MUHAMMADAN LAW

Topic 1: Concept and Validity of Marriage

Topic 2: Bigamy under Muslim Law
Topic 3: Doctrine of Option of Puberty
Topic 4: Muslim Law of Divorce
Topic 5: Muslim Law of Maintenance
 Concept And Validity under Muslim Marriage

Introduction:

(Q) Explain briefly ‗Muta marriage’ and its legal implication. [2018(1)(iii)]

(Q) Explain the concept of ‗Fasid marriage’ and its legal implications
[2018(1)(iv)]

(Q) (b) Effect of conversion by a spouse under Muslim Law [2016(8) (b)]

Validity of Marriage:

(Q) Give three examples each for Prohibited relationship and Sapinda relationship
under Hindu law and prohibited relationship under Muslim Law. [2018(1)(ii)]

(Q) Examine the validity of the following marriages under Hindu law and also
under Muslim Law:-

(a) A marries his brother‘s pregnant widow [2019(1)]

Ans: Valid

(b) A marries his maternal uncle‘s daughter [2019(1)]

Ans :Valid

(c) A marries his deceased wife‘s sister [2019(1)]

Ans:Valid

(d) B gives his daughter aged 17 yrs in marries to A. without her consent [2019(1)]

Ans: She can repudiate her marriage after attaining the age of Puberty.

(Q) Discuss the validity of the following Marriage under the Hindu Law & also
Muslim law:

(a)A marries his deceased wife‘s sister [2017(1)(a)]

Ans: Valid
(b)A gives his daughter aged 16 years in marriage to B without her consent.
[2017(1)(b)]

Ans: She can repudiate her marriage after attaining the age of Puberty.

(c)Marriage of a girl with a boy who is her paternal grandfather‘s sister‘s

daughter‘s daughter‘s son. [2017(1)(c)]

Ans:Valid

(d) A marries his son‘s son‘s widow. [2017(1)(d)]

Ans:Void

(Q) What are the essential ingredients of ‗Nikah‘ ? Discuss the validity of the
following marriage under Sunni & Shia Law:

(a). Salim married Saba, the pregnant widow of his friend two weeks post the death
of his friend. [2017(7)(a)]

Ans: Marriage with a woman undergoing Iddat is irregular but not void.

(b). Salim marries Julie, a Roman Catholic Christian. [2017(7)(b)]

Ans: Valid under Sunni law, Void under Shia Law

(Q) (b) Discuss the validity of the following marriage under the Muslim Law:

(i) Shaahrukh marries Aisha, a widow whose husband had died three weeks before.
[2016(1)(b)(i)]

Ans:In case of widow- 4 month 19 days; Irregular marriage under Sunni law,
Void under Shia law.

(ii) Saif marries Sareena, who is Hindu by religion. [2016(1)(b)(ii)]

Ans: Irregular under Sunni law, Void under Shia law

(Q) Discuss the validity of following marriages:

(d)Rahim, a muslim married his deceased brother‘s pregnant wife Waheeda.

[2015(1)(d)]
Ans: During Iddat marriage, In case of widow- 4 month 19 days; Irregular
marriage under Sunni law, Void under Shia law

(e) Salim, a Muslim married Shabana and during the subsistence of marriage her
married Shabana‘s sister Shabnam also. [2015(1)(e)]

Ans: Irregular(Unlawful conjunction: A man may not have at the same time two
wives who are so related to each other by consanguinity, affinity and fosterage,
that if either of them had been a male, they could not have lawfully intermarried, as
for instance, two sisters, or aunt and niece. The bar of unlawful conjunction
renders a marriage irregular, not void.)

Doctrine of Option of Puberty

(Q)(a) Option of Puberty under Hindu Law and Muslim Law. [2019(3)(a)]

(Q) (a) Option of puberty under Muslim Law [2016(8) (a)]

(Q) Can a girl who was married at the age of 13 and spent 2 years in her husband‘s
house claim divorce in exercise of her right to option of puberty under Hindu and
Muslim law? [2015(6)(ii)]

(Q) Explain briefly ‗Muta marriage’ and its legal implication. [2018(1)(iii)]

Ans: Introduction

The origin of Muta Marriage can be traced back to the war times when the first
Islamic jihadis, led by their prophet Mohamed, raided caravans and attacked
neighboring societies for war booties. The absence of war slaves with whom they
could enter into marriage made them seek permission from their prophet to visit
prostitutes. Mohamed, being the "perfect man of Allah" did not grant them the
permission to undertake such immoral activity and hence decreed that these
soldiers shall have to marry the girls that they wanted. A dowry for their vaginas is
mandated and subsequently the concept of "Muta" gave birth to Muta Marriage.

The word ―muta‖ literally means ―enjoyment, use‖. It is a ‗marriage for pleasure‘
for a fixed period of time, also known as temporary marriage. The institution of
muta, which was fairly common in Arabia before and at the time of the prophet, is
now not recognized by any school of Muslim law in Indian, except the Ithna
Ashari Shiite or Shia school. In practice, however, the institution of muta marriage
is almost obsolete in India.

PILLARS OF MUTA MARRIAGE :

The Formula:Marriage under Muslim Law is a contract and as per the essentials
of a valid contract, there needs to be a declaration and an acceptance. The
declaration by the woman is followed by the man giving his acceptance expressing
his satisfaction with the declaration.

The Persons :Muta marriage can only be concluded by a man with a Muslim or
one of the 'People of the Book'.

Prohibition: Certain situational restrictions are also imposed pertaining the

persons contracting the marriage such as

(i)Marriage with an unbeliever or an enemy of the Household of the Prophet (Ahlul

Bayt, i.e., the Imams), is prohibitive. Or (ii)if the man is already married or(iii) the
slave belongs to someone else or (iv)she is the daughter of his sister-in-law or
brother-in-law he cannot contract a Muta her in absence of the wife's permission or
(v)the permission of the master of the slave. The contract in such a case is invalid
or in abeyance until the permission is given.

Time period: The time period must be set forth in a manner which leaves no
possibility of increase or decrease. According to the Imam al-Rida, '...(mut'a must)
be a stipulated thing for a stipulated period.' The absence of a stipulated period
renders the contract of marriage as invalid. On the contrary, most of the 'ulema'
hold the contract is not invalidated due to this reason and rather, the marriage
becomes a permanent one.

In Syed AmanullahHussain and Ors. Vs. Rajammaand Ors, a Shia male

Habibulla contracted a Muta with Rajamma which lasted till the death of the man
in 1967. and subsequently the wife inherited his properties. This was challenged by
the brother of Habibulla contesting that the marriage was simply a Мutа marriage.
It was held that although the word Muta was used but the term was not specified,
therefore, the marriage was treated as permanent marriage and thus Rajamma was
entitled to inherit her husband‘s properties. Further, the mentioning of certain
number of sexual acts along with the time period does not render the contract
invalid. 'If the role of the time period is to contain a stipulated number of sexual
acts, whenever the number is finished, the woman is free of any further obligation
to the man and if the stipulated number of sexual acts is not performed by the end
of the time period, the marriage still comes to an end.

The Dower: Another prerequisite of Muta Marriage is the fact of dower of known
property, whether in cash or kind, whose amount is safe from any fluctuations. The
fact that the two sides have agreed over articles which may properly be exchanged
is sufficient. If the woman asks for the whole amount of the dower at the beginning
of the marriage, the man is not entitled to take back any of the dower under any
circumstances, provided contract have been invalid from the beginning.

There can be situations where a contract is concluded, but before the beginning of
the time period the man refuses the marriage but to 'give back' to the woman the
contracted time, she is entitled to one-half the dower which is similar to divorce
before consummation in permanent marriage

Further, in the following mentioned situations if the payment of the whole dower
has been made the wife must return part or all of it as soon as the invalidity
becomes apparent:

1. The woman already has a husband, or because she should be maintaining a

waiting period as the result of a previous marriage, or because she is forbidden to
the man by family relationship

2. If the marriage has already been consummated and if the woman was ignorant of
the fact that the contract was invalid at the time of sexual intercourse, then she
should be given the 'normal dower'.

3. If the marriage has been consummated and the woman was aware of the
contract's invalidity, she can have no claim to a dower, since she is a fornicatress,
and there is no dower for fornication.
Essentials of Muta Marriage:

There are four essentials of muta marriage:

1. Form, i.e., proper contract which means declaration and acceptance.

2. Subject, i.e., a man may contract a muta with a woman professing the
Mohammedan, Christian or Jewish religion or even with a fire- worship-per,
but not with a woman following any other religion. A Shia woman, however,
cannot contract a muta with a non–Muslim. Relations prohibited by affinity
are also unlawful in such marriage;
3. The term, which means that the period of cohabitation should be fixed,
which may be a day, a month, a year or a terms of years; and
4. Dower.
When the term and the dower are fixed, the contract is valid. If, however, the term
is fixed but the dower is not specified, the contract is void. Further, if the dower is
specified and the term is not fixed, the contract, though void as muta may operate
as a ―permanent ―marriage.

Status of Muta Marriage:

Coitus Interruptus: It is permissible to perform coitus interruptus, irrespective of

the fact that it is not mentioned as a condition in the contract. If the woman
becomes pregnant during the Muta, the child belongs to the husband, even if he
performed coitus interruptus. However denial of the child by the man is a sufficient
ground for the child to not belong to him.

Divorce :The view held by the ulama prohibits divorce in muta. The expiration of
the time period automatically separates the man and woman, or else by the man's
'returning' the remaining time to the woman.

Inheritance: According to the most widely held view, there is no inheritance

between husband and wife in Muta unless it is specifically mentioned as a
condition of the contract. The reason that inheritance is permissible provided that
the condition is entered into the contract is first the universal applicability of the
prophetic hadith: 'The believers hold fast to their conditions.' Second, according to
the Imam Ja'far: 'If they should stipulate the condition of inheritance [in the
contract of mut'a], they must hold fast to this condition.' The inheritance by a child
born as the result of a temporary marriage is one-half from the father of that of a
child by permanent marriage and the same from the mother as it would be in
permanent marriage.

The Waiting Period: Muta Marriage also observed waiting period after the time
period of the marriage has expired or the man has returned the remainder of the
period to the woman. 19 It consists of two menstrual periods, provided she
menstruates. This statute finds basis in two hadith: 'To divorce a slave, one must
pronounce the formula of divorce twice; her waiting period is two menstrual
periods' (the Imam Musa). If the woman is of menstruating age but for some reason
does not menstruate, her waiting period is 45 days irrespective of she being free or
a slave. The waiting period of a free woman whose husband has died during the
period of Muta is for four months and ten days, so long as she is not pregnant
irrespective of the consummation of marriage.

Renewing The Contract: A contract of Muta cannot be renewed before the time
period expires. Hence, if the parties wish to renew the contract, the man has to
return the remainder of the time period to the woman, as a result terminates the
contract and then may enter into a fresh one. The woman need not undergo waiting
period if she remarries the same man.

Legal incidents of Muta

The legal incidents of muta marriage are-

1. It does not create mutual rights of inheritance between the man and the
woman.
2. Children conceived of the relationship are legitimate, and can inherit from
both parents.
3. Where the cohabitation commences in a muta, but there is no evidence as to
the term and the cohabitation continues, the proper inference would, in
default of evidence to the contrary, be that the muta continued during the
whole period of cohabitation. Children conceived during that period are
legitimate and capable of inheritance.
4. Where there is evidence of the term, but cohabitation continues after the
expiry of the term, the inference is that the term was extended and the
children conceived during the extended term are legitimate.
5. A muta marriage is dissolved ipso facto by the expiry of the term.
 6. No right of divorce is recognized in muta, but the husband may, at his will,
put an end to the contract by ‗making a gift of the term‘ to the wife, even
before the terms ends. The wife‘s consent is not required for such
termination.
7. Dower is a necessary condition of muta. Where the marriage is
consummated, the wife is entitled to the whole amount, even if the husband
ends the contract before the term expires. If the marriage is not
consummated, the wife is entitled to half the dower. If she leaves before the
expiry of the term, the husband is entitled to deduct a proportionate part of
the dower.
8. A muta wife is not entitled to maintenance under Shia law. She was,
however, held to be entitled to maintenance as a wife under the provisions
of Sec 125 of CrPC in Luddun v. Mirza Kumar.
This decision is of doubtful authority according to Mulla, because, as stated in
Sharaya- ul- Islam ‗the name of a wife does not, in reality, apply to a woman
contracted in muta.

9. A man may contract muta with any number of women

Difference between muta and nikah :

1) Muta marriage is a temporary marriage while nikah is a permanent marriage.

2) The basic object of a muta marriage is pleasure while the basic object of a nikah
is socio-religious union.

3) In muta marriage, the period is fixed by agreement. Being a temporary

arrangement a fixed period is its essential ingredient. In nikah, it is essentially a
union for life, subject to divorce. Fixation of period shifts it to the former category.
4) Muta is recognised by the Shias only while Nikah is recognised both by Shias
and Sunnis.

5) Dower must be specified in muta marriage otherwise it is a void agreement, for

it is a quid pro quo for short time services of the woman. In Nikah, the dowar may
be implied f not specified. The marriage does not become void if no dowar is
specified for the idea is that the woman may get it anytime during the lifelong
duration
. 6) An Unconsummated muta would entitle the wife to one-half dowar only.
Whether consummated or not, Nikah entitles the wife to full dowar-both prompt
and deferred.

7) There is no minimum limit to dowar and it depends upon the terms of contract.
Hanafi Law recognises a minimum limit of ten dirhams in nikah.

8) In muta there is ipso facto termination of the contract on expiry of the term of
marriage and no formality of termination is required. Time limit is the limit of
relationship. In nikah there is no automatic termination as no time limit is fixed.

9) In muta, earlier termination is possible by paying the wife the hibba-i-muddat,

i.e. gift for the unexpired period. No question of ‗earlier‘ termination, for the term
‗earlier‘ is relative to time limit in a nikah. Dissolution of marriage is of course
possible.

10)In muta, divorce is not recognised. Divorce is recognised for the purpose of
dissolution in nikah.

11)In muta, there is no provision for maintenance of the wife, for she is not
regarded as depended (Shia Law). Wife by Nikah is entitled to maintenance.

12)In muta, there is no right of inheritance to the wife or husband in respect of

each other‘s property. In nikah, reciprocal right of inheritance exists.

Muta marriage has its own advantages and disadvantages but on cannot turn a
blind eye to the fact that it is indeed a form of Islamic prostitution and such a
practice should be curbed in order to bring an end to gender discrimination and
promote equality of women to men, a concept is hardly seen in male-centric
patriarchal Muslim law. Muta marriage is yet another practice which favors the
Muslim males more than the females.

(Q) Explain the concept of ‗Fasid marriage’ and its legal implications
[2018(1)(iv)]

Fasid Nikah (Irregular Marriage)

A Union between a man and a woman may be either lawful or unlawful.
Unlawfulness may be either absolute or relative. If the unlawfulness is absolute,
the marriage is void. If it is relative, we have an irregular marriage. The following
marriages have been considered irregular:
• A marriage without witness;
• A marriage with a woman undergoing Iddat;

• A marriage prohibited by reason of difference of religion;

• A marriage contrary to the rules of unlawful conjunction;
• A marriage with a fifth wife.
The Ithna Ansari and the Ismaili schools of law do not recognise this distinction
between void and irregular marriages. They treat a marriage either valid or void.
The above-mentioned marriages before them will be void.

In Ata Mohammed. v. Saiqul Bibi, it was observed that when a marriage is

temporarily prohibited and not certainly restricted it is merely irregular or fasid and
not void. An irregular marriage has several aspects involved and various points of
view. Irregular marriages exist only in case of Sunni Muslims whereas an irregular
marriage, under Shia law, is void marriage. When a marriage is conducted by
violating certain or partial conditions of a valid marriage, it is called an irregular
marriage. The best instance of an irregular marriage is the marriage between a
Muslim and a Christian or a Jew. In general, an irregular marriage is voidable
marriage and not void-ab-initio. If the irregularity can be removed from an
irregular marriage, the marriage becomes valid when it is removed. So, if a Muslim
man of Sunni sect marries a Jewish woman but gets her converted to Islam, the
marriage is valid. The social and legal implications of an irregular marriage depend
upon the question of whether the marriage was consummated or not.

These implications are:

 Unless the marriage is consummated, the wife has no right to receive dower from
the husband in the case, he divorces her.

 The wife is bound to follow the rule of iddat, i.e. prohibition from remarriage
within 3 months of divorce if the marriage is not consummated.
 The wife has no right to claim maintenance from the husband during the iddat
period of three months.

 If the irregular marriage is consummated and results in the birth of children, the
children will be considered legitimate and shall have all rights of inheritance of
properties.

Batil(void) and Fasid Marriages

The difference between fasid and batil marriages is that while by removing the
impediment or irregularities from fasid marriages, they can be converted into sahi
marriages, whereas batil marriages cannot be so converted. The examples of fasid
marriages are:

 Absence of witnesses at the time of making or accepting the proposal,

 Fifth marriage of a man,
 Marriage in a period when a woman is undergoing iddat (period of seclusion
for three menstrual periods for a woman after the death of or divorce by her
husband to ascertain whether she was pregnant),
 Difference of religion between husband and wife. The marriage of a man
with a kitabiya (Jew or Christia) is sahi marriage but with one who worships
idol or fire is fasid marriage. However, a man can marry a non- Muslim girl
if he believes that her idolatry is merely nominal. For example, Mughal
emperors married Hindu women and their issues were recognized as
legitimate and often succeeded to throne. The only object of prohibiting such
marriages was to keep idolatry out of the Islamic body politic.

Fasid or irregular marriage can be terminated by either party either before or after
consummation by saying ―I relinquish thee‖. If, however, consummation has taken
place, children will be legitimate and will be entitled to inherit property. Similarly,
wife also becomes entitled to dower.

The examples of batil marriages are:

(i) Practice of polyandry

(ii) Marriage of muslim woman with a kitabiya
 (iii) Marriage with some consanguineous kin (for example, mother, mother‘s
mother, sister, sister‘s daughter, mother‘s sister, father‘s sister,
daughter‘s daughter) or with an affinal kin (for example, wife‘s mother,
wife‘s daughter, son‘s wife).
(iv) Marriage of a person with two such women at a time who are related with
each other in such a way that had any of these two women been a man,
marriage between them would not have been possible. This simply means
that a man cannot marry his sister-in-law (wife‘s sister) during his wife‘s
lifetime.

Batil marriage does not create any rights or obligations between the two parties.
The children in such marriages are also considered illegitimate. It is only the valid
or sahi marriage that confers upon wife the right of dower, maintenance, and
residence in the husband‘s house.

(Q) (b) Effect of conversion by a spouse under Muslim Law [2016(8) (b)]

What is Apostasy?
Apostasy is derived from the Greek word apostasies, which means defection. To
aid, Apostasy is the abandonment of belief or faithlessness. Apostasy is a term
used by society for disaffiliation from religion by a person. In a technical sense, it
is the implication of non-believers to turn down the negative significance.
Sociologists term apostate as a conflict of an idea for an individual to struggle
against their old belief or faith. In simple terms, apostasy applies to rebel against
God or religion. In general, apostasies are an escape, redeem, liberate them from an
idea, or practice which self-limits oneself.

Outcome of apostasy
Many religious groups oppose the idea of atheism or non-believers which could
result in boycotts in community, criminal offence or execution. Death punishment
is found in the Sharia law in certain Islamic countries. In 2014, as per annual
Freedom on Thought report by the International Humanist and Ethical Union found
that 13 countries impose capital punishment impose on people for their lack of
faith in the religion. The relevant countries are Afghanistan, Iran, Malaysia,
Maldives, Mauritania, Nigeria, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan,
United Arab Emirates and Yemen.
Blasphemy means an act to insult or contempt offence or to speak ill about any
religion or God. Article 20 of the International Covenant on Civil and Political
Rights obliges countries to adopt legislative measures against any advocacy of
national racial or religious hatred that constitutes incitement to discrimination,
hostility or violence. However, the point to note is that it does restrict the
prohibition of blasphemy per se. In addition, the recanting of a person‟s religion is
a human right legally protected by the International Covenant on Civil and
Political Rights as per Article 18.2. The Constitution of India in its Preamble
clearly states that Liberty of thought for religious belief and worship.
Section 295A of the Indian Penal Code has been used as a blasphemy law to
prevent insult of Christianity, Islam and Hinduism. The British-era section 295A of
the penal code that was created by Christians who ruled India is extant and has not
been repealed; it contains an anti-blasphemy law.

Section 295A was introduced in 1927 to prevent hate speech that insults or
attempts to insult the religion or the religious beliefs of any class of citizen with
deliberate and malicious intention to outrage their religious feelings but the main
purpose of this law has been to maintain ―public order in a multi religious and
religiously sensitive society.‖ As per the section, one shall be punished with
imprisonment of either description for a term, which may extend to three years, or
with fine, or with both.

What is Marriage?
Marriage is a universal custom for many cultures and recognized as a union
between people. Individuals have many personal reasons to initiate marriage for
several reasons, including legal, social, family legacy, emotional, financial, and
spiritual and even for religious purposes.

Marriage applied as personal law as it is influenced by religious practice and

beliefs, which can have a significant impact on marriage laws and inheritance
laws.
In many religion, marriage is a traditional custom one follows, whereas in Muslim
law, the marriage that is Nikah is a civil a contract which legalises the sexual
intercourse and for the procreation of children.
Marriage in Muslim Law
Marriage called Nikah is a civil contract governed under the India Contract Act,
1872.
To constitute a valid marriage, no formal wedding ceremony is required. The
essential precondition for a valid contract as follows:
1. Proposal and Acceptance;
2. Capacity to contract marriage; and
3. Absence of any barrier.
Proposal and Acceptance: The proposal is called Ijab and an acceptance is
called Qubul. The proposal and acceptance must be expressed at one meeting, in
the presence of two male or one male and two female witnesses. This results in a
valid marriage contract.
If the proposal is in one meeting and acceptance of the proposal confirmed in
another meeting, it will not result in a valid contract for marriage.
The form of acceptance for proposal is I have married to you or I have
consented.

Capacity to contract marriage: Every individual has a capacity of being married

if one has attained puberty and of sound mind. It is in the same group of Section 11
and 12 of The Indian Contract Act, 1872.
Absence of any barrier: To have valid marriage contract one should not face any
barrier such as:
Marrying a fifth wife – A marriage to the fifth wife is invalid by a person who
already holds four wives. The barrier can be removed by divorcing one of four
wives.
Absence of witnesses- Under the Sunni law, it is necessary to have two witnesses
to constitute a valid marriage contract. Whereas, under the Shia law, it is not
mandatory to have witnesses to validate a marriage.
Difference between religion: In Shia law, both the spouses must be Muslims to
have a valid marriage. If either of them is non-Muslim, the marriage is void.
However, a Muslim male may contract a valid muta marriage (temporary
marriage) with a kitabia or with a fire-worshipper. Kitabia means a female who
believes in Christianity or Judaism. In Sunni law:
1. A Muslim male can validly marry, not only a Muslim woman but also
kitabia where the marriage would be voidable or irregular. The bride can
remove the irregularity by embracing Islam.
2. A Muslim female can only marry a Muslim alone. If she marries any nonMuslim
male, the marriage is void.
Marriage in Muslim law can be valid, void and voidable. Difference between void
and invalid are as follows:
1. Sahih, it is a valid contract if the essential preconditions are completed.
2. Batil, it is void as the foundation is bad or of void agreement.
3. Fasid, it is voidable as it is irregular or one which has a good foundation
but unlawful.
In Sunni law, the marriage is either valid or irregular.
In Shia law, the marriage is either valid or void, no room for irregular marriage
concept.
Apostasy in Islam
Apostasy is called ridda in Islamic literature. An apostate is called murtad, which
means „one who turns back‟ from Islam. A person born to a Muslim parent who
later rejects Islam is called a murtad fitri, and a person who converted to Islam
and later rejects the religion is called a murtad milli.
When and how does one become apostate?
An individual becomes apostate by conversion from Islam to another religion. An
apostate can be implied if one does not formally renounce to Islam. However, if
any Islam believer was forced or in fear of war had to denounce from Islam is not
considered as an apostate.
In many Muslim centres, countries have imposed a criminal offence for apostasy
from Islam. However, the concern for the topic is the effect of apostasy on
marriage as India has no criminal or civil offence for apostasy in religion.
Laws prohibiting religious conversion run contrary to Article 18 of the United
Nations‟ Universal Declaration of Human Rights, which states the following:
Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief in
teaching, practice, worship and observance. Afghanistan, Egypt, Iran, Iraq,
Pakistan and Syria have voted in favour of the Declaration.
Effect of apostasy on marriage
Before the Dissolution of Muslim Marriage Act, 1939, apostasy from Islam by one
of the married pair would have been treated as dissolution of marriage with effect
immediately, without:
1. the decree of a judge; or
2. being a repudiation of marriage, whether the conversion was before or
after consummation.
After passing the Act in 1939, it resulted in section 4 of the Act.
1. Apostasy by husband
Apostasy from Islam from Muslim husband will have immediate effects of
dissolution of marriage. Section 4 of the Dissolution of Marriage Act, 1939 does
not apply to apostasy by the husband. The result is that apostasy of the husband is
still governed by old law under which the renunciation from Islam by a husband
will result in complete and immediate dissolution of marriage.
Where a Muslim husband converts to another religion (say Christianity), his
marriage is immediately dissolved and the wife ceases to be a Muslim wife of that
husband. As such, the wife is not governed by Muslim law and is free to marry
another person (immediately) without waiting for the Iddat period.
2. Apostasy by wife
The conversion of a married Muslim woman to a faith other than Islam does not by
itself operate to dissolve her marriage. Moreover, even after renouncing Islam, if
the wife wants, she may obtain a decree for the dissolution of her marriage on any
of the grounds specified in Section 2 of the Act.
Section 4 does not apply to a woman who converts to Islam from other faith and
take back her former faith. Thus, if a Hindu woman converts into Islam and
marries under Muslim law, the marriage would be ipso facto dissolved, on her
renouncing Islam and re-embracing Hinduism. However, if she does not reembrace
Hinduism, but becomes Christianity, the marriage would not dissolve.
In the case of Munavvar-ul-Islam v. Rishu Arora, (AIR 2014 Del 130 ) a Hindu
wife converted to Islam at the time of marriage. On her re-conversion back to her
original faith viz Hinduism, her marriage stood dissolved. Her case falls under the
second proviso to Sec 4 of the Act, and the pre-existing Muslim Personal Law
under which apostasy of either party to a marriage ipso facto dissolves the
marriage would apply.
If a husband renounces Islam, the marriage stands automatically dissolved. Thus if
his wife remarries even before the expiry of iddat, she will not be guilty of bigamy
under Sec 494 of the Indian Penal Code, 1860. In Abdul Ghani v/s Azizul Huq
[(1912) ILR 39 Cal 409], a Muslim man and woman got married. After some time,
the husband embraced Christianity but reverted to Islam during the wife‟s iddat.
Before the expiry of the iddat period, however, the wife got married to another
man. The first husband thereupon filed a complaint against the wife, her father and
her second husband under Sec 494. It was held that no offence had been made.
The court remarked:
Whatever view be taken of the uncertain status of the parties during the period of
iddat and however illegal and void under Mohammedan law the second marriage
of the woman during the period of iddat may be, there is no foundation for any
charge under Sec 494 of IPC against her. Her second marriage is not void because
of its taking place during the life of her prior husband but because of the special
doctrine of the Mohammedan law of iddat with which the Indian Penal Code has
nothing to do.
Conclusion
To conclude the topic, it can be said that the apostasy has a massive impact on the
personal law in Muslim law. In India, the apostasies from Islam are protected
under the constitution of India and the dissolution of marriage act, 1939.
It can be clearly said that, in modern times, the female married Muslim are
protected under Muslim law and the constitution of India. In addition, many NGO
and religious leaders are ensuring that no individual can take undue advantage of
Muslim law.

Validity of Marriage:

NATURE OF MUSLIM MARRIAGE

The institution of marriage is recognised by all civilized societies. Marriage
regulates the conduct and behavior of men and women when they start living as
husband and wife. The marriage confers a legal and social status, with rights and
responsibilities, on the parties who enter into it.
Islam also recognises the institution of marriage usually termed as „Nikah‟. Islam
condemns unchastity in emphatic terms and strictly prohibits the illicit relations.
This institution of marriage has been ordained for the protection of society and in
order that human beings may guard themselves from foulness and unchastity.

In order to have a clear understanding of the institution of marriage in Islam three

aspects, which are also evident from the above discussion, must be considered.
These are:
a. Legal aspects,
b. Social aspects, and
c. Religious aspects.
1.Legal aspect:
Juristically, marriage is a contract and as such has three characteristics:
a) There can be no marriage without consent.
b) Provision is made for its breach.
c) The terms of marriage contract are within legal limits capable of being
altered to suit individual cases.
2.Social aspect:
In its social aspect, Islamic law gives a high status to women after marriage.
Restrictions are placed upon unlimited polygamy as an instrument to maintain
order in society.
3.Religious aspect:
Quranic injuctions recognise in Islam, marriage as the basis of society. It is a
sacred covenant. It is the Sunnah of the Prophet (SAW) specially enjoined. Prophet
taught that nobility of character is the best reason for marrying a woman.

Hence we can say that Muslim marriage partakes of the nature both of Ibadat
(devotional act) and Mauamlat (worldly affairs). Therefore, a Muslim marriage is
both a civil contract and sacrament.

(Q) Give three examples each for Prohibited relationship and Sapinda relationship
under Hindu law and prohibited relationship under Muslim Law. [2018(1)(ii)]

Answer to Question [2018(1)(ii)] :

ESSENTIAL CONDITIONS OF A VALID MARRIAGE

The following are main essentials for a valid marriage:

Offer and Acceptance :

ESSENTIAL CONDITIONS OF A VALID MARRIAGE

The following are main essentials for a valid marriage:

1.Proposal (Ijab)
It is necessary that there should be declaration of proposal on the part of one.
2. Acceptance (Qubul)
Such proposal of marriage should be accepted by her or by her guardians or by
other party on her behalf as the case may be. It was observed in Ghulam Kubra v.
Mohammad Shafi, AIR 1941 Pesh 23, by Mahmood J. that a man or someone on
his behalf or a woman or someone on her behalf should agree to marriage at one
meeting and the agreement should be witnessed by two adult witnesses.
The proposal and acceptance must be made in unequivocal terms. These should
ambiguous and must denote a permanent and immediate rather than a temporary
and differed relation.
3. Consent
Under all the schools of Muslim law a boy who is of sound mind and has attained
puberty can freely marry personally and without anybody‘s consent. Shafi or Shia
major girl cannot marry without a guardian. Under Hanafi and Ithna Ashari law a
girl of sound mind and having attained puberty can also freely marry personally
and without the consent of her guardian. A boy or a girl who can freely marry
personally can lawfully act through others. However, the consent of such boy or
girl for his or her marriage must be obtained. Without it the marriage will be void,
unless he or she satisfies it.
Category of persons who are incompetent to marry freely and need the consent of
a ‗marriage guardian‘ for that purpose.
i) Insane person

An insane person cannot marry without a guardian. Under none of the schools of
Muslim law can an insane person (male or female, major or minor) contract
marriage without the consent and intervention of his or her marriage guardian.
Again, under none of the schools of Muslim law can the marriage of a minor
person take place without the consent of his or her marriage guardian.
Furthermore it may be pointed out that the marriage guardian of an insane person
can contract such person‘s marriage with or without his or her consent. The
marriage guardian of a minor can also contract a marriage on his or her behalf with
or without his or her consent.
ii) Minors marriage
A minor Muslim can marry with the help of a guardian.
A minor contracted in marriage by the guardian for marriage has the right of
repudiating or ratifying the marriage contract on attaining puberty. This right of the
minor is known as option of puberty (Khyar-ul-bulugh).
Option of puberty is available in all cases where the ‗marriage guardian‘ other than
father and grandfather contracted the marriage of the minor. Where the marriage
was contracted by the father or grandfather option of puberty is not available. But
in exceptional cases the option of puberty is available even where marriage was
contracted by father or grandfather. Such exceptional circumstances are:
a. Where the conduct of the marriage guardian was fraudulent or negligent.
b. Where an improper ‗Maher‘ was agreed upon.
c. Where the marriage is to the manifest disadvantage of the minor.
However, by the dissolution of Muslim marriages Act, 1939, the disability of the
minor to exercise option of puberty, in case his marriage guardian was father or
grandfather, has been removed.
The option can be exercised immediately after attaining puberty.

4.Witnesses
According to Sunni Hanafi Law, at least two adult witnesses are required at the
time of solemnisation of marriage. As per Shia Law, the witnesses are not
essential.
5.Capacity to Marry
In Islamic law there are two basic attributes of legal competence to contract a
marriage:
a. Sound mind, and
b. Puberty (Majority).
Every Muslim who is of sound mind and has attained the age of puberty may enter
into a valid marriage contract. The word puberty requires some explanation.
In Muslim law puberty and majority are one and the same. Puberty means age
when a boy or a girl becomes capable of begetting or bearing children. It is
generally presumed that a person who has completed the fifteenth year of his age
has attained puberty. However, the law has recognised the possibility of attaining
puberty by a boy or a girl before the age of fifteen years. The earliest age of
puberty for a boy is generally twelve years and for a girl it is nine years.
Limitations to a Valid Marriage
There are following main limitations to the unfettered capacity of a Muslim to
marry any person of the opposite sex. The prohibition may be on the grounds of:
i. Number
ii. Religion
iii. Relationship
iv. Fosterage
v. Unlawful conjunction
vi. Iddat
1.Number

As to the plurality of husbands or wives, the rule in Islamic law is that a Muslim
man may marry any number of wives, not exceeding four, but a Muslim woman
can marry only one husband. If a Muslim marries a fifth wife, such marriage is not
void, but irregular; whereas if a Muslim woman marries a second husband she is
liable for bigamy.
2.Religion
A man in Hanafi law may marry a Muslim woman or Kitabiyya but a Muslim
woman cannot marry anyone except a Muslim. Kitabiyya means a woman
believing in a revealed religion possessing a Divine Book. Hanafia law prohibits a
man from marrying a fire worshipper or an Idolatress.
3. Relationship
Consanguinity (blood relations): If a person contracts marriage with anyone of the
following, such marriage will be void (Batil) on the ground of Consanguinity.
i. His mother or grandmother how high so-ever.
ii. His daughter or granddaughter how low so-ever.
iii. His sister, whether full, consanguine
iv. His niece or great niece how low so-ever.
v. His aunt or great aunt how high so-ever, paternal or maternal.
Affinity: A Muslim is prohibited to marry with the following, with whom he has
relationship of affinity. Such marriage is void.
i. Ascendants or descendents of his wife, and
ii. The wife of any ascendant or descendent.
4. Fosterage
A Muslim man cannot marry his foster mother, her daughter or his foster sister. A
marriage forbidden by reason of fosterage is void.
5. Unlawful conjunction
A man is forbidden to have two wives at the same time so related to each other by
consanguinity, affinity or fosterage that they could not have lawfully inter-married
with each other if they had been of different sexes. The bar of two marriages
renders a marriage irregular, not void.
6. Iddat
In case of divorce Iddat period is three courses, or if the woman is pregnant, it is
till delivery. If the marriage is dissolved by death, the period of Iddat is four
months and ten days or in case the woman is pregnant, it is till delivery, which ever
is longer. In Muslim law when a marriage is dissolved by death or divorce, the
woman is prohibited from marrying within a specified time. This period is called
Iddat.
If the marriage is not consummated, Iddat has to be observed in case of death, but
not in case of divorce. Marriage with a woman undergoing Iddat is irregular but
not
void.
LEGAL EFFECTS OF VALID MARRIAGE
The legal effects of a valid marriage are as:
1. The wife becomes entitled to get maintenance from her husband.
2. The husband becomes entitled to exercise marital authority over his wife. He can
also put restraints on the movement of his wife in a reasonable manner.
3. The sexual intercourse between the spouses becomes lawful. The children born
out of the wedlock becomes legitimate.
4. The wife gets or becomes entitled to dower.
5. The prohibition regarding marriage due to the rules of affinity comes into
operation.
6. Such marriage creates the right of inheritance.
7. If any agreement is entered into or by the parties of marriage at the time of the
marriage or afterwards, its stipulations comes into operation provided they are not
contrary to law.
8. The status of a woman is not changed. She remains subject to her own
premarital school of law.
CLASSIFICATION OF MARRIAGE AND LEGAL EFFECTS OF VALID,
VOID AND IRREGULAR MARRIAGE

On the basis of the fulfillment of certain essentials/requirements of a valid

marriage, under Muslim law marriage have been classified into three classes:
1. Valid (Sahih)
2. Void (Batil)
3. Irregular (Fasid)

4. Muta Marriage
1. Valid marriage(Sahih):
A marriage, which conforms in all with the law, is termed as Sahih, that is, correct.
For a marriage to be valid it is necessary that there should be no prohibitions
affecting the parties. Now, prohibitions may be perpetual, or temporary. If the
prohibition is perpetual, the marriage is void. If it is temporary, the marriage is
irregular.

The term sahih is an Urdu term for the word ‗correct‘ or ‗valid‘ and as already
explained, nikah means marriage. When all the essential conditions of a Muslim
marriage are duly fulfilled, it is called a sahih nikah or valid marriage.
It means if two Muslim persons (one being the man and other a woman) enter into
an agreement by way of offer and acceptance and the groom has paid the mehr for
the marriage to the bride, it is a valid marriage. There are certain social and legal
implications of a valid marriage which can be enlisted hereunder as follows:

consummate their marriage.

properties which can be inherited.

divorce because it is believed that the dower paid at the time of marriage is

sufficient for her well-being. Nevertheless, the Supreme Court has made it

clear that after a valid marriage, the wife has to right to alimony and

maintenance for her and the children.

the promised dower.

man is allowed to commit polygamy, so it is only the wife who needs to be

loyal to the man after the marriage.

 his wife by reasonable

means if the wife is disobedient or disloyal towards him.

are considered to be legitimate children.

her husband, she is

obliged under the Muslim law to perform the ritual of Iddat under which the

wife cannot remarry any other person before a period of 90 days from the

date of death of the husband expires. This is to ensure that the woman was

not pregnant at the time of the husband‘s death.

2. Void marriages(Batil):
A marriage, which has no legal results, is termed Batil or Void. A marriage
forbidden by the rules of blood relationship, affinity or fosterage and some other
prohibited marriages are void. The issue of a void marriage is illegitimate. A void
marriage being unlawful produces no mutual rights and obligations between
parties, the illegality of such Unions commences from the date when the contracts
are entered into and the marriage is considered as totally non-existing in fact as
well as in law.

According to the Indian Contract Act, 1872, an agreement which is not legally
enforceable is a void agreement. Similarly, an agreement between a prospective
bride and a groom which does not meet all the essential conditions of a Muslim
marriage is a void agreement and any marriage that takes place in furtherance of a
void agreement is called a void marriage or Batil nikah.
In Munshi v. Mst. Alam Bibi, the court observed that when there is a permanent
or perpetual prohibition from marriage due to non-adherence of a condition, it is
void marriage.
When one or more of the pre-requisites to a valid marriage mentioned above are
not fulfilled by the spouses before marriage, the marriage is void and not binding.
The following are certain situations in which a Muslim marriage is void.

1. When a marriage takes place between persons who are absolutely incapable.
2. When a person marries to the wife of another man when the marriage of the

lady was subsisting.

3. Marrying more than four wives. In such a case, the fifth marriage and so on

becomes void.

4. Marriage with a Non-Muslim.

5. In Tanjela Bibi v. Bajrul Sheikh, the court held that a marriage with a

woman who is pregnant from before the marriage is void.

The above-mentioned list is mere examples and not an exhaustive list of void

marriages. The essential social and legal implications of void marriage are:

-ab-initio, i.e. void from the very first day of the

marriage even if the marriage is consummated.

legal duties upon them.

divorce is lost.

n of a void marriage are

considered illegitimate and have not right of succession or inheritance.

marriages. They can simply part without any legal formalities.

3. Irregular marriages(Farid):
A Union between a man and a woman may be either lawful or unlawful.
Unlawfulness may be either absolute or relative. If the unlawfulness is absolute,
the marriage is void. If it is relative, we have an irregular marriage. The following
marriages have been considered irregular:
• A marriage without witness;
• A marriage with a woman undergoing Iddat;

• A marriage prohibited by reason of difference of religion;

• A marriage contrary to the rules of unlawful conjunction;
• A marriage with a fifth wife.
The Ithna Ansari and the Ismaili schools of law do not recognise this distinction
between void and irregular marriages. They treat a marriage either valid or void.
The above-mentioned marriages before them will be void.

In Ata Mohammed. v. Saiqul Bibi, it was observed that when a marriage is

temporarily prohibited and not certainly restricted it is merely irregular or fasid and
not void. An irregular marriage has several aspects involved and various points of
view.
Irregular marriages exist only in case of Sunni Muslims whereas an irregular
marriage, under Shia law, is void marriage. When a marriage is conducted by
violating certain or partial conditions of a valid marriage, it is called an irregular
marriage. The best instance of an irregular marriage is the marriage between a
Muslim and a Christian or a Jew.
In general, an irregular marriage is voidable marriage and not void-ab-initio. If the
irregularity can be removed from an irregular marriage, the marriage becomes
valid when it is removed. So, if a Muslim man of Sunni sect marries a Jewish
woman but gets her converted to Islam, the marriage is valid. The social and legal
implications of an irregular marriage depend upon the question of whether the

marriage was consummated or not. These implications are:

from the husband in the case, he divorces her.

remarriage within 3 months of divorce if the marriage is not consummated.

iddat period of three months.

the children will be considered legitimate and shall have all rights of

inheritance of properties.

Muta Marriage
Muta marriage is the fourth kind of marriage that occurs only in Shia Muslims and
not Sunni sect of Muslims. To understand this marriage, it is essential to know the
background of this marriage. Most of the Arabian countries such as Abu Dhabi,
Dubai, etc. have Shia sect of Muslims. The people usually called the Sheikhs were
involved in the business of oil-producing, refining and exporting. Due to business
agreements, they were required to travel far places and stay there for several days
or even months. During this period, the Sheikhs required to fulfil their sexual needs
and desires but, however, Islam does not allow cohabitation with any woman other
than a person‘s own wife.
Therefore, the Sheikhs used to marry the women for a temporary period till they
were in that town and at the time of leaving, they get divorced and the dower was
paid as the consideration for marrying. This concept of marriage was recognized in
Muslim personal law by the Shia sect and is called Muta marriage.
Muta marriage is a temporary marriage between a Shia Muslim man and a woman
of Islam, Jew or Christian religion for a fixed period of time and in return of the
payment of a fixed amount of dower at the time of divorce. The time period and
the dower must be informed and accepted by the bride as well. This marriage is not
followed in Sunni Muslims which consider marriage to be a permanent union and
not a temporary affair.

Mt. Ghulam Kubra Bibi v. Mohammad Shafi Mohammad Din AIR 1940
Mohammad Shafi sued Mt. Ghulam Kubra fcr restitution of conjugal rights. He
also impleaded her parents and asked that an injunction should be issued against
them to restrain them from interfering in his marital relations with his wife. The
defence taken by Mt. Ghulam Kubra was that she was never married to
Mohammad Shafi. There was also a question whether the woman was of age at the
time when she was married. Evidence was led by either side. The Mullah appeared
and he said that he read the nikah at the instance of the grandfather of the girl. He
categorically denied that anyone was sent to the girl to enquire from her whether
she agreed to the marriage. One Mistri Abdul Karim, on the other hand, vaguely
deposed that there were two witnesses of the nikah. He did not give their names.
Two witnesses, Mohammad Ramzan and Mohammad Din were produced who
alleged that they were the witnesses of the nikah. They were again laconic, because
they stopped at that, and did not give any detail as to what was done by them.
Mohammad Ramzan admitted that he was the neighbour of the plaintiff.
Mohammad Din did not deny that the plaintiff was working with him for the last 8
or 9 years.
The trial Judge held that the girl was of age when she was married. He was of the
view that the marriage had been proved. He, therefore, granted a decree as prayed
for against all the defendants. An appeal was preferred to the District Court. It was
admitted by both the parties before the learned Additional Judge that the girl was
of age when the marriage was held. The Judge maintained the decree for restitution
of conjugal rights. But he did not think it necessary to issue an injunction to the
parents of the girl. He, therefore, accepted the appeal to this extent, that he set
aside the portion of the order relating to injunction. Mt. Ghulam Kubra has come
upon further appeal to this Court against the decree granting restitution of conjugal
rights. Mohammad Shafi has also come up on appeal with a request that the order
issuing injunction should be restored. This judgment will cover both the cases.
According to Mahomedan law, it is absolutely necessary that the man or someone
on his behalf and the woman or someone on her behalf should agree to the
marriage at one meeting, and the agreement should be witnessed by two adult
witnesses. As women are in pardah in this part of the country it is customary to
send a relation of the woman to her inside the house accompanied by two
witnesses. The relation asks the girl within the hearing of the witnesses whether
she authorizes him to agree to the marriage on her behalf for the dower money
offered by the husband. He explains to her the detail of the dower proposed. When
the girl says ―yes‖ or signifies her consent by some other method, the three persons
come out. The future husband and those three persons are then placed before the
Mullah. The Mullah asks the boy whether he offers to marry the girl on payment of
the specified dower. He says ―yes‖. Then the relation, who had gone inside, tells
the Mullah that he is the agent of the girl. The Mullah asks him whether he agrees
to the marriage on payment of the specified dower. The relation says ―yes‖. The
witnesses are present there so that if the Mullah has any doubt he
should question them as to whether the relation is a duly authorized agent of the
girl. Directly both sides have said ―yes‖ the Mullah reads the scriptures and the
marriage is complete.

I have been at pains to describe the method which is usually adopted in this part of
the country for effecting a marriage in order to show that the vague allegation that
there were two witnesses of the nikah has no value and that it should be proved
that the whole procedure has been gone through: in particular when the man who
read the nikah is positive that no one was sent to the girl to enquire from her
whether she was a willing party. It is on the record that the girl was 17 years of age
when her marriage was solemnised. It appears that the parties did not know then
that according to Mahomedan law a girl becomes major for the purposes of
marriage when she reaches the age of puberty, which is presumed to be the age of
15 years. I think they were under the impression that she could not be major up to
18 years of age, as is the general law, and I guess that the girl was, therefore, given
away by the grandfather and not personally consulted. For when a girl is minor it is
permissible in Mahomedan law that her father or grandfather or other paternal
relations should give her away. The marriage is valid and is called a nikah all the
same.

It is interesting in this connection to point out that such nikah also requires two
adult witnesses. The witnesses produced in this case have only said that they were
the witnesses of the nikah. Who knows whether they were not the witnesses of the
giving away of the girl by the grandfather. For the reasons given above I hold that
no valid marriage has taken place in this case, and that the plaintiff has, therefore,
no right to sue for restitution of conjugal rights. The appeal of Mt. Ghulam Kubra
is accepted and the suit of Mohammad Shafi is dismissed with costs throughout.
The appeal of Mohammad Shafi is dismissed.

Chand Patel v. Bismillah Begum & Anr.

Facts:

Chand Patel/Appellant was married to Mustaq Bee. With the consent of his wife,
he married to her sister, Bismillah Begum/Respondent No.1 in 1993, and had a
daughter from her, Tehman bano/ Respondent No.2 in 1995. Respondent filled an
application for maintenance before the magistrate for herself and her minor
daughter u/s 125 of Cr.P.C. on the ground that she has been neglected and not
maintained. Appellant denied that he had married the respondent.

Trial Court Decision:

The learned trial court rejected the defence by the appellant and came to finding
that the Respondent no. 1 was, in fact, the wife of the appellant and that
Respondent no. 2 was his daughter. The trial court directed appellant to pay Rs
1,000 per month to Respondent no. 1 towards life support maintenance and to the
Respondent no. 2 till she reached adulthood.

District & Session Judge Decision:

District and Session Judge held that the obligation is cast upon the appellant herein
to maintain his wife and children till the marriage between them was declared null
and void by a competent court.

High Court Decision:

The High Court accepted the validity of the document of dissolution of marriage
executed between the parties and also took into consideration the fact that they had
lived as husband and wife for about 9 years. On such consideration, there was no
merit in the petition both the appeals came to be dismissed u/s 482 of Cr.P.C.

Issue:

Whether a marriage performed by a person professing the Muslim faith with his
wife‘s sister, while his earlier marriage with the other sister was still subsisting,
would be void in law or merely irregular or voidable even though the subsequent
marriage may have been consummated?

Reasoning:

Court observed that there is a difference between irregular marriage and void
marriage under Muslim law. Para 263 in Mulla‘s ―Principles of Mahomedan Law‖
clearly illustrates this,

“263. Unlawful conjunction A man may not have at the same time two wives who
are so related to each other by consanguinity, affinity and fosterage, that if either
of them had been a male, they could not have lawfully intermarried, as for
instance, two sisters, or aunt and niece. The bar of unlawful conjunction renders a
marriage irregular, not void.”\

In Tajbi Abalal Desai v. Mowla Alikhan Desai[1], Bombay high court referred to
Fatawa-i-Alamgiri and held that marriage with the sister of an existing wife was
not void (batil) but irregular (fasid). Court observed that marriage with wife‘s sister
could become valid after the death of wife, so this is just a temporary hinderance.

Bombay High court views were also favoured by Oudh Chief Court
in Mussammat Kaniza v. Hasan Ahmad Khan[2]; Lahore High Court
in Taliamand v. Muhammad Din[3]; and Madras High Court in Rahiman Bibi
Saheba v. Mahboob Bibi Saheba[4].

Judgement:

Court upheld the decision of lower court by holding hold that the unlawful
conjunction and/or marriage between the appellant and respondent No.1 continues
to subsist not having been declared void by any competent forum and that
accordingly, the respondent No.1 and the respondent No.2 will both be entitled to
maintenance under Section 125 of the Cr.P.C.

Divorce under Muslim law: Extra-judicial - Talaq, Khula, Mubarat (b) Judicial –
The Dissolution of Muslim Marriages Act, 1939

Bigamy under Muslim Law

(Q) Salman and Nuzhat, a Muslim couple, are doctors having flourishing practice.
Salman marries Salma, his assistant, despite objections raised by Nuzhat. Dr..
Nuzhat leaves matrimonial abode and starts living in a rented accommodation. She
wants to prosecute Salman for bigamy under Section 494 of IPC. Will she
succeed? Can Salman file a petition for the restitution of conjugal rights against
her? Is any other remedy available to Nuzhat ? Advice both the parties explaining
the principles of law involved along with judicial precedents in support of your
advice. [2015(7)]

Ans:
Family and marriage : Islamic norms

Islam envisages marriage and family as answering three basic needs of man as an
individual and as a member of society, viz., satisfaction of sex, procreation of
children in order to continue the lineage, and continuation of and a balanced
emotional growth of the spouses and children. For each of these three ends,
marriage and family constitute the only means: there is no alternative so far as the
Islamic way of life is concerned.

Permission of polygamy
A man normally takes only one wife and it is sufficient to secure the ends of
marriage and family. That Islam envisaged a monogamous family as the normal
pattern of life is borne out by the context and construction of the Qur'anic verses on
the subject. These verses were revealed in the context of some special
circumstances arising in the then small Muslim community due to the loss of a
number of men in war. The interest of orphans had to be properly protected. A
solution to the problem recommended by the Qur'aJl was the already existing
practice of taking more than one wife in some cases. Simultaneously, however, the
number of co-wives was restricted to four and ability to do justice between the
co-wives was made a pre-requisite of taking more than one wife. Failing this
ability, it was stressed, one should take only one wife. The practice of the Muslim
people throughout their history testifies that monogamy has always been
the normal practice.

In such circumstances polygamy may be beneficial to the husband or the wife, or it

may be necessary in view of some social conditions. In some societies, sometimes
women' outnumber men. There are, sometimes, widows and divorced women in
search of a home. A wife may be incurably ill, suffering from a mental or physical
disability. The husband may find his spouse no longer fit as his conjugal partner.
The marriage might have become emotionally untenable, yet economic and social
considerations might not permit a permanent separation. Besides, there is
sometimes a widow in the family whose financial support devolves on a man who
would give her greater protection by marrying her.

Restraints on a bigamous husband

The Quran restricts the number of co-wives to a maximum of four and subjects
the permission of polygamy to the ability to do justice to them.' There has been a
consensus on this interpretation throughout Islamic history.
Regarding the conditions attached with the permission of polygamy, namely, one's
ability to do justice to the co-wives, it should first be noted that economic
support of a wife is the legal responsibility of a husband, in Islam," This is
irrespective of the financial condition of the wife herself. A person who is
incapable of doing so may be separated from the wife by a court of law. It should
also be noted that the unmarried who lack the financial means of supporting a
wife are advised to abstain from marriage till such time as they come to
possess the means.' This clearly implies that financial capacity to support a
number of wives is the prior-most connotation of the 'ability to do justice'
mentioned in the verse of polygamy.

The confidence that one would be able to treat the co-wives equally comes next.
It has, however. no meaning in the absence of the first mentioned capacity.
Moreover, it is only the first condition whose fulfillment can be objectively
ascertained prior to the solemnization of a bigamous marriage. Whether
despite this capacity one actually does treat the co-wives equally can be known
only after he has married again. This is also true of the other ways in which the
husband must treat the co-wives equally. The court can intervene only when
there is a complaint from one of the wives. Both these connotations of the
condition attached with the permission of polygamy, namely, financial capacity to
support, and equal treatment of, the wives, are seriously meant and. in fact,
necessary to minimize the evils which could possibly result from polygamy. It
would be un-Islamic to slight these requirements. A society that allows its
members to flout these conditions in practice would be deviating from the Islamic
norms.

In the recent case, looking at the increasing instances where culpable bigamous
marriages have been resorted to harass and dupe innocent ladies in the name of
personal law, a public spirited person filed a petition seeking a direction to register
case under Section 494 of IPC against all citizens who commit the offence of
bigamy irrespective of their personal laws. Rajit(a writ petition file in the Kerala
H.C, that the provisions of Section 494 IPC are discriminatory on the ground of
religion), the counsel for the petitioner contended that under Section 494 IPC there
is no concept of any personal law and the section envisages punishment to
everyone whosoever conduct a bigamous marriage.

The Court noted that ―any marriage performed by a Hindu after enforcement of the
Hindu Marriage Act, 1955 where a spouse is living is void, and the person
contracting such marriage shall be punishable under Section 494 IPC for bigamy‖.
The Court further noted that ―Muslim personal law allows a Mohammaden to take
four wives together, therefore if a Muslim male marries a fifth wife he can very
well be prosecuted under Section 494 IPC. Similarly, a Muslim female
contracting a second marriage can be proceeded with for offence under Section
494 IPC‖. The Court concluded that Section 494 IPC does not discriminate
between an offender belonging to Hindu/ Muslim/ Christian male or female
belonging to any cast or creed and can be proceeded against any citizen
irrespective of their personal laws provided that ingredients of Section 494 are
made out.
The Court further made clear that a complaint under Section 198 (1); of CrPC for
prosecution of offences against marriage can be made by a ‗person aggrieved by
the offence‘, therefore the prayer made by the petitioner (a public spirited person)
cannot be entertained in the instant case, and accordingly dismissed the writ
petition. Venugopal K. v. Union of India.

Itwari v. Asghari, AIR 1960 All. 684

This is a Muslim husband‘s appeal against the decision of the learned

District Judge, Rampur, dismissing his suit for restitution of conjugal rights against
his first wife who refused to return to him after he had taken a second wife and
accused him of cruelty to her. The appellant Itwari was married to Smt. Asghari
about the year 1950 and lived with her for sometime. Then things went wrong and
the wife ultimately left him to live with her parents; but he took no steps to bring
her back and married another woman.
The first wife filed an application for maintenance under Sec. 488 Cr. P. C.
Thereupon the husband filed a suit against her for restitution of conjugal rights.
For some reasons he impleaded her father and two brothers as co-defendants. The
wife contested the suit and alleged that she had been turned out by her husband
who had formed an illicit union with
another woman whom he subsequently married. She alleged that he had beaten her,
deprived her of her ornaments and thus caused her physical and mental pain. He
had also not paid her dower.
The learned Munsif decreed the husband‘s suit and held that the wife had failed
to prove that she was really ill-treated and that the husband had not been guilty of
such cruelty as would disentitle him to a decree for restitution of conjugal rights
against her. He held that the mere fact that the husband had taken a second wife
raised no presumption that Smt. Asghari had suffered inequitable treatment at his
hands, and was influenced by the husband‘s explanation that he had not taken his
second wife to live in his house with Smt. Asghari.
He also took the view that if the wife felt aggrieved by her husband‘s second
marriage she should have obtained a decree for dissolution of marriage and
expressed surprise that she had not done so, thereby adopting the strange and
inconsistent view that the husband‘s conduct in taking a second wife is a good
ground for the first wife to sue for dissolution of her marriage and put an end to all
the rights of the husband but no ground for contesting the husband‘s suit for
assertion of the same rights under the same marriage.
The fact that the wife had taken things lying down weighed with the learned
Munsif in disbelieving her allegation of cruelty against Itwari. He decreed the
husband‘s suit and also passed an order directing Smt. Asghari's father and brother
not to prevent her from going back to him.
On appeal, the learned District Judge, Rampur reversed the finding of the trial
court and dismissed the husband‘s suit with costs. He was of the opinion that
Itwari had filed his suit for restitution of conjugal rights only as a counter-blast to
the wife‘s claim for maintenance under Sec. 488 Cr. P. C., and pointed out that,
after the wife had left him and been living with her parents for so many years, he
took no steps to get her back and that his long silence was an indication that he
never really cared for her. He observed,
In view of this circumstance I am prepared to believe Smt. Asghari‘s evidence
that she was ill-treated and turned out by her husband and that the latter is now
putting up a show to get her back only to escape from the liability to pay
maintenance allowance.
The first question is whether the conduct of the husband in taking a second wife is
any ground for the first wife to refuse to live with him or for dismissing his suit
for restitution of conjugal rights. Learned counsel for the husband vehemently
argued that a Muslim husband has the right under his personal law to take a
second wife even while the first marriage subsists. But this right is not in dispute
in this case.
The question before the Court is not whether the husband had the right to take a
second wife but whether this Court, as a court of equity, should lend its assistance
to the husband by compelling the first wife, on pain of severe penalties, to live
with him after he has taken a second wife in the circumstances in which he did.
Muslim Law permits polygamy but has never encouraged it. The sanction for
polygamy among Muslim is traced to the Koran IV. 3,
―If Ye fear that ye cannot do justice between orphans, then marry what seems
good to you of women, by twos, or threes, or fours or if ye fear that ye cannot be
equitable, then only one, or what your right hand possesses.‖
This injunction was really a restrictive measure and reduced the number of wives
to four at a time; it imposed a ceiling on conjugal greed which prevailed among
males on an extensive scale. The right to four wives appears to have been
qualified by a ‗better not‘ advice, and husbands were enjoined to restrict
themselves to one wife if they could not be impartial between several wives – an
impossible condition according to several Muslim jurists; who rely on it for their
argument that Muslim Law in practice discourages polygamy.
If Mohammadan Law permits and enforces such agreements it follows that it
prefers the breaking up of the first marriage to compelling the first wife to share
her husband with the second. The general law, too, recognises the sanctity of such
agreements, and it has been held that a contract restraining a Muslim husband from
entering into a second marriage during the life time of the first is not void under
Sec. 23 of the Contract Act which bans agreements in restraint of marriage.
11. I am, therefore, of the opinion that Muslim Law as enforced in India has
considered polygamy as an institution to be tolerated but not encouraged, and has
not conferred upon the husband any fundamental right to compel the first wife to
share his consortium with another woman in all circumstances. A Muslim husband
has the legal right to take a second wife even while the first marriage subsists, but
if he does so and then seeks the assistance of the Civil Court to compel the first
wife to live with him against her wishes on pain of severe penalties including
attachment of property, she is entitled to raise the question whether the court, as a
court of equity, ought to compel her to submit to co-habitation with such a
husband. In that case the circumstances in which his second marriage took place
are relevant and material in deciding whether his conduct in taking a second wife
was in itself an act of cruelty to the first.
12. Mr. Kazmi contended that the first wife is in no case entitled to consider the
second marriage as an act of cruelty to her. I cannot agree. In Shamsunnissa
Begum case, the Privy Council observed that ―the Mohammedan Law, on a
question of what is legal cruelty between man and wife, would probably not differ
materially from the English Law‖. It follows that Indian Law does not recognise
various types of cruelty such as ‗Muslim‘ cruelty, ‗Christian‘ cruelty, ‗Hindu‘
cruelty, and so on, and that the test of cruelty is based on universal and
humanitarian standards that is to say, conduct of the husband which would cause
such bodily or mental pain as to endanger the wife‘s safety or health.
Today Muslim woman move in society, and it is impossible for any Indian
husband with several wives to cart all of them around. He must select one among
them to share his social life, thus making impartial treatment in polygamy virtually
impossible under modern conditions. Formerly, a Muslim husband could bring a
second wife into the household without necessarily meaning any insult or cruelty
to the wife. Occasionally, a second marriage took place with the consent or even at
the suggestion of the first wife.
But social condition and habits among Indian Mussalmans have changed
considerably, and with it the conscience of the Muslim community. Today the
importing of a second wife into the household ordinarily means a stinging insult to
the first. It leads to the asking of awkward questions the raising of unsympathetic
eyebrows and the pointing of derisive fingers at the first wife who is automatically
degraded by society. All this is likely to prey upon her mind and health if she is
compelled to live with her husband under the altered circumstances.

Counsel for the appellant argued vehemently that dismissal of the husband‘s suit
against the first wife virtually means a denial of his right to marry a second time
while the first marriage subsists. I do not agree. A Muslim husband has always the
right to take a second wife. If he does so, he cannot be prosecuted for bigamy, the
second marriage is valid, the children of the second wife are legitimate and he is
entitled to the enjoyment of his rights (subject to his obligations) under the second
marriage.
But it is not at all necessary for the enjoyment and consummation of his rights
under the second marriage that he should apportion his consortium between two
women. On the contrary, nothing is more likely to mar the conjugal bliss of his
second marriage than that his new wife should be asked to share it with the old.
The second wife is not likely to view with sympathy her husband‘s attempt to
compel the old wife to return to his consortium and, to put it very mildly, the
dismissal of her husband‘s suit for restitution against the first wife is not likely to
break the second wife‘s heart.

These principles apply to the present case. The lower appellate court has found that
the appellant never really cared for his first wife and filed his suit for restitution
only to defeat her application for maintenance. In the circumstances, his suit was
mala fide and rightly dismissed.
Lastly, the appellate court, reversing the finding of the trial court, believed the
wife‘s allegation of specific acts of cruelty committed by the husband and held that
she had been deserted and neglected by the husband for so many years. In the
circumstances, I concur in the opinion of the District Judge that it will be
inequitable to compel the first wife to live with such a husband. The appeal is
dismissed under O. 41, R. 11, C.P.C.

Decision:
There was no compulsion to get consent from the first wife for a man to merry
second times as per sharia law as well as country‘s personal law. When the
marriage is not illegal under personal law, Second marriage does not attract IPC
494 provisions.
Salman succeed in restitution of conjugal rights only when he would prove equal
treatment of his co-wives otherwise not.

Doctrine of Option of Puberty

(Q)(a) Option of Puberty under Hindu Law and Muslim Law. [2019(3)(a)]

(Q) (a) Option of puberty under Muslim Law [2016(8) (a)]

(Q) Can a girl who was married at the age of 13 and spent 2 years in her husband‘s
house claim divorce in exercise of her right to option of puberty under Hindu and
Muslim law? [2015(6)(ii)]

Answer: Doctrine of Option of Puberty

A minor cannot legally enter into a marriage contract nor is contract of marriage
entered into by a guardian on his or her behalf, always binding on the minor. The
minor can on attaining puberty ratify such a contract if he or she chooses. This
right of dissolution of marriage on attaining puberty is called Khayar-ul-Bulugh
or option of puberty. This right is one of the safeguards which the Muslim Law
provides against an undesirable marriage. Hadith provide women the right to
repudiate the marriage forced on them through pressure direct or indirect under the
assumption that girl being minor cannot exercise her independent discretion
regarding the marriage due to her physical and mental immaturity and in such a
situation she can be victim of undue influence rather these types of marriage might
have had very bad consequences. Ibn Abbas reported that a virgin came to the
Prophet of Allah (SAW) and narrated that her father had given her in marriage to a
person whom she disliked. Prophet (SAW) gave her option.

In every case, where option is available, it must be exercised immediately on

attaining puberty. Imam Abu Hanifa held the view that option must be exercised
immediately on attaining puberty while other authorities opined that it could be
exercised without any unreasonable delay after attaining puberty. This rights to be
pressed while the marriage of her not yet been consummated. The rule respecting
to the doctrine of option of puberty is that a girl who is unaware of her marriage,
when she attain puberty, retains this right until she becomes aware of the marriage
and option is prolonged until she is acquainted with the fact that she has the right
to repudiate the marriage and she can exercise that right within a reasonable time.
The option is lost if the wife, after she attains the puberty permits the marriage to
be consummated but mere consummation is not sufficient unless happens it be
with the wife's consent.

In case of dissolution of Muslim marriage through 'option of puberty', Qazi's

order for cancelling the marriage is necessary. This is a procedural safeguard as
many rights and duties flow from the cancellation of marriage. Likewise, Qazi's
order cannot be passed when husband is not represented. Marriage in the eyes of
law, shall be presumed to subsist unless the order is made by the Qazi.

In SherMohd. v. Govt. (NCT of Delhi), a writ petition for habeus corpus was
filed, before the High Court of Delhi, for petitoner's daughter, Shahista, 15years of
age. The daughter claimed that she had married a man, Shakeel, out of her own
free will. The question before the court was whether the wife has the right to reside
with her husband or not even if she is below eighteen years of age, as claimed by
the petitioner. The court reiterated the decision of Mrs. Tara Begum v. State of
Delhi and stated that Mohammedan Law is well settled in this regard that once the
girl attains the age of puberty, she has a right to reside with her husband. It was
therefore held that the court couldn't restrain a girl who has attained the age of
puberty from joining the company of her husband.
The learned judge understood the concept of khyar al-bulugh(option of puberty)
quite well and did not strictly adhere to the majority age fixed at 18 years because
puberty or attaining of youth is dependent upon various geographical, economic
and some other considerations of the boy or girl. And that's why the Islamic jurists
themselves are not unanimous and they have fixed the age of puberty from 15-18
which seems quite reasonable.
In Saba Praveen v. State of Bihar, niece, Saba Praveen (aged about 16years)
was abducted by one Arbind Paswan in conspiracy with a few others for the
purpose of marriage. They also threatened to sell off his niece in some big city.
The victim was recovered and her statement was recorded under section 164 of the
Cr PC wherein she professed that out of her own accord she had gone with accused
and had willingly married him without any pressure or coercion. She also
expressed her desire to live with her husband. The petitioner was prima facie found
to be minor. The court held that the petitioner was less than 18 years of age at the
time of 'so called' marriage which is against the requirement of section 4(c) read
with section 24 of Special Marriage Act, 1954.But the court also respected her
desire to not be handed over to her parents and be allowed to stay in observation
home and be released upon completing the age of 18years. If the girl had not
changed her religion then marriage was neither valid under Muslim law nor Hindu
law. That's why this case is wrongly reported under the head of Muslim law.
In another case of Wahid Jakir Hussain v. State ofMaharashtra, prosecutrix
and her friend ran away with the accused and his friend from their school but were
later recovered from railway station. It was contended that the accused raped the
girl. The accused claimed that that they wanted to marry each other. It has been
held by the High Court of Bombay that under Muslim law the fact that a girl
attaining puberty can give her own consent for marriage, is relevant in case of
marriage but not at this stage.

In Sakirbhai ArzJbhai Memon v. State of Gujarat, the issue before the court
was whether a Muslim girl of 16years age can be allowed to be with her husband
and marry without the permission of her parents. The court opined that as per the
Muslim law, girl over the age of sixteen years and who has also attained puberty is
free to contract a marriage and hence should be allowed to go with her husband.

Ghulam Sakina v Falak Sher Allah Baksh

[Consummation before the age of puberty does not deprive minor girl of her right
to repudiate marriage, but if consummation occurs after the age of puberty, then
she cannot repudiate marriage.]

In this case marriage of a minor was solemnized and consummated before she
attain the age of puberty. The girl wanted to repudiate the marriage after attaining
majority. The husband alleges that as the marriage has been consummated, she lost
her right of repudiation. The court held that consummation before the age of
puberty does not deprive minor of her right to repudiate marriage, but if
consummation occurs after age of puberty, then she cannot repudiate marriage.

It would not be disputed that the plaintiff was married by her father long long
before she has 15 year old and the suit for dissolution of marriage was instituted on
29th August 1945 when she was about 14 year old according to her birth entry and
about 17 years old according to medical testimony, in any case before she attained
the age of 18 years.

The plaintiff was pointedly asked to submit it herself to medical examination in

order to ascertain whether she was still a virgo intacta claimed by her. Much
capital was sought to be made out of the refusal of the plaintiff to submit to
medical examination. It was urged that she had once been examined by a male
doctor and if she was honest in her assertions, there should have been no objection
on her part to an examination by a lady doctor. The medical examination was
evidently made in support of her claim that she was below 18 years as required by
Sec 2, Dissolution of Muslim Marriage Act.

The court however observed: The refusal of the Plaintiff to have examined by a
lady doctor could not be taken to be a proof of consummation of marriage which
should have been proved as fact on the consideration of the entire evidence in the
case.

The court further observed that: the real significance of ‗option of puberty‘ and the
manner how is it to be exercised, seems to have been not properly grasped or
appreciated. The marriage under the Muslim law is in the nature of a contract and
as such, requires the free unfettered consent of the parties to it Normally speaking a
man and a woman should conclude the contract between themselves but in the case
of minors, i.e who have not attained the age of puberty as recognized by
Muhammadan law. The contract might be entered into by their respective
guardians. Before the Dissolution of Muslim Marriages Act, 1939, a minor girl
given in marriage by the father or the father‘s father, had no option to repudiate it
on the attainment of her puberty but this has now changed. The contract of the
father or the Father‘ father stands on higher footing than that of any other guardian
and the minor could repudiate or ratify the contract made on his or her behalf
during the minority, after the attainment of puberty.

Puberty under Muhammadan law is presumed, in the absence of evidence, on

completion of the age of 15 years it would, therefore, necessarily follow that the
minor should exercise the option after the age of 15 years unless there was
evidence to the contrary that the puberty had been attained earlier and the burden
of proving this shall lie upon the person pleading.

Anything done by the minor during the minority would not destroy the right which
would accrue only after puberty. The cohabitation of a minor girl would not thus
put an end to the ‗option‘ to repudiate her marriage on attaining puberty. The
assent should come after puberty and not before for the simple reason that the
minor is incompetent to contract.

In the present case, the plaintiff at the time of the alleged consummation, was still
below 15 years and assuming consummation to be fact, it would not destroy her
right to repudiate the marriage after she had attained the age of 15 years. She had
three years within which to proclaim the exercise of that right and the institution of
a suit was one mode of proclaiming it. The plaintiff had not therefore lost her right
to repudiate the marriage given to her by law.

Decision of the case in Question: Now, Coming to the case, the minor can
repudiate her marriage under Sec.2(vii) of the Dissolution of Muslim Marriage
Act. If the consummation of marriage had taken place before the age of puberty
(i.e 15 years) than she can repudiate the marriage, but not, if the consummation had
occurred after the age of 15 years.

Muslim Law of Divorce

(Q) (i) Explain briefly various forms of Talaq under Muslim Law.
[2018(7)(i)(OR)]

(b) Salma, a muslim woman, left her husband Ishtiaq without any reasonable cause
and against his wishes in 2015. In 2018, she filed a suit seeking dissolution of her
marriage with Ishtiaq on the ground that he had neglected and failed to provide
maintenance to her for a period of over two years. Ishtiaq resisted the suit. Decide
[2019(8)(b)]
(Q) Extra- judicial divorces under personal law of Muslim. [2015(6)(i)]

Triple Talaq

(Q) (a) Elucidate the concept of ‗Triple Talaq’ under Islamic law, in the light of
recent judicial developments.[2019(8)(a)]

(Q) (ii) Throw light upon the validity of Triple Talaq as mentioned Shamim Ara
v. State of U.P and Masroor Ahmed v. State (NCT of Delhi). [2018(7)(ii)(OR)]

(Q) (iii) What is the constitutional validity of Triple Talaq is as pronounced in

Shayara Bano v. UOI. [2018(7)(iii)(OR)]

(Q) Discuss extra judicial divorces under Muslim Law. Discuss the validity of
unilateral Triple Talaq in the light of decided cases. [2017(6)]

(Q) . In January, 2000, Afaq pronounced triple Talaq in a fit of extreme anger, in
the presence of his mother, sister and brother, his wife Salma being away to her
parents house. Thereafter he forget about triple Talaq and continued to live Salma
when she came back home in May 2000. Once again there was discord between
them and Afaq pronounced triple talaq again in January, 2001. Salma approached
the Crime Against Women Cell to seek advice. During the inquiry she come to
know, for the first time, that Afaq had given her talaq earlier also in January 2000.
She prosecutes Afaq for committing rape upon her from May 2000 to January
2001, under the Section 375 IPC. Will she succeed? Discuss in the light of the
legality and effect of triple Talaq. [2016(7)]

(Q) (i) Explain briefly various forms of Talaq under Muslim Law.
[2018(7)(i)(OR)]

(b) Salma, a muslim woman, left her husband Ishtiaq without any reasonable cause
and against his wishes in 2015. In 2018, she filed a suit seeking dissolution of her
marriage with Ishtiaq on the ground that he had neglected and failed to provide
maintenance to her for a period of over two years. Ishtiaq resisted the suit. Decide
[2019(8)(b)](Ans: Yousuf Rawther v. Sowramma case)

Introduction:
The phenomenon of the breaking up of the marital tie between the two spouses is
known as dissolution of Marriage. After the dissolution of marriage, the two
spouses get separated and are free to marry any third person of their choice.
Islamic law has recognised and regularized the institution of dissolution of
marriage.
Among ancient Arabs dissolution of marriage was very easy and of frequent
occurrence. Husbands possessed an unlimited power to dissolve the marital tie.
They could, not only, divorce their wives at any time with or without reason but
also revoke their divorce again and again as many times as they preferred. They
could, if they were so inclined, swear that they would have no intercourse with
their wives, though still living with them. A woman, if absolutely separated, was
probably free to remarry but she could not do so until sometime, called the period
of Iddat, has passed. It was to ascertain the legitimacy of the child. But it was not a
strict rule. Sometimes a pregnant wife was divorced and was married to another
person under an agreement. The period of Iddat, in case of death of the husband,
was one year.

The Prophet of Islam (SAW) looked upon these customs with extreme disapproval
and regarded these practices as calculated to undermine the foundation of society.
He, therefore, sought to regulate the institution of dissolution of marriage with due
response to all the legal, social and psychological factors. The Prophet (SAW),
infact, moulded the minds of Arabs to higher objectives of life. He made it clear to
the human society for all times to come that:
With Allah, the most detestable of all things permitted is divorce.
Even though the Quran recognises the right to divorce, it recognises it only with
numerous injunctions to observe justice, fairplay, generosity and kindness.

Conditions for a valid talaaq:

1) Capacity: Every Muslim husband of sound mind, who has attained the age of
puberty, is competent to pronounce talaaq. It is not necessary for him to give any
reason for his pronouncement. A husband who is minor or of unsound mind cannot
pronounce it. Talaaq by a minor or of a person of unsound mind is void and
ineffective. However, if a husband is lunatic then talaaq pronounced by him during
"lucid interval" is valid. The guardian cannot pronounce talaaq on behalf of a
minor husband. When insane husband has no guardian, the Qazi or a judge has the
right to dissolve the marriage in the interest of such a husband.
2) Free Consent: Except under Hanafi law, the consent of the husband in
pronouncing talaaq must be a free consent. Under Hanafi law, a talaaq, pronounced
under compulsion, coercion, undue influence, fraud and voluntary intoxication etc.,
is valid and dissolves the marriage.

Involuntary intoxication: Talaaq pronounced under forced or involuntary

intoxication is void even under the Hanafi law.

Shia law:
Under the Shia law (and also under other schools of Sunnis) a talaaq pronounced
under compulsion, coercion, undue influence, fraud, or voluntary intoxication is
void and ineffective.

3) Formalities: According to Sunni law, a talaaq, may be oral or in writing. It may

be simply uttered by the husband or he may write a Talaaqnama. No specific
formula or use of any particular word is required to constitute a valid talaaq. Any
expression which clearly indicates the husband's desire to break the marriage is
sufficient. It need not be made in the presence of the witnesses.

According to Shias, talaaq, must be pronounced orally, except where the husband
is unable to speak. If the husband can speak but gives it in writing, the talaaq, is
void under Shia law. Here talaaq must be pronounced in the presence of two
witnesses.

4) Express words: The words of talaaq must clearly indicate the husband's
intention to dissolve the marriage. If the pronouncement is not express and is
ambiguous then it is absolutely necessary to prove that the husband clearly intends
to dissolve the marriage.

Classification
Following is the classification of dissolution of marriage:
A) By the death of a spouse
B) By the act of the parties
I. By the husband
1. Talak (Repudiation)
2. Ila (Vow of continence)
3. Zihar (Injurious assimilation)
II. By the wife
1. Talak-e-Tafwid (Delegated divorce)

III. By common consent

1. Khula (Redemption)
2. Mubara’at (Mutual freeing)
C. By judicial process
1. Lian (Mutual Imprecation)
2. Faskh (Judicial Rescission)

By the death of the Spouse

The death of the husband or the wife operates in law as dissolution of marriage.

BY THE ACT OF PARTIES

This can be discussed under three heads:
1. Dissolution by the act of husband.
2. By the act of wife.
3. By common consent.

BY THE HUSBAND
The husband can dissolve the marriage by various modes.
I. Talaq
II. Ila (Vow of Continence)
III. Zihar (Injurious Assimilation)
I. Talaq (Repudiation):
It comes from a root ‗tallaqa‘, which means to release from a tether. In its literal
sense this Arabic word (talaq) means ‗taking off any tie or restraint‘ and in law it
signifies the absolute power, which the husband possesses, of divorcing his wife.

Any Muslim who is of sound mind and who has attained puberty may pronounce
Talaq:
a. By himself;
b. Through an agent, or
c. Through any person including the wife empowered to pronounce talaq
(delegated divorce).
The Sunnis recognise written talaq which may be in two forms:
(a) Manifest talaq;
(b) Unusual talaq nama.
When the talaqnama is properly written so as to be legible and clearly indicating to
whom and by whom it is addressed it is in the customary form. This is known as
manifest talaq. The deed may be executed in the presence of Qadi, the wife‘s father
or any other relation or witnesses. If the deed is in customary and manifest form
the intention of divorce is presumed. If the talaqnama is not subscribed in the
aforementioned manner, it is termed to be in usual form and the intention to
divorce has to be proved.
A talaq under Shia law must be pronounced orally in the presence of two male
competent witnesses. A talaq communicated in writing is not valid, unless the
husband is physically incapable of pronouncing it.
Kinds of Talaq
a. Talaq-al-Sunnat
b. Talaq-al-biddat

a.Talaq-al-Sunnat
It is known as Talaq-al-Sunnat because it is in conformity with the dictates of the
Prophet (SAW). The Talaq-al-Sunnat has two forms:
1. Ahsan (the most approved)

2. Hasan (approved)
Talaq-e-Ahsan:
Talaq-e-Ahsan is a single pronouncement in the period of Tuhr, (that is, purity,
when the woman is free from her menstrual courses), followed by abstinence from
sexual intercourse during that period of purity as well as during the whole period
of Iddat. The requirement of purity is not applicable when the wife has passed the
age of menstruation, or the parties have been away from each other for a long time
or when the marriage has not been consummated.
The advantage of this form of talaq is that it can be revoked at any time before the
completion of the period of Iddat and thus hasty and thoughtless divorces can be
prevented. The period of Iddat is three months from the date of declaration or if the
woman is pregnant until delivery. The revocation may be by express words or by
conduct.
Talaq-e-Hasan:
This is also an approved form but less approved than Ahsan form. It consists of
three successive pronouncements during three consecutive periods of purity
(Tuhr). If the wife has crossed the age of menstruation, then the pronouncement of
talaq may be made after the interval of 30 days between the successive
pronouncements. When the third pronouncement is made, the talaq becomes final
and irrevocable.
In Talaq-e-Hasan when husband declares talaq third time the marriage stands
dissolved irrevocably and the remarriage becomes impossible unless wife lawfully
marries another husband and that other husband lawfully divorces her after the
marriage has been actually consummated. But the Prophet(SAW) has made an end
to the barbarous practice of divorcing a wife and taking her back several times in
order to ill treat her.
b.Talaq-al-biddat (Triple Talaq)
In this form three pronouncements are made in a single Tuhr, either in one
sentence, e.g., ―I divorce thee triply or thrice‖ or in three sentences, e.g., ―I divorce
thee, I divorce thee, I divorce thee‖. The moment the pronouncement is made the
marriage stands dissolved irrevocably. When a single irrevocable pronouncement
of divorce is made in the period of purity this also results in irrevocable dissolution
of marriage. This form is also called Talaq–ul–Bain and may be given in writing.
The triple pronouncement is not essential for talaq–ul–bida, if the intention is clear.
II. Ila (Vow of Continence)
The term ‗Ila‘ literally means ‗oath‘ or ‗vow‘. According to Abdur Rahim
Principles of Mohammedan Jurisprudence (Pg. 338), in some cases the conduct of
the husband will have the effect of repudiation, though he did not use the word
Talaq or any other expression with the intention of dissolving the marriage. This is
when he swears that he will have nothing to do with his wife and in pursuance of
such oath abstains from her society for four months. This form of divorce is known
as Ila. The husband may revoke the oath by resumption of marital life. After the
expiry of four months, in Hanafi law the marriage is dissolved without legal
process. The Shafis and the Shias hold that this does not result in Talaq, but merely
gives the wife the right of judicial divorce.
III. Zihar
The term ‗Zihar‘ is derived from ‗Zuhar‘ the back. This is an inchoate divorce. In
this form the husband swears that to him the wife is like the back of his mother, or
sister, or any other woman within the degrees of prohibited relationship. If he
intends to revoke this declaration, he has to pay money by way of expiation or fast
for a certain period. After the oath has been taken the wife has the right to go to the
court and obtain divorce or restitution of conjugal rights on expiation.

BY THE WIFE
The husband in Muslim law has the power to delegate his own right of
pronouncing Talaq to some third person or to the wife herself. The person to whom
the power is thus delegated may then pronounce the divorce accordingly. Such a
delegation of power is called ‗tafwid‘. The husband may delegate the power
absolutely or conditionally, temporarily or permanently. A permanent delegation of
power is revocable but a temporary delegation of power is not. The delegation
must be made distinctly in favour of the person to whom the power is delegated
and the purpose of delegation must be clearly stated.
A stipulation that, under certain specified conditions, the wife can pronounce
divorce upon herself has been held to be valid, provided first, that the option is not
absolute and unconditional and secondly, that the conditions are reasonable and
not
opposed to public policy. This doctrine of delegated divorce is peculiar to the
Muslim Law, and has no parallel in other systems. Fyzee says: ‗This form of
delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife
to obtain her freedom without the intervention of any court and is now beginning
to be fairly common in India.‘

DIVORCE BY COMMON CONSENT

Divorce by common consent has two forms:
a. Khula (Redemption)
b. Mubara‘at (Mutual freeing)

(Q) Extra- judicial divorces under personal law of Muslim. [2015(6)(i)]

Khula (Redemption)(Extra-Judicial Divorce)

The word Khula literally means to put off. In law it is lying down by a husband of
his right and authority over his wife for an exchange. Khula has the authority of
Quran (2:229).
The leading case on Khula is Moonshe Bazul Raheem v. Luteef-ut-oon-Nissa,
(1861) 8. MIM, 879) where their lordships of the Privy Council observed: ―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 to the husband for her release
from the marriage tie. In such a case, the terms of the bargain are a matter of
arrangement between the husband and the wife, may: as the consideration release
her dower and other rights, or make any other agreement for the benefit of the
husband‖.
The essential conditions of Khula are:
i. Common consent of Husband and Wife;

ii. some return or consideration (iwaz) from the wife to husband, if she
desires to separate her husband through such divorce.

The fact that khulʿ in India is a strictly extra-judicial form of divorce makes it
relatively easy, if conditions are right, for a woman to extricate herself from an
unhappy marriage without going through the time, expense, and social opprobrium
of initiating and pursuing judicial proceedings. However, the process of obtaining a
khulʿ is not always simple or straightforward and success is not guaranteed.
Negotiations with the husband are often complicated, almost always stressful, and
frequently fail. Not only must a wife offer her husband a consideration for
releasing her from the marriage, but she must also persuade him to accept it. Men
often refuse to cooperate or will not even enter negotiations over the matter. Some
have long-ago deserted their wives and cannot be located. Others take advantage of
their wives‘ relative lack of power within the marriage and/or their ignorance of
the law by compelling them, against their will, to sign khulʿ agreements that
contain onerous conditions. Others try to manipulate the law in creative ways,
entirely for their own benefit.

Extra-Judicial Divorce by Khulʿ in MPL(Muslim Personal Law)

A khulʿ may be accomplished through an oral or written private agreement
between a woman and her husband or, in the case of highly educated Muslims,
in consultation with an advocate. It is sometimes negotiated in a police station
or on the premises of a state court where, for example, a husband may be
persuaded to concede to his wife‘s desire to divorce him, on the understanding
that she will withdraw a maintenance suit that she has filed against him under
Section 125 of the CrPC or drop a criminal case of ‗dowry harassment‘ under
Section 498a of the Indian Penal Code (IPC).33 However, negotiations for khulʿ
are more often undertaken with the help of a qāẓī or an imām or by consultation
with the jamāʿat of the couple‘s local mosque.
Most lay Muslims are familiar with the term khulʿ and are aware that it designates
a procedure by which a woman can divorce her husband. But few know
precisely how to go about divorcing in this way. When contemplating such a
move, they are therefore likely to consult a religious expert for advice. Spouses
are often already living apart and are likely to be on bad terms, making it diffi-cult
for the wife to approach her husband directly. Or the family may already
have approached him but, finding him unreceptive, hope that a qāẓī or other
religious figure for whom he has – or should have – respect will be able to
persuade him to cooperate.
When a woman consults a qāẓī about getting a divorce by khulʿ, he will explain
how she must proceed and ask for the husband‘s address, so that he can
send a registered letter instructing him to appear in his office on a given date
and time. If his whereabouts are unknown, the wife or the male relatives who
have accompanied her will be told to come back when they have located him,
since a khulʿ is impossible without his consent. Should they fail to find him or
should he adamantly refuse to cooperate, the qāẓī may suggest the possibility
of a faskh or advise the wife to file for a ‗court divorce‘ under the
DMMA(Dissolution of Muslim Marriage Act). But he is more likely to say that, in
the absence of the husband, he can be of no further help.
If the husband is located and responds to the qāẓī‟s summons, the qāẓī will
usually urge him to accept his wife‘s offer, either on the terms that she or her
elders propose or on some others more agreeable to him. Should he be successful
in persuading the man to give his consent to a khulʿ, the two will be given an
appointment to come back at a later date, with their witnesses, to have a formal
divorce document (khulʿnāma) drawn up and signed. The qāẓī will then
instruct the husband to finalize the divorce by pronouncing three ṭalāqs in his
presence.
Waiver of the Mahr as the Usual Consideration for Khulʿ
It is generally accepted that the appropriate compensation for giving one‘s wife
a khulʿ is the return of the mahr. However, very few women have received their
mahr by the time they decide to seek a divorce. Therefore, in most khulʿ
transactions no money changes hands. The wife declares that she renounces
any further claims to her mahr, the husband pronounces three ṭalāqs in quick
succession and the marriage is over. Once she completes her ʿiddat, she is free
to remarry.

However, not all khulʿ agreements are concluded so simply or so inexpensively for
the wife. Qāẓī records indicate that wives are often persuaded (or are
instructed by the qāẓī) to forego, not only the mahr, but also the right to be
maintained during ʿiddat. In some khulʿnāmas it is written that the wife also
gives up custody of the couple‘s minor children. She may agree to this because
she plans to remarry. Since men are notoriously unwilling to take in a woman‘s
children from a prior marriage, she may feel that she has little choice but to
leave them behind. The financial difficulties she is likely to face after divorce
may also affect her decision. But allowing her husband to retain custody of
their children is often the only condition under which he will release her from
the marriage.

Khulʿ in the Eyes of the State: the Higher Courts

One Kerala High Court decision from 1973 (K.C. Moyin vs. Nafeesa and Ors.)
suggests that the state should treat khulʿ differently from ṭalāq. In this criminal
case a man had charged his wife with bigamy. Having earlier been denied a
divorce under the DMMA, she had, on the erroneous advice of a supposedly
learned acquaintance, declared herself divorced by faskh38and proceeded to
marry another man. The High Court not only ruled in the first husband‘s favor
but also added the obiter dictum that a woman cannot divorce her husband
without his consent, except by resort to the DMMA: ―[T]he dissolution of Muslim
marriage at the instance of wives can be effected only under its provisions
… [To] repudiate the marriage without the intervention of a Court is opposed
to the law of the land.‖39 But this judgment has not been widely cited, at least
not at the appellate level. I could find only one instance, in a 2013 Gujarat High
Court decision, Whether It is To Be Circulated To ... vs. Javed Hussain Mansuri.
K.C. Moyin notwithstanding, a review of case law clearly shows that the
higher courts have, for at least a century and a half, regularly recognized the
validity of khulʿ divorces. An early illustration of the higher judiciary‘s position
appears in the 1920 Lahore High Court‘s decision in Musammat Saddan vs. Faiz
Bakhsh. The wife had asked her husband to release her by khulʿ, offering a
consideration of Rs. 150. A khulʿnāma was executed and he pronounced the
required ‗three times ṭalāq.‘ But the wife never paid him the promised amount
and he later filed for a declaration that they were still married. The lower court
granted his petition but the High Court disagreed, ruling that ―there was a
complete and irrevocable divorce and the mere fact that the plaintiff did not
pay the consideration did not invalidate it.‖ The man was advised to sue for
recovery of the debt, if he so wished.
An on-line search for khulʿ, khula and khoola in two databases of Indian
High and Supreme Court decisions40 turned up almost 150 occurrences of
those words. But in less than thirty was an actual (or alleged) incident of this
form of divorce a matter at issue.41 These included a number of child custody
cases and several suits for declaration of marital status. A few involved criminal
charges of fraud or bigamy. Others were appeals of maintenance orders
under Section 125 of the CrPC that had been awarded after the passage of the
1986 MWA(The Muslim Woman(Protection of Rights on Divorce)Act). In these
the man argued that the lower court had erred in order-ing him to support the
woman, because the two had already divorced by khulʿ and she was, therefore, no
longer his wife. Such appeals are a variation on a far more common one, in which
a man asserts that a woman is ineligible for a maintenance award because he has
earlier divorced her by ṭalāq.
The principal questions raised by judges in khulʿ-related cases were whether
or not a khulʿ agreement had been executed in writing and, if so, whether a
document to that effect had been submitted in evidence. If not, the appeal was
usually dismissed. If so, the question was whether the document was ‗genuine.‘
Did its terms accord with the requirements of Islamic law? Had both parties
signed it? Was the wife‘s signature or thumbprint obtained willingly or under
duress? Was she aware at the time of its true purpose? Whenever the responses
to these questions supported a litigant‘s claim that the couple had divorced by
khulʿ, the judges did not usually hesitate to declare the marriage legally dissolved.
In no case did they rule against the validity of a khulʿ divorce for which
there was a written agreement, adjudged to be genuine and to have been signed
willingly and with both parties fully cognizant of its contents. The number of
cases that met these conditions, however, was not very large.
One that did was a child custody case decided in 1997, Shazma vs. Ashar Ali
Zai and Anr, in which the Delhi High Court recognized the validity of a divorce
by khulʿ that a couple, ―in view of the [sic] temperamental incompatibility,‖
had negotiated, ―voluntarily decid[ing] to get the marriage dissolved by way of
‗Khoola.‘‖ But the judge further ruled that, whereas the khulʿ agreement itself
was valid, one of its conditions was not legitimate – namely, that the wife give
up her right to physical custody (ḥizānat) of their young son. He therefore
dismissed the husband‘s custody petition under a provision of the Guardians and
Wards Act 1890 that gives priority to the best interests of the child.
In a much earlier, 1932, case (Qasim Husain Beg vs. Bibi Kaniz Sakina), the
Allahabad High Court recognized the validity of a khulʿ agreement between a
couple that had separated before their marriage was consummated, after the
husband discovered that his bride‘s mother‘s brother‘s wife was a woman of the
‗untouchable‘ Sweeper caste. The fathers of the bride and groom had
then agreed to execute a khulʿnāma, written ―in the presence of maulvies [men
learned in Islamic law].‖ It set the condition that the bride would relinquish
the mahr that she had already received. The lower court had refused to recognize
the khulʿ, reasoning that, since the bride had not yet reached the age of
majority, she was not legally capable of waiving her mahr rights. The appeals
court disagreed, recognized the divorce, and granted the man‘s petition for
recovery of the mahr debt.
Mubara’a (Mutual Freeing)
The word ‗mubara‘ denotes the act of freeing each other by mutual consent. In
the words of Fyzee, ―in the case of Khula, the wife begs to be released and the
husband agrees for a certain consideration, which is usually a part or whole of
the dower; while in mubara‘a apparently both are happy at the prospect of
getting rid of each other‖.
The offer in a mubara‘a divorce may proceed from the wife, or it may proceed
from the husband but once it is accepted, the dissolution is complete and it
operates as a single irrevocable divorce. Among the Sunnis when the parties to
marriage enter into mubara‘a, all mutual rights and obligations come to an end.
The Shia law is stringent. It requires that both the parties must find the marital
relationship to be irksome in a bonafide manner.
The main distinction between a Khula and mubara‘a is that in the former the
aversion is on the side of the wife and she desires a separation but in the later
the aversion is mutual and both sides desire separation. Secondly, in a divorce
by Khula some consideration must be given by the wife to the husband for her
release from the marital tie. It is in effect an offer from the wife for her release
on payment of a compensation. On the other hand, in a divorce by mubara‘a no
compensation is given by the wife to the husband for her release from the
marital tie because both are happy at the prospect of getting rid of each other.

DIVORCE BY JUDICIAL PROCESS

1.Lian (Mutual Imprecation)
2.Faskh (Judicial Rescission)
Lian (Mutual Imprecation)
Lian means a testimony confirmed by oath and accompanied with imprecation.
Divorce by mutual imprecation is mentioned in the Quran and is supported by the
traditions of the Prophet (SAW). The law of Islam punishes the offenses of
adultery (Zina) severely and so it takes serious view of an imputation of
unchastity against a married woman. It is reported that a man from the Ansar
accused his wife of adultery. The Prophet (SAW) thereupon asked them both to
take an oath. Then he ordered them to be separated from each other. If a
husband accused his wife of infidelity, he was liable to punishment for
defaming his wife unless he proved his allegation. If there was no proof
forthcoming, the procedure of lian was adopted.
A husband accuses his wife of adultery, but is unable to prove the allegation.
The wife in such a case is entitled to sue for the dissolution of the marriage. At
the hearing of the suit, the husband has two alternatives:
1. He may retract the charges. If this is done at or before the commencement of
the hearing but not after the close of evidence or the end of the trial, the wife is
not entitled to a dissolution.
2. To persist in his attitude, whereby he will be required to accuse his wife on
oath. Te form of oath is, ―The curse of god be upon him if he was liar when he
cast at her the charge of adultery‖.
The wife then must be called upon either to admit the truth of imputation or to
deny it on oath coupled with an imprecation in these terms ―The wrath of God
be upon me if he be a true speaker of the adultery of wife he has cast upon me‖.
If the wife takes the oath, the Qazi must believe her, and pronounce a divorce.
Faskh (Judicial Annulment)
The word ‗faskh‘ means annulment or abrogation. It comes from a root, which
means ‗to annul or to rescind‘. Hence it refers to the power of the Muslim Qazi
to annul a marriage on the application of the wife. It may be defined as the
dissolution or rescission of the contract of marriage by judicial decree. The law
of faskh is founded upon the Quranic injunctions and the traditions of the
Prophet(SAW). The Quranic verse runs thus: ―If ye fear a breach between the
husband and the wife, send a judge out of his and another from her family; if
they are desirous of agreement. God will effect a reconciliation between them;
for God is knowing and appraised of all‖. (Quran 6:35)

Relevant Cases:

Yousuf Rawther v. Sowramma

NTRODUCTION
In this case A. Yousuf Rawther vs Sowramma the conjugal & maintenance rights
of a wife are being examined where the wife pleaded for dissolution of marriage
and the court discussed on the grounds of divorce. The court held that the
principles of the Holy Quran of marriage regarding divorce were directed for
betterment of womanhood and one not fulfilling his duty as a husband should not
expect the same from the wife.

FACTS
The plaintiff after attaining puberty moved to the husband‘s house. Then the
defendant left for Coimbatore, the very next day, where he was running a radio
dealer‘s business. A month‘s wait in the house of the husband and then the plaintiff
went back to her parents, this separation lasted for over two years during which the
defendant failed to maintain the wife, the ground alleged by the defendant being
that he was willing to keep her with him but she refused to return to the conjugal
home. Anyway, a litigation for dissolution of marriage erupted. The trial court
dismissed the suit but the Subordinate Judge‘s Court granted a decree for
dissolution of the marriage for which the husband has filed this appeal. This is an
appeal challenging the validity of the decree of the lower appellate court.

ISSUES
Whether the wife can claim dissolution of marriage for failure of the husband to
maintain the wife for 2 years?

JUDGEMENT
The appeal failed and was dismissed and held that failing to provide maintenance
to the wife is a ground for dissolution of marriage.

Itwari v. Asghari, AIR 1960 All. 684

This is a Muslim husband‘s appeal against the decision of the learned
District Judge, Rampur, dismissing his suit for restitution of conjugal rights against
his first wife who refused to return to him after he had taken a second wife and
accused him of cruelty to her. The appellant Itwari was married to Smt. Asghari
about the year 1950 and lived with her for sometime. Then things went wrong and
the wife ultimately left him to live with her parents; but he took no steps to bring
her back and married another woman.
The first wife filed an application for maintenance under Sec. 488 Cr. P. C.
Thereupon the husband filed a suit against her for restitution of conjugal rights.
For some reasons he impleaded her father and two brothers as co-defendants. The
wife contested the suit and alleged that she had been turned out by her husband
who had formed an illicit union with
another woman whom he subsequently married. She alleged that he had beaten her,
deprived her of her ornaments and thus caused her physical and mental pain. He
had also not paid her dower.
The learned Munsif decreed the husband‘s suit and held that the wife had failed
to prove that she was really ill-treated and that the husband had not been guilty of
such cruelty as would disentitle him to a decree for restitution of conjugal rights
against her. He held that the mere fact that the husband had taken a second wife
raised no presumption that Smt. Asghari had suffered inequitable treatment at his
hands, and was influenced by the husband‘s explanation that he had not taken his
second wife to live in his house with Smt. Asghari.
He also took the view that if the wife felt aggrieved by her husband‘s second
marriage she should have obtained a decree for dissolution of marriage and
expressed surprise that she had not done so, thereby adopting the strange and
inconsistent view that the husband‘s conduct in taking a second wife is a good
ground for the first wife to sue for dissolution of her marriage and put an end to all
the rights of the husband but no ground for contesting the husband‘s suit for
assertion of the same rights under the same marriage.
The fact that the wife had taken things lying down weighed with the learned
Munsif in disbelieving her allegation of cruelty against Itwari. He decreed the
husband‘s suit and also passed an order directing Smt. Asghari's father and brother
not to prevent her from going back to him.
On appeal, the learned District Judge, Rampur reversed the finding of the trial
court and dismissed the husband‘s suit with costs. He was of the opinion that
Itwari had filed his suit for restitution of conjugal rights only as a counter-blast to
the wife‘s claim for maintenance under Sec. 488 Cr. P. C., and pointed out that,
after the wife had left him and been living with her parents for so many years, he
took no steps to get her back and that his long silence was an indication that he
never really cared for her. He observed,
In view of this circumstance I am prepared to believe Smt. Asghari‘s evidence
that she was ill-treated and turned out by her husband and that the latter is now
putting up a show to get her back only to escape from the liability to pay
maintenance allowance.
The first question is whether the conduct of the husband in taking a second wife is
any ground for the first wife to refuse to live with him or for dismissing his suit
for restitution of conjugal rights. Learned counsel for the husband vehemently
argued that a Muslim husband has the right under his personal law to take a
second wife even while the first marriage subsists. But this right is not in dispute
in this case.
The question before the Court is not whether the husband had the right to take a
second wife but whether this Court, as a court of equity, should lend its assistance
to the husband by compelling the first wife, on pain of severe penalties, to live
with him after he has taken a second wife in the circumstances in which he did.
Muslim Law permits polygamy but has never encouraged it. The sanction for
polygamy among Muslim is traced to the Koran IV. 3,
―If Ye fear that ye cannot do justice between orphans, then marry what seems
good to you of women, by twos, or threes, or fours or if ye fear that ye cannot be
equitable, then only one, or what your right hand possesses.‖
This injunction was really a restrictive measure and reduced the number of wives
to four at a time; it imposed a ceiling on conjugal greed which prevailed among
males on an extensive scale. The right to four wives appears to have been
qualified by a ‗better not‘ advice, and husbands were enjoined to restrict
themselves to one wife if they could not be impartial between several wives – an
impossible condition according to several Muslim jurists; who rely on it for their
argument that Muslim Law in practice discourages polygamy.
If Mohammadan Law permits and enforces such agreements it follows that it
prefers the breaking up of the first marriage to compelling the first wife to share
her husband with the second. The general law, too, recognises the sanctity of such
agreements, and it has been held that a contract restraining a Muslim husband from
entering into a second marriage during the life time of the first is not void under
Sec. 23 of the Contract Act which bans agreements in restraint of marriage.
11. I am, therefore, of the opinion that Muslim Law as enforced in India has
considered polygamy as an institution to be tolerated but not encouraged, and has
not conferred upon the husband any fundamental right to compel the first wife to
share his consortium with another woman in all circumstances. A Muslim husband
has the legal right to take a second wife even while the first marriage subsists, but
if he does so and then seeks the assistance of the Civil Court to compel the first
wife to live with him against her wishes on pain of severe penalties including
attachment of property, she is entitled to raise the question whether the court, as a
court of equity, ought to compel her to submit to co-habitation with such a
husband. In that case the circumstances in which his second marriage took place
are relevant and material in deciding whether his conduct in taking a second wife
was in itself an act of cruelty to the first.
12. Mr. Kazmi contended that the first wife is in no case entitled to consider the
second marriage as an act of cruelty to her. I cannot agree. In Shamsunnissa
Begum case, the Privy Council observed that ―the Mohammedan Law, on a
question of what is legal cruelty between man and wife, would probably not differ
materially from the English Law‖. It follows that Indian Law does not recognise
various types of cruelty such as ‗Muslim‘ cruelty, ‗Christian‘ cruelty, ‗Hindu‘
cruelty, and so on, and that the test of cruelty is based on universal and
humanitarian standards that is to say, conduct of the husband which would cause
such bodily or mental pain as to endanger the wife‘s safety or health.
Today Muslim woman move in society, and it is impossible for any Indian
husband with several wives to cart all of them around. He must select one among
them to share his social life, thus making impartial treatment in polygamy virtually
impossible under modern conditions. Formerly, a Muslim husband could bring a
second wife into the household without necessarily meaning any insult or cruelty
to the wife. Occasionally, a second marriage took place with the consent or even at
the suggestion of the first wife.
But social condition and habits among Indian Mussalmans have changed
considerably, and with it the conscience of the Muslim community. Today the
importing of a second wife into the household ordinarily means a stinging insult to
the first. It leads to the asking of awkward questions the raising of unsympathetic
eyebrows and the pointing of derisive fingers at the first wife who is automatically
degraded by society. All this is likely to prey upon her mind and health if she is
compelled to live with her husband under the altered circumstances.

Counsel for the appellant argued vehemently that dismissal of the husband‘s suit
against the first wife virtually means a denial of his right to marry a second time
while the first marriage subsists. I do not agree. A Muslim husband has always the
right to take a second wife. If he does so, he cannot be prosecuted for bigamy, the
second marriage is valid, the children of the second wife are legitimate and he is
entitled to the enjoyment of his rights (subject to his obligations) under the second
marriage.
But it is not at all necessary for the enjoyment and consummation of his rights
under the second marriage that he should apportion his consortium between two
women. On the contrary, nothing is more likely to mar the conjugal bliss of his
second marriage than that his new wife should be asked to share it with the old.
The second wife is not likely to view with sympathy her husband‘s attempt to
compel the old wife to return to his consortium and, to put it very mildly, the
dismissal of her husband‘s suit for restitution against the first wife is not likely to
break the second wife‘s heart.

These principles apply to the present case. The lower appellate court has found that
the appellant never really cared for his first wife and filed his suit for restitution
only to defeat her application for maintenance. In the circumstances, his suit was
mala fide and rightly dismissed.
Lastly, the appellate court, reversing the finding of the trial court, believed the
wife‘s allegation of specific acts of cruelty committed by the husband and held that
she had been deserted and neglected by the husband for so many years. In the
circumstances, I concur in the opinion of the District Judge that it will be
inequitable to compel the first wife to live with such a husband. The appeal is
dismissed under O. 41, R. 11, C.P.C.

Triple Talaq (Talaq-al-biddat ):

(Q) (a) Elucidate the concept of ‗Triple Talaq’ under Islamic law, in the light of
recent judicial developments.[2019(8)(a)]

(Q) (ii) Throw light upon the validity of Triple Talaq as mentioned Shamim Ara
v. State of U.P and Masroor Ahmed v. State (NCT of Delhi). [2018(7)(ii)(OR)]

(Q) (iii) What is the constitutional validity of Triple Talaq is as pronounced in

Shayara Bano v. UOI. [2018(7)(iii)(OR)]

(Q) Discuss extra judicial divorces under Muslim Law. Discuss the validity of
unilateral Triple Talaq in the light of decided cases. [2017(6)]

(Q) . In January, 2000, Afaq pronounced triple Talaq in a fit of extreme anger, in
the presence of his mother, sister and brother, his wife Salma being away to her
parents house. Thereafter he forget about triple Talaq and continued to live Salma
when she came back home in May 2000. Once again there was discord between
them and Afaq pronounced triple talaq again in January, 2001. Salma approached
the Crime Against Women Cell to seek advice. During the inquiry she come to
know, for the first time, that Afaq had given her talaq earlier also in January 2000.
She prosecutes Afaq for committing rape upon her from May 2000 to January
2001, under the Section 375 IPC. Will she succeed? Discuss in the light of the
legality and effect of triple Talaq. [2016(7)](Ans: Masroor Ahmed v. Delhi
Case)

INTRODUCTION If simply understood Triple talaq is a form of divorce in

Muslim law where husband when says the word ―talaq‖ three times in oral, written
or in electronic form. Triple talaq, also known as talaq-e- biddat, instant divorce1
and talaq-e-mughallazah (irrevocable divorce)2, is a form of Islamic divorce which
has been used by Muslims in India, especially adherents of Hanafi Sunni Islamic
schools of jurisprudence34. The debate has involved the Government of India and
the Supreme Court of India, and is connected to the debate about a uniform civil
code (Article 44) in India. Article 44 states:
44. Uniform civil code for the citizens The State shall endeavour to secure for the
citizens a uniform civil code throughout the territory of India Triple talaq became
illegal in India on 1 August 2019, replacing the triple talaq ordinance promulgated
in February 2019. The Muslim Women (Protection of Rights on Marriage) Bill,
2019 passed on 26 July 2019 after a very long discussion and opposition finally got
the verdict (the Indian Supreme Court judgement of August 2017 described below)
to all women. It makes instant triple talaq (talaq-e-biddah) in any form – spoken,
written, or by electronic means such as email or SMS – illegal and void, with up to
three years in jail for the husband.

SHAYARA BANO JUDGEMENT

The case was called Shayara Bano v. Union of India & Others. The bench that
heard the controversial triple talaq case in 2017 was made up of multifaith
members. The five judges from five different communities are Chief Justice JS
Khehar (a Sikh), and Justices Kurian Joseph (a Christian), RF Nariman (a Parsi),
UU Lalit (a Hindu) and Abdul Nazeer (a Muslim).
The Supreme Court examined whether Triple talaq has the protection of the
constitution—if this practice is safeguarded by Article 25(1) in the constitution that
guarantees all the fundamental right to "profess, practice and propagate religion".
The Court wanted to establish whether or not triple talaq is an essential feature of
Islamic belief and practice.
In a 397-page ruling, though two judges upheld validity of instant triple talaq
(talaq-e-biddat), the three other judges held that it was unconstitutional, thus
barring the practice by a 3–2 majority. One judge argued that instant triple talaq
violated Islamic law. The bench asked the central government to promulgate
legislation within six months to govern marriage and divorce in the Muslim
community. The court said that until the government formulates a law regarding
instant triple talaq, there would be an injunction against husbands pronouncing
instant triple talaq on their wives.

Earlier Case:

Mohd. Ahmed Khan v. Shah Bano Begum commonly referred to as the Shah
Bano case, was a controversial maintenance lawsuit in India, in which the
Supreme Court delivered a judgment favouring maintenance given to an aggrieved
divorced Muslim woman. Then the Congress government, panicky in an election
year, gave in to the pressure of Muslim orthodoxy and enacted a law with its most
controversial aspect being the right to maintenance for the period of iddat after the
divorce, and shifting the onus of maintaining her to her relatives or the Waqf
Board. It was seen as discriminatory as it denied right to basic maintenance
available to non-Muslim women under secular law. (Details given in Maintenance
chapter)

Recent Cases:

1. A case of triple talaq has been registered at Savadatti police station, the first in
Karnataka since the Parliament passed the Muslim Women (Protection of Rights
on Marriage) Act 2019, which bans divorce by triple talaq.

2. On 24 August 2019, a man has been arrested in Uttar Pradesh's Muzaffarnagar

district for allegedly divorcing his wife by pronouncing the word 'talaq' thrice, a
practice which has been criminalised, police said on Saturday.

3. Maharashtra registered its first case, with Mumbra police booking a Vikhroli
resident for allegedly sending his wife a triple talaq message on WhatsApp

HE ON-GOING CONFLICT OF OPINIONS

OPPOSITION TO TRIPLE TALAQ:The practice faced opposition from
Muslim women, some of whom filed a public interest litigation in the Supreme
Court against the practice, terming it "regressive‖. The petitioners asked for section
2 of the Muslim Personal Law (Shariat) Application Act, 1937, to be scrapped,
describing it as being against Article 14 of the Constitution (equality before the
law).

Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, states:
2. Application of Personal law to Muslims.—Notwithstanding any custom or usage
to the contrary, in all questions (save questions relating to agricultural land)
regarding intestate succession, special property of females, including personal
property inherited or obtained under contract or gift or any other provision of
Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian,
khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust
properties, and wakfs (other than charities and charitable institutions and
charitable and religious endowments) the rule of decision in cases where the
parties are Muslims shall be the Muslim Personal Law (Shariat).

Article 14 of the Indian constitution states:

14. Equality before law The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth.
SUPPORT OF TRIPLE TALAQ
Triple talaq has been supported by the All India Muslim Personal Law Board
(AIMPLB), a nongovernmental body that supervises the application of Muslim
personal law. It believes that the State does not have the right to intervene in
religious matters.
AIMPLB issued a code of conduct in April 2017 regarding talaq in response to the
controversy over the practice of triple talaq. It also warned that those who divorce
for reasons not prescribed under shariat will be socially boycotted in addition to
calling for boycott of those who use triple talaq recklessly and without
justification9. In addition, it also stated that it should be delivered in three sittings
with a gap of at least one month each.

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE)

BILL, 2009 :

ill, 2019 was

introduced in Lok Sabha by the Minister of Law and Justice, Mr. Ravi Shankar
Prasad on June 21, 2019. It replaces an Ordinance promulgated on February 21,
2019.

ectronic form,
to be void (i.e. not enforceable in law) and illegal. It defines talaq as talaq-e-biddat
or any other similar form of talaq pronounced by a Muslim man resulting in instant
and irrevocable divorce. Talaq-ebiddat refers to the practice under Muslim
personal laws where pronouncement of the word ‗talaq‘ thrice in one sitting by a
Muslim man to his wife results in an instant and irrevocable divorce.

Offence and penalty: The Bill make declaration of talaq a cognizable offence,
attracting up to three years‘ imprisonment with a fine. (A cognizable offence is one
for which a police officer may arrest an accused person without warrant.) The
offence will be cognizable only if information relating to the offence is given by:

(i) the married woman (against whom talaq has been declared), or

(ii) any person related to her by blood.

ail
may be granted only after hearing the woman (against whom talaq has been
pronounced), and if the Magistrate is satisfied that there are reasonable grounds for
granting bail.

woman (against whom talaq has been declared). Compounding refers to the
procedure where the two sides agree to stop legal proceedings, and settle the
dispute. The terms and conditions of the compounding of the offence will be
determined by the Magistrate.

Allowance: A Muslim woman against whom talaq has been declared, is entitled
to seek subsistence allowance from her husband for herself and for her dependent
children. The amount of the allowance will be determined by the Magistrate.

Custody: A Muslim woman against whom such talaq has been declared, is
entitled to seek custody of her minor children. The manner of custody will be
determined by the Magistrate.
Shayara Bano vs Union of India – Triple Talaq
Background

The Muslim Law classifies Divorce into the following categories i.e.

A. By the Death of the Husband

B. By the Act of the Parties

I. By the Husband

1. Talak

2. Talak-us-sunnat: a. Ahsan

b. Hasan : i. Talak-ul-Biddat

3. Ila (Vow of continence)

4. Zihar (Injurious Comparison)

II. By the wife

Talak-e-Tafwid (Delegated Divorce)

III. By Mutual Consent

1. Khula (Redemption)

2. Mubarat(Mutual Freeing)

IV. By Judicial Process

1. Lian (Mutual Imprecation)

2. Faskh(Judicial Annulment)

All the above stated types of Divorce are valid in Islamic law however, it is Talak-
ul-Biddat which is the issue of controversy. This is known as Tripe Talaq which
was challenged before the SC in this case. Talak-ul-biddat is although banned in
Shias.However, in Hanafi School is thought as sinful but is practiced by a large
Muslim community who follow Hanafi school. In this type of Talaq the Husband
does not follow the approved form of Talaq i.e. talaq-ul-sunnat and he neither
waits for iddat period nor to the abstention from sexual intercourse. This was an
escape route developed by the Islamic patriarchal society to avoid their marriage.

In this form of Divorce husband repudiates his wife by three divorces in one
sentence. The biggest problem with this type of talaq is that it is one of irrevocable
nature unlike its counterparts.

This immediate appeal was filed in the apex court by ShayaraBanoa victim of this
demonic practice. She claimed the enforcement of the Fundamental Rights
mentioned under Article 14. In the mean-time there were numerous petitions
challenging the same issue therefore, SC clubbed all the petitions in one and heard
it. Various NGO‘s and even union government was supporting the cause.

Issue

1. The validity of triple talaq.

2. Whether Triple Talaq is an essential religious practice?
Judgment

The Supreme Court laid down this judgment on August 22, 2017 in 3:2 majority
holding the practice of Triple Talaaq unconstitutional. The majority judgment was
written by Justice Nariman for himself and on the behalf of Justice Lalit, while
Justice Joseph concurred by the majority opinion Chief Justice Kehar for himself
and on behalf of Justice Nazeer wrote the minority opinion. While the majority
upon lengthy discussion came to the conclusion that Triple Talaq is not an
essential religious practice but minority bench found this practice to be an essential
religious practice.

Under Article 25 of the Constitution the state cannot take away the essential
religious practice of a person. Therefore, if a practice which is arbitrary and not an
essential religious practice it will be hit by the exception laid down u/a 25.
Therefore, the whole issue was whether or not the practice is an essential religious
practice of Islam.

Therefore, as per majority it was held that the Triple Talaqor Talaq-e-biddatis not
protected by the exception laid down in Article 25 i.e. the court found the said
practice not an essential element of Islamic religion. The court justified its point of
view in the sense that although it si practiced by the Hanafi School but it is
considered sinful in it. Triple Talaqis against the basic tenets ofQuoran and
whatever is against Quoranis contrary to Shariat therefore, what is bad in theology
cannot be good in law. The majority bench relied on its earlier decision Shamim
Ara which held that this practice of Triple Talaq is against both theology and law
and just because it is followed by a large number of people it cannot be validated.
Therefore, such practice is declared unconstitutional and set aside.

Article 25 in it carries the right of every person to freely practice and propagate
any religion of choice and such practice is only restricted in the context of the
following exceptions:

1. Public Order
2. Health
3. Morality
4. Other Provisions of Part III of the Constitution
Although the said practice has no relevance to the first three exceptions but the
said practice is surely against other provisions of Part III namely Article 14. The
said practice is in violation of the Fundamental Right of equality since it is against
the rights of women as they have no say in the declaration of divorce unlike in
other religions. Nariman & Lalit JJ. held that the impugned practice is a tool by
which marital tie can be broken on whims of Husband without any attempt of
reconciliation to save it. This form of Talaq therefore, is in violation of Article 14
and liable to be struck down by the courts.

What is an essential religious practice? It depends on the background, history and

tenets of the religion. If some practice is not prohibited then it does not necessarily
mean that such practice is an essential religious practice. Essential religious
practices are those on which the religion is founded upon. Essential religious are
those which are fundamental to the profession and propagation of the religion. If
taking away of a practice causes a substantial change in the religion then such
practice can be called as ‗an essential religious practice.‘ Only such practices are
protected in Article 25(1). The usurpation of religious practices through state
intervention will result in violation in rights mentioned in Article 25(1) & not with
the usurpation of circumstantial and non-essential practices. The fact that majority
of Islamic countries have done away with the said practice also reflects that the
said practice is not one which will be called as an essential religious practice.

However, Justice Khehar, writing the minority opinion held that such practice is an
essential religious element of Islam. The Minority bench of the court justified this
stance on the ground that this practice is followed by a large population of people.
Since this practice has the sanction of religious denomination and followed by an
overwhelming majority of Muslim population, the said practice is declared to be
constitutional and an essential religious practice.

Justice Kehar was, as far as the exceptions mentioned in Article 25(1) of the
Constitution, of the opinion that the impugned practice is not violative of any of
these exceptions since Shariat or Muslim Personal law is not based on any state
legislative action.

Critical Analysis

The Triple Talaq judgment is widely appreciated throughout the jurisdictions as a

protection shield against the social evil such as this practice promoted. The
majority bench on the face of it criticized the government for not making relevant
laws to prohibit such a regressive practice. This act allowed the husband to end the
marital tie on his whims and fancies, thereby making the life of the women hell.
The Muslim women have since many years demanding the protection from such a
regressive and bad practice and finally it was the apex court which gave them the
appropriate remedy.

Justice Nariman at the outset said that as soon as he would find any violation of
Fundamental Right, he will strike down the practice. There was no question that
the said practice was an essential religious practice or notsince majority of Islamic
nations have already banned the practice & in India only Hanafi School practices
it. Therefore, it cannot be said that the practice is one of religious importance. The
majority finding the said practice in violation of Article 14 as well as of the
exceptions laid down in Article 25(1) struck down the regressive act with 3:2
majority. The bench observed that merely because the practice is widespread and
continuing from time immemorial it cannot be held as an essential religious
practice. Hinduism also after finding Sati Pratharegressive removedit from the
religion. Sati was also practiced widespread and practiced since time immemorial.
Therefore, the court arrived at a very correct judgment.

The majority started its judgment by the phrase ―what is bad in theology cannot be
good in law‖. This statement makes it clear the stance of the majority bench on the
impugned act. One does not need to dwell down into the details and should
understand that if Triple Talaqhad been a essential religious practice of Islam then
in that case it would not have been banned in almost all Islamic nations. Further,
the said practice is only practiced in Hanafi School who itself considers it sinful.
Therefore, the majority bench correctly held such practice as unconstitutional.

The minority judgment written by CJ Kehar on the behalf of himself and Justice
Nazeer was flawed in every aspect. The hon‘ble judges should have considered
that fact that

Firstly, an essential religious practice would not have been banned by the Islamic
nations.

Secondly, an essential religious practice cannot be stated as sinful by the religion

itself.

Thirdly, merely because one community of the religion follows the practice, then
such practice cannot be termed as an essential religious.

The minority bench ignored the atrocities that are committed by the said practice.
It is the duty of the courts to dispense justice and the courts should not be deterred
by mere technicalities in dispense justice. The minority judgment is per
incuriam as the judges said that however bad the practice be, if it is an essential
practice it cannot be struck down. The whole reasoning of the minority bench is
irrational, unfair and unjust. If the two judges have also ruled in the favor of
majority the impact would be altogether different.

However, thanks to the justified reasoning provided by the majority bench India
finally did away with the regressive and backward practice of Triple
Talaqor Talaq-e-biddat.

Conclusion
After so many abortive attempts finally, a petition filed by ShayaraBano, Ishrat
Jahan, Aafreen Rehman, Gulshan Parveen was successful in bringing justice to
many unheard voices of India. The majority decision restored the trust that the
common people possesses for the institution of Judiciary. The judgment proved
that the democratic notions such as equality, liberty etc. would not bend down
against any philosophy even if it is a religion. The courts finally brought justice to
those women who have been a victim of Triple Talaq. Men after enjoying and
extracting pleasure out of women used to abandon them easily by the virtue
of Triple Talaq. Now, after the pronouncement of the judgment the situation has
changed and made such incidents impossible.

No husband can now abandon his wife by ending marital tie on his whims and
fancies. The court ensured that the ideas of equality especially gender equality is
not a mere theoretical ideology. However, the opinion of minority bench worries
the nation. If the Chief Justice of India is giving primacy to practices such as Triple
Talaq ignoring the widespread atrocities, then there is some serious rethink
required by the Judges of the apex court.

Shamim Ara v. State of U.P. & Anr

Shamim Ara v. State of U.P. & Anr. is a family law case decided by the Supreme
Court of India in 2002. In 1979, petitioner Shamim Ara filed suit against her
husband, Abrar Ahmad, alleging that he deserted and failed to support her. Ahmad
responded, in 1990, that he was under no obligation to support Shamim Ara
because he had divorced her in 1987 via triple ṭalāq (unilateral repudiation). The
primary legal issue was at which point, if any, Ahmad‘s ṭalāq took effect: 1) it took
effect upon his first utterance in front of witnesses but outside his wife‘s presence,
2) it took effect when he informed Shamim Ara in writing in 1990, or 3) neither
action constitutes a valid divorce. The Court held for the third option, concluding
that ṭalāq outside of the wife‘s presence and delivered to her later by writing is so
inequitable to Muslim wives as to be without legal sanction. This Note analyzes
how the Court‘s reasoning to this conclusion "judicializes" Islamic divorce by
requiring this previously private proceeding to be approved by the courts before
validation.
ANALYSIS
While the specific legal issue before the Court was the technical one of when the
parties‘ divorce may take effect, the bulk and primary significance of the Court‘s
discussion consists of dicta regarding the place of ṭalāq and other elements of
Islamic family law in the twenty-first century. Judge R.C. Lahoti, who wrote the
decision, was troubled by the very existence of unilateral divorce, citing "eminent
jurists" generally as condemning "[s]uch liberal view of ṭalāq bringing to an end
the marital relationship between Muslim spouses and heavily loaded in favour of
Muslim husbands."
Seeking additional justification in the authorities for this interpretation of Islamic
divorce law, Lahoti quoted Judge V.R. Krishna Iyer in A. Yousuf Rawther v.
Sowramma, AIR 1971 Kerala 261 (India): "The view that the Muslim husband
enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with
Islamic injunctions," for "in the absence of serious reasons, no man can justify a
divorce, either in the eye of religion or the law." The historical record is somewhat
more complicated than Iyer‘s sweeping statement. It is true that Muslim jurists did
not traditionally consider divorce a desirable occurrence; "[t]he message the jurists
wished to urge upon men was that they should not resort to ṭalāq unless there is a
compelling cause, and even when such a cause appears to exist, they should
proceed with caution."
However, this normative disapproval of arbitrary ṭalāq did not extend to the
outright prohibition suggested by this Court‘s statements. Rather, men who
overcame normative pressures not to divorce their wives were not "queried as to
their motives" because "husbands were generally seen as having no interest in
repudiating their wives without a good cause." Far from being a repugnant last
resort, divorce seems to have been fairly common in medieval and early modern
Islamic society, and "the role of the courts was mainly confined to putting an
official stamp on the settlements brought before them," rather than poring over the
separation‘s merits. This benefit of the doubt directly contradicts Iyer‘s statement
in A. Yousuf Rawther that "the husband must satisfy the court about the reasons for
divorce."
Lahoti‘s and Iyer‘s interpretation of the judiciary‘s role in divorce under Islamic
law, while apparently unorthodox, takes its context from both judges operating at
the tail end of a long period of changes to how courts apply Islamic law. In the area
of divorce, modern colonialist reforms—in India‘s case, from the British—
removed much of the flexibility and negotiating power accorded to Muslim wives
under traditional Islamic legal interpretations, all while "a husband‘s unilateral
right to divorce at will...remained unquestioned." In this way, "the cultural industry
of modernity...made [ṭalāq] a morally repugnant instrument" that "came to
symbolize, on the one hand, the tyranny of the Eastern male and, on the other, the
wretched existence of the Muslim female." This limited view surfaces in Shamim
Ara when the Court approvingly quoted Judge V. Khalid in Mohammed Haneefa
v. Pathummal Beevi, 1972 K.L.T. 512 (India): "[S]hould Muslim wives suffer this
tyranny [ṭalāq] for all times? Should their personal law remain so cruel towards
 these unfortunate wives? Can it not be amended suitably to alleviate their
sufferings? My judicial conscience is disturbed at this monstrosity." The Court
in Shamim Ara shared Khalid‘s disturbed conscience but took it a step further than
in Mohammed Haneefa by using this discomfort as justification for changing the
law of divorce.
In Shamim Ara, the Court formulated a new standard for ṭalāq: "The correct law
of ṭalāq as ordained by the Holy Quran is that ṭalāq must be for a reasonable cause
and be preceded by attempts at reconciliation." While it is the Court‘s prerogative
to make equitable judgments and set new interpretations based on changing social
mores, it is disingenuous for Lahoti to claim that this definition of
legitimate ṭalāq—only for cause and after mandatory attempts at reconciliation—is
"ordained by the Holy Quran." Regardless of the merits of such a practice, records
of divorce proceedings in medieval Islamic society illustrate "[t]he absolute right
of husbands to disband the marriage contract at will," upheld
by qāḍīs (judges) who "were generally reluctant to intrude more assertively in the
domestic sphere, where the word of the husband was supposed to reign supreme."
Additionally, while reconciliation and mediation before divorce were "normative"
in medieval Islamic law, they were not mandatory for ṭalāq to take effect. Under
the Court‘s holding in Shamim Ara, "the court has been made indispensable, for it
has appropriated the exclusive right to execute ṭalāq" and to set the conditions for
doing so, including a prior reconciliation attempt.

Giving the courts—an arm of the government—the authority to grant or withhold

divorce accomplishes two objectives. First, it further consolidates state power by
creating another tool by which state agents may regulate private lives. Second, it
tautologically brings marriage and divorce into the category of "public matters,"
since that is what they must be if the state has the authority to regulate
them. Shamim Ara‘s significance lies in its "judicialization" of divorce, transferring
Muslims‘ family law from the private to the public sector and, in so doing,
removing an essential aspect of its Islamic legal character.
Masroor Ahmed v. Delhi (NCT) 2008

Facts:

 The petitioner and complainant‘s marriage were solemnised on 2nd April 2004 in
accordance with Muslim rites. After living together till 8th April 2005, according
to the complainant, she was thrown out of her matrimonial home on account of
non-fulfillment of dowry demands for which she complaint to the crime against
women cell. It was alleged by the petitioner that towards the end of October 2005
 he attempted to reconcile with the complainant. On her reluctant attitude, he
became angry and uttered the word “talaq‖ to his wife in presence of his brother-
in-law and another man. Admittedly, the factum of purported talaq was not
communicated to the complainant.
 On 23rd June 2006, the petitioner filed a suit for restitution of conjugal rights in
the court of Senior Civil Judge, Delhi. The purported talaq was not mentioned in
the plaint. On 13th April 2006, the judgment was passed by the court, it stated
that “the matter has been settled between the parties and the defendant is ready
to join the company of the plaintiff“.
 A second nikah was performed between the petitioner and the complainant on 19th
April 2006, and later once again there was discord between them, and petitioner
pronounced talaq (again) on 28th August 2006, and they lived separately. The
complainant filed a complaint before the crime against women cell on 6th
September 2006. Alleging that she got to know about the talaq (October 2005)
during the inquiry. The complainant alleged that the factum of the complaint was
not known to her and her signature was taken on the pretext that the documents had
to be filled in court as a formality. According to the complainant, the petitioner and
complainant had sexual intercourse on 13th April 2006 and 19th April 2006 when,
according to law, he was not her husband. She filed her written complaint with
regard to alleged rape committed during 13th April 2006 and 19th April 2006 and an
FIR under section 376 IPC was registered on 12th December 2006.

Lower Court Decision:

The petitioner was originally seeking bail in respect of FIR No. 871 dated on
12th December 2006 registered at police station Preet Vihar under Sec 376 of
IPC before session court. As petitioner had not disclosed the factum of talaq, either
to the complainant or to the court, in his suit for restitution of his conjugal rights
his bail application was dismissed by the session court. An appeal was made by the
petitioner to the High court

Issues:

 Whether the purported talaq of October 2005 was valid?

 Could high court exercise power under Sec 482 of CrPC?

Judgement:

The court ordered that the FIR stands quashed and all pending proceedings
emanating from the said FIR also stand quashed.
Key Law Points:

1. Was the purported talaq of October 2005 valid?

No,

The purported talaq was invalid. As established in Shamin Ara v. State of U.P.[1],
that the attempt at reconciliation must precede the pronouncement of talaq itself.
The attempt at reconciliation which is recommended under Shariat has been
assigned a key role by Supreme Court. Baharul Islam J. Of the Gauhati High
Court held in one of the cases, “an attempt at reconciliation by two relatives –
one each of the parties, is an essential condition precedent to talaq“.

In M.M. Abdul Khader v. Azeea Bee[2], it was held that the talaq pronounced in
absence of the wife would be invalid but, it would be effective only on the date the
wife comes to know of the pronouncement of talaq by her husband. In the present
case, it was never communicated to the complainant, at least not by the relevant
period (i.e., till 13th or even by 19th of April 2006)

2. Whether power under Sec 482 of CrPC be exercised by the High Court?

Yes,

The court observed that the settlement between the petitioner and the complainant
would itself have been sufficient for this court to exercise its inherent powers to
put an end to the FIR as the settlement between them brings end to the legal
matrimonial battles. In R.P. Kapur v. State of Punjab[3], the Supreme court
summarized some categories of cases where inherent power of the High Court can
and should be exercised to quash the proceedings. The case falls under the
category where the allegations in first information report or complaint was taken at
its face value and accepted in their entirety do not constitute the offence alleged.

3. Could rape charges be framed in this case?

No,

The exception in Sec 376 of IPC becomes applicable and, consequently, the
offence of rape is not made out. No case of rape can at all be made out in view of
exception ―exception. – Sexual intercourse by a man with his own wife, the wife
not being under fifteen years of age, is not rape.‖
4. What is the effect of the second nikah of 19.04.06?

It was not necessary,

Since the marriage was subsisting, the second nikah between them would be of no
effect. However, had purported talaq of October 2005 been valid, it would have
operated as single evocable talaq and it would have been permissible for the couple
to re-marry. In that case, the second nikah would have been effective and valid.
And then, presumption of consent just prior to the marriage would be available to
the petitioner.

Muslim Law of Maintenance

(Q) Nurjahan and her two children aged 3 years and 1 years, were turned out of
the matrimonial home by Mohammed. Not able to maintain herself and her two
children, Nurjahan claimed maintenance under Section 125 of CrPC.

Pending litigation, Mohammed divorced Nurjahan and pleaded that as per section
3 of the Muslim (Protection of rights on Divorce ) Act, 1986, his liability to
maintain Nurjahan is limited to Idat period and to his second child till he attains the
age of two years. Decide in the light of judicial interpretation of Section 3 of the
said act. [2018(8)(i)]

(Ans:Nurjahan can get maintenance under CrPC 125,detail given below)

(Q) Can a Muslim women claim right to separate residence on the ground of her
husband taking a second wife? Support your answer with judicial decision.
[2018(8)(iv)]

Answer: Yes; if a husband has more than one wife, each of them can claim a
separate apartment and refuse to live with another wife. Under such circumstances
she can claim separate maintenance and also the dissolution of marriage if the
husband fails to provide it for her.(Details given below)
Maintenance (nafaqah) to Women under Muslim law
Nafaqah means maintenance or provision for support. According to Hedaya,
Nafaqah includes ‗all those things which are necessary to the support of life, such
as food, clothes and lodging.

‘ The social role assigned to man and woman by Islam within the family emanate
from one simple but profound reality that the two are equal but of dissimilar nature
and the social harmony demands no similar role from both.

In the sphere of rights and obligations Islam maintains a balance, it is not like a
pro-male or pro-female law. In short, it is pro-humane and balanced. Hence if the
husband fails to provide adequate maintenance provision for wife, she can lawfully
refuse to live with the husband. Similarly if the wife refuses or fails to live with the
husband, the latter is no longer bound to support her.
Maintenance to Wife

The husband has to maintain his wife during the subsistenance of marriage and
during the period of wife‘s Iddah. It makes no difference whethere the wife is a
Muslimah or kitabiyah, rich or kitabiyah, rich or poor, young or old, and virgin or
otherwise. It shall be due even when intimacy is not possible with the wife due to
her old age etc. If consummation of marriage is not possible solely on account of
some defect in the husband, maintenance is incumbent on him. Thus wife shall be
entitled to get her maintenance even when the husband is impotent or too ill to be
intimate with her. If the husband is a minor then maintenance shall be realized
from his property if he has any or from his father if he has undertaken the liability
for the payment of same.

It is the absolute right of the wife that the husband should maintain her even when
he is destitute while she is earning.

If a wife leaves her husband‘s home against his wishes, a refractory wife, an
unchaste wife and also a wife who apostises, loses her right to maintenance. A wife
shall not become disentitled to maintenance when it is the conduct of the husband
that forces her to leave him and live apart from him.

Again if a husband has more than one wives, each of them can claim a separate
apartment and refuse to live with another wife. Under such circumstances she can
claim separate maintenance and also the dissolution of marriage if the husband
fails to provide it for her.

Further she will retain her right to maintenance even on apostacy provided she
converted to a revealed religion, that is christainity or Judaism.

Widows Maintenance

Under Islamic law a widow is an heir to the husband and succeeds to a part of his
estate. Besides Quranic directive is to the effect of one year maintenance for her
under an obligatory bequest of the husband. It provides;

Consequences of non-maintenance:

If she fails to get maintenance, the Qadhi can authorize her to raise a loan on the
husbands credit for her support. The wife can also use such portion of her
husband‘s property as may be necessary, even without an order by the Qadhi.

On the husbands failure to maintain his wife for a considerable time the marriage
can be dissolved; however because of poverty or any other cause not under his own
control, it is advisable not to dissolve the marriage but to live with cooperation and
tolerance.

Arrears of Maintenance: Where maintenance has been decreed by the Qadhi or

husband has agreed to that, the wife can claim arrears of maintenance. But the
arrears of maintenance can also be claimed even without a Qadhis order. The wife
can release the husband from payment of past arrears but not from future
obligation. The release for the future shall be effective for only the next one month.

Divorcee’s Maintenance

A divorcee will be entitled to maintenance during iddat period in the following

situations [according to Fatawa-i-Alamgiri]:

a. The wife has sought separation on just grounds

b. The third person has become the cause of separation as in lian c. The husband
has become apostate

d. The husband has had intercourse with the wife‘s mother

e. The wife got marriage dissolved because of the husband‘s impotency

f. The minor wife repudiated marriage by exercise of option of puberty

g. The marriage was dissolved on the ground of option of ghaiyer

kafu (inequality)

h. The marriage was dissolved through khul

The cases enumerated by the Fatawa-i-Alamgiri in which maintenance is not

payable to the divorced women are:

a. The marriage has been dissolved because of the wife‘s defects b. The wife was
divorced because of her refractoriness

c. The apostate wife even if having returned to faith during iddat d. When the right
of wife to maintenance had already got suspended during marriage for some cause

The period of iddat will be counted from the moment the wife has been divorced or
the divorce has been granted. It will continue during the time three regular
consecutive menstruation periods of the divorced woman are over. In case of a
pregnant woman it will continue upto delivery of the child or till the termination of
pregnancy. Where a wife has been divorced in her absence she would be entitled to
maintenance until she becomes aware of the divorce and for three months after the
information reaches her.

Maintenance agreements: A wife may secure a valid agreement from her

husband to give her separate maintenance in proper cases as:

I. ill-treatment
II. dis-agreement
III. her not being able to get on with another wife of the husband
IV. he would maintain her in the house of her parents or
V. any such agreement as may be but not against public policy

In view of this principle agreement for (kharcha-e-pandan) personal allowance

are valid.

But any agreement for future separation providing that the husband would give
some maintenance to the wife in the event of future separation at the instance of
the wife is opposed to public policy and void. Likewise an agreement in the
marriage contract that the wife would not be entitled to maintenance is void.
But an agreement would be valid if a condition to that effect is made in the
event of khul or mubara.

Maintenance of Divorcee under, The Muslim Women

(Protection of Rights on Divorce) Act, 1986

For better understanding of Maintenance of Divorcee under, The Muslim

Women (Protection of Rights on Divorce) Act, 1986, we have to discuss the
maintenance of wives under Cr.P.C.

Maintenance of wives under Cr.P.C

Under section 125-128 of Cr.P.C, 1973, an order of maintenance can, therefore

be passed in favour of a wife, if:

a. the wife is unable to maintain herself

b. the husband has sufficient means

c. the husband has neglected or refused to maintain her

d. the wife had not refused to live with the husband except for a sufficient
cause.

e. The husband having contracted a second marriage or keeping a mistress and

the wife refusing to live with him

f. The wife not living in adultery

g. The husband and wife not living separately by mutual consent

h. The wife has not remarried after the dissolution of marriage. Under Islamic
law, it may be noted again, a wife is entitled to maintenance irrespective of her
financial position. A Muslim who has sufficient means of her own to support
herself can, therefore, not claim maintenance under the provisions of the new
code, but she can agitate her claim under Muslim Law in a civil court.
Under the code, even a divorced woman is entitled to claim maintenance from
her husband. Any order regarding maintenance of such a divorced woman can
be cancelled in the following circumstances:

a. If the wife remarries after divorce

b. The woman has been divorced by her husband, and that she has received,
whether before or after the date of such divorce, the whole of the sum, which
under any customary or personal law applicable to the parties was payable on
such divorce.

c. The woman has obtained the divorce from her husband and that she has
voluntarily surrendered the right to maintenance after divorce. A plain reading
of section 127(3)(b) of Cr.P.C shows that if the husband has paid off either
before or after the date of order under sec.125, the sum which is already
payable by the husband to the wife under any customary or personal law of the
parties, the Magistrate, if satisfied about it, shall cancel the order, passed by
him. However, this provision has been the subject of conflicting interpretations.

The Supreme Court for the first time, was faced with the question of the
construction of sec. 127(3)(b),

In Bai Tahira vs. Ali Hussain, AIR 1976 SC 362; In this case the husband Ali
Hussain divorced his wife in 1962. A compromise was made in respect of
properties and the amount payable to her by way of Mahr and Iddat money. A
clause in the compromise deed provided:

―The plaintiff declares that she has now no claim or right whatever against the
defendant or against the estate or properties of the defendant.‖

But after coming into force of the code,1973, she claimed maintenance under
section 125.Krishna Ayer. J. made the following observations:

―Payment of Mahr money as customary discharge is within the cognizance of

that provisions, sec.127(3)(b).The key thought is adequacy of payment which
will take reasonable care of her maintenance. The payment of illusory amounts
by way of customary or personal law requirement will be considered in the
reduction of maintenance rate but cannot annihilate that role unless it is
reasonable substitute…The whole scheme of section 127(3)(b) is manifestly to
recognize the substitute maintenance arrangement by lump sum payment
organized by the custom of the community or the personal law of the parties.
There must be a rationale relation between the sum to be so paid and its
potential as provision for maintenance, to interpret otherwise is to stultify the
project…The proposition, therefore is that no husband can claim under section
125 towards a divorced wife except on proof of payment of a sum stipulated by
customary or personal law whose quantum is more or less sufficient to do duty
for maintenance allowance.‖

Thus the conflict between the Islamic law and code of 1973, was sought to be
resolved by the insertion of clause (b) to sub section (3) of section 127, through
its judgement in Bai Tahira.

In Ishak Chandra vs. Myamatbi & Ors., 1980 Cr.L.J 1180 (Bomb), some
significant issues came for consideration: (i).Whether the provisions of section
125 are inconsistent with the provisions of the Shariat Act, 1937;

(ii).whether Shariat Act,1937 being a special law should prevail over the
general provisions of the new code.

It was held: ‖The Muslim Personal Law, (Shariat Act, 1937) does not lay down
any special rules but merely lays down certain norms or rules as regards
applicability of Muslim Personal law to Muslims. Under section 125 of the
Cr.P.C has granted an additional rights to a divorced Muslim woman for
receiving maintenance allowance even beyond the period of iddat…The
additional benefit or right does not conflict with the right which is already
conferred upon her under Muslim Personal Law. In these circumstances the
Shariat Act or any other Personal Law cannot control the said right nor the
provisions of the said Act can be imported into section 125 of the Cr.P.C for
defeating the right conferred by section 125.‖

It is submitted that the view that there is no conflict between the provisions of
Muslim Personal Law and section 125, is not correct. The court has limited its
logic to only one aspect of the problem, that is, the right of woman, saying that
conferring the additional right is not in conflict with the principles of Islamic
law. The court has failed to look into another important aspect, that is, the
liablility of the husband. The husband under Islamic law is under no obligation
to maintain his divorced wife beyond Iddat while under section 125 he is bound
to maintain her even beyond iddat.

Mohd. Ahmad Khan vs. Shah Bano Begum, AIR 1985 SC 945; Explaining
the scope of the provisions of section 125, Y.Y.Chandrachud, C.J. who wrote
the judgement for the Constitution Bench of five judges, observes: ―We are not
concerned here with the broad and general question whether a husband is liable
to maintain wife, which includes a divorced wife, in all circumstances and at all
the events, that is not the subject matter of section 125. That section deals with
cases in which a person who is possessed of sufficient means neglects or refuses
to maintain, amongst others, his wife unable to maintain herself. Since the
Muslim Personal Law, which limits the husbands liability to provide for the
maintenance of divorced wife to the period of Iddat, does not countenance the
situation envisaged by section 125 it would be wrong to hold that the Muslim
husband according to his personal aw, is not under an obligation to provide
maintenance, beyond the period of iddat, to his divorced wife who is unable to
maintain herself…‖

The Supreme Court made an attempt to prove that this view is in consonance
with Quranic provisions; below mentioned;

―For divorced woman maintenance (should be provided) as reasonable. This is

a duty on the righteous.‖ [Quran 2:241] ―Thus doth God made clear his signs to
you: in order that you may understand.‖ [Quran 2:242]

The main objections raised against the approach of Supreme Court were based
on the following grounds:

1. The Islamically unqualified persons could not take up the task of interpreting
the Quran into their own hands.

2. The judges have misinterpreted the Quranic provisions against the Spirit of
Islamic Concept of marriage.

3. Even if there is some need for gearing up the Islamic law to meet the present
day circumstances, it could be accomplished through Ijtihad by the Muslim
Community itself.
The Muslim Women (Protection of Rights on Divorce) Act, 1986 No sooner
the Supreme Court pronounced the decision in Shah Bano Case there came the
demand from the Muslim Community to undo the effect of the same. The Govt.
of India soon realizing the gravity of the situation introduced a Bill in the
Parliament, to make a separate law for the protection of Sharia, which
ultimately led to the Muslim Women (Protection of Rights on Divorce) Act,
1986.

The provisions of the Cr. P.C. relating to maintenance of women whose

marriage is subsisting, children and parents, continue to apply to Muslims even
after the enforcement of the present Act. The deserted wives, children and
parents can still take the benefit of the provisions of sections 125-128 of Cr. P.
C that provide a speedier remedy for the problems of non-maintenance. The
application of the Act 1986 is, therefore, limited only to the matters regarding
rights of Muslim women on divorce.

The Act, pursuant to this definition, applies only to women married according
to Muslim law and not to those Muslim women married according to any other
law like Special Marriage Act, 1954. Similarly, the Act, 1986 applies only to
those Muslim women whose marriage has been dissolved in accordance with
the Muslim Law.

Section 3 of the Act, 1986, provides that on Divorce a woman shall be entitled
to:

a. A reasonable and fair provision and ,maintenance to be made and paid to her
within the Iddat period by her former husband.

b. Where she herself maintains the children born to her before or after her
divorce, a reasonable and fair provision and maintenance to be made and paid
by her former husband for a period of two years from the respective date of
birth of such children.

c. An amount equal to the sum of mahr or dower agreed to be paid to her at the
time of her marriage or at any time thereafter according to Muslim law; and
d. All the properties given to her before or at the time of marriage or after her
marriage by her relatives or friends or husband or any relatives of the husband
or his friends.

Section 5 of the Act, provides that if a divorced woman and her husband declare
by affidavit or by any declaration in writing, either jointly or separately, that
instead of the Muslim Women Act, 1986, they would prefer to be governed by
the provisions of sections 125- 128 of Cr.P.C , same provision shall be applied
to them.

Danial Latifi vs. U.O.I, (2001) 7 SCC 740; in this case a writ petition under
Article 32 was made challenging the constitutional validity of the Act,1986.
The petitioners contention was that by making section 125 of the Cr.P.C
inapplicable to the Muslim Women, discriminates against them. The argument
was that section 125 Cr.P.C gave protection to all women irrespective of their
religion. Then came the Act of 1986, with he ‗inevitable effect to nullify the
law declared by the Supreme Court in Shah Bano.‘ In conclusion it was held:-
1. A Muslim husband is liable to make reasonable and fair provision for the
future of the divorced wife which obviously includes her maintenance as well,
extending beyond the iddat period; and must be made by him within the iddat
period, in terms of section 3(1)(a) of the Act.

2. His liability under section 3 to pay maintenance is not confined to iddat

period.

3. A divorced Muslim Woman, not remarried and unable to maintain herself

after iddat period can proceed, under section 4 against her relatives who are
liable to maintain her in proportion to the properties which they would inherit
from her. If none of them is liable to maintain her, the magistrate may direct the
State Wakaf Board to pay.

4. Provisions of the Act do not offend Articles 14, 15 & 21 of the Constitution.

In Shabana Bano vs. Imran Khan, 2009 STPL (web) 251 SC; appellant
Shabana Bano filed a petition under section 125 Cr.P.C. Preliminary objections
were raised by the respondent that appellant has already been divorced on
20.8.2004 in accordance with the Muslim Law. Thus, under the provisions of
 Muslim Women (Protection of Rights on Divorce) Act, 1986, appellant is not
entitled to any maintenance after divorce and after the expiry of the iddat
period.

The Supreme Court observed, ‗we respectfully abide by what has been stated
therein…we have carefully analysed the same and come to the conclusion that
the Act actually and in reality codifies what was stated in Shah Bano’s
case…Cumulative reading of the relevant portions of judgments of this court in
Danial Latifi and Iqbal Bano would make it crystal clear that even a divorced
Muslim woman would be entitled to claim maintenance from her divorced
husband, as long as she does not remarry. Thus being a beneficial piece of
legislation, the benefit thereof must accrue to the divorced Muslim woman.‘
Further it was said that ―even if a Muslim woman has been divorced, she would
be entitled to claim maintenance from her husband under section 125 of the
Cr.P.C after the expiry of period of iddat also, as long as she does not remarry.‖

Mohd. Ahmed Khan v. Shah Bano Begum and Others (1985 AIR 945)

Background :

Section 125(1) of the Criminal Procedure Code deals with answers to the

question as to “Who can Claim Maintenance?”

1. Wife from his husband,

2. Legitimate or illegitimate minor child from his father,
3. Legitimate or illegitimate minor child (physical or mental abnormality)
from his father, &
4. Father or mother from his son or daughter.

Essentials conditions for granting maintenance include the following points:

 1. Sufficient means for maintenance are available (person who has to give
the maintenance should have means to give the same).
2. Neglect or refusal to maintain after the demand for maintenance ( if the
person defaults or omits to provide maintenance or if he denies his
obligation of maintaining then it amounts to neglect or refusal
respectively).
3. The person claiming maintenance must be unable to maintain
himself/herself (only if the person is unable to maintain themselves).
4. Quantum of maintenance (depends on the standard of living).

Facts of the Case

Mohd Ahmed Khan (the appealing party) who was a lawyer by profession, married
to Shah Bano Begum (the respondent) in 1932, had three sons and two daughters
from this marriage. In 1975, when Shah Bano‘s age was 62 years, she was
disowned by her spouse and was tossed out from her marital home together with
her children. In 1978, she filed an appeal in the presence of Judicial Magistrate of
Indore, because she was abandoned from the maintenance of Rs. 200 per month,
which was guaranteed to be provided by him. She demanded Rs. 500 per month as
maintenance. Subsequently, the husband gave her irrevocable triple talaq on
November 6th, 1978, and used it as a defence to not pay maintenance. The
magistrate, in August 1979, directed the husband to pay an entirety of Rs 25 per
month as maintenance. Shah Bano in July 1908 made a plea to the High Court of
M.P, to change the sum of maintenance to Rs. 179 each month, and high court
increased the maintenance to the said amount i.e. Rs. 179 per month. The same
was challenged by the spouse within the Supreme Court as a special leave petition
to the High court‘s decision.

Issues:

1. Criminal Procedure Code (II of 1974), Section 125. Whether the

―WIFE‖ definition includes a divorced Muslim woman?
 2. Criminal Procedure Code (II of 1974), Section 125. Whether it
overrides personal law?
3. Criminal Procedure Code (II of 1974), Section 125. Whether a
Muslim husband‘s obligation to provide maintenance for a
divorced wife is in or not in the conflict between section 125 and
Muslim Personal Law?
4. Criminal Procedure Code (II of 1974), Section 127(3) (b). What
is the sum payable on divorce? The meaning of Mehar or dower
is not summed payable on divorce?

Judgment

 The verdict was given by C.J, Y.C Chandrachud, and the appeal of Mohd.
Ahmed Khan was dismissed.
 Supreme Court said Section of the code applies to all citizens independent
of their religion and consequently Section 125(3) of Code of Criminal
Procedure is pertinent to Muslims as well, without any sort of
discrimination. The court further stated that Section 125 overrides the
personal law if there is any conflict between the two It makes clear that
there‘s no strife between the provisions of Section 125 and those of the
Muslim Personal Law on the address of the Muslim husband‘s obligation
to provide maintenance for a divorced wife who is incapable to maintain
herself.
 Supreme Court in this case duly held that since the obligation of Muslim
husband towards her divorced wife is restricted to the degree of ‖ Iddat‖
period, indeed though this circumstance does not contemplate the rule of
law that‘s said in Section 125 of CrPc., 1973 and subsequently the
obligation of the husband to pay maintenance to the wife extends beyond
the iddat period in the event that the wife does not have sufficient means
to maintain herself. It was further stated by the court that this rule
according to Muslim Law was against humanity or was wrong because
here a divorced wife was not in a condition to maintain herself.
  The payment of Mehar by the husband on divorce is not sufficient to
exempt him from the duty to pay maintenance to the wife.
 After a long court procedure, the Supreme Court finally concluded that
the husbands‘ legal liability will come to an end if a divorced wife is
competent to maintain herself. But this situation will be switched in the
case when the wife isn‘t able in a condition to maintain herself after the
Iddat period, she will be entitled to get maintenance or alimony under
Section 125 of CrPC.

 Either Section 125 of the Code applies to Muslims and does the
“WIFE” definition includes a divorced Muslim woman or not?

The SC after referring to Section 125 of CrPC said that “The religion professed by
a spouse or by the spouses has no place within the scheme of these provisions. It
would be irrelevant within the application of these provisions if the spouses are
Hindus, Muslims, Christians, Parsis, pagans, or heathens. The rationale for this can
be self-evident, in the sense that Section 125 is a part of the CrPC, not of the Civil
Laws which define and govern the rights and commitments of the parties
belonging to specific, religions, similar to the Hindu Adoptions and Maintenance
Act, the Shariat, or the Parsi Matrimonial Act. Section 125 was enacted to provide
a fast and summary remedy to a category of persons who are unable to maintain
themselves…‖ (Para 7)

―Clause (b) which is the Explanation to section 125(1), which defines ‗WIFE‘ as
including a divorced wife, contains no words of limitation to justify the exclusion
of Muslim women from its scope. Section 125 is truly secular in character.‖ (Para
7)

Hence, the code applies to any or all religions including Muslims.

Para 9 of the judgment asserts that “‘Wife‘ means a wife as defined, irrespective of
the religion professed by her or by her husband. Therefore, a divorced Muslim
woman, unless remarried, is a ‗wife‘ under section 125 of the code. The statutory
right available to her under it is unaffected by the provisions of the personal law
applicable to her.‖

This clears the very fact that “Wife” includes divorced women too.

 Either Section 125 of CrPC overrides personal law or not?

The Court in replying to the present question gave the illustration of the Islamic
Law concerning polygamy: It is too well-known that “A Mahomedan may have as
many as four wives at the same time but not more. If he marries a fifth wife when
he has already four, the marriage isn‘t void, but is irregular‖. Subsequently, the
court stated ―The explanation confers upon the wife the right to refuse to live
together with her husband if he contracts another marriage, leave alone three or
four other marriages. It shows, indubitably, that section 125 overrides the
personal law if is any there conflict between the two.‖

 Is there’s any disagreement between the provisions of Section 125

and those of the Muslim Personal Law on the liability of the Muslim
husband to provide for the maintenance of his divorced wife?

Answering this proposition court stated- “The argument of the appellant that,
according to the Muslim Personal Law, his liability to provide for the maintenance
of his divorced wife is prescribed only to the period of iddat, even if she is unable
to maintain herself, has, therefore, to be rejected. The true position is that, if the
divorced wife can maintain herself, the husband‘s liability to provide maintenance
for her ceases with the expiration of the period of iddat. If she is unable to maintain
herself, she is entitled to take recourse to section 125 of the CrPC. The result of
this discourse is that there‘s no strife between the provisions of section 125 and
those of the Muslim Personal Law on the question of the Muslim husband‘s
commitment to providing maintenance for a divorced spouse who is unable to
maintain herself.‖
  Is the payment of Mehar by the husband on divorce is adequate
enough to exculpate him of any obligation to pay maintenance to the
wife?

Quoting the ruling given in Bai Tahira where Justice Krishna Iyer held that “…The
payment of illusory amounts (referring to ‗Mehar‘) by way of customary or
personal law requirement is to be considered within the reduction of maintenance
rate but cannot annihilate that rate unless it‘s a reasonable substitute.‖ (p.82, Bai
Tahira), the SC in this case held ―…there is no escape from the conclusion that a
divorced Muslim wife is entitled to apply for maintenance under section 125 and
that, Mehar isn‘t a sum which, under the Muslim Personal Law, is payable on
divorce.‖

Aftermath

Article 44 of the Directive Principles in the Constitution, directs the state to

provide for its citizens a Uniform Civil Code throughout the territory of India. C.J
Chandrachud while giving judgment stated the need to implement the same. He
said ―A common civil code will help the cause of national integration by removing
disparate loyalties to laws which have conflicting ideologies. A beginning has to be
made if the Constitution is to have any meaning.‖ This simulated the debate on the
Uniform Civil Code in India.

Shah Bano‘s case judgment was criticized by many Muslims especially Muslim
scholars. They considered this decision in conflict with the rules of the Quran and
Islamic Laws/Islam. Subsequently, the Parliament of India in 1986 decided to
enact the Muslim Women (Protection Of Rights Of Divorce) Act, 1986. Protecting
the rights of the divorced Muslim Women and or those who have got divorced
from their husbands, were the main objective of this act. Under this act:

 Muslim divorced women ought to be entitled to an adequate and

reasonable sum of maintenance till the Iddat period.
  When a divorced woman keeps up a child born by her anytime, sometime
recently or after the divorce, the spouse is under a legal obligation to
supply a certain whole of maintenance for the child to a period of 2 yrs.
 From the birth date of a child. The women are also authorized to get
―Mehar‖ or ―dower‖ and get back all the properties or estate which is
given to her by her guardians, companions, relatives, husband, or
husband‘s friends.

Conclusion

Though the court took a long time the decision of rejecting the appeal is very
historic because it keeps up the truth and faith of the individuals in the judiciary.
This judgment has marked the significance of maintenance which ought to be
given to the divorced Muslim women who are not in the condition to earn and
maintain themselves. The Shah Bano judgment pulled in a lot of opposition with
authoritative bodies being against the decision for the reason of it being against the
provisions of Islamic law, but SC passed the impartial judgment and at last, it had
maintained the trust and faith of citizens in the judiciary. This lead to enactment of
the Muslim Women (Protection of Rights on Divorce) Act, 1986 which given
Muslim women receiving a huge, one-time payment from their husbands amid the
period of Iddat, instead of a maximum month to month payment of ₹500 – an
upper limit which has since been expelled.

Danial Latifi v. Union of India (2001) 7 SCC 740

Facts: The case follows its interest from the famous case of Mohd. Ahmed Khan v.
Shah Bano Begum, commonly known as the Shah Bano case. Shah Bano, a
Muslim mother of five, aged 62 years, from Indore, Madhya Pradesh, was
separated (divorced) by her husband in 1978. She then lodged a criminal case
under Section 125 of the CrPC, after appealing in Supreme Court of India, she got
the right to alimony. But later, she was denied her right, when the Parliament of
India overturned the judgment by enacting the Muslim Women (Protection of
Rights on Divorce) Act, 1986 (hereinafter referred to as the Act). This Act watered
down the Supreme Court decision and, it even denied alimony, to those women
who are unable to maintain themselves, from her previous husband. According to
Sec 3(1)(a) of the act, a divorced woman is entitled to reasonable and fair
provisions, and maintenance within the ‗iddat‘ period, in this manner, denying the
subsequent and future maintenance to such wives from their divorced husbands.
Muslim lady was left to be kept up on the hands of their family members after the
iddat period. In this way, the constitutional validity of the Act was challenged
before the Supreme Court in this case (Danial Latifi) through a writ petition.

Petitioners contended that the Act is unconstitutional and infringing Article 14, 15,
and 21. As the exclusion of Muslim women from S. 125Cr.PC results in
discrimination between women and women, which is like treating equals as
unequal. Already there is the gender injustice caused in the country, but this
further leads to outraging a law declared by the Supreme Court in Shah Bano‟s
case. Thus, there is a violation of equality before the law and equal protection
of laws, and by leaving the wife in poverty, it is an infringement of Art. 21, as
well as basic human values.

Key Law Points:

1. Whether a Muslim husband is liable to make reasonable and fair provision
extending beyond the iddat period in terms of Sec. 3(1)(a) of The Muslim
Women (Protection of Rights on Divorce) Act, 1986?

Yes.

The husband is bound to make and pay maintenance to the wife, and if he
fails to do so, then the wife is entitled to recover it by filing an application
before Magistrate. After careful reading provisions of the Act, it is clear that
divorced women shall be entitled to a reasonable and fair provision and
maintenance to be made and paid to her within the iddat period by her former
husband.

Therefore, it was stated by the Court that, Parliament seems to intend that the
divorced woman gets sufficient means of livelihood after the divorce and, thus, the
word provision indicates that something is provided in advance for meeting some
needs in the future. At the time of divorce, the Muslim husband is required to
contemplate the future needs and make preparatory arrangements in advance to
meet those needs. Reasonable and fair provisions may include provisions for her
residence, food, clothes, and other articles. If he fails to do so, then the wife is
entitled to recover it by filing an application before the Magistrate as provided in
Sec. 3(3) of the act. Still, nowhere the Parliament has provided that reasonable and
fair provision and maintenance is limited only for the iddat period and not beyond
it. It would extend to the divorced wife‘s whole life unless she gets married for a
second time.

2. Whether the Muslim Women (Protection of Rights on Divorce) Act, 1986, is

unconstitutional in light of Article 14, 15, and 21 of the Constitution of India,
1950?

No.

The Magistrate has been conferred with power to make appropriate provision
for maintenance and, therefore, what could be earlier granted by the
Magistrate u/s. 125, CrPC, 1973 would now be given under very Act itself.

Court further observed that this Act could be construed in two ways, first, that the
Parliament seems to intend that the divorced woman gets sufficient means of
livelihood, after the divorce & the period of iddat and second if the wife is not
entitled to maintenance after the iddat. Therefore, it is clear that on the first rule of
construction, which is permissible, the Act remains effective and operative. The
Court will prefer this on the ground that Legislature does not intend to enact
unconstitutional laws. Therefore, the interpretation placed by us results in
upholding the validity of the Act. It is well settled that by an appropriate reading of
enactment, the validity of the Act can be upheld, such interpretation is accepted by
courts and not the other way.

This being position, Act cannot be held to be unconstitutional – That Act actually
and in reality, codifies what was stated in Shah Bano‘s case.

3. Whether a husband under Muslim law is exempted from any responsibility

towards his divorced wife beyond the payment of any mahr due to her and an
amount to cover maintenance during the iddat period and Sec. 127(3)(b) of
CrPC, 1973?

If a divorced wife can maintain herself, then the husband‘s liability ceases with the
expiration of the iddat period. But divorced Muslim women who have not
remarried and is unable to maintain herself after the iddat, then she is entitled to
file an application u/s Sec.4 of the Act against her relatives, who are liable to
maintain her in proportion to the properties, which they would inherit on her death
according to Muslim law from such divorced woman, including her children and
parents. If any of the relatives being unable to pay maintenance, the Magistrate
 may direct the State Wakf Board established under the Act to pay such
maintenance.

Essential Observations of the Court:

1. The distinction between ‗provision‘ and ‗maintenance‘ has to be made. The

provision would mean that the Muslim husband is required to contemplate and
fulfill the future needs of his wife, and he has to make the preparatory
arrangements in advance for meeting those needs. The reasonable and fair
provision includes the provision for her residence clothes, food, etc.
2. The word ‗within‘ used in S. 3(1)(a) of the Act should be read as ―on or before, not
beyond.‖ Therefore, this provision would mean that on or before the expiration of
the iddat period, the husband is bound to make provision and pay the maintenance
to the wife. Such responsibility of the husband would extend to the whole life of a
woman unless she remarries.
3. Court also observed that if we see Sec. 3(1)(a) r/w S. 3(3) of the 1986 Act, the
Muslim divorced women‘s right to provision and maintenance has been subjected
to the condition of husband having sufficient means. In contrast, the Muslim
personal law makes it an unconditional obligation of the husband to provide
maintenance to the wife till the iddat period expires. Therefore, it appears contrary
to Muslim Law as well as Shah Bano‘s case.

Conclusion: The Court interpreted it as two obligations: (1) to make reasonable

and fair provision and (2) to pay maintenance.

Ultimately, the Court found that the 1986 Act requires a Muslim husband to
provide maintenance of a reasonable and fair amount needed to maintain his ex-
wife for the rest of her life, but that he must pay this amount in total during the
iddat period.

Rana Nahid and Ors. v. Sahidul Haq

1. Two revision petitions have been filed assailing the order passed by the Family
Court, Ajmer on 10.12.2008.

2. Smt. Rana Nahid (petitioner in revision No. 295/2009 and respondent in revision
No. 221/2009) preferred an application under Section 125, Cr.P.C. seeking
maintenance. While hearing the application, Family Court found that application
under Section 125, Cr.P.C. is not maintainable thus invoked the provisions of
Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for
short ‗the Act of 1986‘) and awarded a sum of Rs. 3,00,000 to the wife-Smt. Rana
Nahid towards maintenance apart from maintenance to son.

3. Learned Counsel for petitioner-husband-Dr. Shahidul Haq Chisti, in other

revision petition has assailed the order mainly on the ground that as per provisions
of Section 3 of the Act of 1986, an application can be maintained before the
competent Magistrate, but contrary to aforesaid. Family Court entertained the
application treating it to be under Section 3 of the Act of 1986, and passed the
impugned order which is per se illegal being without jurisdiction. The prayer is,
accordingly, to set aside the impugned order to the extent of awarding maintenance
to Smt. Rana Nahid.

4. Learned Counsel for respondent-wife-Smt. Rana Nahid submits that the ground
taken by learned Counsel for petitioner husband is hyper technical as it would
defeat very purpose for which the Act of 1986 has been brought. Family Court
exercised its jurisdiction under Section 3 in view of the judgment of the Apex
Court in the case of Iqbal Bano v. State of Uttar Pradesh & Ors, Therein, it was
held that while hearing an application under Section 125, Cr.P.C. if it is found to
be not maintainable then a Magistrate can exercise jurisdiction under Section 3 of
the Act of 1986. In the light of the judgment of the Apex Court, there is no error in
the order. It is prayed that maintenance allowed to the wife-Smt. Rana Nahid is on
lower side thus the same may be enhanced. Alternatively, if it is found that an
application under Section 3 of the Act of 1986 can be maintained before the
competent Magistrate thus Family Court had no jurisdiction to pass the impugned
order then wife-Smt. Rana Nahid may be given liberty to file application under
Section 3 of the Act of 1986 before the competent Magistrate within two months.

5. I have considered rival submissions of learned Counsel for the parties and
perused the record of the case besides the judgment cited at the Bar.

6. The question involves in the present case is as to whether an application moved

under Section 125, Cr.P.C. before the Family Court can be converted as an
application under Section 3 of the Act of 1986. To deal with the aforesaid
arguments, it would be gainful to quote Section 3 of the Act of 1986:
―3. Mahr or other properties of Muslim woman to be given to her at the time of
divorce—(1) Notwithstanding anything contained in any other law for the time
being in force, a divorced woman shall be entitled to—

(a) a reasonable and fair provision and maintenance to be made and paid to her
within the period of Iddat by her former husband;

(b) where she maintains the children born to her before or after her divorce, a
reasonable provision and maintenance to be made; and paid by her former husband
for a period of two years from the respective dates of birth of such children—

(c) an amount equal to the sum of Mahr or dower agreed to be paid to her at the
time of her marriage or at any time thereafter according to Muslim Law; and

(d) all the properties given to her before or at the time of marriage or after the
marriage by her relatives, friends, husband and any relative of the husband or his
friends.‖

(2) Where a reasonable and fair provision and maintenance or the amount of Mahr
or Dower due has not been made or paid or the properties referred to in Clause (d)
of Sub-section (1) have not been delivered to a divorced woman on her divorce,
she or any one duly authorised by her may, on her behalf, make an application to a
Magistrate for an order for payment of such provision and maintenance, Mahr or
Dower or the delivery of properties, as the case may be.

(3) Where an application has been made under Sub-section (2) by a divorced
woman, the Magistrate may, if he is satisfied that—

(a) her husband having sufficient means, has failed or neglected to make or pay her
within the iddat period a reasonable and fair provisions and maintenance for her
and the children; or

(b) the amount equal to the sum of Mahr or Dower has not been paid or that the
properties referred to in Clause (d) of Sub-section (1) have not been delivered to
her, make an order, within one month of the date of the filing of the application,
directing her former husband to pay such reasonable and fair provision and
maintenance to the divorced woman as he may determine as fit and proper having
regard to the needs of the divorced woman, the standard of life enjoyed by her
during her marriage and the means of her former husband or, as the case may be,
for the payment of such Mahr or Dower or the delivery of such properties referred
to in Clause (d) of Sub-section (1) to the divorced woman:

Provided that if the Magistrate finds it impracticable to dispose of the application

within the said period, he may, for reasons to be recorded by him, dispose of the
application after the said period.

(4) If any person against whom an order has been made under Sub-section (3) fails
without sufficient cause to comply with the order, the Magistrate may issue a
warrant for levying the amount of maintenance or Mahr or Dower due in the
manner provided for levying fines under the Code of Criminal Procedure, 1973 (2
of 1974) and may sentence such person, for the whole or part of any amount
remaining unpaid after the execution of the warrant, to imprisonment for a term

which may extend to one year or until payment if sooner made, subject to such
person being heard in defence and the said sentence being imposed according to
the provisions of the said Code.

7. The facts of this case show that application under Section 3 of the Act of 1986
has been entertained by the Family Court in the light of the judgment in the case of
Iqbal Bano. The Court below failed to take correct interpretation of the judgment
in the case aforesaid. Certain paras of the aforesaid judgment are referred
hereunder:

―(1) In the present appeal the appellant questions correctness of the order passed by
a learned Single Judge of the Allahabad High Court dismissing her revision
petition (Criminal Revision No. 1161 of 1995). The appellant had questioned
correctness of the order passed by learned Additional Sessions Judge, Aligarh,
setting aside the order dated 7.7.1994 passed by the learned Judicial Magistrate,
Aligarh. By the said order dated 7.7.1994 learned Judicial Magistrate had accepted
the prayer for grant of maintenance filed by the appellant in terms of Section 125
of the Code of Criminal Procedure, 1976 (in short ‗Cr.P.C.‘). She directed
respondent No. 2 to pay a monthly maintenance of Rs. 450 to the appellant.

(3) The learned Magistrate held that there was no material to substantiate the plea
of divorce and accordingly—maintenance was granted. Order was challenged by
filing a revision befor the learned Additional Sessions Judge. Stand of the
respondent was that after enactment of the Muslim Women (Protection of Rights
on Divorce) Act, 1986 (in short the ‗Act‘), petition under Section 125, Cr.P.C. was
not maintainable. It was also stated that not only in the reply to the notice, there
was mention about the utterance of the word ―Talaq‖ ―Talaq‖ ―Talaq‖, there was
mention in the written statement also, amounting to divorce. Learned Additional
District and Sessions Judge accepted the plea. He held that after the enactment of
the Act, petition by any married Muslim woman under Section 125, Cr.P.C. is not
maintainable. Such woman can claim maintenance under the Act and not under the
Cr.P.C. It was further held that mention was made in the written statement about
the divorce purportedly 30 years back and the mentioning about this fact in law
amounted to divorce. Accordingly, order of the learned Magistrate was set aside.
High Court dismissed the writ petition summarily observed as follows: ―Heard
leaned Counsel for the revisionist. The learned Additional District and Sessions
Judge has committed no illegality in modifying the order passed by the Magistrate
in declining the maintenance after the date of divorce. The revision has got no
force. It is dismissed accordingly.‖

(9) Proceedings under Section 125, Cr.P.C. are civil in nature. Even if the Court
notices that there was a divorced woman in the case in question, it was open to him
to treat it as a petition under the Act considering the beneficial nature of the
legislation. Proceedings under Section 125, Cr.P.C. and claims made under the Act
are tried by the same Court. In Vijay Kumar Prasad v. State of Bihar and Ors.,
2004 (5) SCC 196, it was held that proceedings under Section 125, Cr.P.C. are
civil in nature. It was noted as follows:

―14. The basic distinction between Section 488 of the old Code and Section 126 of
the Code is that Section 126 has essentially enlarged the venue of proceedings for
maintenance so as to move the place where the wife may be residing on the date of
application. The change was thought necessary because of certain observations by
the Law Commission, taking note of the fact that often deserted wives are
compelled to live with their relatives far away from the place where the husband
and wife last resided together. As noted by this Court in several cases, proceedings
under Section 125 of the Code are of civil nature. Unlike Clauses (b) and (c) of
Section 126(1) an application by the father or the mother claiming maintenance has
to be filed where the person from whom maintenance is claimed lives.‖

8. The perusal of aforesaid paras reveals that application under Section 125 of
Cr.P.C. was maintained before the Magistrate, who is otherwise competent to hear
the application under Section 3 of the Act of 1986 also. In those circumstances,
only a direction was given as is clearly coming out from para 9 of the aforesaid
judgment. The case in hand does not contain the same facts as herein the
application under Section 125 of Cr.P.C. was made before the Family Court and
not before the Magistrate. However, this distinguishing fact could not be noticed
by the learned Family Court while entertaining the application under Section 3 of
the Act of 1986. The judgment in the case of Iqbal Bano is applicable only when
the application under Section 125 of Cr.P.C. is filed before the Court, which can
even entertain an application under Section 3 of the Act of 1986.

9. In view of the discussion made above, I find that the order dated 10.12.2008
passed by the learned Family Court deserves to be set aside to the extent,
maintenance has been awarded to Smt. Rana Nahid. However, remaining part of
the order whereby maintenance has been awarded to the son-Mohd Adnan is
maintained, challenge to aforesaid has not been pressed.

10. Accordingly, revision petition filed by husband-Shahidul Haq Chisti (revision

petition No. 221/2009) is partly allowed. Impugned order dated 10.12.2008 passed
by the learned Family Court is set aside to the extent, maintenance has been
awarded to Smt. Rana Nahid. However, remaining part of the order whereby
maintenance has been awarded to the son-Mohd Adnan is maintained.

11. So far as revision petition filed by wife-Smt. Rana Nahid (revision petition No.
295/2009) is concerned, the same cannot be entertained for enhancement of
maintenance as the order of the Family Court dated 10.12.2008 has been held to be
without jurisdiction so far maintenance has been granted to Smt. Rana Nahid. The
revision petition is, accordingly, dismissed.

12. Petitioner Smt. Rana Nahid would however be at liberty to file an application
under Section 3 of the Act of 1986 before the competent Magistrate and, if such an
application is filed, the competent Court will decide the matter without being
influenced by the order passed by this Court herein. So far as the amount of Rs. 1
lakh already paid to Smt. Rana Nahid is concerned, same would be kept by her
subject to final outcome of the application under Section 3 of the Act of 1986, if
made by Smt. Rana Nahid within a period of two months from today. It is made
clear that if no application is filed by Smt. Rana Nahid within the aforesaid period,
she would return the amount of Rs. 1 lakh to the petitioner-husband-Shahidul Haq
Chisti within a period of one month thereafter.

Revision Petition partly allowed.