MUSLIM LAWS

INTRODUCTION

Muslims, for the purpose of the application of Muslim law, fall into the two categories:

 Muslims by birth or origin and,

 Muslims by religion or conversion (persons who profess Islam or persons who undergo
the formal ceremony conversion).

The Muslim Personal Law (Shariat) Application Act, 1937

Shariat means the Canon law of Islam or the totality of Allah’s commandments (hukums). It is
not law as commonly understood; it is basically a code of obligations, where legal considerations
have a secondary place. According to Shariat, there are five kinds of religious injunctions.

The Shariat Act, 1937 provides a statutory recognition to the rule of Islam, that its law applies to
all who profess the religion of Islam. It makes Muslim law applicable expressly to all Muslims.
The Act abrogated the customs and restored to Muslims their own personal law in almost all
cases. Thus, Muslim law, as applied in India, is the shariat as modified by the principles of
equity, justice and good conscience.

The Muslim law is applicable by Courts in India to Muslims- not in all, but in some matters only.
It has been held that, as regards marriage and divorce, the Shariat Act requires the Courts to
apply Muslim law, only if both the parties are Muslims. If, therefore, only one of them is a
Muslim, the Act will not apply (Noorjahan v E. Tiscenko AIR 1941 Cal 582).

Conception of Muslim Law

1. Shariat: ‘Shariat literally means ‘path to be followed’. Law is considered to be of divine origin
in Islam. It is the direction of God for regulating all human conduct. These directions of God
constitute ‘Shariaf'.

2. Fiqh: ‘Fiqh’ signifies law in modern sense. In absence of any direction by God for regulating
human conduct or in absence of traditions of Prophet, the point is decided by human reasoning
and exercise of human knowledge. It is technically called ‘Fiqh’.
 SOURCES OF MUSLIM LAW

Sources of Muslim Law

Primary Sources Secondary Sources

Justice, Equity
Judicial
Quran Sunnah Ijma Qiyas Custom Legislations and Good
Precedent
Consscience

 Quran: Quran is revelations of God made to Prophet. It is of divine origin and it is the
first source of Muslim law in point of time and as well as importance.
 Sunnah or Hadith: It means traditions of Prophet. It is implied revelations in sayings and
actions of Prophet.
 Ijma: It means consensus or opinion of jurists (Mujtahids) on any point of law in absence
of any rule laid down in Quran or Sunnah.
 Qiyas: It is called analogical deductions. If there is any problem on which Quran, Sunnah
or Ijma are silent then the analogical deductions are applied to ascertain the law.

SCHOOLS OF MUSLIM LAW

In Islam, the people have been divided into two sects having different views regarding certain
aspects of Islam. Thus, the schools of Muslim law can be broadly classified into two categories:

1. Sunni Schools

2. Shia Schools
SUNNI SECT: This sect advocated for method of election for determining the successor of
Prophet. This view was advocated by Ayesha Begum, the youngest wife of Prophet. Elections
were held and Abu Bakr was elected. He became the first Caliph.

HANAFI founder: Iman

SCHOOL Abu Hanifa

MALIKI founder: Imam

SCHOOL Malik-ibn-Anas
SUNNIS
SCHOOL
THE SHAFAEI founder: Ash
SCHOOL Shafei

THE HANABALI founder: Ibn

SCHOOL Hanbal

1. Hanafi School is the first and the most popular schools in Muslim law. Before being
named Hanafi, this school was known as Koofa School which was based on the name of
the city of Koofa in Iraq. Later, this school was renamed as Hanafi School based on the
name of its founder Abu Hanafee. The Prophet had not allowed his words and traditions
from being written, the Hanafi School relied on the customs and decisions of the Muslim
community. Thus, Hanafi School codified the precedent which in prevalence during that
time among the Muslim community.
2. The Maliki school gets its name from Malik-bin-Anas, he was the Mufti of Madeena.
During his period the Khoofa was considered as the capital of Muslim Khaleefa where
Imam Abu Haneefa and his disciples flourished with Hanafi Schools. He discovered
about 8000 traditions of Prophet but complied only about 2000 of them. When the
disciples of Imam Abu Haneefa codified their law based on Ijma’a and Isthihsan.The
maliki school gives the importance to the Sunna and Hadis whereas the Hanafi school
gives the importance to the people and Isthihsan. As per Maliki School and Law, they
rarely accept the Ijma’a. As per the Law, the person gave Fatwa challenging the
 sovereign authority of Khaleefa, he faced enmity and of lack of support from Muslim
governments. Thus, this Maliki school did not get much popularity.
3. The Shaffie School gets its name on the name of Muhammad bin Idris Shaffie, his period
was between 767 AD to 820 AD. He was the student of Imam Malik of Madeena. Then
he started working with the disciples of Imam Abu Haneefa and went to Khoofa. He
conclude the idea’s and the theories of Hanafi School and Maliki School in a friendly
manner. The Imam Shaffie was considered as one of the greatest jurist of Islam. He
created the classical theory of the Shaffie Islamic Jurisprudence.
4. The Ahmad bin Hanbal is the founder of the Hanbali School. He found the Hanbali
school in 241 (AD 855). He is the disciple of Imam Shaffie and supports Hadis. He
strongly opposed the Ijthihad methods. He introduced the theory of tracing the root of
Sunna and Hadis and try to get the answer all his question. His theory was to return to the
Sunna of the Prophet. When the Imam Shafie left for Baghdad, he declared that the
Ahmad bin Hanbal was the only one after him who is the better jurist after him. The
followers of Hanbali school found in Syria, Phalastine and Saudi Arabia.

SHIA SECT: As per Shia Sect, there are three schools of law. Shia Sect is considered as the
minority in the Muslim world. They enjoy the political power only in Iran though they don’t
have the majority in that state also.

Akhbari
ITHNA ASHARIA
SCHOOL OR
IMAMIA SCHOOL
Usuli

SHIA SCHOOL Khojas

THE ISMAILIA
SCHOOL
Bohras
THE ZYADIS
SCHOOL
 MARRIAGE

Mahmood J. defines a Muslim marriage," as a civil contract upon the completion of which by
proposal and acceptance all the

rights and obligations, which it creates, arise immediately and simultaneously". A Muslim
marriage should attract all the incidents of contract as any other stipulated in the Contract Act.
Thus, the provisions of Sec. 64 of the Indian Contract act will apply where the marriage has been
rescinded unilaterally. Sec. 64 requires that person to return the benefits under the contract, at
whose opinion the contract is rescinded [Md Abasbhai Usaf Bidiwale v Hurbanu Mansur Atar
(1978) Mah. LJ 26].

The essentials of a Muslim marriage are:

(1) Every Muslim of sound mind, who has obtained puberty, may enter into a contract of
marriage. A marriage brought about without the consent of such a Muslim is void.

(2) There should be an offer or proposal (ijab) made by or on behalf of one of the parties and an
acceptance (qubul) of the proposal by or on behalf of other party. A long distance telephone
(speaker-phone) could be used when the parties are in different cities/ countries; however, the
presence of witnesses is necessary.

(3) Offer and acceptance of marriage must be in the presence and hearing of two male witnesses
(or one male and two female witnesses) who must be Muslim, of sound mind and major. In Sliia
law, the witnesses are not necessary.

(4) Muslim law does not prescribe any specific words to be uttered at the occasion though the
usual form is: “I have married myself to you,” and the other says, “I have consented myself to
you” (Hedaya, 25). The words used in offer and acceptance must clearly and unequivocally
convey the intention to be married. If proper words are not used, consummation of marriage
cures the deficiency.

(5) Offer and acceptance must be at one and in or at the same meeting. A proposal made at one
meeting and an acceptance made at other meeting does not constitute a valid marriage.
(6) If the parties are major, they must make offer and acceptance themselves, but for minors and
lunatics guardians can perform this function.

(7) Neither writing nor any religious ceremony is essential (though a kali or mulla is usually
present on the occasion who recites certain koranic verses).

Age of puberty: Privy Council in Mst. Atika Begum v. Mohd. Ibrahim, laid down that a girl
becomes major on happening of either of two events:-

(i) Completion of 15th year; or

(ii) Attainment of puberty at an early period.

Doctrine of Valid Retirement

In Muslim law, consummation of marriage cures deficiencies of the formalities. When the
husband and wife are alone together under circumstances which present no legal, moral and
physical impediment to marital intercourse, they are said to be in “valid retirement”. A valid
retirement (Khihvat-us-Sahiha) raises a presumption of consummation of marriage.

A valid retirement in the Sunni law has the same legal effect as actual consummation as regards
dower, establishment of paternity, observance of Iddat, maintenance, and, bar of marriage with
wife’s sister. But it has not the same effect as actual consummation as regards the bar of
marriage with the wife’s daughter, or the bar of re-marriage between divorcees.

Proof/ Presumption of Marriage

The question of Muslim marriage is a question of fact which may be proved by direct evidence
(calling witnesses present at the time, producing nikah-nama signed by the parties) or by indirect
evidence raising a presumption of marriage.

Under Muslim law, like Hindu law, the prolonged and continuous cohabitation raises a
presumption of (valid) marriage. However, it must be proved that the man treated the woman as
his wife and recognized her as such with the intention and knowledge of giving her the status of
a wife Roshanbai v Suleman, 49 Bom. LR 328]. Also, there has been conduct on his part
amounting to acknowledgement of the legitimacy of the child born after cohabitation. It may be
noted that as a mere concubine, a woman has no status in Muslim law.

Registration of Marriage

Under Muslim law, like Hindu law, there is no Union law for registration of Muslim marriages;
some State statutes provide for the registration of marriage and divorce.

Capacity for Marriage

Every Muslim of sound mind, who has attained puberty (i.e. major), may enter into a contract of
marriage. In Muslim law, age of majority is understood with reference to attaining the age of
puberty. Puberty is presumed, in the absence of evidence, on completion of the age of 15 years.
Lunatics (persons of unsound mind) and minors who have not attained puberty may be validly
married by their guardians. A marriage contracted by a minor himself is a nullity. Thus, under
Muslim law, the parties to the marriage should have either the capacity to marry or the capacity
to be married.

The Indian Majority Act, 1875 do not apply to the Muslims in respect of marriage, dower and
divorce. The provisions of Child Marriage Restraint Act, 1929, though penal and punitive, do not
render marriages between minors invalid.

The consent of major is necessary for a valid marriage, and marriage brought about without
his/her consent is void [Gulam Bibi v Mohammad Shaft (AIR 1940 Pesh. 4]. Further, when
consent to marriage has been obtained by force or fraud, the marriage is invalid unless it is
ratified. Where consent to the marriage has not been obtained, consummation (sexual
intercourse) against the will of the woman will not validate the marriage.

Validity of Inter-religious marriage

S.no.
1 Muslim male and Muslim female (of any sect) Valid Marriage
2 Sunni male and Kitabia female Valid Marriage
3 Sunni male and non-Muslim and non-Kitabia female Irregular marriage
4 Shia male and non-Muslim female Void marriage
5 Shia male and non-Muslim female Void Marriage
6 Muslim female and non-Muslim male Void Marriage
Point to remember: Kitabia is a person who belongs to a community the origin of which is
believed from a heavenly revealed book (kitab).

PROHIBITIONS

In a valid marriage there should not be any prohibitions laid down in personal laws. Prohibitions
are restrictions upon marriage. There are two kinds of prohibitions:

a. Absolute prohibitions

1. There is an absolute prohibition for a Muslim to marry who is within ‘prohibited relationship’.
Two persons are said to be in a prohibited relationship if they are related to each other by:-

a. Consanguinity (relationship by blood)

b. Affinity (relationship by marriage)
c. Fosterage (relationship by milk)

2. Consanguinity includes the following relations:-

1. One’s own ascendant or descendant, how high-so-ever;

2. Descendant’s of one’s father or mother how low-so-ever;
3. Brothers or sisters of one’s ascendants how liigh-so-ever

3. Affinity includes the following relations:-

1. Ascendant or descendants of one’s wife or husband

2. Wife or husband of one’s ascendant or descendant

4.Fosterage means when a child under the age of two years has sucked the milk of any woman
other than his own mother then such a woman is called a foster-mother of the child.
 Consanguinity

Absolute
Affinity
prohibitions

Fosterage

b. Relative prohibitions

Compliance of these prohibitions is not mandatory but still their presence is deemed unjust.

A marriage contracted in presence of these prohibitions is merely irregular. If the irregularity is

removed the marriage becomes valid.

Since Sliia law does not recognize irregular marriage, the marriage in presence of these
prohibitions

under Shia law is cither valid or void.

Following are relative prohibitions:-

(a) Unlawful conjunctions:-A Muslim is prohibited to have two wives at a time if these two
wives are related to each other by consanguinity, affinity or fosterage) in such a manner that if
they had been of different sexes, they could not have inter-married.

Marriage against this rule is irregular in Sunni law. A marriage against this rule (except marriage
with wife’s aunt) is void under Shia law.
(b) Marriage with fifth wife: A Muslim can marry lawfully with four wives at a time. He is
prohibited to marry fifth wife.

Marriage with fifth wife is irregular in Sunni law and void in Shia law.

(c) Marriage with a non-Muslim: A Sunni male can contract a marriage with a kitabia female
but cannot marry a non-Muslim or non-Kitabia female. Marriage against this prohibition is
irregular in Sunni law. Marriage with a non-Muslim is void under Shia law.

(d) Marriage without witnesses: In Sunni law a marriage without two competent Muslims is
irregular. In Shia law the presence of witnesses is not necessary and therefore, a marriage
without witnesses is valid.

(e) Marriage during Iddat: In Sunni law marriage with a woman observing Iddat is irregular.
In Shia law marriage with a woman observing Iddat is void.

Unlawful
Conjunctions

Marriage with
fifth wife

Relative Marriage with a

prohibitions non-Muslim

Marriage without
witnesses

Marriage during
iddat

Distinction between Shia and Sunnis Law of Marriage

Shia law of marriage Sunnis Law of Marriage

The presence of witnesses is not A marriage contracted in the absence of
necessary. witnesses is irregular
No Muslim, whether male or female, can
marry a non-Muslim.
A male can validly marry a kitabia (i.e. a
Jewess or Christian) while the marriage with
an idolatress or fire-worshipper is irregular. A
female cannot marry a non-Muslim, whether
kitabk or non-kitabia.

A male can marry his wife’s aunt, he can even Marriage with the wife’s aunt or wife’s niece is
marry his wife’s niece, but only with the wife’s irregular.
permission.

A marriage may be valid or void. Irregular A marriage may be valid, void or irregular.
marriages, under the Sunni law, are void or
valid under the Shia law.

A male can contract a temporary marriage, A marriage cannot be restricted in its duration.
called muta marriage.

The only guardians recognized are the father Regarding guardianship in marriage, the list of
and the paternal grandfather, how highsoever. guardians include father, paternal grandfather,
mother, brother, etc., and the Government.

DOWER (MAHR)

Dower or Mahr is a peculiar Muslim law concept: “It is a sum of money/other property promised
by the husband to be paid or delivered to the wife in the consideration of the marriage, and even
where no dower is expressly fixed or mentioned at the marriage ceremony, the law confers the
right of dower upon the wife” (Justice Mahmood). However, non-specification of dower does not
render a Muslim marriage void.
Dower is an invaluable right of a Muslim wife. Probably, it is also used as a deterrent to Muslim
husband’s absolute power to pronouncing divorce on his wife. It is an integral part of marriage
and may be fixed before, at or after the marriage;

No school of Muslim law fixes the maximum amount of dower, and a Muslim couple may fix
any amount of dower - even an .amount which is evidently much beyond the means of the
husband. The Hanafis fix the minimum amount at 10 dirhams, and die Malikis at 3 dirhams. In
Sliia law, no minimum dower has been prescribed. Usually dower is fixed in terms of money, but
it may be as well any type of property (mat). No writing is required, though usually a mahr-nama
(dower-deed) is executed.

Classification of
dower

Unspecified dower
Specified dower or
or Proper dower or
Mahr-i-Musamma
Mahr-i-Misl

Defferred
Prompt (Muajjal)
(Muwajjal)

Kinds of Dower

(a) Specified and Proper Dower: Specified dower is fixed by mutual agreement of the
parties. Proper (unspecified) dower (mahr-i-nisi), also called ‘customary’ dower, arises by the
operation of law: If nothing is said about dower at the time of marriage, the wife may claim to
have a reasonable amount of dower settled for her (even if the marriage was contracted on the
express condition that she should not claim any dower).
A ‘proper’ dower is, thus, a dower which would be payable to a woman of similar status and
circumstances. In fixing it, the court is guided by the amount of dower settled upon the other
female members of the family of the wife’s father; the husband’s social position and his means
are not of much importance.

(b) Prompt and Deferred Dower: This distinction is according to the time when a specified
dower is payable. ‘Prompt’ dower (marjjal) is payable immediately on the marriage taking place,
and it must be paid on demand (unless delay is stipulated for and agreed). It may be realized at
any time before or after consummation. It is only on the payment of the prompt dower that the
husband becomes entitled to enforce his conjugal rights, unless the marriage is already
consummated. Non-payment of prompt dower is a complete defence to the husband’s suit for
restitution of conjugal rights, and the suit will be dismissed [Abdul Kadir v Salima (1886) 8 All
148].

Deferred’ dower (muwajjal) is payable on the dissolution of the marriage either by the death of
either of the parties or by divorce. Wife’s interest in deferred dower is a vested interest; her heirs
can also claim it.

Wife’s remedies in case of non-payment of dower

Following are the remedies available to wife on non-payment of dower: -

(a) Refusal to cohabit;

(b) Right of dower as a debt;

(c) Right of retention.

Judicial Separation and Divorce

Under Muslim law, there is no provision for a decree of judicial separation. Though certain
agreements could be entered into at the time of marriage or subsequently thereto which stipulate
for ‘separation’ or ‘divorce’ on the happening of a stipulated contingency (e.g. that the wife will
have the right of pronouncing divorce on her husband on his taking a second wife or treating her
with cruelty).
In Muslim law, although matrimony is a civil contract, the husband usually enjoys special
privileges and the wife suffers corresponding disabilities. No Muslim marriage (either among
Sunnis or Shias) is “permanent” in the sense in which a Christian or a Parsi marriage is, for the
husband may divorce the wife at any time he likes. The wife remains at her husband’s mercy
owing to polygamy and the inequality of the law of divorce. He may divorce her even if there
was a promise on his part not to exercise the power of divorce. Thus, the institution of talak n.as
been described as “a one-sided engine of oppression” in the hands of the Muslim husband.

Another remarkable feature of Muslim law of divorce is that in most cases no judicial or non-
judicial authority is needed to effect dissolution of marriage. Judicial divorce was introduced in
1939 by the Dissolution of Muslim Marriages Act and under the Act only wife can sue for
divorce. However, unlike the husband, she has to prove the grounds for obtaining the divorce.
Divorce is the dissolution of marriage by the act of the parties. It may be given by the husband or
the wife.

Marriage can be dissolved at the instance of wife as well as husband through the modes available
to them.

Divorce at the instance of husband

Muslim law gives the husband absolute authority to terminate the marriage without any reason.
Muslim husband can divorce his wife through Talaq, Ila and Zihar.

1. Talaq

Talaq is Arabic word which means ‘to release’. It means repudiation of marriage by the husband.
Muslim husband has unrestricted right to pronounce Talaq without any reason. In Islam talaq is
permitted only when wife by her conduct or by her words does injury to the husband or happens
to be impious.

Conditions of a valid talaq

Following are the conditions of a valid talaq: -

(1) Capacity: Every Muslim husband of sound mind, who has attained the age of puberty is
competent to pronounce talaq.
(2) Free consent: Consent of the husband pronouncing talaq must be free consent. But, under
Hanafi law talaq pronounced under compulsion, coercion, undue influence, fraud and voluntary
intoxication is valid.

(3) Formalities: Following are the formalities:-

(a) In Sunni law talaq must be oral or in writing.

(b) No specific words are prescribed in Sunni law however words used must be clear and
unambiguous.

(c) In Sunni law talaq need not be made in the presence of witnesses.

(d) In Shia law talaq must be pronounced orally except where the husband is unable to
speak.

(e) In Shia law talaq must be pronounced in the presence of two witnesses.

(f) Shia law requires the use of specific Arabic words in pronouncing talaq.

Presence of wife is not necessary at the time of pronouncement of talaq. For the validity of talaq
notice to wife is also not necessary.

Kinds of talaq: There are two types of talaq, one of which is declared as unconstitutional
recently.

1. Talaq-ul-Sunnat: This form of Talaq is based on the Prophet’s tradition (Sunna) and as such
is considered as most approved form of Talaq. Talaq was in-fact considered as an evil and in
case it became/becomes impossible to avoid this evil then the best method is Talaq-ul-sunnat,
wherein there is a possibility of revoking the effects of this evil. It is also called as revocable
Talaq for the reason that Talaq does not become final at once and there always remain a
possibility of compromise between the husband and wife. Only this kind of Talaq was in practice
during the life of the Prophet. This mode of Talaq is recognized both by Sunnis as well as by the
Shia’s. alaq-ul-Sunnat may be pronounced either in Ahsan or in the Hasan form:-

a. Talaq-Ahsan: This is the most proper form of repudiation of marriage. The reason is twofold:
First, there is possibility of revoking the pronouncement before expiry of the Iddat period.
Secondly, the evil words of Talaq are to be uttered only once. Being an evil, it is preferred that
these words are not repeated. In the Ahsan Talaq there is a single declaration during the period of
purity followed by no revocation by husband for three successive period of purity. In this form,
the following formalities are required:

(a) The husband has to make a single pronouncement of Talaq during the Tuhr of the wife. Tuhr
is the period of wife’s parity i.e. a period between two menstruations. As such, the period of
Tuhr is the period during which cohabitation is possible. But if a woman is not subjected to
menstruation, either because of old age or due to pregnancy, a Talaq against her may be
pronounced any time.

(b) After this single pronouncement, the wife is to observe an Iddat of three monthly courses. If
she is pregnant at the time of pronouncement the Iddat is, till the delivery of the child. During the
period of Iddat there should be no revocation of Talaq by the husband.

b. Talaq Hasan (Proper): This Talaq is also regarded to be the proper and approved form of
Talaq. In this form too, there is a provision for revocation. But it is not the best mode because
evil words of Talaq are to be pronounced three times in the successive Tuhrs. The formalities
required under this form are as under:

(a) The husband has to make a single declaration of Talaq in a period of ‘Tuhr.

(b) In the next Tuhr, there is another single pronouncement for the second time.

It is significant to note that the first and second pronouncements may be revoked by the husband.
If he does so, either expressly or by resuming conjugal relations, the words of Talaq become
ineffective as if no Talaq was made at all.

(c) But, if no revocation is made after the first or second declaration then lastly the husband is to
make the third pronouncement in the third period of purity (Tuhr). As soon as this third
declaration is made, the Talaq becomes irrevocable and the marriage dissolves and the wife has
to observe the required Iddat.
2. Talaq-ul-Biddat: It is the disapproved form of talaq. The Talaq becomes effective as soon as
the words are pronounced and there is no possibility of reconciliation. Under Shia law this is not
recognized. In this form of talaq husband makes three pronouncements during the period of
purity (Tuhr). It is also commonly known as triple talaq.

In Shayara Bano v. Union of India Supreme Court of India declared the practise of Triple
Talaq as unconstitutional. It was held that this form of Talaq is manifestly arbitrary in the sense
that the marital can be broken capriciously and whimsically by a Muslim man without any
attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be
violative of the fundamental right contained under Article 14 of the Constitution of India. The
court held that triple talaq is not fundamental to Islam.

2. Ila

Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila
and Zihar. They are called constructive divorce. In Ila, the husband takes an oath not to have
sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of
four months. After the expiry of the fourth month, the marriage dissolves irrevocably. But if the
husband resumes cohabitation within four months, Ila is cancelled and the marriage does not
dissolve. Under Ithna Asharia (Shia) School, Ila, does not operate as divorce without order of the
court of law. After the expiry of the fourth month, the wife is simply entitled for a judicial
divorce. If there is no cohabitation, even after expiry of four months, the wife may file a suit for
restitution of conjugal rights against the husband.

3. Zihar

In this mode the husband compares his wife with a woman within his prohibited relationship e.g.,
mother or sister etc. The husband would say that from today the wife is like his mother or sister.
After such a comparison the husband does not cohabit with his wife for a period of four months.
Upon the expiry of the said period Zihar is complete.

Divorce at the instance of wife

Divorce by Muslim wife is only possible in the following three situations:-

(a)Where husband delegates the right of Talaq to wife. (Talaq-e-Tafiweez): Instead of
pronouncing Talaq himself he may give the right to his wife.The delegation may be conditional
or subject to some condition.General practice is to delegate the power to wife upon husband’s
failure to fulfill certain conditions.

(b) Divorce by mutual consent. (Khula and Mubarat): Khula and Mubarat are form of
divorce by mutual consent. The words khul or ahul or khula means “to put off”. It is the laying
down by a husband of his right and authority over his wife for an exchange (Redemption). A
divorce by khula is a divorce with the consent, and at the instance of the wife, in which she gives
or agrees to give a consideration (give up her dower or give to her husband some other property
or rights) to the husband for her release from the marriage tie (‘divorce by purchase’). Failure on
the part of the wife to pay the consideration for the divorce does not invalidate the divorce,
though the husband may sue the wife for it. Once the wife’* offer is accepted, it operates as a
single irrevocable divorce (talak-i-bain), and its operation is not postponed until execution of the
khula-nama. Once the husband accepts the khula, he has no power of revocation, but the wife
may at any time during the Iddat re-claim consideration, and if she does so, the husband may
revoke the khula. A proposal for khula made by wife may be retracted by her at any time before
the husband has accepted it.

The word mubarat denotes the act of freeing each other by mutual consent. Shia law requires that
both the parties must bona fide find the marital relationship to be irksome. Like khula, it is
dissolution of marriage by agreement, but unlike khula, in it the aversion is mutual and both the
sides desire a separation. The offer in a mubara’at divorce may proceed from the wife or the
husband, but once it is accepted, the dissolution is complete, and it operates as a talak-i-bain as in
the case of khula.

(c) Dissolution of marriage under the Dissolution of Muslim Marriage Act, 1939:
Section 2 of the Act provides the grounds on which divorce under the Act can be claimed by the
wife. Following are the grounds:-

(a) The husband is missing for four years;

(b) Husband’s failure to maintain the wife for two years;
(c) Imprisonment of husband for seven years;
(d) Husband’s failure to perform marital obligation for three years;
(e) Husband’s impotency;
(f) Husband’s insanity, leprosy or venereal disease;
(g) Option of puberty to wife;
(h) Cruelty by the husband
(i) Any other ground which is recognized as valid for the dissolution of marriage under
Muslim law.
Section 4 of die Dissolution of Muslim Marriages Act, 1939 deals with this aspect.

If the Muslim husband renounces Islam, the marriage is dissolved immediately. This Act does
not apply to apostasy by husband.

ADOPTION NOT RECOGNIZED IN MUSLIM LAW

The Muslim law does not recognize adoption as a mode of filiation, unless there is a special
family or tribal custom (as in Punjab, Oudh, etc.). Even a Hindu convert to Islam cannot adopt.
Even if he adopts a son, such son cannot claim full right of inheritance. The retention by Hindu
converts to Mahommedanism of Hindu usages of inheritance and succession docs not carry with
it the Hindu custom of adoption.

MAINTENANCE OF WIFE AND OTHERS

A Muslim husband is bound to maintain his wife of a valid marriage, and not the wife of a void
or irregular marriage (except when the marriage is irregular for the want of witnesses). It is
immaterial that the wife is rich or poor, Muslim or non- Muslim, or that the husband is without
any means. The wife has also the right to pledge the credit of her husband for providing herself
with maintenance (‘mataa’) Wife’s right of maintenance is a debt against the husband.

The husband’s obligation to maintain his wife exists only so long as the wife remains faithful and
obeys all his ‘reasonable’ orders. A wife does not lose her right to maintenance if she refuses
access to him on some lawful grounds or when the marriage cannot be consummated owing to
husband’s fault. Under Muslim law, arrears of maintenance cannot be claimed by any relative
other than a wife.
Prior to the Supreme Court decision in Md. Ahmed Khan v Shah Bano Begum (All 1985 SC
945), there was a view that a divorced Muslim wife was not entitled to an maintenance from her
husband after the expiry of Iddat period. In Shah Bano case, Chandrachud, C.J. expressed the
opinion that under Muslim personal law, a divorce wife unable to maintain herself is entitled to
maintenance. If she is able to maintain herself, the husband’s liability to provide maintenance
ceased with the expiration c the Iddat period.

With the enactment of the Muslim Women (Protection of Rights on Divorce) Act 1986, a
divorced Muslim wife has been accorded necessary protection. Under the Act, a divorced woman
is entitled to have a “reasonable and fair provision an maintenance” from her husband having
sufficient means, and the husband must d so within the period of Iddat and his obligation is not
confined to the period Iddat (but afterwards also, till she remarries). If she (being unable to
maintain herself after the Iddai) fails to get maintenance from her husband, she can claim from
relatives (viz. those entitled to inherit her property on her death) failing which from the State
Wakf Board. Provided that where she has children, the court m£ order only such children to pay
maintenance to her, and where such children been unable to do so, the court shall order the
parents of such divorced woman to pi maintenance to her (unless they are unable to do so).

Under the 1986 Act, a maintenance order could be enforced by levying fin< (as provided under
the Cr.P.C.). The court may sentence such person for the who or part of any amount remaining
unpaid after the execution of the warrant, 1 imprisonment for a term up to one year or until
payment if sooner made.

The parties have an option to proceed under the Secs. 125-128, Cr.P.C., under this Act.

Maintenance to Children and Parents

Under Muslim law, the father is bound to maintain his sons until they attain the age if puberty,
and his daughters until they are married. The fact that the children are in the custody of their
mother during their infancy does not relieve the father from the obligation of maintaining them.
But he is not bound to maintain a child who is capable of being maintained out of his or her own
property. If the father is poor and infirm or weak, the liability to maintain the children falls upon
the mother. If the mother is financially unable to do so, it devolves upon the father’s father.
A daughter has no right to separate maintenance, unless there are circumstances which justify the
daughter in staying away from the father’s house. Adult children are not entitled to maintenance,
unless they are infirm or weak. Illegitimate children have no right of maintenance under Muslim
law. However, an agreement to maintain an illegitimate child is not void. If the father has
sufficient means he may be compelled to maintain his legitimate or illegitimate children (who are
unable to maintain themselves) under the Criminal Procedure Code.

Under the Muslim Women (Protection of Rights on Divorce) Act, 1986, it is laid down that
where a divorced wife herself maintains the children born to her (before or after her divorce), a
reasonable and fair provision and maintenance is to be made and paid by her former husband for
a period of two years from the date of birth of such children.

Case laws on this point

1. In Bai Tahira V. Ali Hussain, AIR 1979 SC 362, Supreme Court held that a divorced
Muslim wife is entitled to maintenance even if she has already received the whole
amount due under her personal law.
2. Section 125 is independent of any personal law and it is of secular nature. It was held in
Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 945, that Section 125 of CrPC
applies to divorced Muslim woman unless she remarries.
3. In Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 945, Supreme Court held
that there is no conflict between Section 125 and Muslim personal law. The court
observed that Muslim personal law limits the liability of husband to maintain the
divorced wife till the period of iddat.

If the divorced wife is able to maintain herself the husband’s liability expires after the period of
iddat If the divorced wife is unable to maintain herself she is entided to take recourse to Section
125 of Code of Criminal Procedure.

Constitutionality of the Act was challenged in Danial Latifi and others v. Union of India.
Supreme Court upheld the constitutional validity of the Act and held the following: -
 o The liability of Muslim husband towards the divorced wife to maintain her is not
confined to iddat period. It extends to the whole life of divorced wife unless she
marries again.
o The former husband must make a reasonable provision (which would extend even
beyond the period of iddat) for the future of divorced wife within the period of
iddat.
o The Act is not in contravention of Articles 14, 15 and 21 of the Constitution of
India.

GIFTS (HIBA)

Hiba is an unconditional transfer of ownership in an existing property, made immediately and

without any consideration. Gift is the transfer of property by act of the parties and not a transfer
which takes place by operation of law. In gift the ‘absolute interest’ is transferred by the
transferor. There cannot be a gift of limited or partial interest in the property. Chapter VII of the
Transfer of Property does not apply to Hiba. The formalities of Hiba are different from that of a
gift made by a non-Muslim.

Essentials of a valid Hiba

(1) Declaration: Declaration signifies the intention of the transferor to make a gift. Person
declaring is called a donor. The person in whose favour gift is made is called donee. Hiba may be
made in oral or in writing. Writing is not necessary whether the property is moveable or
immovable. Declaration must be in clear and unambiguous words. Ambiguous declaration is
void. Declaration for gift must be made voluntarily and with free consent.

(2) Acceptance: Gift must be accepted by the donee. Donee may be any person in existence.
A mother in child’s womb is a competent donee provided he is born alive within six months
from the date of Hiba. A Muslim may make a Hiba in favour of a non-Muslim. The donee may
be a juristic person. He may be a person of unsound mind also. If he is a person of unsound mind
the gift must be accepted by his guardian.

(3) Delivery of possession: Delivery of possession is not needed in the following

circumstances:-
(1) Where the donor and the donee live jointly in the gifted house.
(2) Gift by husband to wife or by wife to husband.
(3) Gift by guardian to ward.
(4) Gift of property already in possession of donee.

MUSLIM LAW OF WILLS

Will is the legal declaration of the intentions of a Muslim with respect to is property, which he
desires to be carried into effect after his death.
Essential conditions of a valid will
Following are the essential conditions of a valid will:-
(1) The legator and the legatee must be a competent person;
(2) There must be a free consent;
(3) Formalities must be completed;
(4) The property must be bequeathable property;
(5) The legator must possess the testamentary right.
Muslim can transfer his entire property through gift but he has no right to make a will of his
whole property.
When a person dies, his funeral expenses and the debts are satisfied out of the property left by
him. The property which is left after such deductions is called bequeathable property.
A Muslim has an unconditional testamentary right over one-third of the bequeathable properties
if the will is made to a stranger (non-heir). Where the will is made to a legal heir then the consent
of the remaining legal heirs is necessary even though the property given is one-third or less. A
will may be revoked by a testator any time during his life. Death-bed gifts: When the gift is made
by Muslim during death-illness the legal effect is that of a will and not of Hiba.

WAQFS
Wakf (‘dedication’ or ‘detention’) means dedication in perpetuity of some specific property for a
pious purpose(s). Perpetuity is the essence of a wakf. According to Sec. 2 (1) of the Mussulman
Wakf validating Act, 1913, “wakf” means the permanent dedication by a person professing the
Mussalman faith, of any property, for any purpose recognized by the Mussalman law as
religious, pious or charitable.
A wakf may be testamentary or inter vivos. A testamentary wakf, which may be made either
verbally or in writing, comes into effect after the death of the rvakif {i.e. the dedicator), and is
subject to the same restrictions as a bequest to an individual.
Wakf by Immemorial User
A wakf may be inferred from immemorial user, even though there may be no direct evidence to
show when and how it was originally set apart e.g. when a land has been, from time immemorial,
used for the purpose of a burial ground, then the land is by user wakf. Similarly, where for a
considerable number of years, the public offered prayers in a mosque close by a tomb of a
Muslim saint and an annual urs (anniversary), which was attended by persons belonging to a
particular sect of Muslim (Momins) was regularly held there, it must be presumed that the
mosque had been duly dedicated.
But die mere burial of a saindy person in a plot of land does not convert that land into trust
property. In the absence of an intention to dedicate, or a dedication by the owner, mere user will
not divest land of its private character and make it wakf. There must be proof of dedication or of
user, such as saying of prayers in a congregation.
The Apex Court has held that when a customary right to perform religious ceremonies and
functions over certain land belonging to a zamindar has been acquired by Shias by prescription,
such a right cannot be defeated by a derivative title to the land claimed by any other party under
the superior title-holder, namely, the zamindar. In such a case, the prescriptive right would
ensure for the benefit of all the persons belonging to that sect (i.e. all Shias), notwithstanding the
superior title of the zamindar Ghulam Abbas v State of U.P. (1982) 1 SCC 71].

Essentials of a Valid Wakf under Hanafi Law

According to Hanafi law, the following are the five essentials of a valid wakf:
(1) Permanent dedication of property;
(2) The wakif must be competent;
(3) The wakif must be the owner of the property;
(4) The wakf must be religious; and
(5) It must be unconditional.
Revocability of a Wakf
A wakf inter vivos, once it is validly constituted, is irrevocable. If a condition is inserted in a
wakf-nama that the wakif reserves to himself the power of revoking the wakf, the wakf is void ah
initio. However, a testamentary wakf is revocable at any time before the death of the testator.
Because such a wakf operates only from the death of the testator; such a revocation is not the
revocation of a wakf, but only the revocation of a will. A wakf created during death-illness may
be cancelled on recovery.
Essentials of a Valid Wakf under Shia Law
There are four conditions for the validity of a wakf, namely,
(i) it must be perpetual;
(ii) it must be absolute and unconditional
(iii) possession must be given of the thing appropriated, and,
(iv) it must be entirely taken out of the wakif himself (i.e. the wakif must not eat out of the wakf,
should not retain any interest, even in the usufruct of the dedicated property. And, if he does so
retain any benefit, the wakf is bad, not merely in respect of the reservation, but in its entirety).