UNIT- I

1. Define Dower. What are its kinds? Discuss the nature and legal
significance of Dower in Muslim Law.

INTRODUCTION: - As it is evident from Quran, “if you separate yourself

from your wives, send them away with generosity, it is not permitted to you to
appropriate the goods you have once given them.”
Thus the custom originated in ancient times with the payment which husbands
often made to their wives as means of support in their old age or when turned out
by them. Mehr in the baal form of marriage was also recognised by the prophet
to ameliorate the position of wife in Islam and it was combined with sadaq, so
that it became a settlement or a provision for the wife. According to K.P.Sexena,
“Dower is a sum of money or any property promised by the husband to be paid o
delivered to the wife as a mark of respect for the surrender of her person after the
marriage contract but generally said to be consideration for marriage.”

DEFINITION:-Dower or mehr is a sum that becomes payable by the husband to

the wife on marriage either by agreement between the parties or by the operation
of law. It may either be prompt or deferred. According to Wilson, “dower is a
consideration for the surrender of person by the wife. It is the technical Anglo
Mohammedan term for its equivalent ‘Mehr’ in Arabic. According to Amir
Ali, “Dower is a consideration which belongs absolutely to the wife.” Mulla said,
“Dower is a sum of money or other property which the wife is entitled to receive
from the husband in consideration of the marriage.”

KINDS OF DOWER: - Dower may be divided into two kinds:-

1.Specified dower: -This kind of dower is further divided into

a) Prompt dower
b) deferred dower.

2.Customary Dower.

1. .SPECIFIED DOWER: - If the amount of dower is stated in the marriage contract,

it is called the specified dower. Dower is settled by the parties to the marriage either
before the marriage or at the time of the marriage or even after the marriage. If the
parties to the marriage attained the age of puberty and are of sound mind they are
competent to settle themselves the amount of dower. Guardian can settle the amount
of dower provided that at the time of settlement of dower the boy is still minor or
lunatic. Specified dower is again sub divided into:-

Prompt dower: - It is payable immediately after marriage on demand. Ameer

Ali, a wife can refuse to enter into conjugal domicile of husband until the payment
 of the prompt dower. 2. Prompt dower does not become deferred after
consummation of marriage. 3. It is only on the payment of the prompt dower the
husband entitled to enforce the conjugal rights.4. Prompt dower is payable on
demand.

Deferred dower:-It is payable on dissolution of marriage either by death or

divorce. 2. The wife is not entitled to demand payment of deferred dower. 3. The
widow may relinquish her dower at the time of her husband’s funeral by the
recital of a formula. 4. The interest of the wife in the deferred dower is a vested
one and not a contingent one.

2. Customary Dover:- When the amount of the dower is not fixed in the marriage
contract or even if the marriage has been contracted on the condition that she should
not claim any dower, the wife is entitled to proper dower. The amount of proper
dower is settled by female members of the father’s family such as her father’s sisters.

Determination of Proper Dower: - the proper dower is regulated with

reference to the following factors:-
i) Personal qualification of wife, her age, beauty, fortune, understanding and
virtue.
Ii) Social position of her father’s family.
Iii) Dower given to her female paternal relations.
IV) Economic condition of her husband.
v) Circumstances of the time.

There is no limit to the maximum amount of proper dower under the Sunni Law
but under theshia law the proper dower should not exceed the 500 dhirams. This
amount was fixed in the

Marriage of Fatima the Prophet daughter. In the shia Muslims it is therefore

considered a point of Honour not stipulate for a sum higher than the sum of dower
fixed by the Prophet for his Daughter Fatima.

Legal Significance of Dower in Muslim Law :-The following are the legal
significance of Dower in Muslim Law:-

1. The reason of its significance lies in the protection that it imparts to the wife
against the arbitrary exercise of the power of divorce by the husband.
2. Dower is a right of the wife is fundamental feature of marriage contract and has
a pivotal place in the domestic relation affecting the mutual rights.
3. According to Muslim Law on the dissolution of marriage the wife can claim her
dower money. It may be higher or it may be low depends upon on the source of
income of the husband.
 4. Legislature has given the power to make law providing that, the court will not
be bound to award the amount of dower according to marriage deed (Sec. Of
Oudh Law Act.1876). but only such sum as shall be reasonable with reference
to the means of husband and the Iddat of the wife as held in a case of Adul
Rehman v/s Inayati Bibi-1931.
5. Another Significance of Dower is to place a check on the capricious use of
divorce on the part of husband.
6. To impose an obligation on the husband as a mark of respect of the wife.
7. To provide for her subsistence after the dissolution of her marriage so that she
may not become helpless after the death of the husband or termination of
marriage by divorce.

3. A Muslim marriage is a civil contract. Discuss the nature of the Muslim

marriage.

INTRODUCTION: - Marriage i.e. nikah meant different forms of sex

relationship between man and a woman established on certain terms. In ancient
age women were treated as chattels and were not given any right of inheritance
and were absolutely dependent. It was Prophet Mohammad who brought about a
complete change in the position of women. The improvement was vast and
striking and their position is now unique as regards their legal status. After
marriage woman does not lose her individuality and she remains a distinct
member of the community. Under the Muslim Law marriage is considered as
Civil Contract. The contract of marriage gives no power to anyone over her
person or property beyond what the law defines. Woman remains the absolute
owner of individual rights even after marriage.

DEFINITION OF MARRIAGE (NIKAH):-Marriage (nikah) literally means

the union of sexes and in law this term means, ‘marriage’. Marriage has been
defined to be a contract for the purpose of legalising sexual intercourse and
procreation of children.”

In Hedaya, it is defined as, “Nikah in its primitive sense means carnal

conjunction.” Some have said that, “it signifies conjunction generally and finally
in the language of law it implies a particular contract used for the purpose of
legalising generation.” The Prophet of Islam is reported to have said, “That
 Marriage is my sunna and those who do not follow this way of life are not my
followers.”

Thus marriage according to Muslim Law is a contract for the purpose of

legalising sexual intercourse and the procreation of legitimating of children
and the regulation of social life in the interest of the society.

NATURE OF MUSLIM MARRIAGE:- There are divergence of opinion with

regard to the nature of Muslim marriage. Some jurists are of the opinion that
Muslim marriage is purely a civil contract while others say that it is a religious
sacrament in nature. In order to better appreciate the nature of Muslim marriage
it would be proper to consider it in its different notions.

Muslim marriage by some writers and jurists is treated as a mere civil contract
and not a sacrament. This observation seems to be based on the fact that marriage
under Muslim Law has similar characteristics as a contract. For example:-

i) A marriage requires proposal (Ijab) from one party ad acceptance (Qubul) from
the other so it is the contract. Moreover there can be no marriage without free
consent and such consent should not be obtained by means of coercion, fraud or
undue influence.
ii) Similar as in the case of contract, entered into by a guardian on attaining majority
so can a marriage contract in Muslim Law, be set aside by a minor on attaining
the age of puberty.
iii) The parties of the Muslim marriage may enter into any ante-nuptial or post-
nuptial agreement which is enforceable by law, provided that it is reasonable and
not opposed to the policy of Islam. Same is in the case of a Contract.
iv) The terms of a marriage contract may also be altered within legal limits to suit
individual cases.
v) Although discouraged both by the holy Quran and Hadith, yet like any other
contract, there is also provision for the breach of marriage contract.
vi) In the leading case of Abdul Qadir v/s Salima-1886, it emphasise the contractual
aspect and analogy of Muslim Marriage contract with contract of sale.

CONCLUSION:- Thus marriage according to Muslim Law is a contract for the

purpose of legalising sexual intercourse and the procreation of legitimating of
children and the regulation of social life in the interest of the society. However it
is further viewed that marriage is not purely a civil contract but a religious
sacrament too. Though sacramental nature of marriage is considered as an
orthodox view but it is also supported by the judiciary in the leading case of Anis
Begum v/s Mohammad Istafa-1933, in the case Sulaiman has tried to put a more
balanced view of the Muslim marriage by holding it both civil contract and a
religious sacrament.
4. What are the grounds of dissolution of Marriage under Dissolution of Muslim
Marriage Act - 1939?

INTRODUCTION: An Act to consolidate and clarify the provisions of Muslim

Law relating to suits for dissolution of marriage by women married under Muslim
Law and to remove doubts as to the effect of the renunciation of Islam by a
married woman on her marriage tie. These are as under:-

i. By stipulation in the marriage contract that she shall have such rights as to
effect a divorce.
ii. By an option to divorce from the husband.
iii. By judicial divorce on ground of impotency false charge of adultery.
iv. By Lian.
v. By Khula
vi. By Mubarat.

Whereas it is expedient to consolidate and clarify the provisions of

Muslim Law relating to suits for dissolution of marriage by women married under
Muslim Law and to remove doubts as to the effect of the renunciation of Islam
by a married Muslim woman on her marriage; it is hereby enacted as follows:
 2. Grounds for decree for dissolution of marriage:- A woman married under
Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage
on any one or more of the following grounds provided under Dissolution of
marriage Act-VIII of l939:-

(i) that the whereabouts of the husband have not been known for a period of four
years;

(ii) that the husband has neglected or has filed to provide for her maintenance for a
period of two years;
(ii-A) that the husband has taken an additional wife in contravention of the provisions
of the Muslim Family Laws Ordinance, 1961; but wife is not entitled to
maintenance in the following situations and it is the reason that she cannot present
a litigation of divorce against her husband on the following grounds :
a) When she lives separately without any reasonable cause. A case of Yusuf
Saramma -1971.
b) When she is unchaste to her husband case: Mu. Khadiza v/s Abdula-1942.

(ii) that the husband has been sentenced to imprisonment for a period of seven
years or upwards;

(iii) That the husband has failed to perform, without reasonable cause, his
marital obligations for a period of three years;

(iv) That the husband was impotent at the time of the marriage and continues to
be so.

(v) That the husband has been insane for a period of two years or is suffering
from leprosy or venereal disease. Mulla the wife may obtain a decree for the
dissolution of her marriage if the husband has been insane for a period of two
years and suffering from leprosy or a verneral diseases.

(vi) That she, having been given in marriage by her father or other guardian before
she attained the age of sixteen years, repudiated the marriage before attaining
the age of eighteen years: Provided that the marriage has not been
consummated.

(viii) That the husband treats her with cruelty, that is to say,
I. habitually assaults her or makes her life miserable by cruelty of conduct even if
such conduct does not amount to physical ill-treatment, or
II. associates with women of evil repute of leads an infamous life, or
III. attempts to force her to lead an immoral life, or
IV. disposes of her property or prevents her exercising her legal rights over it, or
 V. obstructs her in the observance of her religious profession or practice, or
VI. if he has more wives than one, does not treat her equitably in accordance with the
injunctions of the Quran. Noorjahan Bibi v/s Kazim Ali-1977: a false charge of
adultery by husband over wife was considered to be cruelty.Begum Zohar v/s
Mohammad Isfaq ut Majid-1955: The use of abusive language by husband and
use of defamatory words by husband was held to be cruelty.
VII. on any other ground which is recognized as valid for the dissolution of
marriages under Muslim Law. They are known as Traditional Grounds: such as
: IIa, Zihar, Khula, Mubarat and Tafweez.
(a) no decree passed on ground (i) shall take effect for a period of six months
from the date of such decree, and if the husband appears either in person or
through an authorised agent within that period and satisfies the Court he is
prepared to perform his conjugal duties the Court shall set aside the said decree;
and
(b) before passing a decree on ground (v) the Court shall, on application by the
husband, make an order requiring the husband to satisfy the Court within a period
of one year from the date of such order that he has ceased to be impotent, and if
the husband so satisfied the Court within such period, no decree shall be passed
on the said ground.
(c) If husband converts to another religion the marriage is dissolved at the
instance, so if husband changes religion wife has ground for divorce under
section 4 of the Act-1939.

Notice to be served on heirs of the husband when the husband’s where

abouts are not known. In a suit to which clause (i) of section 2 applies:
(a) the names and addresses of the persons who would have been heirs of the
husband under Muslim Law if he had died on the date of the filing of the plaint
shall be stated in the plaint. (b) notice of the suit shall be served on such
persons, and
(c) such persons shall have the right to be heard in the suit:
Provided that paternal-uncle and brother of the husband, if any, shall be cited as
party even if he or they are not heirs.

4. Effect of conversion to another faith:- The renunciation of Islam by a

married Muslim woman or her conversion to a faith other than Islam shall not by
itself operate to dissolve her marriage: Provided that after such renunciation, or
conversion, the woman shall be entitled to obtain a decree for the dissolution of
her marriage on any of the grounds mentioned in section 2; Provided further that
the provisions of this section shall not apply to a woman converted to Islam from
some other faith who re-embraces her former faith.
 5. Right to dower not be affected:- Nothing contained in this Act shall affect any
right which a married woman may have under Muslim law to her dower or any part
thereof on the dissolution of her marriage

6. (Repeal of section 5 of Act, XXVI of 1937)

Rep. by the Repealing and Amending Act, 1942 (XXV of 1942), section 2 and
First Sch.

4. Describe the sources of Muslim Law in detail.

INTRODUCTION:-Muslim Law in India means, “that portion of Islamic Civil

Law which is applied to Muslims as a Personal Law. It consists of the injunctions
of Quran of the traditions introduced by practice of the Prophet of the common
opinion of the jurists of the analogical deductions of these three Qiyas. Muslim
mean who believes in Islam and Islam means, “submission to the will of God.”
A person born as Muslim continues to be a Muslim until he renounces Islam after
attaining majority. Any person who professes the Mohemadan religion is Muslim
that he acknowledges that, there is one God and the Mohamed is his prophet.
“Queen Empress v/s Ramzan and Abraham v/s Abraham: It was held that a
person may be a Muslim by birth or by conversion. If one the parents of child
are Muslim the child is deemed as Muslim. If Parents turned to some other
religion the child is Mohemadan.

The following are the sources of Muslim Law:-

Primary Sources
1. QURAN : The Quran is the primary source of Muslim Law in point of time as
well as in importance. Quran is the first source of Muslim Law. The Islamic
religion and Islamic society owes its birth to the word of Quran. It is the
paramount source of Muslim Law in point of Important because it contains the
very words of God and it is the foundation upon which the very structure of Islam
 rests. Quran regulates individual, social, secular and spiritual life of Muslims. It
contains the very words of God as communicated to Prophet Mohammad through
angel Gabriel. The Quran has now been codified. Quran is devided into 114
chapter and 6666 Ayats.
2. Sunnat or Ahadis: Sunnat has three classes :

o Sunnat-ul-fail: This is being done by Prophet himself.

o Sunnat-ul-qual: Which Prophet enjoyed by words.
o Sunnat-ul-tuqrir: Things done in his presence without his disapproval.

Ahadis has also three classes:

o Ahadis-i-muturatir: Traditions are of public & Universal property

& held as absolutely authentic.
o Ahadis-i-mashorora: Though known to a majority of people do not
possess the character of universal propriety.
o Ahadis-e wahid: which depend on isolated individuals

When Quran is silent on any one of the subject and then that problem is
solved by Ahadis and Sunnat. But while giving the solution to a problem it must
be kept in mind that solution is not adverse to the basics of Quran. Thus such
type of acts which the Prophet himself did or supported it, they came to be known
as Adades and Sumat.

3. IJMAA:- It is third important source of Muslim Law. The origin of

IJMAA although Quran, Sunnat and Ahades had developed as the source
of Muslim Law. It takes place when new problem stated arising with the
development of society which were not possible to be solved by Quran.
The principle of IJMAA based upon the text, “That God will not allow His
people to agree on an error and whatever Muslims hold to be good is good
before God.”

Kinds of IJMAA: -
i) IJMAA of Jurists.
ii) IJMAA of companions of the Prophet:- It is universally accepted.
iii) IJMAA of People:- This kind of IJMAA has not much importance.

4. The Qiyas (Analogical deduction):- It is originated source of Muslim Law,

when any problem or question could not be solved by Quran, Sunnat, Ahades and
Ijmaa. Qiyas in the light of Holy Quran which says that spend out of your good
things because as you dislike taking back bad things others also may dislike.” In
such situations the problem are being solved by comparative study of the above
three sources.
i) It is the last primary source.
ii) Qiyas means reasoning by analogy.
iii) Qiyas does not purport to create new law but merely to apply old established
principles to the new circumstances.
iv) Hanbals shias & shafis do not accept Qiyas.
While solving problem through Qiyas it has to be considered that such
things shall not be adverse to basics of Quran, sunnat, ahades and Ijmma.

Secondary Sources
1. Urf or Custom: Custom never recognised as source of Muslim Law but
sometimes referred as supplementing the law. Muslim Law includes many rules
of pre-Islamic customary law, which have been embodied in it by express or
implied recognition.

Requirements of a valid custom:-

i) Custom must be territorial.
ii) it must be existing from memorable time i.e. ancient.
iii) It must be continuous and certain and invariable.
iv) Custom should not oppose the public policies.
v) Custom must not in contravention of Quran & IJMAA.

Smt. Bibi v/s Smt. Ramkali-1982: It was held that the customs of case and sub
case acquire it to be proved for their validity that they are ancient, definite and
earnable.

2. Judicial Decisions:- These includes the decisions of Privy Council, the Supreme
Court & High Courts of India, Judges explain what law is. These decisions are
regarded as precedents for future cases. It becomes a source of Law. Hammeera
Bibee v/s Zubaida Bibi: In India interest on loan is not allowed, but in this case
the Privy Council allowed interest on the amount unpaid dower.

3. Legislation: - In India Muslims are also governed by various legislation passed

either by Parliament or by state legislature e.g.:-
i) Guardian & Wards Act, 1890.
ii) The Shariat Act, 1937.
iii) Muslim Woman Protection of Right & Divorce Act, 1986.
iv) The Mussalman Waqf Act, 1923.
v) The Dissolution of Muslim Marriage Act, 1939.

Justice, Equity & Good Conscience: It is also regarded as one of source.

a) Abu Hanifa: Expounded principle that rule of law based on analogy. These
principles are “Isihsan” or Jruistic equity.
 b) Maliki:- Ibn-Anas proposes the use of Istiah i.e. seeking peace or amending
& he followed it up by distinct method of juristic interpretation known
as Istidal. However the main sources are Quran, Ahadis and Ijmaa.

4. Discuss the various Schools of Muslim Law and point out their differences.

INTRODUCTION:-There are two main schools of Muslim Law the Sunni and
the Shia. In India the majority of the Muslims are of Sunnis and hence it is
presumed that the parties to a suit are Sunnis unless proved otherwise.

Shia law has been applied to Shia since the decision of the Privy Council in
Rajah Deedar Hossein v/s Ranee Zuhor-oon-Nissa-1841. The division
between the Sunnis and the Shias originated in the dispute concerning the
question of Imamat or the spiritual Leadership of Islam.

Schools of Muslim Law:- After the death of Prophet the question arose who
would be his successor. On this point the Muslim community was divided into
two factions. The Shias advocatd that the office should go by the right of
succession and thus Imamat i.e. headship should be confined to Prophet’s own
family as his prophet. Whereas on the other hand the Sunnis advocated the
principle of election by the Jamat and chose out their Imam by means of votes.

The majority of Muslims suggested that there should be election to choose

successor of the Prophet. This group was led by the youngest wife of the Prophet.
Thus the difference between the two lies in political events.

Mohammadans

1 Sunni

1.1 Hanafis
1.2 Malikis
1.3 Shafeis
1.4 Hanbalis

2 Shia

2.1 Ithna-Asharia or Imamia : (2.1.1) Akhbari (2.1.2) Usuli

2.2 Ismailiyas: (2.2.1) Khoja (2.2.2) Bohra
 2.3 Zaidais

3 Motazila

Sunni Sub-Schools:

(i) Hanafi: This school is the most famous school of Sunni Law. Abu Hanifa was
the founder of this school, he recognised Qiyas, urf, Ijma.

(ii) Maliki: It was founded by Malik, leaned more upon traditions. He was not
different from Hanifa’s.

(iii) Shafei: Imam Shafie was the founder of this school. He was the founder of
doctrine of Qiyas based upon Quran, Ahadis or Ijma.

(iv) Hanbali:- It was founded by Ibn Hanbal who stressed on traditions and allowed
very narrow margin to the doctrine of analogy.

SHIA SUB SCHOOLS: -

I) Athana Asharia School:- This school is very orthodox. The supporter of this
school is the followers of twelve Imams and regards them.

II) Ismailia School: - The sixth Imam Jafar-us-Sadiq had two sons 1. Ismail and
2.Musa-ul-kazim. The followers of this school called Ismailas.

III) Zaidia School:-Zaid who was the son of fourth Imam, Imam Ali ashgar was
the founder of this school.

CONCLUSION:- Where it is not alleged not shown that the parties are
shias, there is a presumption that they are sunnies, to which sect the great
majority of mohammedans of this country belong. Shia law is also the law of
the land. In india shia law has been applied to shia since the decision of the
privy council.
 Shia School Sunni School
Muta or temporary Marriage is recognised. Muta marriage is not recognised.
Father and grand- father are recognised as legal Father and father’s father how high-so-ever, brothers
guardians for marriage. other paternal relations, mother are also recognised
legal guardians for marriage.
The minimum amount for dower is not fixed. 10 dirhams is the minimum amount of dower is
fixed.
Talaq must be pronounced orally in Arabic Talaq may be oral or in writing.
language.
Divorce under compulsion or threat or Divorce under compulsion or threat or intoxication
intoxication is void. or jest is not void.
The mother is entitled to the custody of boy up- She is entitled to the custody of the boy up-to seven
to two years and of a girl up-to seven years. years and of a girl until she attains puberty.
It is not obligatory to maintain the father if he It is obligatory to maintain even if he is able to earn
is able to earn. himself.
Without delivery of possession of the property Mere declaration is enough for a valid waqf.
the waqf is invalid.
A gift of undivided share in the property is valid A gift of undivided share in the property is invalid if
provided it is capable of partition. it is undivided and incapables of portion.
A person can be queath one third of his estate The consent of the heirs is essential in case of legacy
without the consent of the other heirs. in favour of an heir.
There are only two classes of heirs namely There are three classes of heirs:-
sharers and residuary. a. sharers b. Residuary.
c. Distant kindred.

DIFFERENCE BETWEEN SHIA & SUNNI SCHOOL

5. What are the different forms & Modes of divorce under Muslim Law?
Discuss.

Introduction:-Among almost all the nations of antiquity divorce was regarded as

a natural corollary or marital rights. The provisions of divorce were recognised
in all religions Islam is perhaps the first religion in the world which has expressly
recognised the termination of marriage by way of divorce. In England it was
introduced 100 years back. In India it was allowed only by Hindu Marriage Act
1955 amongst the Hindu community. Before passing this act divorce was not
recognised by Hindu Law.

Before Shamim Ara v/s State of U.P.-2002, a Muslim husband had

unlimited power of effecting Talaq without assigning any reason. But in Shamim
Ara’s case the Supreme Court held that the talaq must be for a reasonable cause
and there must be preceded by an attempt of reconciliation between her husband
and the wife by two arbiters one chosen by the wife and the other by the husband.

Different forms & Modes of divorce under Muslim Law

1.Capacity for Pronouncing Talaq:-The only and only essential condition for
pronouncing Talaq by a Muslim husband is that he must have attain the age of
puberty and must be of sound mind at that time. In view of the position of Muslim
Law it cannot be said that Talaq namah was not sufficient to dissolve the marital
relations. Refer case Abdul Wahid v/s Raisa Bi-2007.

In another case of Mohamad Siddiqu Ali v/s Mustt. Fatima Rashid-2007, it

was held by the court that mere pronouncement of Talaw orally or in writing is
not sufficient to terminate the marriage. The factum of the Talaq should be
proved by the independent witnesses.

In the case of Iqbal Bano v/s State of U.P.-2007, the Apex Court held that the
conclusion that in view of the statement in the written statement about an
alleged divorce30 years back by utterance of the words talaq, talaq, talaq three
times is sufficient in law is not sustainable. A mere pleas in the written
statement of a divorce having been pronounced sometimes in the past cannot by
itself be treated as effectuating Talaq.
2. Talaq-ul- Sunnat: This form of Talaq is revocable hence it is regarded as
approved form of Talaq. This form of Talaq was approved by the Prophet
both Shia and Sunni schools recognise this form. It has two parts:-

i) Talaq Ahsan:- This consists of a single pronouncement of divorce made during

a tuhr followed by abstinence from sexual intercourse for the period of
Iddat. The main requirements of a Talaq Ahsan are :-
A. Formula of Talaq must be pronounced only once by the husband.
B. If the marriage has been consummated the pronouncement must be made
during the period of her purity.(tuhr). After such pronouncement the
husband should abstain from sexual intercourse during the period of purity
and Iddat.
C. When the wife is not subject to menstruation the pronouncement may be
made even after sexual intercourse.
The above form of divorce is regarded as the best form because there is a
chance of reconciliation between the parties.

ii) Talaq Hasan:- This consists of three pronouncements made during

successive tuhrs the period of purity no intercourse taking place during any of
these three tuhrs.
The chief requirements of Talaq Hasan are :-
a. There must be three successive pronouncements of the formula of
divorce.
b. In the case of a menstruating wife the first pronouncement should be made
during a period of tuhr or purity the second during the next tuhr and third
during the succeeding tuhr.
c. In the case of a non-menstruating wife, the pronouncement should be made
during the successive 30 days.
d. No sexual intercourse should take place during these three periods of tuhr.
This is also proper form of Talaq but less proper than talaq Ahsan, This
Talaq is revocable before the third pronouncement but becomes irrevocable
immediately after the third pronouncement.

2.Talaq-ul-Biddat or Talaq-i-Biddat:- It is sinful form of divorce recognised

only under Sunni Law. It is the irregular mode of Talaq introduced by Omeyyads
in order to escape the strictness of law.

It consists the following two modes:-

i) Three pronouncements made during single tuhr either in one sentence
e.g. “I divorce thee, I divorce thee, I divorce thee.
 ii) Ii) A single pronouncement made during a tuhr clearly indicating an
intention irrevocable to dissolve the marriage e.g .divorce thee
irrevocably.” Talaq-ul-Biddat form is recognised only in Sunni Law
and not in Shia Law.

When They Become Irrevocabale

1. Talaq-ul-Sunnat:- Talaq Ahsan:- it becomes irrevocably on the expiry of the
period of iddat.
2. Talaq Hasan:- It becomes irrevocable on the third pronouncement irrespective
of Iddat.
3. Talaq-ul-Biddat:- It becomes irrevocable immediately when it is pronounced
irrespective of Iddat.

UNIT - II
6. Discuss the provisions of Muslim Law concerning Guardianship for
marriage. Power of legal guardian alienation of minor’s property.

INTRODUCTION:- In chapter iv of the holy ‘Quran’ it is mentioned that, “

to restore the orphans when they come of age, their substance do not substitute
bad for good, nor devour their substance by adding it to your own, for this is an
enormous crime.” However the term Guardianship (wilayat) means the
guardianship of a minor. Minor is one who has not attained the age of majority,
Puberty and majority are in the Muslim Law one and the same. Puberty is
presumed to have attained on the completion of 15 years but now the Muslims
are governed by the Indian Majority Act, except in the matters relating to
marriage, divorce and dower. However 15 years is the age of majority for the
purposes of marriage, dower and divorce under the Muslim Law.

DEFINITION OF GUARDIAN:-The term guardian is defined in

the Guardians and Wards Act, “A person having care of the person of a minor
or of his property, or both his person and his property.”
In Muslim Law, Quran is the basis of the law relating to guardianship and
therefore there is very little room for differences between Shia and Sunni’s.
GUARDIANSHIP IN MARRIAGE (JABAR):-

1.One of the most essential part of a valid marriage that the parties are
competent to enter into marriage contract, i.e. among other things they must have
attained the age of puberty. However there is exception which is most
distinguishing feature of Islam which empowers a father to impose status of
marriage on his minor children. This power of imposition is called Jabar. Under
this exception the marriage is contracted on behalf of the minors by the guardian.

2. No one can be appointed guardian by the Court in respect of marriage

guardianship.

3. The Court also cannot appoint Wali for marriage; however in some
cases Quazi or Court itself can act as a marriage guardian.

4. Under the Muslim Law of all schools, the father has the power to give his
children of both sexes in marriage without their consent until they reach the age
of puberty i.e. known as bulugh.

5. The following persons who can act as guardians in the marriage of a minor:-
1. Father.2.The father’s father how high-so-ever. 3. Full brother and other male
relations on the father’s side. 4. Mother. 5. Maternal relation within prohibited
degrees. 6. The Quazi or the Court.

Legal Guardian: - The person entitled in the order mentioned below to be

guardian of the property of a minor: - 1. Father. 2. The executor appointed by the
father’s will. 3. The father’s father. 4. The executor appointed by the will of the
father’s father. Thus mother, brother and uncle etc. are not entitled as of right to
be the legal guardians of the property of minor as held in the case of Sayed Shah
Gulam Ghoshe v/s Sayed Shah Ahmad-1971.

POWERS OF LEGAL GUARDIAN:-

1.Regarding Immovable Property:- Legal guardian cannot alienate by sale

of mortgage the immovable property of the minor except when alienation is
absolutely necessary or for the clear benefit of the minor.
When the minor has no other means of livelihood and sale is absolutely
necessary for maintenance. Where the double price of the property can be
obtained by him. Where the expenses exceed he income of the property. When
the property is falling into decay. The legal guardian has no power to carry on
 business of his ward especially if the business is one which may involve his
minor’s estate in speculation or loss. When the property has been usurped and
the guardian has reason to fear that there is no chance of fair restitution. A legal
guardian is empowered to enter into contracts on behalf of minor provided that
such contracts are for the benefit of the minor.

2. Powers regarding movable properties:- The guardian is empowered to sell

or pledge the goods and chattels of the minor for the minor’s necessities as
food, clothing and nursing etc. Muslim Law does not impose upon minors any
obligation to pay interest on sums advanced to them. The legal guardian is
bound to deal with the property as carefully as he has dealt with it if it were his
own property, as held by Madras High Court in l940.

3. De facto Guardian: A person who is neither a legal guardian nor a guardian

appointed by the Court but has voluntarily placed himself in charge of the person
and property of the minor is known as de facto guardian. He is mere custodian of
the minor’s person and property but has no right over either as held in the case
of M.Fiaz v/s Iftkhar-1932. He has only the responsibility towards the minors
person or property or both but no rights in respect thereof. He has no power or
authority to alienate the minor’s property. However authority given by the Court
is void as provided in Guardians and ward Act.

8 What is the object behind making a gift under Muslim Law? Who can
make a valid gift? Explain Is Registration is necessary?

Introduction: - In India it is often assumed that term ‘gift’ is the exact equivalent
of ‘hiba’ and both are understood to connote all transfer of property without
consideration. Gift however an expression of much wider explanation than hiba
is. According to Baillie, “The conferring of a right in something specific without
an exchange.”
 In Muslim Law, it is treated as a contract consisting of a proposal
or offer on the part of donor to give a thing and the acceptance of it by the donee.
The word hiba literally means the donation of a thing from which the donee may
derive a benefit, the transfer must be immediate and complete. It is also to
mention here the most important ingredient of Hiba is the declaration, “I have
given”.

DEFINITION OF GIFT:- Under Muslim Law a person is allowed to lawfully

make a gift of his property to another during his life time or he may transfer it by
way of will which take effect after his death.
In its technical sense, it is defined as, “unconditional transfer of property made
immediately and without any exchange or consideration by one person to another
and accepted by or on behalf of the latter.”
According to Mulla, “Gift is a transfer of property, made immediately and
without any exchange by one person to the other and accepted by or on behalf of
the latter.”
A leading case in this regard is of Smt. Hussenabi v/s Husensab Hasan-1989,
gist of the case that offer of gift was made by grandfather to his grand children
who were living with him and on behalf of minor children the acceptance was
made by the doner but no express or implied acceptance of gift was made by the
major grandson. The court held that when the three essentials are not there to
complete, it cannot be a complete gift. Gift-deed was valid for the minor children
but the gift in favour of the major sons was set aside.

Object Behind Making a Gift under Muslim Law

The following are the objects for making a gift under Muslim Law:-

1. The conferring of a right in something specific without an exchange:- When

a doner declare to make a gift to anybody, without any consideration of it.

2. Following lawful methods while making of a gift:- Some of the important

observations that the doner adopts lawful methods for making a gift of property
in the possession and such a gift is valid provided the doner either obtains and
gives possession.

3. Thickness in relations comes out by making gifts:- For developing strengthens

and to create a co-operation in the society it is necessary that there must be
transaction of gifts in between each other’s which will give strengthen to the
society and respect to the doners.
4. To make a person the owner of the substance of a thing:- Under Muslim Law
a person becomes the owner of the substance of a thing without any consideration
and to make him the owner of the profits also.

Is Registration of Gift Necessary

Under Muslim Law writing is not essential to the validity of a gift either of
movable or of immovable property. Sec. 122 to 129 of the Transfer of Property
Act, 1882, deals with gits. As per provisions laid down in Sec. 123 of this act,
Gift of immovable property must be effected by a registered instrument signed
by the doner and attested by at least two witnesses, and that a gift of movable
property may be effected either by a registered instrument signed as aforesaid or
by delivery. But these provisions of Sec. 123 do not apply to Muslim
gifts; Section 129 of this act also states that nothing in the chapter shall be
deemed to affect any rule of Mohammedan Law.
As per the Registration Act the gift of immovable property worth over
Rs.100/- is required to be by registered instrument. Mohammedan law permits
oral gift of immovable property irrespective of value of the property. Hence the
provisions of sec.123 do not apply to gifts covered by Mohammedan law.

9. Discuss the concept of legitimacy under Muslim Law. Mention the

conditions of a valid acknowledgment.

Introduction:- Muslim law insist on the existence of a valid marriage between

the begetter and the bearer of the child at the time of its conception. A person
born in lawful wedlock is said to be the legitimate child of the spouses. The main
point in the case of legitimacy of a child is marriage between its parents. In the
case of Habibur Rahman Choudhari v/s Altaf Alii Choudhary: It was held
that the term wife necessarily connotes marriage, but as marriage may be
constituted without any ceremony the existence of a marriage in any particular
case may be an open question. Direct proof may be available but if there be no
such proof indirect proof may be suffice.
Muslim Law does not recognize the institution of adoption which is
recognized by other systems. Under Hindu Law adoption is intimately connected
with religion having relation to the repose of the souls of the departed and the
preservation of the house hold divinities. Amir Ali explained that in fuller terms
that adoption similar to what was practised in the ‘Days of Ignorance’ created no
such tie between the adopted and the adopting as resulted from blood relationship.
On the one hand Muslim Law recognizes the institution of ‘iris or
acknowledgment on the other hand it disapproves legitimating.
The doctrine of acknowledgment relates only to cases where either
the fact of marriage itself or the exact time of occurrence with reference to the
legitimacy of the acknowledged child is not proved in the sense of the law as
distinguished from disproved. In a case of Mohammad Khan v/s Ali Khan-
1981.

ESSENTIALS OF LEGITIMACY

When there is a direct proof of marriage or there are circumstances

from which marriage may be presumed the question of acknowledgment of
legitimacy does not arise because in such cases the legitimacy is ‘ipso
facto’ established or presumed to be established. If there is no such direct proof
of legitimacy indirect proof may suffice and one of the ways of indirect proof is
by acknowledgment of legitimacy by father (not mother) in favour of a son. In
other words the doctrine applies only to cases of uncertainty as to legitimacy and
in such cases acknowledgment has its effect but that effect always proceeds upon
the assumption of a lawful union between the parents of the acknowledgment
child.
In the case of a good acknowledgment of legitimacy the marriage
between the parents of the child acknowledged will be held proved and this
legitimacy established unless the marriage is disproved as held in the case of
Mohammad sadiq v/s Mohammad Hassan- 1943.
In case the marriage between the parents of the child could not be
proved the acknowledgment shall carry no force in the eyes of law. The
acknowledger must acknowledge the child specifically as held in a case of
Haribur Rahman v/s Altaf Ali-1921.

EXPRESS OR IMPLIED ACKNOWLEDGMENT

It is not necessary that an acknowledgment should be express it may

also be implied as was held in the case of Mohammad Amin v/s Valil Ahmad -
1952: where a person habitually and openly treat another as his legitimate
child this fact may give rise to a valid presumption of legitimacy.
The acknowledgment may be of son or of daughter but it must be
made the father. The acknowledgment of the child must not be casual. In a case of
Mohabat Ali v/s Mohammad Ibrahim-1929: The father made the
acknowledgment of the child in a casual manner. He never intended that his
acknowledgment should have serious effects. It was held that the act of the
father is not sufficient to confer the status of legitimacy.
 Conditions:-

1.When a man expressly or impliedly acknowledges another as his lawful child

the paternity of the child will be established in the man provided the following
conditions are fulfilled:-
 Intention to Confer Legitimacy: The acknowledgment must be made in such a
way that it shows that the acknowledger is to accept the other not only as his son
but as his legitimate son as held in Habibur Rahman v/s Altaf Ali-1921.
 Age of the Acknowledger:- The age of the parties must be such that it is possible
that they may be father and son.
 Child of Others: - The child so acknowledged must not be known to be the child
of another.
 Person Acknowledged should confirm acknowledgment:- The child, if adult,
must confirm, or acquiesce in acknowledgment. It is very important that the
acknowledged child should verify acknowledgment.
 Legal Marriage possible between Parents of the child acknowledged:- The
acknowledger and the mother of the child must have been lawfully joined in
marriage at the time when the child was begotten. It is essential to show that a
lawful marriage is possible between the acknowledger and child’s mother
because the child is not the fruit of an adulterous intercourse.
 Competency of the Acknowledger:- The acknowledger must be competent to
make a contract, that is, he should be adult and sane.
 Offspring of ‘Zina’:- An offspring Zina is one who is born either without
marriage, or of a mother who was the married wife of another, or of a void
marriage.
 An acknowledgment once made cannot be revoked:- In a case of Ashrfod
Dowlah v/s Hyder Hussain-1886: It was held that acknowledgment of paternity
is a recognition not simply of son-ship but of legitimacy as a son.

Rules of legitimating:- depends on the assumption of legitimacy and its

establishment by avoidance of the hypothesis of unlawful relationship between
the parents. Refer the case of Nazibunnissa Bibi-1864.
 This rule is based on contractual form of marriage under Muslim Law.
 No ceremony is prescribed for a valid marriage.
 It is also not necessary that the marriage should be published.
 Muslim Law does not recognize western concept of legit

effects of acknowledgmrnt:-
Acknowledgment of paternity raises a two-fold presumption.
1. One in the favour of son-claimant.
2. The other in favour of the wife claimant i.e. mother of the acknowledge.
 It produces all the legal effect of natural paternity and vests in the child right
of inheriting from the acknowledger in case of a son. The mother of the
acknowledged son gets the status of legal wife and hence the right of
inheritance.

10. Define Acknowledgement and kinds of Guardianship under Muslim

Law.

Introduction:- The Quran is the basis of law relating to guardianship which

connotes the look after of the minor. A minor is one who has not attained the age
of Majority. Puberty and majority are in the Muslim Law one and the same. The
term guardianship means a person having the care of that person who is
minor. He takes care for his property and for him. The guardian has to be
appointed lawfully under a will in accordance with the law to which the minor is
subject. Guardian has to perform his duties properly for the custody of the minor
and his property.

Definition of Acknowledgment:- Where the paternity of a child that is his

legitimate descent from his father cannot be proved by establishing a marriage
between his parents at the time of his conception of birth, Muslim Law recognizes
‘acknowledgment’ as a method whereby such marriage and legitimate descent
can be established as a matter of substantive for the purpose of inheritance.”

Definition:- The guardianship has been defined in the Guardianship and Wards
Act, “That a person having the care of the person of a minor or of his property or
of both person and property.” The meaning of guardianship is that a guardianship
of a minor. But there is no mention of disposal in marriage in any part of the Act
and nothing to indicate that it was intended to interfere with the rules of Muslim
Law. The Quran is the basis of law relating to guardianship which assigns that
function under name of ‘jabar’ entitled to care and custody of the (hiznat) ward’s
person (Wilson).

Who is Minor:- A minor is one who has not attained the age of majority. Puberty
is presumed to have been attained on the completion of the fifteenth years. But
now the Muslims are governed by the Indian Majority Act, 1875 except in the
matters relating to marriage, divorce and dower. In Muslim Law fifteen years is
the age of majority for the purposes of marriage, dower and divorce. At or above
this age, he or she is free to do anything in the sphere of marriage dower and
divorce.
As regards other matters of guardianship of person and property, a
Muslim will be governed by the Majority Act which prescribes 18 years as the
age of majority. Thus in cases of wills, waqfs etc. the minority will terminate on
the completion of 18 years.

Appointment of a Guardian:- When the Court is satisfied that it is for the

welfare of a minor then an order is to be made for the appointment of a guardian
of his person or property or both as declaring a person to be such guardian, the
Court make an order accordingly. Under Section 15(1) of the Guardian and
Wards Act-1890 it permits for the appointment of joint guardian where the court
has appointed joint guardian and any one of them has died, the survivor continues
to act as guardian.
Section 20 of the act imposes a duty on the guardian to deal with
the wards property carefully and honestly. Section 24, 25 and 26 of the act
provides for custody of the child by the guardian and to look minor’s support,
health and education and such other matters as the law to which the wards subject
required. Under sec. 33 guardian can seek the advice of the court with regard to
the management of the ward’s property.

Kinds of Guardianship:- Muslim Law makes a distinction between guardian of

the person, guardian of the property and guardian for the purposes of marriage (
willayat-ul-nikah ) in the case of minors. Mohammedan Law recognises three
kinds of guardianship. They are as under:-

1.Guardianship in Marriage (Jabar) :- This exception is main feature of

Islamic because it empowers a father to impose status of marriage on his minor
children. This power of imposition is called (jabar) the abstract right of
guardianship (wilayat) and the guardian so empowered is known as Wali. The
persons entitled who can act as guardians in the marriage of a minor:-
i) Father.
ii)The father’s father, how high so ever.
Iii) Full brother and other male relatives on the father’s side in order of
inheritance.
Iv) Mother
v) maternal relations within prohibited degrees.
vi) The Qazi or Court.

As mentioned in the chapter of Marriage, it is one of the essentials of a valid

marriage that the parties are competent to enter into marriage contract i.e. among
other things they must have attained the age of puberty. However this general rule
has one exception i.e. where the marriage is contracted on behalf of the minors
by the guardian. Shia Law recognises only the father and failing him the father’s
father how high-so-ever as guardian in the marriage of a minor.

2. The Guardian of the person of the minor for Custody (hizanat):-Regarding

the nature and extent of the right to custody of a minor child, it was observed by
the Privy Council in the case of Immambandi v/s Mutasaddi-1918, “It is
perfectly clear that under the Muslim Law the mother is entitled only to the
custody of the person of her minor child up-to a certain ages according to the sex
of the child but she is not the natural guardian. The father alone or if he s dead
his executor (under the Sunni Law) is the legal guardian. In Shia Law she is
entitled to the custody of her male child till the age of 2 years and to a female
child till the age of 7years.

3. Guardianship for Property of Minor: - If a minor owns movable or

immovable property a guardian is necessary to manage it. Muslim Law prescribes
certain persons in an order of preference who can be guardian of a minor’s
property. The guardianship of the property of the minor under Muslim Law may
be classified as under:-
1. Legal (de jure) or natural guardian.
2. Guaradian appointed by the court or certified guardian.
3. De facto guardian.
 UNIT- III
11. Define Maintenance. Discuss the provisions regarding maintenance of divorced
woman according to Muslim Women Protection Rights on Divorce-1986. OR What are
the arrangements for maintenance under Muslim Law? Who are entitled for
Maintenance? Discuss. OR Maintenance of Muslim Women.

Introduction:-The Muslim Law, like the English Law treats the property as
primarily and naturally individual. It does not like the Hindu system contemplate
as the normal state of things. The existence of mass of family property kept
together thorough several generations as common fund for the common needs.
Under Muslim Law a man is bound maintain his wife irrespective of his and her
means and his minor children if he is not indigent.

Definition of Maintenance: - Maintenance is equivalent to Arabic

‘Nafqah’ which means, “What a person spends over his family” however in legal
sense maintenance signifies and includes three things: (i) Food (ii) clothing (iii)
lodging.

According to Hedaya: “Maintenance as all those things which are necessary to

the support of life such as food, clothes and lodging.”

Provisions regarding maintenance of divorced woman:- In Shah Bano

Beguum v/s Mohammad Ahmed Khan-1985, the five judges bench held that a
Muslim husband having sufficient means must provide maintenance to his
divorced wife who is unable to maintain herself. Such a wife is entitled to the
maintenance even if she refuses to live with the Muslim husband. The court also
held that the ability of the husband to maintain his divorced wife till the expiration
of the iddat period extends only in case the wife is able to maintain herself.

The following are the rights of maintenance of divorced wife:-

1. Maintenance during the subsistence of marriage:-The husband is liable to

maintain the wife from the date when the wife attains puberty and as long as she
is obedient and faithful to her husband. The husband is bound to maintain her
even though she may have the means to maintain herself. A Muslim wife who is
living separately may claim maintenance against him for example if the husband
treats her cruelty or marries with second wife without her consent or if he paid
prompt dower to her as held in a case of Itwari v/sAshgari-1960.

2. Maintenance of a divorced wife:-Under Muslim Law a divorced wife is

entitled to obtain maintenance from husband up-to her period of Iddat. In a case
of Mohammad Ahmad Khan v/s Shah Bano Begum-1985, although the
Muslim law limits the husband’s liability to provide maintenance for his divorced
wife up to the period of Iddat. The court held that if the divorced wife is unable
to maintain herself after the period of Iddat she is entitled to recourse to sec. 125
Cr.P.C.

3. Maintenance of a Widow: - According to Hedaya says, “That a widow shall

not have any right of maintenance after the death of her husband. Under the Shia
Law a Widow is not entitled to any maintenance though she was pregnant at the
time of the death of her husband. There are some authorities in Mohammadans
who recognised widow’s right if on the death of her husband she was pregnant to
maintenance until delivery, out of share in estate of her husband which child
borne by her entitled to inherit.

In order to nullify the effect of the Shah Bano’s decision, Parliament passed
the Muslim Women’s Protection of Rights on Divorce Act-1986, the
following are the provisions :-
1. A reasonable and fair provision and maintenance to be made and paid to her
within the Iddat period by her former husband.
2. Where she herself maintains the Children born to her before or after her divorce
a reasonable a reasonable and fair provision and maintenance for a period of two
years from the respective dates of birth of such children.
3. An amount equal to the sum of mehr or dower agreed to be paid to her at the
time of her marriage or at any time thereafter according to Muslim Law.
4. All the properties given to her before or at the time of marriage or after the
marriage by her relatives or friends or the husband or any relatives of the husband
or his friends.