Muslim Law
Muslim Law
Muslim Law
MUSLIM LAW:
WHO IS A MAHOMEDAN?
CONVERSION TO ISLAM
EFFECT ON MARRIAGE
Before the birth of Islam, there were several traditions in Arab. These traditions were
having several unethical processes: -
These unethical traditions of society needed to be abolished; Islam did it and brought a
drastic change in the concept of marriage.
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.
● 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
● 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)
1. Valid 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.
4. Muta Marriage- Muta marriage is a temporary marriage. Muta marriage is recognized in Shia
only. Sunni law doesn’t recognize it.
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
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”
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.
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)
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.”
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.
● 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.
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. 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.
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.
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.
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.
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).
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.
Judgement
Husband's conduct does not amount to 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.
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.”
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.