound to complete Iddat period & not to marry during Iddat period; after
divorce or death of husband.
UNIT 20 & 25: ADOPTION AND DOWER UNDER MUSLIM LAW

Adoption under mahomedan law


● Institution of adoption is unknown in Muslim Law
● Acknowledgement of Paternity is possible in Muslim Law

CASE LAW
Mohammed Allahabad Khan v. Mohammad Ismail Khan (1888)
● ”There is nothing in the Mohammedan Law similar to adoption as recognized in the
Hindu system and the acknowledgement of parentage is only a substitute for adoption”

Conditions of valid acknowledgement


1. The alleged father should have treated the child as his legitimate child-
Even is absence of positive proof of the marriage between father and mother, this
acknowledgement of paternity is sufficient to claim as legitimate son.

2. Legitimacy should be legally possible for an acknowledgement to be effective-


Court accepted acknowledgement of child in a situation when marriage between mother
and father was not even proved, but was legally possible at that particular time period.

3. An acknowledgement of paternity has no force when marriage is disproved-


Mother of the child was prostitute and when it was proved that Navab was not married to
her, then acknowledgement of paternity can not support the claim

4. Legitimacy should not be impossible on the face of it-


suppose the acknowledger is younger than the person to whom he acknowledged as his
child or mother was married to someone else at the time of conception then
acknowledgement of paternity is not valid.

5. The acknowledgement should not have been repudiated by the acknowledge

Effect of Acknowledgement
1. Presumption of marriage between the acknowledger and the acknowledgee’s mother.
2. Once due to acknowledgement when marriage is proved than burden of disproving the
marriage thrown upon the party who denies the factum of marriage.
3. Under Sec 112 of the Indian Evidence Act legitimacy is presumed if the child is born
during continuance of a valid marriage.

Is the acknowledgement valid?


● First Condition Suppose- ‘ acknowledges ‘ as his own son under circumstances in
which his marriage to B’s mother is not proved.
● Second condition Suppose- ‘ acknowledges ‘ as his own son under circumstances in
which his marriage to B’s mother is disproved.
● Third Situation Suppose- ‘ acknowledges ‘ as his own son under circumstances in
which ‘ is younger than ‘

Dower (Mahr)
● The Arabic term Mahr means dower.
● Mahr is a sum of money that becomes payable by the husband to the wife on marriage.
● The Mahr is executed either by agreement between the parties or by operation of law.
● If Mahr is not decided at the time of marriage, the marriage does not become void.
● In Muslim law, the concept of Mahr is to ensure women’s financial security Dower is
intended to be a mark of respect in which the wife is held by the husband.

CASE LAW
Abdul Kadir v. Salima (1886)
“Dower under Muslim law is a sum of money or property which is promised by the husband to
be paid or delivered to the wife in consideration of marriage and even if the dower is not
expressly mentioned at the time of marriage, the wife still has the right of dower”

Classification of Dower
1. Specified Dower (Mahr-i-Musamma)
2. Proper or customary dower (Mahr-i-misl)

1. Specified Dower (Mahr-i-Musamma)


● The amount of dower is stated in the marriage contract.
● The dower may be settled between the parties either before the marriage or at the time
of marriage or after the marriage.
● If the marriage takes place of a minor or lunatic boy then the amount of dower can be
fixed by the guardian.
● The specified dower can be classified into:
1. Prompt dower (Mu’ajjal Mahr)- It is payable immediately after marriage on demand
Unless otherwise stated at the time of the marriage, the entire dower is presumed to be
prompt dower.
2. Deferred dower (Muvajjal Mahr)- It is paid after the dissolution of marriage either by
death or divorce
● If the marriage was Fasid (irregular) dower can be claimed only after consummation If
the marriage is a valid marriage, dower is payable on divorce whether or not the
marriage was consummated.

2. Proper or customary dower (Mahr-i-misl)


● If a marriage is completed without the amount of dower fixed in the marriage contract or
marriage is completed on the condition that the wife should not claim any dower, then
the wife is entitled to proper dower.
● The amount of proper dower is decided by taking into consideration the amount of dower
settled upon other female members of the father’s family.
Below factors shall be considered
1. Personal qualifications of the wife
2. Social position of her father’s family
3. Dower given to her female paternal relations
4. Economic conditions of husband
5. Circumstances of time

Rights of wife when dower is not paid to her


1. Refusal to cohabit
● If the marriage has not been consummated then the wife has a right to refuse to cohabit
with her husband as long as the prompt dower is not paid.
● During the period, the wife stays in her guardian’s house, the husband is bound to
maintain her.
● If consummation has taken place after marriage, then the wife loses the absolute right
(to stay parents house) to insist on the payment of prompt dower as the husband can file
a suit for restitution of conjugal rights.

CASE LAW:
Rabia Khatoon v. Mukhtar Ahmed (1966)
“If the suit is brought after sexual intercourse has taken place with her free consent, the proper
decree to pass is not a decree of dismissal, but a decree for restitution, conditional on payment
of prompt dower.”

2. During Husband’s Lifetime


● During the husband’s lifetime prompt dower becomes payable on demand and deferred
dower becomes payable on divorce.
● The dower ranks as an unsecured debt and the wife is entitled along with other ordinary
creditors. She can secure a money decree from court within three years from the time
the dower becomes due.
● The husband may put his wife in possession of his property to satisfy her claim to dower.
This prevent limitation running against her claim. She can utilize the income in such case
to satisfy her claim but cannot alienate the property.

3. After her husband’s death, wife’s lien for dower


● Where there was no divorce, on her husband’s death the deferred dower becomes
payable If prompt dower not demanded during the husband’s life time also becomes
payable.
● If she is in possession of her husband’s property in lien of her dower debt, she can
continue to retain the possession as against the other heirs of the husband and his
creditor.
● She can retain property if possession obtained by her lawfully even after husband’s
death.
● On the death of the widow, her heir inherits the possessory lien also and can remain in
possession until the dower debt is satisfied.
Effect of Conversion on dower
● As per Section 5 of the Dissolution of Muslim Marriage Act, 1939 a married Muslim
woman shall have the same rights in the respect of the dower under the dissolution of
marriage under this Act even after conversion from Islam.
UNIT 21 & 22: TALAQ KINDS
MUSLIM MARRIAGE
● Under Muslim Law, marriage is a contractual relationship between two parties.
● All the essentials that are required for a contract are present under Muslim marriage.
● There is an offer, acceptance, consent, consideration, capacity of parties etc.
● The purpose of such a form of marriage are:
1. Legalizing sexual intercourse
2. Procreation of children

HUSBAND DIVORCING WIFE (TALAAQ)


● Under Mohammedan law it is open to the Husband to divorce his wife without
intervention of court and without assigning any reason for the action.
● On based on Quran it is very much clear that Allah discourages divorce and encourages
the continuation of marriage.
● Talaaq is considered to be a sin which is unforgiveable as per Quran.
● Holy Quran provides for the procedure to be followed for the dissolution of marriage if it
is impossible to resolve disputes between the husband and wife.

TALAAQ
● A Muslim husband may divorce his wife by repudiating the marriage without giving any
reason.
● Pronouncement of such words which signify his intention to disown the wife is sufficient
Generally this done by Talaaq.
● Muslim man may also divorce by Ila and Zihar which differ from Talaaq only in form, not
in substance.
● A wife cannot divorce her husband of her own accord. She can divorce the husband only
when the husband has delegated such a right to her or under an agreement.
● Under an agreement (Mutual consent/agreement) the wife may divorce her husband
either by Khula or Mubarat.
● Before 1939 a Muslim wife had no right to seek divorce except on the ground of false
charges of adultery, insanity or impotency of the husband. But the Dissolution of Muslim
Marriages Act 1939 lays down several other grounds on the basis of which a Muslim wife
may get her divorce decree passed by the order of the court.

CATEGORIES OF DIVORCE UNDER THE MUSLIM LAW


1. Extra judicial divorce
2. Judicial divorce

● The category of extra judicial divorce can be further sub divided into three types, namely,
1. By husband Talaaq Ila and Zihar
2. By wife Talaaq i tafweez lian
3. By mutual agreement Khula and Mubarat
● The second category is the right of the wife to give divorce under the Dissolution of
Muslim Marriages Act, 1939.

Talaaq : Meaning
● Talaaq in its primitive sense means dismissal.
● In its literal meaning, it means setting free letting loose or taking off any ties or restraint.
● In Muslim Law Talaaq means freedom from the bondage of marriage and not from any
other bondage.
● In other words, talaaq is repudiation of marriage by the husband in accordance with the
procedure laid down by the Muslim Personal Law.
● The following verse is in support of the husband’s authority to pronounce unilateral
divorce is often cited
● “Men are maintainers of women, because Allah has made some of them to excel others
and because they spend out of their property (on their maintenance and dower) When
the husband exercises his right to pronounce divorce, technically this is known as
talaaq.”
● The most remarkable feature of Muslim law of talaaq is that all the schools of the Sunnis
and the Shias recognize it differing only in some details.

Talaaq- Absolute power of a Muslim man even in Modern India


● The absolute power of a Muslim husband of divorcing his wife unilaterally, without
assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and
without recourse to the court, and even in the absence of the wife, is recognized in
modern India.
● For Talaaq husband should pronounce Talaaq as per Muslim Personal Law.
Talak under Muslim Law
● In Hannefa v Pathummal Khalid, J termed Talaaq as monstrosity.

Talaaq Sunnis & Shias


● Among the Sunnis, talaaq may be express, implied, contingent constructive or even
delegated.
● The Shias recognize only the express and the delegated forms of Talaaq.

Conditions for a valid talaaq


1. Capacity
● Every Muslim husband of sound mind, who has attained the age of puberty, is competent
to pronounce Talaaq.
● It is not necessary for him to give any reason for his pronouncement.
● If a husband is lunatic then talaaq pronounced by him during “lucid interval” is valid
When insane husband has no guardian, the Qazi or a judge has the right to dissolve the
marriage in the interest of such a husband.
2. Free Consent
● Except under Hanafi law the consent of the husband in pronouncing talaaq must be a
free consent.
● Under Hanafi law, a talaaq pronounced under compulsion, coercion,undue influence,
fraud and intoxication etc is valid and dissolves the marriage.
● Involuntary intoxication: Talaaq pronounced under forced or involuntary intoxication is
void even under the Hanafi law.
● Shia law Under the Shia law (and also under other schools of Sunnis) a talaaq
pronounced under compulsion, coercion, undue influence, fraud, or voluntary
intoxication is void and ineffective.
3. Formalities
● Sunni- A talaaq may be oral or in writing It may be simply uttered by the husband or he
may write a Talaaq nama. No specific formula or use of any particular word is required to
constitute a valid talaaq. It need not be made in the presence of the witnesses.
● Shias Talaaq must be pronounced orally, except where the husband is unable to speak If
the husband can speak but gives it in writing, the talaaq is void under Shia law Here
talaaq must be pronounced in the presence of two witnesses.
4. Express words
● The words of talaaq must clearly indicate the husband’s intention to dissolve the
marriage.
● If the pronouncement is not express and is ambiguous then it is absolutely necessary to
prove that the husband clearly intends to dissolve the marriage.

Express Talaaq (by husband)


● When clear and unequivocal words, such as "I have divorced (TALAQ) are uttered, the
divorce is express The express talaaq falls into two categories.
1. Talaaq-i-sunnat
2. Talaaq-i-biddat
● Talaaq-i-sunnat has two forms:
1. Talaaq-i-ahasan (Most approved)
2. Talaaq-i-hasan (Less approved)

1. Talaaq-i-sunnat:
● Talaaq-i-sunnat is considered to be in accordance with the dictates of Prophet
Mohammad.
● This form of talaq is effective in accordance with the traditions established by the
Prophet.
● Talaaq-i-sunnat divided into two parts:
1. Ahasan talaaq
2. Hasan Talaaq

1. The Ahasan Talaaq


● The Ahasan Talaaq consists of a single pronouncement of divorce made in the period of
tuhr ( between two menstruations), or at any time, if the wife is free from menstruation,
followed by self discipline from sexual intercourse during the period of iddat.
● The advantage of this form is that divorce can revoked at any time before the completion
of
● the period of iddat Hasty, thoughtless divorce can be prevented. The revocation may
effected expressly or impliedly.
● If before the completion of iddat the husband resumes cohabitation with his wife or says
“I have retained thee" the divorce is revoked. Resumption of sexual intercourse before
the completion of period of iddat also results in the revocation of divorce. Once the iddat
period has expired, the divorce becomes irrevocable.

2. The Hasan Talaaq


● The second method is Talak hasan. This is also regarded as a proper form though it is
not the most proper.
● In this, the Talak is pronounced during a tuhr. During the next tuhr a second
pronouncement is made In third tuhr a third pronouncement is made. There should be
abstinence from sexual intercourse during all this time.
● When the third pronouncement is made Talak becomes irrevocable.
● The Arabic meaning of Hasan means good, therefore divorce pronounces through
Hasan mode is a good but lesser worth than the one pronounced in Ahsan.

1. TALAQ-UL-BIDDAT:
● The third method is not approved by Islamic theology. It is called Talak-ul-biddit.
● Talak-ul-biddit was introduced during the Omayad monarchy. The popularity of this
arises from the fact that the Talak becomes irrevocable at once, as soon as it is
pronounced, and there is no waiting period.
● Biddat means innovation
● This form of Talak is not recognized by Shia Law at all but Sunnis allow this.
● In this the husband says during a sin gle tuhr I divorce you by a Talak-ul-bain
(irrevocable divorce)”.
● This form of talaq is introduced by “ in order to escape from the strictness of Law.
● This is a sinful form of talaq, as it is recognised among the Hanafis Sunni law recognises
this mode of talaq, though recognised as sinful by that too Whereas Shias and Malikis do
not recognise this mode.

CASE LAW
Shayara Bano v. Union of India and Ors. (2017)
Facts:
ShayaraBano a woman from Uttarakhand, who suffered mental and physical torture by her
husband and his family for not fulfilling their demand for dowry, was granted instant Triple Talaq
by her husband through a letter, ending their 14 year marriage. Her husband also denied her the
custody of her two children Shayara Bano challenged this practice before the Supreme Court on
the ground that the said practice is discriminatory and against dignity of women.

Supreme Court Verdict:


The said practice of divorce to be manifestly arbitrary, in the sense that, the marital tie can be
broken capriciously and whimsically by a Muslim husband without any attempt to reconcile to
save the marriage S C in a majority judgment rendered on 22 nd August, 2017 set aside the
practice of divorce by pronouncing instant Triple Talaq as violative of Article 14 of the
Constitution.

DEMAND FOR REFORM


● Even after the Supreme Court’s order declaring Talak-ul-bain as unconstitutional,
practice of Triple Talaq continued.
● From the date of judgment of Supreme Court, i.e., from 22 nd August, 2017 up to
introduction of the Bill in Parliament, i.e., up to 28 th December, 2017 there were
reported around 100 instances of pronouncing of Triple Talaq in the country.

Legislative Reform
● To give immediate effect to the verdict of the Supreme Court the Muslim Women
(Protection of Rights on Marriage) Ordinance, 2018 was promulgated on the 19th
September, 2018 and two more Ordinances were promulgated thereafter.
● Lok Sabha passed the Muslim Women (Protection of Rights on Marriage) Bill, 2019 on
25th July, 2019 and the Rajya Sabha too passed it on 30th July, 2019.
● After receiving the assent of the President of India, The Muslim Women (Protection of
Rights on Marriage) Act, 2019 came into force with retrospective effect from the 19th day
of September, 2018 giving continued effect to the first Ordinance promulgated on 19th
September, 2018.
The Muslim Women (Protection of Rights on Marriage) Act, 2019 & Provision for
Imprisonment
● The Muslim Women (Protection of Rights on Marriage) Act, 2019 declares the instant
divorce granted by pronouncement of talaq three times as void and illegal.
● It provides for imprisonment for a term up to 3 years and fine to the husband who
practiced instant Triple Talaq.
● Muslim woman, upon whom Talaq was pronounced also granted custody of children and
subsistence allowance to be paid by the husband.
UNIT 23: DISSOLUTION OF MARRIAGE UNDER MUSLIM LAW
● A Muslim husband may divorce his wife by repudiating the marriage.
● Pronouncement of such words Talaaq which signify his intention to disown the wife is
sufficient and generally this done by Talaaq.
● Muslim man may also divorce by Ila and Zihar which differ from Talaaq only in form, not
in substance.

ILA
● In Ila, the husband takes an oath not to have sexual intercourse with his wife.
● There should no consummation for a period of four months.
● After the expiry of the 4 month, the marriage dissolves irrevocably. But if the husband
resumes cohabitation within four months, Ila is cancelled and the marriage does not
dissolve.
● According to the Shafi School the marriage is not ipso facto dissolved in such a case, but
on fulfillment of the vow, the wife may apply for divorce. It means that the wife is simply
entitled for a judicial divorce.

ZIHAR
● Under the Shariat Act 1937 this ground of divorce has been recognized. In this mode the
husband compares his wife with a woman within his prohibited relationship e g mother or
sister etc.
● The husband would say that from today the wife is like his mother or sister. After such a
● comparison the husband does not cohabit with his wife for a period of four months. Upon
the expiry of the said period Zihar is complete.
● As the Husband should not compare his wife within prohibited degrees of relationship.
So if he says to the wife “you are like a mother to me”, the wife can refuse to have sexual
relations with him.
● The husband can be penance prescribed by religion.
● Then wife should admit him back to sexual relations If he does not do penance, she
could apply to the Kazi for divorce. This is called Zihar.

DIVORCE BY MUTUAL AGREEMENT


KHULA AND MUBARAT
● They are two forms of divorce by mutual consent (Khula and Mubarat) but in either of
them, the wife has to sacrifice part of her dower or a part of some other property.

KHULA
● The word Khula in its original sense means “to take off” such as taking off one’s clothes
or garments.
● The spouses are like clothes to each other and when they take Khula each takes off his
or her clothes, i e they get rid of each other.
● In law, it is said to signify an agreement between the spouses for dissolving a
matrimonial union in lieu of compensation paid by the wife to her husband out of her
property.
● Although consideration for Khula is essential, the actual release of the dower or delivery
of property constituting the consideration is not a condition precedent for the validity of
the Khula.
● Once the husband gives his consent, it results in an irrevocable divorce.
● The husband has no power of cancelling the Khula on the ground that the consideration
has not been paid.
● The consideration can be anything, usually it is Mahr, the whole or part of it But it may be
any property though not illusory.

MUBARAT
● In Mubarat the outstanding feature is that both the parties desire divorce.
● It means there is mutual agreement for divorce. Thus, the proposal may come from
either side.
● In Mubarat both the husband and the wife, are happy to get rid of each other.
● Among the Sunnis when the parties to marriage enter into a Mubarat all mutual rights
and obligations come to an end.
● In Mubarat also it will be presumed that the wife has given up her claim to dower.
● In Mubarat as well as Khula divorce, the divorced wife has to observe iddat and during
iddat the husband is bound to maintain her.

MUBARAT CONDITIONS IN SHIA LAWS:


● The Shia law is stringent. As per Shia Law it requires that both the parties must bona
fide find the marital relationship to be irritating and burdensome.
● However, among the Sunnis no specific form is laid down, but the Shias insist on a
proper form.
● The Shias insist that the word Mubarat should be followed by the word Talaaq otherwise
no divorce would result.
● Shias also insist that the pronouncement must be in Arabic unless the parties are
incapable of pronouncing the Arabic words.
● Intention to dissolve the marriage should be clearly expressed.
● Among both, Shias and Sunnis, Mubarat is irrevocable.
● Other requirements are the same as in Khula and the wife must undergo the period of
iddat and in both the divorce is essentially an act of the parties, and no intervention by
the court is required.

DISSOLUTION OF MUSLIM MARRIAGE BY WIFE


TALAQ-E-TAFWEEZ
● Divorce given by wife under the husband s delegated power.
● If the husband delegates the power to the wife then also he does not dispossess him of
his right of pronounce Talaq.
● It is a form of an agreement made either before or after marriage providing that wife will
be privileged to get separated from her husband via divorce under the specified
condition as:
1. In case the husband marries a second wife.
2. The husband is unable to maintain her for a specified period of time or any other
condition that must not be opposed to public policy.
FASKH
● Quran says that husband and wife are duty bound to respect each other and treat each
other respectfully and obey all lawful orders of each other.
● If both of them find that they can not live as husband and wife further, they can approach
qazi who after careful examination may terminate their marriage.

LIAN (CURSE OF GOD)


● Lian can simply be described as the wrong charge of adultery on wife by her husband.

CASE LAW:
Zafar Husain v. Ummat-ur-Rahman
A wife under Muslim law is entitled to file a suit against her husband for dissolution of marriage
and can obtain decree on the ground that she was falsely charged with adultery by him.

ESSENTIALS OF LIAN
1. A husband must be adult and sane
2. He charges his wife of adultery
3. Such a charge must be false

False charges do not ipso facto (by that fact itself) dissolve the marriage, it just provides a
ground to the wife to move to the court to dissolve the marriage.
● This mode is applicable only to Sahih marriages not on Fasid ones.
● Retraction can be made by the husband before the end of the trial, admitting that he
made the charge of adultery against her wife and such charge was false.
● A bonafide retraction of the charge by the Husband may provide him good defence but if
the retraction is insincere and was made only to defeat the suit, it will be disregarded by
the court.

DISSOLUTION OF MUSLIM MARRIAGE BY WIFE


Section 2 of Dissolution of Muslim Marriage Act, 1939 states nine grounds on which a
Muslim wife can obtain a decree of divorce.
1. Absence of Husband Husband not known from the past four years-
● Dissolution of marriage decree on this ground (i) will take effect after six months from the
date of such decree is passed, and during that period if the husband appears in person
or through an authorizes agent within that period and Court if satisfied from same may
set aside the said decree [See provision of Section 2 (ix)]

2. Failure to maintain- If a husband has neglected or has failed to provide maintenance to


his wife for two years.
● It has to be noted that there is no defence available before husband on the ground of
poverty, failing health or unemployment condition.

3. Imprisonment of a husband- If the husband is imprisoned for seven years or more.

4. Failure to perform marital duties- If without any reasonable cause, the husband is
unable to perform his marital obligations for a period of three years.

5. Husband was impotent at the time of marriage and continues to be so- If the
husband within one year from the date of the order obtained by wife for dissolution of
marriage on the grounds of impotency on application satisfies the Court that he ceased
to be impotent. If the husband satisfies the court, then no decree shall be passed on this
ground. (See provision of Section 2 (ix)( of the Act).

6. Insanity, leprosy or venereal disease- If the husband is insane or suffering from


leprosy, or any venereal disease from a period of two years, then judicial divorce by wife
can be claimed on the same ground.

7. Repudiation of marriage by wife- If a girl is married before the age of 15 years by her
father or guardian, then under Muslim law she has been provided with a right to
repudiate such marriage after attaining the age of 18 years provided that marriage is not
consummated She is entitled to a decree of divorce for same.

8. Cruelty by husband [Section 2 (viii)]- if the husband treats his wife with cruelty, then
she can approach the Court and claim for a decree of judicial separation on the same
ground.
That the husband treats her with cruelty, that is to say:
● Habitually assaults her or makes her life miserable by cruelty of conduct even if such
conduct does not amount to physical illtreatment or
● Associates with women of ill repute or leads an infamous life, or
● Attempts to force her to lead an immoral life, or
● Disposes of her property or prevents her exercising her legal rights over it, or
● Obstructs her in the observance of her religious profession or practice, or
● If he has more than one wives, does not treat her equitably in accordance with the
injunctions of the Holy Quran.

CASE LAW
1. Syed Ziauddin v. Parvez Sultana
Facts:
Parvez Sultana was a science graduate and she wanted to take admission in a college for
medical studies. She needed money for her studies Syed Ziaudddin promised to give her
money provided she married him. She did Later she filed for divorce for non fulfillment of
promise on the part of the husband.

Judgement:
The court granted her divorce on the ground of cruelty.

2. Zubaida Begum v. Sardar Shah


Facts
Husband sold the ornaments of the wife with her consent.

Judgement
Husband's conduct does not amount to cruelty.

3. Aboobacker v. Mamu koya


Facts
The husband used to compel his wife to put on a sari and see pictures in cinema. The
wife refused to do so because according to her beliefs this was against the Islamic way of life.
She sought divorce on the ground of mental cruelty.

Held
The conduct of the husband cannot be regarded as cruelty because mere departure from the
standards of suffocating orthodoxy does not constitute un-Islamic behaviour.
UNIT 24: EFFECT MAINTAINANCE RIGHT OF THE WIFE UNDER MUSLIM LAW

Talaaqnama
● Talaqnama is talaaq given in the written form.
● Talaaq via Talaqnama can be given in the absence of wife.
● In Talaqnama the name of the women whom he has divorced, must be written.

Talaaq made during death illness


● A sick Muslim (generally man) has been given the power to pronounce talaaq just to
prevent his right of inheritance moving to his wife after his death.
● If the man pronounces talaq in death illness and dies before the expiry of the iddat
period, a wife is entitled to claim her share.
● In case the husband dies after the expiry of the iddat period, then there is no right of
inheritance.

Legal effects of divorce on Husband


● Mutual rights of inheritances cease
● Cohabitation becomes illegal and children born after such intercourse will be illegitimate.
● Husband has to pay the dower
● Husband loses his right of inheritance to the wife
● Husband can marry another He can do this after the period of iddat of the divorced wife
● If he wants to revoke the divorced then he can do it during iddat
● Cohabitation with the divorced wife without remarriage is unlawful

Legal effects of divorce on Wife


● Mutual rights of inheritances cease
● Cohabitation becomes illegal
● Dower becomes immediately payable
● Parties can contract another marriage
● Wife is entitled to get maintenance during the iddat period

Maintenance under Muslim Law


Under Muslim Personal law the following persons are entitled to maintenance
1. Wife
2. Young children
3. The necessitous parents
4. Other necessitous relations within the prohibited degrees

Maintenance of Muslim Wife


● The concept of Maintenance was introduced to provide support to those people who are
not capable to maintain themselves.
● Maintenance is basically provided to the spouse who is not independent and is
dependent on the other spouse.
● The principle of maintenance includes financial support, means of livelihood,medical
facilities, educational facilities etc.
● Under Muslim law, the wife’s right to be maintained by her husband is absolute.
● Maintenance is an independent right of the wife.
● A Muslim husband is not bound to maintain the wife of void or irregular marriage except
when the marriage is irregular for want of witnesses.
● If the consummation is not possible due to wife’s own ill health or old age or faulty organ
she is not guilty of disobeying her matrimonial obligations towards the husband and may
lawfully claim maintenance from the husband.
● The right of the wife to maintenance exists inspite of the fact that she can maintain
herself out of her own property.

Maintenance of wife under Criminal Procedure Code, 1973


● The refusal of the wife to perform her matrimonial obligation towards husband and her
claim of maintenance is to be examined not only under Muslim personal law but also
under the Criminal Procedure Code, 1973.
● The claim of wife for the maintenance under this Act is an independent statutory right not
affected by her personal law.
● A Muslim wife, who lives separately due to her husband’s second marriage, is entitled to
claim maintenance allowance under the provisions of Criminal Procedure Code, 1973.

CASE LAW
Begum Subanu Alias Saira Banu v. A.M Abdool Gafoor (1987)
“Irrespective of a Muslim husband’s right to contract a second marriage, his first wife would be
entitled to claim maintenance A Muslim wife, whose husband neglects to maintain her without
any lawful justification, is entitled to file a suit for maintenance in a civil court under her personal
law She is also entitled to enforce her right under the Cr.PC 1973.”

Maintenance of the divorced Muslim woman


1. Muslim personal law
● A divorced wife can claim maintenance from the former husband only for that
period during which she is observing her Iddat.
● The duration of Iddat on divorce is three menstruation periods or, if pregnant, till
delivery of the child.

2. Section 125 Criminal Procedure Code 1973 and


● The term ‘ includes a ‘divorced wife’ Section 125 is applicable also to a divorced
Muslim wife Section 127 (3) provides that the order of maintenance in favour of a
divorced wife shall be cancelled, and such woman shall not be entitled to
maintenance under the following circumstances:
1. Where the divorced woman has remarried.
2. Where such woman has received the whole sum due to her on divorce under any
customary or personal law, and
3. Where the woman, after obtaining a divorce from her husband, has voluntarily
surrendered the right to maintenance.
CASE LAW
Mohd . Ahmad Khan v. Shah Bano Begum
● The Supreme Court reiterated its stand and held that a divorced Muslim woman,
so long as she has not remarried, is a wife for the purpose of Section 125 and is
entitled to maintenance from her former husband.
● Under Sec 125 even a divorced wife may claim maintenance till she remarries
● The S C also viewed that Sec 125 overrides the personal laws if there is conflict
between two.

3. The Muslim Women (Protection of Rights on Divorce) Act, 1986


● The judgement of Shahbano Begam created much controversy ultimately compelling the
parliament to pass Muslim Women (Protection of Rights on Divorce) Act of 1986 to fullify
the effect of Shabano’s case.
1. According to the Act a divorced woman is entitled to have a reasonable and fair
provision of maintenance to be made and paid to her within the iddat period by her
former husband.
2. Where she herself maintains the children born to her before and after her divorce a
reasonable and fair provision and maintenance to be made and paid by her former
husband for a period of 2 years from the respective dates of birth of such children.
3. The divorced woman who remains unmarried after the Iddat and is unable to maintain
herself, is entitled to get maintenance from her such relatives who would inherit her
properties upon her death In the absence of any such relatives or, where they have no
sufficient means then ultimately the liability to maintain her is cast upon the Waqf Board
of the State in which she resides.
4. An option is available to a divorced woman and her former husband to declare either
jointly or separately that they would prefer to be governed by the provision of Secs 121
to 125 of the Cr P C instead of the provisions of the Act of 1986.

CASE LAW
In Danial Latifi and others v Union Of India
All the writ petitioners challenging the constitutional validity of the Muslim Women Act 1986 were
clubbed together in this PIL under Article 32 of the constitution. The writ petition was dismissed
by the Supreme Court challenging the validity of Muslim Women Act 1986 The Court
upheld the validity of the Act.

● The Muslim Women (Protection of Rights on Divorce) Act, 1986 has now made the
operation of Section 125 128 of the Criminal Procedure Code optional in respect of
Muslim woman.

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