muslim law important questions

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Muslim law important questions:

Q. 1 Discuss about "Muslim law", discuss its basic principles. Trace

the History and development of Muslim Law.

Ans. Muslim Law is a personal Law. Muslims are governed by it, just as `Hindus' are

governed by their customary as well as codified law. As far as Muslim Law in ndia is

concerned, Muslim Law means !that portion of slamic "ivil Law which is applied to Muslims

as a personal law.! #he term Muslim Law is also $now as !M%HAMM&A( LA)! though

there is big difference between two e*pressions. &minent author +ir A.A.A. y-ee, has said

that strictly spea$ing the religion taught by `rophet' was `slam' and not Mohammedanism.

#he people who believe in it are Muslims and not Mohammedan. #herefore Mohammedan

Law as applied in ndia, as personal law for Muslims, is actually part of slamic Law. t

consists of the injunctions of Quran, of traditions introduced by practice of the `prophet' of

the common opinion of the jurists /jma0, of the analogical deductions of these

three(Qiyas) and of the pre1slamie customs not abrogated by rophet Mohammad. t has

been supplemented by the juristic preference (Ijtihad) and +tate legislations and judicial

precedents of different High "ourts, rivy "ouncil and +upreme "ourt.

"Quran" the Foundation of Muslim Law Muslim law is founded upon ̀Al-Quran' which is

believed by the musalmans to have e*isted from eternity, subsisting in the very essence of

2od. #he rophet Mohammad himself declared that it was revealed to him by the

angel "Gabriel" in various portions and at different times. #he main characteristic of Muslim

law is that it has always been defined in terms of religion. #he word Muslim is a `noun' of

action. ts meaning is that one who adopts the faith of slam and slam is a word which in

Arabic term means `+ubmission to the will of 2od'. #herefore, one who believes in /a0 the

principle of the 3nity of 2od i.e. 2od is one and /b0 rophet Mohammed is Messenger of

2od, is Muslim. #here are three important elements of this religion. #hey are /a0 +LAM i.e.

submission to the will of 2od /d0 #A)H dogma of the unity of 2od and /c0 A4H)A i.e.

brotherhood. %ne who subscribes to these basic elements of slam is $nown as Muslim.

t is believed by Muslims that their religion has a divine origin and it is in e*istence since the

beginning of the world and will e*ist till dooms day. #he only thing is that wherever religion is

corrupted and people forget the real sense of it, 2od in his infinite mercy sends a 5A+3L

/Messenger or reformer0 in the world. +uch 5asuls time to time tried to do away with the

malpracticses prevailing in those days. He warned the people against those evils.

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What is Islam 61 n the religious sense Islam means !submission to the )ill of 2od! and in

secular sense slam means the establishment of peace.

History of Islam #he History of the development of Muslim law has been divided by various

Muslim scholars in their own ways. +ir A.A.A. y-ee divided the history of development of

Muslim Law into five periods. %n the basis of their study we can divide the history of

development of Muslim law, into following five periods 61

/a0 From AH to AH! /eriod covering last 78 years of life of rophet0

/b0 From AH! to AH!# /#he period of first four caliphates0

/c0 From A!H!# to A!H!$ /Most important period of development of Muslim Law0

/d0 From A!H! $ to % A!'! /eriod in which the caliphate was abolished. 9ritish rule

was established0

/e0 From % nwards (a) The period of A.H. 1 to A.H. 10 (The first period) 1 #his period

was the last 78 years of the rophet Mohammed's life. n that period all verses of the

`4oran' were collected and composed. mportant `Ahadis' also came into e*istence in those

days. `4oran' was the direct revelation of the Angel 2abril to prophet Mohammed. rophet

con:uered `Macca' and `Madina'. uring the last few years of his life he too$ up the tas$ of

legislation. Most of the verses of 4oran /Quaran0 were revealed during that period. #hey are

many important judicial decisions and traditions which pertain to that period. As per slamic

law the inspiration from Almighty comes through either by direct manifestation /;ahir0 or it

may be implied /9atin0. #he words of `4oran' as per slamic faith, were the very words of

`2od'. #he actions and sayings of the prophet were directly inspired by the `divine power'.

%ut of which the traditions are supposed to be indirect revelation. #he verses of 4oran were

the very words of 2od.

(b) The period from A.H. 10 to A.H. 40 1 #he period of those


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by third caliph 3thman. #hen an authenticated and uniform te*t was made which is used

throughout the Muslim world even today.

/ii0 #he sayings and decisions of prophet were not collected under the authority of +tate but

their collection was left to the person who were most learned in tradition. #hey gathered

round themselves and stored up all the sayings of prophet. +uch -eal gave rise to many a

false and inaccurate tradition. #he leanings and aptitude in deducing the rules of secular

common law of same comparisons of prophet i.e. Ali. 3mar dn13mar, dn Masu'd and dn

Abbas got prominence. #hey became the basis of many principles of Mohammedan

jurisprudence.

#he second characteristic of the second period was that administration of justice was

established during the period of first four caliphs. After the death of prophet, Abu 9a$r

himself administered justice as the prophet had done before him. He delegated his judicial

functions to `3mar' who was appointed the first 4a-i /=uadi0. uring his days the powers

and jurisdiction of the =uadi /4a-i0 was properly defined. After `3mar', Ali was a noted jurist.

He was assassinated in A.H. >8. #his brought to close an age of the rightly guided caliph.

#hat period was characterised by a close adherence to the ordinances of slam. #he law

was then administered either by the head of the state or the church. t was during the later

days of 3maiya's dynasty when a study of law, was largely influenced by recently

introduced science of divinity and scholastic logic. n that series efforts were made to

classify the laws under different subjects to introduce the use of technical phraseology and

the arrangement of different sources of law. After the fall of 3maiyad's destiny, Abbasides

came into accession. n A.H. 7


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deductions0. Abu Hanifa due to his talent and thorough study, possessed remar$able

powers of reasoning and deduction as well as retentative memory and clear understanding.

#he result was that people floc$ed to his lecturers and a large number of people became his

disciples.

Abu Hanifa ac:uired the title of the unholder of the private judgments. He recognised only

eighteen traditions out of the great mass which in vogue. Abu 9a$r was $nown as the

founder of the Mohammedan science of law. He gave prominence to the doctrine of `:iyas'

or analogical deduction. He recognised the authority of local customs and usage as guiding

the application law. #he most remar$able wor$ done by Abu Hanifa and his disciples was

that the efforts were made for the codification of laws. Most of the Muslims of the world

specially of ndia, Afghanistan and #ur$ey are the followers of +unni Hanafi school.

(ii) ali!i School 1 #his school of thought was established by Mali$ ibn1 Anas /D8 or DFBF7<

to 7FDBFDE0. Mali$ relied much more on the practice of Madina rather than :iyas of the

Hanafi school. #he only and main boo$ of Mali$ was `Muwatta' which was actually the

oldest corpus of +unnite law. He was not only the traditionist but a jurist but he leaned more

upon traditions and usage of the prophet. He recognised the principle of public welfare

/Muslahat0 as a basis of deduction. He recognised one more source of law i.e. stdalal

besides four other sources vi-. 4oran, Hadith, jma and =yuiyas. His collection of traditions

namely `Al1Muwatta' contains about three hundred traditions. #he followers of Mali$i school

of thought are mainly found in northern Arabia.

(iii) Shafi"s School 61 #his school of thought was established by mam +hafi. He ws one of

the greatest jurist of slam. He did not only create classical theory of slamic jurisprudence

but also perfected the doctrine of Ijma* . His contribution was $nown as `Ashshafi'. mam

+hafi was noted for his balance of judgment and moderation of the views. He allowed

greater scope of `jma' /consensus of opinion0.

(i#) Hanbal"s School 61 mmam Ahmad1bn1Hanbal was founder of this school. He was man

of very saintly character. His reputation stood very high as traditionist and theologian. His

remar$able wor$ on tradition was $nown as `Musnadul1mmam Hanbal'. t contained about

fifty thousands traditions.Shia"s Schools and S$b Schools 1 #he schools of +hia's was founded by mam Ali who

was the son1in1law of prophet.

He was recognised by +hities as successor of prophet in temporal and religious matters.

#he followers of +hia's school refused to recogni-e the principle of election of mam by the

people. #hey said that Ha-rat Ali was sometimes appointed as successor by the prophet as


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his vicegerent at some occasion. #he number of shities, as estimated by +ir A.A.A. y-ee,

are about


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/viii0 Marriages are either valid or void. /viii0 Marriages may be irregular also besides beingvalid or void.

&. 'oer

/i0 #he minimum amount for dower is not fi*ed. /i0 #en dirhams is the minimum amount of dower.

/ii0 resumption of E88 dirhams as the ma*imum incase there is no stipulation.

/ii0 (o upper limit.

/iii0 resumption of prompt dower in absence of any+tipulation.

/iii0 #he part is prompt and the part is deferred.

Tala*

70 #ala: must be pronounced orally and the words of Arabic language to be used.

70 #ala: can be given orally or in writing

?0 )itnesses are re:uired while doing so ?0 )itnesses are not re:uired


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/ii0 According to the law of primogeniture, the eldestson gets the deceased father's garment, the signet1ring, the sword and the Quran.

#he doctrine of primogeniture is not recognised.

/iii0 A +hia childless widow is not permitted to ta$eany share in her husband's immovable property.

#here is no such distinction between real andpersonal property and the childless widow caninherit even the immovable property.

/iv0 %nly the husband and not the wife is entitled toreturn.

9oth husband and wife can ta$e by return.

/v0 A man is e*cluded from inheritance if he hasintentionally caused the murder of the person whomhe is going to inherit.

He is e*cluded from inheritance, no matter, themurder was intentional or unintentional.

Q. & 'hat are the main sources of Muslim Law (

Ans. ollowing are principal sources of Muslims Law 61

,rimary So$rces of $slim /a

/70 Quran

/?0 +unna

/0 =uiyas.

Secondry or formal So$rces of $slim /a

/E0 "ustoms /+rf 0

/C0 @udicial recedents.

/F0 Legislation.

/0 2ood "onscience and &:uity.

(1) The $ran. 1 #he rimary source of Muslim law is revelation which has been of two

$inds 1 e*press and implied. #he Quran is composed of such e*press revelations as were

made in the very words of 2od to Mohammed when he was bestowed with the office of the

rophet and Messenger of 2od. t is divided into 77> "hapters and is composed of about

C?


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supplementing from his sayings. #he term `+unna' is applied to the traditions or precedents

not merely emanating from prophet but also from his companion, +unna, literally means a

path, a procedure, a way of action.

#hey are of three $inds 1

/70 +unnat1ul1fiel, i.e., traditions about what the rophet did himself.

/?0 +unnat1ul1:ual, i.e., traditions about what he enjoined by words.

/


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and usages which were not modified or abrogated by the rophet, remained good and valid.

#he primeval customs were regulated by Mohammed.

#he custom is not an independent source of Muslim Law. uring the 9ritish regime, courts

in ndia recognised the legal force of customs on some occasions in spite of the fact that

they were opposed to the clear te*ts of a primary te*t of Muslim Law. #his caused great

dissatisfaction among the orthodo* Muslims and led to the passage of +hariat Act, 7D


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Q. ) 'hat is hariat *ct of 1+& ( Describe some of its main

features.

Ans. Shariat Act 1%38 1 +hariat Act was one of the important enactments passed in 7D


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Section 4 1 +ection > empowers +tate 2ovt. to ma$e rules to carry into effect the purposes

of this Act.

Section 2 1 +ection E states that 1

`#he istrict judge may on petition made by a Muslim married woman dissolve a marriage

on any ground recognised by Muslim ersonal Law /+hariat0'.

A provision regarding dissolution of marriage by courts in certain circumstances was made

in this section but it was repealed by Act G of 7D


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Q. / 'hat is the e%ect of conversion to slam on the le$al status of

man and woman (

Ans. "onversion is renunciation of one's religion and adoption of another religion. %n

conversion to slam the status of the converts comes under Mohammedan Law. #he effect

of conversion is prospective and not retrospective. A bona fide conversion to and from slam

substitutes the new religion of the party for his or her previous religion. )e shall consider

the effect under the following heads 6

1. ffect on marital rihts - (a) on#ersion of h$sband. 1 f the conversion to slamic

religion is bona fide it may bring the convert under the rules of Mohammedan Law. #hus,

where a married "hristian domiciled in ndia, embraces slam and marries with another

woman according to the Muslim rules, it has been held that Muslim Law applies to his case

and the second marriage becomes valid, and previous marriage of the husband with the

"hristian lady is not dissolved, because Mohammedan Law permits marriage between a

Muslim male and a $itabia woman a follower of one of the scriptural faiths. 9ut if the

conversion is not bona fide and it is merely pretended in order to ta$e advantage of the

personal law so adopted, the court will not allow the validity of such conversion. #hus a

"hristian who had a "hristian wife living, cohabited with a native "hristian woman, in order

to legalise his relation with the latter, he and the woman both embraced slam and went

through the ceremony of marriage. #he marriage was held to be invalid, as the man had

tried to escape the conse:uences of bigamy by embracing slam which recognises plurality

of wives. /Skinner v. Orde, (1871) 14 Moor I.A.309, see also Sarla Mudgal v. Union of

India (199) 3 S.!.!. "3 where a Hindu converted to islam0.

(b) on#ersion of ife. 1 A non1Muslim wife cannot merely by conversion to slam legally

marry a Mohammedan during the lifetime of her non1Muslim husband and her marriage with

the non1Muslim male which was solemnised before conversion is not dissolved merely by

the fact of her conversion to slam.

(c) ffect of con#ersion on pre#io$s marrie. 1 f one of the spouses becomes convert toslam, the conversion will not dissolve the marriage validly contracted. #hus, if a husband

becomes converted to slam, his marriage with his non1Muslim wife is not dissolved.

+imilarly, if a non1Muslim wife embraces slam the marriage would not be automatically

dissolved.



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&. ffect on riht of inheritance. 1 )hen a person is converted to slam, the succession to

his estate will be governed by Mohammedan Law. #hus, if a married Hindu embraces slam,

his Hindu widow or Hindu children will have no right to succeed to him as the non1Muslim

may not succeed to a Muslim according to Mohammedan Law. /!#eda$%rian v. Ma&'e.

Me (198) " ang 43). A convert to slam is not governed by his original religion, but is

presumed to have accepted the tenets of the rophet as well as Muslim personal law.

According to the +hariat Act, 7D


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/b0 #he conversion of a Hindu wife to slam does not ipso facto dissolve her marriage with

her husband. +he cannot enter into valid contract of marriage with any other person during

the life time of her husband and if she goes through a ceremony of marriage after

conversion to slam she will be guilty uBs >D> of ndian enal "ode.

n A#$ad *u- v. S$. 'a#oo, AI 19"9 All. 7, it was held that marriage between a

Hindu couple does not dissolve automatically after a fi*ed period on the conversion of Hindu

wife to slam.

n the case of a$ /u$ari(1891) 18 !al."4 a Hindu Married woman embraced slam in

the belief that her conversion to slam would ipso facto dissolve her marriage with her Hindu

husband, after conversion she married again with a Muslim. +he was prosecuted for bigamy

and convicted.

Q. 4 * Hindu havin$ a wife and two sons, converted toMahomedanism and married a Muslim lady and had two sons from

her. tate who shall inherit his property on his death and in what

shares (

Ans. )here a person converts his religion to slam, then by necessary implication he will

not be Muslim by religion only but he will be subject to Muslim ersonal law as regard to

succession or inheritance also. n !onroller of ae 2u More v. a5i A#$edSaar and o#er, AI 197 S! 9 +upreme "ourt held that6

!t is the rule of Mohammadon law the correctness of which is not capable of any doubt that

it applies not only to person who are Muslim by birth but by religion also. Accordingly a

person converting to Mohammedanism changes not only religion but also his personal law.!

#herefore the effect of conversion to slam is to bring about a complete change as regards

the rights of inheritance. +uccession to the estate of a convert to Mohammedanism is

governed by Mohammedon law.

n 6o#ra *ai /#aia Ia##ai v. 6o#ra /ari$ *#ai, AI 1974 +u 4, it was held that incase of a Hindu convert to slam, succession and inheritance are governed by

Mohammedan law and not by Hindu Law.

+imilarly reference may be made to !#andra Sek#araa v. +ov. of More, AI 193

M. "1 wherein it was held that where a Hindu who had a Hindu wife and children

embraced slam and married a Muslim woman and had children by her, his property would

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pass on his death to his Muslim wife and children and not to his Hindu wife or children

because under Muslim law, a Hindu cannot succeed to the estate of a Muslim.

#herefore in this case property of person who was earlier Hindu and was having Hindu wife

and children but converted to Mohammedonism and got married with Muslim woman and

had two sons from such Muslim wifeI will pass, on his death to his Muslim wife and children.

His Hindu wife and children will get nothing.

Q. + * Mohammedon becomes convert to 5hristianity. The wife then

marries another man before the e3piration of the period of iddat.

tate if she is $uilty of bi$amy under ection )+) !5 (

Ans. 9efore the issolution of Muslim Marriages Act, 7D


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converted to slam and then re1married. Later on when the :uestion of validity of their

marriage arose in the "ourt, rivy "ouncil in that case held that the such marriage was `null

and void' on the ground that the conversion of the parties to slam was a fraud upon the law

and it was not bona fide. n one other case /akea *i%i v. Anil /u$ar, (1948) !al. 1190

it was held by "alcutta High "ourt that where the party puts forward his or her conversion to

a new faith as creating a right in his favour to the prejudice of another, it is proper and

necessary for a "ourt of Law to en:uire and find out whether the conversion was a bonafide

one. n the instant case since the conversion of the plaintiff /woman0 was with a view to get

rid from the unhappiness caused in her mind due to her husband's impotency, her

conversion to slam was not bonafide. n the case of J5am 4umari /7D70 7 "al. ?E>K a

Hindu woman assumed that if she adopts slam, her marriage, too$ place earlier according

to Hindu Law, will automatically be dissolved and as such she adopted slam. Her

conversion to slam was therefore held non1 bonafide by the "ourt and she was prosecuted

and convicted for bigamy.

n view of the decision of the above cases, a :uestion arises what is the true test of

conversion 6

!#he actual position in this regard is that any religion depends upon belief. t is inner thought

or feeling of a man but a partial difficulty in this regard is that the internal thoughts of a

person can neither be measured nor be tried in the "ourt. ue to this reason only no `hard

and fast' rule can be laid down even for the e*ternal tests too. %nly circumcision is one of

the test but it is also not a final and conclusive test or guage the sincerity of religious belief.!

#he "ourt, however, can find out the true intention of person lying behind his acts. +o far

the genuineness or bonafideness of the conversion of the slam is concerned, it can be

found out by the "ourt from the circumstances of the case whether a pretended conversion

was really a means to some further ends. f conversion is not inspired by religious feelings

and it is done for the sa$e of achieving one's own motive or purpose, it will not be

recognised as bonafide.

+ummarily it can be said that the conversion to slam is valid and bonafide if converter

professes slam and that it is not pretended or colourable one for the purpose ofperpetrating a fraud upon the law and /b0 the whole of the converter's conduct and the

evidence of surrounding factor is such as to run counter to the presumption of his or her

conversion to slam.


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Q. 11 8Marria$e amon$ Muhammadans, is not sacrament but purely a

civil contract. Discuss the statement with reference to contractual

nature of Muslim Marria$e.

Ans. Marriage among Hindus is a sacrament tie between Man and )oman. t is considered

to be holy union of husband and wife for the performance of religious, social and spiritual

duties. However, Marriage under Muslim Law is not a sacrament but is a civil contract.

Marriage or `(i$ah' under Mohammedan law may be defined as `legal process by which

se*ual intercourse and procreation and legitimation of children between man and woman is

perfectly lawful and valid.!

According to r. @ang !Marriage though essentially a contract is also a devotional act, its

object are rights of enjoyments and procreation of children and regulation of social life in the

interest of society.!

@uristically spea$ing, Marriage among Mohammedans, being civil contract re:uire following

essentials6

Firstly Marriage li$e any other contract constituted by offer and acceptance /jabo:abool0 to

other party and Marriage becomes complete only when other party has accepted that offer

/=abool0. +uch offer and Acceptance must be in one meeting in the presence of witnesses.

t is also necessary that parties contracting marriage must be acting under their free will and

consent.

+econdly parties to marriage must have capacity of entering into contract. n other words

they must be competent to marry. &very Muslim who is of sound mind and who has attained

puberty may enter into contract of marriage. arties must be able to understand the nature

of their act. Marriage of a minor may be solemni-ed provided with the consent of guardian.

#hirdly there should be no legal disability to enter into contract of marriage. Legal disability

means the e*istence of certain circumstances under which marriage is not permitted. #hese

disabilities have been classified into following three heads6

/a0 Absolute incapacity, which arises from /i0 consanguinity (ii) affinity and (iii) osterage.

/b0 5elative incapacity which arises from cases which render the marriage invalid so long as

the cause which creates the bar e*ists and the moment it is removed the in capacity ends

and marriage becomes valid. 3nlawful conjunction, fact of marrying fifth marriage, absence

of proper witness, difference of religion and marrying with woman undergoing ddat are all

cases of relative incapacity.

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/c0 rohibitory incapacity arises when Muslim woman has more than one husband and

when Muslim woman marries non1Muslim.

ourthly Mehr or dower is settled by husband upon his wife in consideration of the marriage.

He may settle any amount he li$es but the same cannot be less than ten dirhams. )ife is

entitled to claim prompt dower on demand at the time of marriage. However deferred dower

is payable on dissolution of marriage by divorce or death.

ifthly 3nder Mohammedan Law marriage is not permanent tie and any Muslim of sound

mind who has attained puberty may divorce his wife whenever he desires without assigning

any reason or cause.

#hus it becomes clear that marriage among Mohammedans is purely a civil contract.

Q. 1 'hat marria$es are void and invalid and what marria$es are

mere irre$ular under Muslim Law ( #rie9y discuss the le$al

conse:uences of such marria$es.

Ans. 6oid $arriage in Muli$ a 1 ue to the following reasons the marriage /(i$ah0

are deemed void 1

(a) onsan$inity /9atil0 in Muslim law. f a person contracts marriage with 1

/i0 His mother or grandmother, how high so1everI

/ii0 High daughter or grand daughter, how low1soeverI

/iii0 His sister 1 full consanguine or

/iv0 His niece or great niece how low1soeverI

/v0 His aunt or great aunt /it includes aunt from father's side or mother's side as well0.

#he above categories of marriages are void on the ground of consanguinity.

(b) Affinity 1 A Muslim is prohibited from marrying with all such /relative0 woman with whom

he has relationship of affinity. n case any marriage is done with any of the following

relations, it is deemed, in law, as void 1

/i0 )ife's mother or grandmother, how high1soever.

/ii0 )ife's daughter or grand daughter how low1soever.

/iii0 +on's wife or son's son's wife, how low1soever.

A woman can also not marry with her daughter's husband or daughter's daughter's

husband.

#he above category of marriages are prohibited due to the violation of the rules of affinity.



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n :ai$a *i A$$al v. A.A. Ma#o$$ed Mo#ideen (1971) M; 41, it was observed

that the law imposes certain prohibitions based on consanguinity and affinity. f a man

marries a woman in violation of such prohibition the marriage is void and the offspring is

illegitimate. #here is =uoranic injunction also against a man having at the same time two

wives who are so related to each other by consanguinity, affinity or fosterage that if either of

them had been male they could not have lawfully intermarried, as for instance two sisters or

aunt and niece.

(iii) ;osterae. 1 )hen a child under the age of two years has been suc$led by a woman,

other than its own mother, the woman becomes the foster mother of the child. t is as much

a prohibition in marriage as consanguinity because the act of suc$ling is regarded as e:ual

to the act of procreation. or e*ample, man is prohibited from marrying his foster1mother,

foster1 mother's daughter.

9ut under +unni law one can marry 1

/70 oster sister's mother or sister's foster mother.

/?0 oster1son's sister.

/


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#here are certain other grounds on the basis of which a marriage becomes irregular. #hey

are 1

(1) The doctrine of *$ality in marriae 1 f there is une:ual status of husband in

comparison to the status of his wife the marriage is irregular. n Hanafi law these factors are

considered necessary for determining e:uality.

/a0 amily /b0 slam /c0 rofession /d0 reedom /e0 2ood character /f0 Means.

(&) Illicit interco$rse 1 f a person does illicit intercourse with a woman or commits an act of

`undue familiarity' it is not deemed valid in Muslim Law. +ome women's relations are

forbidden to him although he may marry the woman herself.

(3) ,ilrimae 1 thana1shari and +hafi's school are of the opinion that he who comes from

sacred places li$e `4A9A' and put on pilgrim's dress, may not enter into a contract of

marriage while on the pilgrimage.

(4) 'i#orce 1 f a Muslim divorces his wife once, he cannot re1marry with such woman

/wife0. +he will have to marry some other man after completing the period of `ddat' and

such marriage must be consented. After the consummation of such marriage she must be

divorced and only then she can re1marry with her former husband.

/eal effects 1

/70 rregular marriage has no legal effect if it has not been consummated.

/?0 "onsummation effects marriage.

Q. 1& *;bar an of Mulla's !rinciples of Mahomedan Law!, 7Dth &dn., are as6 !t is essential to

the validity of a marriage that there should be a proposal made by or on behalf of one of the

parties to the marriage, and an acceptance for the proposal by or one behalf of the other, inthe presence and hearing of two male or on male and two family witnesses, who must be

sane and adult Mahomedan.

#he proposal and acceptance must both be e*pressed at one meeting. A proposal made at

one meeting and an acceptance made at other meeting do not constitute a valid marriage.



22/108

n the case in hand, the offer and acceptance have not been made in the presence and

hearing of witnesses. #herefore, the marriage cannot be said to be valid. However a

marriage contracted without witness is irregular and not void under +unni law. +uch

marriage can be validated by consummation. 3nder +unni law, the presence of witness is

not necessary in any matter regarding marriage.

Q. 1) tate concisely what do you understand by option of puberty

of a Muslim 7irl.

Ans. #he marriage in Muslim law is a civil contract. #herefore competency of the parties to

marriage with regard to their age is one of the essential re:uirements. However in case of a

minor, the consent of marriage of a girl or a boy can be given by respective guardian on

their behalf. t, however does not mean that contract of marriage entered into by guardian of

a minor on his or her behalf will finally be imposed on such minor throughout his or her life.

Muslim law gives power to minor to repudiate or continue his or her marriage if he or she so

li$es after attaining the age of majority. +uch right is called `#he option of uberty' /4hyarul

9ulugh0. #hus `option of puberty' is the right to a minor boy or girl whose marriage has been

contracted through guardian, to repudiate or confirm the marriage on attaining puberty.

Old a of Oion of


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/b0 SAI 6 t is the second stage when his or her age is above seven years but

below 12 years. n this stage though he or she can be married, but his or her consent for

marriage is not recognised. He or she can validly be married only by his or her guardian.

/c0 *UU+ 6 t is the third stage when he or she is above 12 years of age .t is now when

he or she can enter into contract of marriage on his or her own free consent.

n case of a girl who is aware of her marriage, she must e*ercise her right to the option

immediately on attaining puberty. Any unreasonable delay would deprive her right of option.

9ut if she does not $now that she has this right then it is prolonged until she is ac:uainted

with the fact that she has such right. #he option of puberty can be e*ercised through

substantive suit filed by wife. 9ut she cannot e*ercise such option when her husband has

filed suit for restitution of conjugal rights. #he option is lost if she after having attained

puberty permits the marriage to be consummated.

A male has the same right of option of puberty. #his option can be ratified by him on

attaining puberty by6

/i0 &*press declaration

(ii) ayment of dower

(iii) "ohabitation

Q. 1- ma a Muslim $irl was married to *hmed when she was 1&

years old. *fter / months she went bac; to her father?s house and

refused to come bac; to *hmed?s house. *hmed @led a petition for

restitution of conAu$al ri$hts. ma pleaded she is no lon$er his

wife as immediately on attainin$ the puberty she had repudiated the

marria$e with him. n reAoinder *hmed pleaded consummation of

marria$e and stated that she had lost the ri$ht of option to

repudiate the marria$e on attainin$ puberty. Decide who will

succeed. 7ive reasons.

Ans. 3nder Muslim law, a boy or girl who has not attained puberty, is not competent to

enter into a contract of marriage, but he or she may be contracted in marriage by his or her

guardian. )hen a minor has been contracted in marriage by the father or father's father, the

contract of marriage is valid and binding, and it cannot be annulled by the minor on attaining

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puberty. )hen a marriage is contracted for a minor by a guardian other than the father or

father's father, the minor has the option to repudiate the marriage on attaining puberty.

9y the !issolution of Muslim Marriages Act, 7D


25/108

attainment of puberty. +ection ?/80 of the issolution of Muslim Marriages Act, 7D


26/108

/70 )hen the parties are observing the obligatory fast of `5am-an'. =r

/?0 &ither husband or wife is suffering from an illness or physical incapacity which prevents

connubial relationship. =r

/0 Any other legal, moral or physical impediments which cause or li$ely to cause

disturbance in free intercourse between the spouses.

#herefore as per Amar Ali, merely the retirement into the nuptial chamber is not sufficient to

give rise to the presumption of consummation of marriage. More particularly when the place

for that purpose is e*posed to public view or it has a public access or if it is open,

unenclosed place, the presumption of consummation of marriage does not arise. )hat

actually needed for a valid retirement is the absolute privacy for the spouses.

/eal effect of the #alid retirement 1 According to `atwai Alamgiri', a valid retirement is

e:uivalent to actual consummation for the purpose of1

/i0 "onfirmation of dower

/ii0 &stablishing paternity

/iii0 %bservation of ddat.

/iv0 %bservance of time in repudiation of marriage.

t is, however, not applicable for the following purposes 1

/a0 or ma$ing a person `Muhsan' or a daughter unlawful.

/b0 or ma$ing the divorced woman lawful to her first husband.

/c0 or revo$ing repudiation of marriage.

/d0 or inheritance.

/e0 5eplacing actual consummation for the purpose of impairing virginity.

Amir Ali said that if a man should retire with a virgin and then repudiate her, she would

subse:uently marry as virgin.

Q. 14 'hat do you understand by 8Muta Marria$e" ( Describe its

le$al e%ects.

*lso distin$uish Muta Marria$e with valid 0ahih Marria$e.

Ans. $ta arriae. Muta is a $ind of temporary marriage recognised in the +hia school of

Muslim Law. #he term `Muta' implies !enjoyment! or `use'. Muta marriage is a marriage for a



27/108

temporary but a fi*ed period after specifying dower. According to Heffening in its legal

conte*t it may be rendered as a !marriage for pleasure!.

t is not recognised in +unni Law because according to this school the marriage contract

should not be restricted in its duration and the words used at the time of proposal and

acceptance must denote an immediate and permanent union. #hus, under +unni Law, a

marriage specifically declared for a limited period is void but under +hia Law such marriage

is valid.

ssentials of $ta arriae 7. #he period for which the union is to last should be fi*ed at

the time when the Muta is contracted. t may be for a day, a month, a year or for a number

of years.

?. +ome dower should be specified in the contract. f the term of the cohabitation is not

specified but the dower is fi*ed the contract would be void as Muta but may be valid as

(i$ah. 9ut if dower is not fi*ed, neither Muta nor (i$ah is valid.

#herefore where the term of the marriage was not fi*ed, it is not Muta and as also the dower

is not fi*ed the (i$ah is also not there. #herefore the cohabitation is illegal and no legal

effects of such a marriage will be there. t is essential for a Muta that the period must be

fi*ed though the marriage is temporary.

According to 9aillie !the rule of limiting the number of wives to four as regards regular

marriage, does not apply to Muta marriage.!

/eal incident of a $ta marriae #he legal incidents of a Muta marriage are as follows 1

/i0 t does not confer on the wife or husband mutual rights of inheritance, but children

conceived while it e*ists, are legitimate and capable of inheriting from both parents.

/ii0 )here cohabitation originates in a Muta marriage, but there is no evidence as to the

original term for which Muta marriage was contracted, or the cohabitation continue after the

fi*ed period e*pires, the proper inference is that Muta continued during the whole period of

cohabitation and the children conceived during such period are legitimate.

/iii0 f the Muta marriage is not consummated, the wife is entitled to half of the dower.

/iv0 f the marriage is consummated, the wife is entitled to full dower even if the husband

puts an end to the marriage before the e*piry of the fi*ed term by !ma$ing a gift of the term!

to her.

/v0 f the wife leaves the husband before the e*piry of the fi*ed term she is entitled to the

proportional dower only.

/vi0 A Muta marriage does not entitle the wife to maintenance under her personal /+hia

Mohammedan0 law.


28/108

/vii0 f the children are born out of such marriages, they are legitimate and have the right of

inheritance from the both the arents.

/viii0 #he Marriage is dissolved if so facts on the e*piry of the fi*ed period or by mutual

consent.

Ho dissol#ed 1 A marriage is dissolved 6

/a0 automatically by the e*piry of the term fi*ed, or

/b0 at any time by the husband !ma$ing a gift of the term! to the wife even before the e*piry

of the term. #his gift is $nown as hiba1i1muddan.

'ifference beteen >$ta-marriae" and ?i!ah 1

ifferences between regular marriage /(i$ah0 and `Muta1marriage' are as under 1

/70 #he regular marriage /(i$ah0 is recognised by +hias and +unnis both whereas Muta

marriage is recognised only by +hiaties./?0 Marriage or (i$ah is a permanent contract while muta marriage is temporary and a time

being enforceable contact.

/0 #he relation once established between a wife and husband due to regular marriage is

dissolved only on divorce or death of any of them, whereas Muta marriage is automatically

dissolved on the e*piry of the specified period.

/E0 #he woman becomes entitled to get the full amount of dower, no sooner her regularmarriage is solemni-ed properly, but the payment of dower /Mehr0 in Muta marriage

depends upon the consummation of such marriage. n case marriage is not consummated

in Muta marriage, the wife is entitled only for half dower.

/C0 5egular marriage can be dissolved only through divorce and the payment of dower is

very necessary before doing so but in case of Muta marriage, it can be terminated only on

the e*piry of the prescribed time.

/F0 #he dower can either be `e*pressed' or `implied' in regular marriage, while in Muta

marriage, it is always e*pressed./0 n case divorce ta$es place after some time in the regular marriage the wife is entitled to

get maintenance during the period of `ddat' while in Muta (i$ah, a woman has no right to

ta$e any maintenance after dissolution of such marriage.


29/108

Q. 1+ t is often said that "Muslim Marria$e is a 5ivil 5ontract". 5an

parties to this contract put any condition to contract they li;e (

Discuss.

Ans. Marriage among Hindus to a sacrament tie between man and woman. A sacramental

marriage is considered to be holy union between man and woman for the performance of

religious and spiritual duties. However marriage under Muslim law is not essentially a

sacrament but is a civil contract. &very Mohammedan of sound mind who has attained

puberty may enter into contract of marriage. Muslim marriage being civil contract involves

essential re:uirement of proposal made by one and acceptance of proposal by other party

to marriage /jabo=abool0 at one meeting in the presence of two male or one male and two

female witnesses. t is also necessary under Muslim law that the parties contracting a

marriage must be acting under their free consent. Muslim law puts certain e*pressed

prohibitions in respect of marriage. Muslim marriage also involves essential condition of

payment of ower /Mahr0 by husband to his wife in consideration of Marriage. +uch ower

/Mahr0 may either be prompt /Mu'ajial0 or deferred /Mu'wajjal0. +o Muslim Marriage,

basically is a civil contract.

+ince marriage among Mohammedans is a civil contract. t is possible for the parties to

attach reasonable conditions to matrimonial contract, so much so that on breach of any of

these conditions the court will have power to enforce the premarital agreement provided the

conditions are not against public policy or opposed to principles of slam. )here the parties

to marriage are minor or lunatic the agreement may be made on their behalf by their

respective guardians. +o if the agreement is not against the public policy or against the

principles of slam, it is legal and enforceable.

#hus an agreement made before or after the marriage by which it is provided that wife shall

be at liberty to divorce herself if husband contracts second marriage without her consent.

+uch agreement is valid and enforceable because it is not against public policy or is not

opposed to slamic principles. +imilarly premarital agreement between husband and wife

that husband shall immediately on marriage will pay certain amount of dower and will $eep

on giving his earning to his wife and husband will ta$e his wife to her parental house four

times in a year, are valid and enforceable because it is not opposed to slamic principles.



30/108

However any agreement providing for future separation or ta$ing away husband's freedom

to pronounce divorce are not enforceable since such agreements are in violation of slamic

principle.

Q. 6 0a 23plain the validity of followin$ a$reements entered into

between husband and wife at the time of their marria$e under

Mohammadan Law B

0i That the parties shall not follow the Muslim law of inheritance.

0ii That the husband shall have no ri$ht to divorce the wife.

0b M, a unni Muslim marries ', a sunni female without the

presence of any witness, will it ma;e any di%erence if the parties

were hias(

Ans. /a0 Muslim Marriage is a civil contract. t is possible for the parties to attach

reasonable conditions to the matrimonial contract so much so that on breach of any these

conditions the court will have power to enforce the premarital agreement provided the

conditions are not against public policy or against the principles of slam. #hus conditions of

Marriage contract may be classified into /i0 legal and (ii) llegal. Legal conditions are valid

and enforceable and illegal conditions are such as to affect the validity of the contract andrender the contract of marriage voidable unless consummation ta$es place and if

consummation ta$es place, the condition alone is void.

(ow coming to case in hand.

/i0 An agreement that parties shall not follow Muslim Law of inheritance is in contravention

of Section & of the +hariat Act 7D


31/108

3nder +unni law, the proposal and acceptance must be made in the presence of two male

or one male and two female witnesses. Absence of witnesses does not render the marriage

void but voidable. 3nder +hia law witnesses are not necessary at the time of marriage.

However, when the guardian of a minor contracts marriage on his or her behalf, such

marriage re:uires two adult witnesses.

#herefore marriage between M and ) is not void but only voidable.

Q. 1 23plain the concept of ddat under Muslim Law.

Ans. ddat is the period during which it is incumbent upon a woman whose marriage has

been dissolved by divorce or death of her husband, to remain in seclusion and to abstain

from marrying another husband. +o ddat is an interval which the woman is bound to

observe between the termination, by death or divorce of one matrimonial alliance and

commencement of other.

%bject of ddat is to ascertain the pregnancy of wife so as to avoid confusion of parentage

under +unni law marriage with woman undergoing ddat is irregular and not void. 9ut under

+hia law marriage with woman who is undergoing ddat is void.

+o `ddat' is described as a period during which a woman is prohibited from marrying again

after the dissolution of her first marriage. %bject of `ddat' is to ascertain the pregnancy of

the wife so as to avoid the confusion of parentage.

35A#%( % A#

i) Iddat of ,ala1* 6 eriod of `ddat' in case of marriage being dissolved by `#ala:' /divorce0 is

that if woman is subject to menstruation, three courses otherwise /if she is not subject to

menstruation0 it is three lunar months. f woman is pregnant at the time of ivorce the

`ddat' will not terminate till delivery.

ii)Iddat of 2idowhood3 )hen a person dies leaving a widow, she is prohibited from marrying

before the e*piration of 4months and 10 days.

iii) Iddat of 4re5nant 2idow 2oman3 mportant point here is that if marriage is not

consummated `ddat' has to be observed in the case of death but not in case of divorce.

3nder +unni law marriage with a woman undergoing `ddat' is irregular and not void. 9ut

under +hia law marriage with a woman who is undergoing `ddat' is void.

Q. Discuss the validity or otherwise of the followin$ B



32/108

0a * unni male marries a hia woman in a desert where there are

no witnesses.

0b Marria$e of *, a hia woman was dissolved on Can. 1, 1+46 on

account of death of her husband #. The marria$e was not

consummated. * married D on Can. /, 1+46.

0c *, a hia married #, a hia female in the presence of a witness Q

on Can. 1, 1+46. n Cune 1+46 he married D, who was #?s sister.

0d *, a unni male marries #, a unni female but no Mahr was

speci@ed.

Ans. 3nder the Muslim law marriage is a civil contract. Marriage /(i$ah0 literally means the

union of the se*es and in law this term means !Marriage is a legal process by which the

se*ual intercourse and procreation and legitimation of children between man and woman is

perfectly lawful and valid.!

According to r. @ang

>Marriage #oug# eeniall a ?onra? i alo a devoional a?, i o%e? are rig#

of eno$en and ro?reaion of ?#ildren and regulaion of o?ial life in inere of

o?ie.> (a) t is essential amongst the !+unnis! that at least two male witnesses or one

male and two female witnesses must be present at the time of proposal and acceptance of

marriage contract between bridegroom and bride. However absence of witnesses does not

render the marriage void /9atil0 but voidable and could be validated by consummation of

marriage.

3nder +hia law witnesses are not necessary at the time of marriage. +o marriage in present

problem is valid if consummated or voidable if not consummated.

(b) Among Muslims, it is incumbent upon a woman whose marriage has been dissolved by

divorce or death of her husband to remain in seclusion and to abstain from marrying

another husband for certain term which is called `ddat'. +o `ddat' is described as a period

during which a woman is prohibited from marrying again after the dissolution of her first

marriage. %bject of `ddat' is to ascertain the pregnancy of the wife so as to avoid the

confusion of parentage.

35A#%( % A#

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(i) Iddat of ,ala1* 6 eriod of `ddat' in case of marriage being dissolved by `#ala:' /divorce0

is that if woman is subject to menstruation, three courses otherwise /if she is not subject to

menstruation0 it is three lunar months. f woman is pregnant at the time of ivorce the

`ddat' will not terminate till delivery.

(ii) Iddat of 2idowhood3 )hen a person dies leaving a widow, she is prohibited from

marrying before the e*piration of 4 months and 10 days.

(iii) Iddat of 4re5nant 2idow 2oman3 f the widow is pregnant at the time of death of her

husband, ddat will not terminate until delivery or miscarriage.

mportant point here is that if marriage is not consummated `ddat' has to be observed in the

case of death but not in case of divorce.

3nder +unni law marriage with a woman undergoing `ddat' is irregular and not void. 9ut

under +hia law marriage with a woman who is undergoing `ddat' is void.

n present problem, marriage of A, the +hia woman, was dissolved by the death of her

husband. #herefore, she is bound to observe `ddat' for period of 4 months and 10 days

irrespective of fact whether marriage was consummated or not. 9ut she married before

the e*piry of period of `ddat' therefore, according to +hia law her second marriage was

void.

(c) 3nder +hia law, marriage prohibited by reason of unlawful conjunction is void. 3nlawful

conjunction means marrying two women so related to each other by consanguinityI affinity

or fosterage, that they could not have lawfully inter1married with each other if they had been

of different se*es. #hus Muslim can not marry two sisters or an aunt and her niece.

n present case A has married with sister of her first wife who is alive and living with him so

marriage between A and is void because parties were subjected to +hia Law. Legal

position under +unni law is different on this point. 9ar of unlawful conjunction renders the

marriage under +unnis irregular not void.

(d) Mahr or dower is a sum of money or other property which the wife is entitled to receive

from the husband in consideration of the marriage. 3nder the Mohammendan law, dower is

an obligation imposed upon the husband as a mar$ of respect to the wife. #he husband

may settle any amount he li$es by way of dower upon his wife, though it may be beyond hismeans, and though nothing may be left to his heirs after the payment of the amount. 9ut he

cannot in any case settle less than ten irhams. #he main object of the dower is to protect

the wife against the arbitrary e*ercise of power of divorce by the husband and the amount

of dower is often high. #herefore, the non1specification of Mahr before or at the time of

marriage shall not affect the validity of the marriage.


34/108

Q. & De@ne 8Dower?. 23plain its mportance under Muslim Law.

Discuss di%erent cate$ories in which dower can be divided.

Ans. ower is anything whether money or other property which the wife is entitled to get

from her husband in consideration of entering into marriage contract. According to Muslim

Law, Marriage is a civil contract and dower is necessary result of it being a part of the

consideration of her agreement to become her husband's wife by consummating the

marriage.

Accordin to Amir Ali. 1 ower is a consideration for his wife's sole and e*clusive use and

benefit.

9aillee observed that the fact of marriage having been contracted involves as a necessary

conse:uence that the wife can claim from the husband by way of consideration for the

surrender of her person.

According to )ilson, !ower! is a consideration for the surrender or person by the wife. t is

the technical Anglo1Mohammedan term for its e:uivalent `Mahr' in Arabic.!

According to Mulla, !ower is a sum of money or other property which the wife is entitled to

receive from the husband in consideration of the marriage.

n M. 'ara *egu$ v. ian Ali, AI 1980 All. 118 , it was observed that `3nder

Mohammedan Law, Mehar or ower means a sum of money or other property which the

wife is entitled to receive from the husband in consideration of her marriage. However,

&*pression !"onsideration! is not to be understood in the sense in which the word is used

in the "ontract Act. n effect dower is an obligation imposed upon a husband as mar$ of

respect for the wife. (ormally the e*tent of such obligation is determined by the contract

entered into between husband and wife either before or at the time of marriage. t may be

fi*ed after the marriage has ta$en place. f the amount of dower is not fi*ed or marriage has

been performed on e*press condition that wife will not claim any dower, still, wife is entitled

to receive proper dower /Mehr1i1 misi0.

?at$re. 1 #he following points may be noted with respect to the nature of dower 6

/70 ower is not e*actly a consideration for marriage in the sense of a consideration for any

other contract. t is an obligation imposed by the law on the husband as a mar$ of respect

for the wife.

/?0 t is a consideration for conjugal intercourse. #he right to cohabitation comes into

e*istence at the same time and by the reason of some incident of law as the right to dower.



35/108

/


36/108


37/108

!deferred! dower !the period of limitation is three years, from the date when marriages is

dissolved by death or divorce.!

(&) $stomary or ,roper doer. 1 )hen the amount of the dower has not been settled, or

even when the marriage has been contracted on an e*press stipulation that the wife shall

not claim any dower, she is entitled to proper or customary dower. J'ara *egu$ v.

i5an Ali, (1980 Alld. 118 0K. t is also termed `dower of her e:uals'. t is at the discretion

of the court as to what it considers proper dower for the woman, but the court is generally to

be guided by these consideration 6

/i0 the social position of the family of woman's fatherI

/ii0 her own personal :ualificationI

/iii0 the powers that have been given to her female paternal relations, i.e., her consanguine

sisters, her paternal aunts, the daughters of her, paternal uncles or her father's sistersI

/iv0 the position of the husband must not be altogether e*cluded from consideration as

une:ual marriage often ta$e place. / A5ee$ooddin v. *i%i uaini, 194 A@ 110)I

/v0 when a wife bases her claim on a contract which she fails to establish, the court is bound

to decree such amount as dower as is admitted by her husband /F Lah. >>F0.

Shia /a. 1 3nder +hia Law, the roper ower should not e*ceed E88 dirhams. E88

dirhams was the amount fi*ed as dower on the marriage of atima, the rophet's daughter.

Q. ) 23plain the widow?s ri$ht of retention in lieu of her dower debt

in Muslim law.

Ans. ower or Mahr is a sum that becomes payable by husband to the wife on marriage

either by agreement between the parties or by operation of law. ower may be defined as

sum of money or other property which the wife is entitled to receive from the husband in

consideration of the marriage. t may be either prompt or deferred. Husband may settle any

amount he li$es by way of dower upon his wife. 9ut he cannot in any case settle less than

ten dirhams.;agdi# 'araan S#ar$a v. /aoridevi, 1994(3) ! 78 /M06 ower or Mehar can be

defined as sum of money or other property which the wife is entitled to receive from the

husband in consideration of marriage, however gifts made to wife at the time of marriage

are not part of dower or mehar.



38/108

%bject of dower is three fold firstly to impose an obligation on the husband as mar$ of

respect of wife. +econdly to put a chec$ on capricious use of divorce on the part of husband

and thirdly and importantly to provide for her subsistence after the dissolution of her

marriage, so that she may not become helpless after divorce or death of her husband.

ower ran$s as a debt and the wife is entitled along with other creditors to have it satisfied

on the death of the husband out of his estate. f the widow has lawfully and without force

and fraud obtained in lieu of her dower actual possession of the property of deceased

husband, she is entitled to retain that possession as against other heirs and as against

other creditors of her husband until her dower is paid.

A widow's right to retain possession of her husband's estate in lieu of her dower is sort of

compulsion to obtain speedy payment of the dower which is an unsecured debt. )here she

is not in possession or has lost possession she cannot claim to obtain it because her right to

retain is not in the nature of a charge on the property li$e mortgage but a personal right.

n Main *i%i v. !#oud#ar 6akil A#$ad, (194) I.A. 14 , rivy "ouncil observed 6

ossession of property once lawful ac:uired by Muslim widow, right to retain it in lieu of

dower and till payment of dower is conferred upon her by the Muslim law. However right of

retention does not give her any title to the property therefore she can not alienate the

property.

n S#aik# Sal$a v. Mo#d. A%dul /adar, AI 19"1 A.


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0e 5an a Muslim wife remit the whole or part of the dower in favour

of her husband ( f so when and how(

Ans. /a0 Increase or decrease of doer 1 A Muslim husband may increase the dower at

any time after his marriage but once the amount of dower is agreed by the wife and

husband, it becomes a contract. +uch contract then becomes binding on the husband.

(b) 'etermination of the specific doer 1 t is necessary in a Muslim marriage that the

amount of ower /mehr0 should be specified. n case it is not done so, the legality of the

marriage is not adversely affected due to the same.

f the amount of dower is not specified at the time of marriage it can be determined in

proportion to amount of dower given to the other woman of the bride's house.

(c) ntitlement of a $slim ife for other doer 1 f the amount of dower /Mehr0 in aMuslim marriage is unlawful, the marriage itself will not be invalid or void. t is a general rule

that the amount of dower for Muslim wife will be fi*ed on the basis of social position of her

father's family and her own personal :ualifications.

(d) /iability of son to pay doer fi9ed by his father 1 f contract of marriage of Muslim

minor is entered by his or her father or guardian, the amount of dower fi*ed in consideration

of marriage becomes binding on the boy /bridegroom0. n case such father or guardian

stood as security for the payment of such dower, he can be held liable to pay the same in

case the boy /bridegroom0 fails to do so.(e) @emission of ehr by ife 1 A Muslim wife can remit the dower or any part thereof in

favour of the husband or his heirs. &ven if such remission is without consideration it is held

valid in the eye of law. n this connection it is, however, necessary that the remission must

have been made with the free consent. `ree consent' in reference means 1

/a0 )ithout coercion

or

/b0 3ndue influence.

n the case of 'urrannea v. /#oe Mo#a$$ad (1930, 47, !al 37) it was held by thecourt that if the remission of dower is made by the wife when she is in a great mental

distress owing to her husband's death, it will not be deemed to have been done with free

consent of wife. t is also necessary that remission of dower must be made only by such a

wife who is not minor. According to Allahabad High "ourt in the case of Buai$ uain

v. *i%i /ani5 (193, 4 All 80") that ndian Majority Act /section ?0 7FE does not effect on



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the capacity of only or any person `to act in the matter of marriage or dower'. #herefore, a

Muslim girl who has attained the puberty is competent to relin:uish her dower, though she

may have not attained the age of majority /7 years0 within the meaning of ndian Majority

Act. #his view is correct as per `Mulla'.

Q. / * unni widow who was a convert to slam, sued, the heirs of

her husband for recovery of =s. -1,666 as her dower, alle$in$ that

this was the amount @3ed at the time of marria$e. The heirs pleaded

that she was a concubine and not a married wife. The court found

the marria$e to be proved but held that the dower alle$ed by her

was not proved. 'hat decision would you record in respect of the

amount of dower, if any (

Ans. #hree things are to be noted in this case. #hey are 61

/a0 #he marriage has been proved.

/b0 ower has not been proved.

/c0 +he was a convert to slam and hence a non1Muslim before marriage.

)hen the marriage has been proved, she become entitled to `dower'. 9ut the dower has not

been proved, in other words, it is not specified. Hence, in the absence of specified dowershe becomes entitled to `proper dower' which is to be fi*ed at the discretion of the court.

%rdinarily for its guidance in e*ercising this discretion, the court should consider the dower

usually settled on to her female members of her father's family. 9ut in this case, the widow

being a convert, the court can have no such guidance because the female members of her

father's family were non1Muslims. #he only alternative is to fi* an amount considered

reasonable with reference to the means of the husband and the status of the wife.

Q. 'hat are the remedies open to the wife on nonpayment of

dower (

Ans. #he rights which dower confers on the wife are three1fold 6

7. 5efusal to cohabit.

?. 5ight to dower as a debt.

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Ans. What is >Tala*" 1 #he word `#ala:' originated from the word `talla:a' which means to

release an animal and #ala: is releasing wife from the bondage of marriage.

#ala: means the e*ercise of the absolute power which the husband possesses of divorcing

his wife at all times. According to Muslim Law, any husband, who is of sound mind and has

attained puberty may divorce his wife whenever he desires without assigning any reason, at

his mere whim or caprice. 3nder +hia Law, free will and intention are essential for valid

tala: which is not necessary under +unni Law. t may be oral or in writing. n ndia, no

decree of "ourt is necessary for ma$ing the #ala: effective. 9ut in many slamic countries of

the world, this arbitrary power of the husband has been controlled to a large e*tent by

reforming the slamic law on this point. #hus, in #ur$ey, "ypres, #unisla, Algeria, ra: and

ran a husband desiring to divorce his wife has to apply to a court of law.

0unni Law 3 =ral tala*. 1 #he husband may give tala: by mere words without any

tala:nama or deed of divorce and no particular form of words is necessary. f the words are

e*press and well understood as implying divorce, no proof of intention is re:uired. f the

words used are ambiguous, the intention of the user must be proved. #he words ! have

divorced thee! or ! divorce my wife for ever and render her haram for me! clearly indicate

an intention to dissolve the marriage and no proof of intention is necessary. 9ut the words,

!#hou art my cousin, the daughter of my uncle, if thou goest!, or ! give up all relations and

would have no connection of any sort with you! are ambiguous and as such, the intention

must be proved.

Tala* i#en in the absence of ife. 1 t is not necessary that the tala: should be

pronounced in the presence of the wife or even addressed to her. #he absence of wife does

not ma$e it void or ineffective, but in case of her absence, she must either be referred to by

name or the words of repudiation must clearly refer to her. Hence, where merely the words

of divorce alone were pronounced, the tala: was held to be invalid.

#he tala: given in the absence of the wife must be communicated to her within a

reasonable time.

Tala* in ritin /#ala:nama0. 1 A #ala:nama may only be the record of the fact of an oral

tala: or it may be the deed by which the divorce is effected. #ala:nama may be e*ecuted inthe presence of the =a-i, or of the wife's father or of other witnesses. )ife's presence is not

necessary. f the deed is properly subscribed and addressed or is in a customary form,

intention is not necessary to be proved. f it is ambiguous or words are unintelligible, the

intention must be proved.


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ivorce by #ala:nama ta$es effect from the date of the document and not from the date of

its receipt by the wife.

Tala* $nder comp$lsion or into9ication or in est - S$nni /a. 1 /a0 #ala: is valid and

effective even if pronounced under compulsion. Hence, a #ala: given by husband to please

his father, in spite of the fact that the husband did not intend to divorce his wife was held to

be valid. Jaid A#$ad v. Ania /#aun, (1931) 9 I.A. 1K.

/b0 #ala: given under into*ication is also valid unless the drug was given against his will.

/c0 A #ala: uttered in sport or jest or by mere slip of tongue is valid.

Shia /a. 1 A #ala: under +hia Law must be pronounced orally in the presence of two

competent witnesses. A #ala: communicated in writing is not valid, unless the husband is

physically incapable of pronouncing it orally. #ala: under into*ication, jest or compulsion is

not valid in +hia Law. #he particular form of #ala: must be pronounced in Arabic language,

unless the husband has no $nowledge of this language in which case it must be

pronounced in his mother1tongue. n 2il#ada Maood v. +#. Muaffa (A.I.. 198"

;a$$u and /a#$ir 80 0, the High "ourt of @ammu and 4ashmir held that under +hia Law,

divorce must be pronounced only in Arbic and that too in a specific form. t is not, however,

necessary that the husband himself must be $nowing Arbic. He can engage the services of

an agent who $nows Arabic to pronounce the same in his behalf. t was also observed that it

is a established principle of +hia Law that pronouncement of #ala: must be uttered orally in

presence and hearing of two male witnesses who are Muslims, however it is no where

written in any te*ts of +hia Law that divorce must be pronounced in presence of mam.

)ritten #ala: /#ala:nama0 is not valid in +hia Law, unless husband is dumbman or

otherwise incapable of spea$ing. #ala: in the absence of wife is valid under +hia Law also

provided name of wife is e*pressly referred to in pronouncement of #ala:.

Q. + 'hat are revocable and irrevocable divorces under Muslim Law

( 5an the parties to these divorces remarry (

Ans. 3nder the Muslim law, a Marriage is dissolved either by death of husband or wife or by

divorce. ivorce can be classified in following6

ivorce

9 H3+9A(

/i0 #ala: /ii0 la /iii0 ;ihar



44/108

9 )&

#ala:etafwi-

9 M3#3AL "%(+&(#

/i0 4hula /ii0 Mubarat

9 @3"AL &"5&&

3nder issolution of Muslim Marriage Act 1%3%

n order to pronounce a valid `#ala:', husband under +hia law must be of sound mind who

has attained the age of puberty is competent to pronounce `tala:'. #he pronouncement

must be in presence of at least two witnesses and under +unni Law every Muslim man is

capable of giving #ala: who is adult and sane. #ala: may be affected in any of the following

modes on revocation point of view6

/70 #ala: 3l +unnat/?0 #ala:ul 9iddat

(1) Tala* l S$nnat I t has been sub divided into 6

/a0 Ahsan /b0 Hasan

/a0 A#an #ala: in Ahsan form is very best $ind of #ala:. #o be in ahsan form the

proceedings of divorce must satisfy following conditions6

/i0 Husband must pronounce the formula of divorce in a single sentence.

(ii) ronouncement of divorce must be in state of purity.

(iii) Husband abstain from intercourse for the period of ddat.

A pronouncement made in Ahsan form is revocable during `ddat' and becomes irrevocable

on e*piry of period of ddat.

/b0 aan #o be in `hasan' form, the proceedings must satisfy following conditions.

/i0 #here must be three successive pronouncements of formula of divorce.

(ii) n case of Menstruating wife, the first pronouncement should be made during the state of

purity /#uhr0 and the second during ne*t state of purity and third on ne*t.

(iii) n case on non1menstruating, wife, pronouncement should be made during the

successive intervals of 30 days.

(i#) (o se*ual intercourse should ta$e place during these periods of state of purity /#uhr0.

+uch divorce becomes irrevocable, on third pronouncement, irrespective of `ddat'.

(&) Tala*$l biddat B t is most irregular form of mode of #ala:.

+unni law recognises such mode of #ala: but they thin$ it to be sinful. +hias do not

recognise this form of divorce. ollowing are the re:uirements in #ala:ulbiddat6


45/108

#hree pronouncements made during single period of purity /#uhr0 in one sentence. +uch

#ala: becomes irrevocable immediately when it is pronounced irrespective of `ddat'. 3nder

the #ala:ulbiddat once a definite complete separation has ta$en place then parties so

separated cannot remarry without the formality of the woman marrying another man and

being divorced from him.

Ali Mo#a$$ad v. M. e#$an Meo, 197


46/108

?. +ome `return' or consideration /lwa-0 from the wife to husband, if she desires to separate

her from husband through such divorce.

#he speciality of divorce by `4hula' is that /a0 wife begs from her husband to release her

from the tie of marriage /b0 such re:uest is made for certain consideration which is usually a

part of the whole of the Mehr.

(b) $barat 1 #he term `Mubarat' denotes !the act of freeing one another mutually!. n such

a divorce spouse feel happy at the prospects of getting rid of each other. n the divorce of

Mubarat, the offer for the dissolution of marriage may proceed from wife or it may proceed

from the husband. However once it is accepted the dissolution of marriage is deemed

complete and operates as a #ala:1i1bain.

The leal effect of Ch$la and $barat 1 #he legal effect of 4hula and `Mubarat' is that,

once it is completed the divorce between a spouse becomes irrevocable. A marital life,

thereafter, can not be resumed. A form called re1marriage is then necessary. f `ddat' is

incumbent on the wife, in absence of agreement to contrary, she and her children are

entitled for maintenance during such period.

'ifferene between /hula* and Mubarat* 1 #here are following differences between 4hula

and Mubarat 1

/hula Mubarat

7. )hen the desire for separation is e*pressed fromthe side of wife, it is called 4hula.

7. )here the desire for separation is e*pressed fromany side, it is called Mubarat.

?. "onsent of Husband is necessary. ?. Mutual consent is necessary.


47/108

Ans. Marriage under Muslim law being essentially a contract, there can be an agreement

between Muslim husband and wife providing that wife will be at liberty to divorce herself

from her husband under certain specified conditions or contingencies. However for the

enforceability of such agreement it is essential that conditions or contingencies in which wife

will be entitled to divorce herself from her husband, should not be opposed to public policy

or to the principles of slam. 3nder Muslim law power to give divorce is primarily lies with

husband. Husband under an agreement made either before or after the marriage delegates

this power to his wife. #his is called !#ala:e #awfee-!.

t must be borne in mind that in case !#ala:e #awfee-! the wife does not divorce her

husband as this she can not do under Muslim law but infact she divorces herself on behalf

of her husband under his powers delegated to her. )hen wife is empowered to divorce

herself in specific contingencies, which she will e*ercise at the happening of any of them,

the divorce will ta$e effect to same e*tent as if it had been pronounced by the husband.

n *uflaan *i%i v. A%dul Sali$, AI 190 !al. 304, it was held that the wife e*ercising her

power under the agreement must establish that the conditions entitling her to e*ercise the

power have been fulfilled.

#herefore an agreement between husband and wife whether entered into before or after the

marriage by which the husband authorises the wife to divorce herself from him in the event

of his marrying a second wife without her consent is valid. 9ecause conditions are of

reasonable nature and are not opposed to policy of Muslim law.

Q. & 0a Two Muslims * and # were married on 14./.4-. t was

a$reed by the parties that if * too; a second wife, # will have ri$ht

to pronounce divorce on 6.).4. s it a valid divorce (

Ans. /a0 3nder Muslim Law husband can lawfully delegate his power to divorce his wife to

any third person or even to his own wife to divorce herself. #his concept is $nown as

`#ala:etawee-'. According to this concept the tala:i husband may enter into an agreement

with his wife that under certain specified conditions wife would be at liberty to divorce

herself from her husband. However such agreement to be valid, it is necessary that option

is not absolute and unconditional and secondly conditions are reasonable and not opposed

to public policy.



48/108

n Mo#d. /#an v. S#a#$ali, AI 197 ; and / 8 Agreement under which husband agreed

to live in his wife's parental house and if he would leave that house he would pay certain

specified sum. efault of this condition would operate as divorce. t was held that the

condition was not opposed to public policy, violation of such term would operate as divorce

between husband and wife.

However it is important to point out that in case of #ala:etawee- the wife does not divorce

her husband under his power delegated to her by him. 3nder Muslim law when under the

contractI the wife is empowered to divorce herself in specific contingencies which she

e*ercises at the happening of any of them. #he divorce will ta$e effect to same e*tent as if it

had been pronounced by the husband.

+o divorce pronounced by 9 to herself when A solemni-ed second marriage is not opposed

to public policy and being #ala:e#awee- is valid.

Q. && * Muslim wife misbehaved with her husband. he was

addressed thrice the word 8Talaa:? pronounced by her husband.

Thereupon she apolo$i>ed for her misbehaviour. They continued

cohabitation. * son was born to the woman from him. He was $ot

admitted to the school by her father as his own son and brou$ht him

up as such.

*fter the death of the man, his full brother laid e3clusive claim to his

estate. Decide the suit. The defences raised are that divorce was

revo;ed and that paternity of the son was ac;nowled$ed.

Ans. 3nder Muslim Law, one of the forms of #ala$ /ivorce0 is !#ala:ulbiddat'. +uch form of

#ala: is recognised under +unni Law, but is considered to be irregular form of #ala:.

3nder +hia law `#ala:eul biddat' is not recognised. n order to be in this form of #ala:

following re:uirements are re:uired6/a0 #hree consecutive pronouncements of #ala: made during single period of purity /#uhr0

in one sentence.

/b0 A single pronouncement of #ala: made during `tuhr' indicating an intention to dissolve

the marriage.

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#ala$ in the form of `#ala$ul biddat' becomes irrevocable immediately when it is pronounced

irrespective of the fact that period of iddat has been undergone or not. 3nder the #ala$ul

biddat, once a complete and definite ivorce has ta$en place parties to marriage can not

remarried without the formality of the woman marrying another man and being divorced

from him.

n the case hand, Muslim wife was given divorce in !#ala:ul biddat! form by her husband by

pronouncing word `#ala:' thrice to her. As stated above, such divorce becomes irrevocable

immediately on the pronouncement of #ala$ three times in one sentence. +uch #ala: can

not be revo$ed by husband on apology by his wife for her misbehaviour. #herefore in the

case in hand, marriage of husband and wife was dissolved by divorce. arties could have

remarry only when wife after undergoing the d

muslim law important questions

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