MUSLIM LAW

There are 4 sources of Muslim Law- (i) Quran (primary sources called as Al-furqan) (ii) Hadis (iii) Sunna (iv)
ijma. These are compiled as shariat (the path to be followed).
There are 5 pillars of Islam (i) shahada (faith) (ii) salah (prayer) (iii) zakat ( charity) (iv) sawm ( fasJng) (v) hajj
(pilgrimage).
In the case of a Muslim it can be seen by 3 ways that whether a p(person is a Muslim or not-
1. By birth – where both the parents are Muslim the court shall presume that the child is a Muslim
unless contrary is proved.
2. By birth where only one of parent is Muslim – as per shariat such a child will also be a Muslim but
as per Skinner v. Order 1871 chid is presumed to be belonged to the religion of the father. However,
as per other judgements the bringing of the child maUers to consider whether he is a Muslim or not
( should be preferred)
3. By conversion to Islam – there are 2 ways to convert to Islam i.e. public declaraJon or mosque.
Secondly, he can go to a mosque, read kalma( Shahada) that is the declaraJon of faith and State,
they should be at least two witness to tesJfy conversion and aVer that a cerJficate of conversion is
given by Molana. Furthermore, he has to change to a Muslim name and entries made in the register
of converse. AVer that a public declaraJon is made in the official gazeUe.
a. Narantakath vs. Prakkal 1922 Madras High Court- held that to be a Muslim two things are
needed
1. Believe that Allah is one
2. Prophet hood of the Mohamad
If the person ge^ng converted has a malafide intenJon then he can be stopped from ge^ng converted but
only through social or religious pressure because arJcle 25 of the consJtuJon guarantees freedom or
religion. ArJcle 25 gives two things i.e. freedom to profess any religion if you have genuine faith and relief.
Secondly pracJces of the religion not obligatory and subject to public morality, health, public order. Once
the person has converted new religion cannot taken away from him rather socio religion measures like
fatwah can be issued to prohibit him from taking benefit of Islam for polygamy.
Khurshid Ahmad Khan vs. State of UP 2015 Supreme Court
Polygamy is not an essenJal pracJce of Islam it was held that what was protected under ArJcle 25 was
religion faith but not pracJce. PracJse is subjected to public order, health or morality. Further, polygamy is
not integral part of the religion and monogamy is a reform that is in the power of State.
Bhaiya Sher Bahadhur vs. Bhaiya Ganga Baksh Singh
It was held that wherein either of the parent is a Muslim and the child has been bought up as a
Muslim then court may presume that child is also a Muslim but burden of proof will remain on the person
who alleges his fact.
PYQ.1996,2013 A HINDU EMBRACES ISLAM AND REMARRIES. HIS HINDU WIFE ALSO REMARRIES. IS HER REMARRIAGE
VALID? ALSO COMPARE THE POSITION OF A MUSLIM WIFE IN SIMILAR CIRCUMSTANCES.
Sarla Mudgal vs. Union of India 1995
Following quesJon were raised in the Supreme Court
QuesJon no. 1: What is the effect of conversion of a Hindu Husband upon his earlier Hindu marriage?
Answer: Supreme Court said the conversion by a Hindu Husband does not affect the exisJng Hindu
marriage per se. Rather at the most the earlier Hindu wife will get a right to divorce under secJon 13(1)(2)
of Hindu marriage Act 1955. Since in this case earlier wife had not obtained divorce the marriage will be
deemed to be conJnuing.
QuesJon no. 2: What will be the nature of Second marriage which was a Muslim nikah aVer conversion?
Answer: Supreme Court said that the second marriage though contracted under the Muslim law where in
limited polygamy is allowed was contracted while having an existed Hindu wife. By the virtue of SecJon 5(1)
read with SecJon 11 and SecJon 17 of HMA. A second marriage by an apostate (convert would be void with
respect to his first wife who married him under Hindu Marriage Act and sJll conJnue to be a Hindu. The
Court also observe that no doubt the second marriage was performed as per Muslim law but it is void under
Hindu Law as it strictly professes monogamy. Also, such marriage is in violaJon of rules of natural jusJce.
QuesJon No. 3: Can one personal law prevail over the second personal law?
Answer: Supreme Court held that as per general rule if there is a conflict between two personal law that
neither of them can over ride the other but in the present case because Hindu marriage was solemnised
under the Hindu law first the legal rights and obligaJons were created in the favour of Hindu wife before he
husband converted to Islam. Therefore, even if the second marriage is valid per Muslim law it cannot be
the governing law and hence Hindu law is followed.
Lilly Thomas vs. Union of India 2000 Supreme Court
Supreme Court observed that freedom guaranteed arJcle 25 cannot encroach upon similar freedom of
another person. The other person also has right to entertain the religious belief of his choice and also to
exhibit his belief and ideals in such a way that it does not interfere with the religion and personal freedom
of someone else. “ A person who mockingly adopts another religion where plurality of marriage is
permiUed so as to renounce the previous marriage and desert the wife cannot be permiUed to take
advantage of his exploitaJon as religion is not the commodity to be exploited” Therefore, any person taking
contenJon of religion pracJce cannot be given the benefit of arJcle 25 and therefore would be liable under
secJon 494 of IPC for bigamy.
QuesJon: The marriage between A and B took place as per Hindu rights and ceremony but aVer that 8
develops inJmacy with C and both decided to get marriage aVer converJng to Islam. B filed the case against
A for bigamy.
Answer: The legal issued involved in this case is whether the act of A is punishable under SecJon 494 and
Secondly whether his second marriage is void. Under HMA a marriage cannot be dissolve expect on the
ground of SecJon 13. Conversion to Islam will not have an effect of automaJc dissoluJon of marriage under
HMA. The second marriage of the apostate is in contravenJon to HMA in Ram Kumari 1891 the Court
observed that there was no authority under Hindu Law that absolve the apostate from his or her Civil
obligaJon of the marital bond. In the Hindu law there is a doctrine of indissolubility of marriage which do
not recognise conversion to dissolve the marriage but gives the right of divorce to the opposite party under
SecJon 13(1)(2) Jll the Jme Hindu Marriage is dissolve none the spouses can contract second marriage by
any way because it is violaJve of secJon 5(1), 11, 17, 494(IPC) as discussed above in Sarla Mudgal case
second marriage is also violaJve of JusJce equity and conscience. In the present case A and B entered into
marriage as per Hindu Laws and converted to Islam to marry C. As per the rulings of Lily Thomas case such
second marriage is void and the first marriage has to be dissolved as per its personal law, only then one can
enter into a second marriage unJl this requirement is fulfil first marriage is presumed to be subsisJng. For
the instant issue that is punishable under 494 of IPC, second marriage is void as per HMA and because civil
obligaJon with respect to first wife who was a Hindu arose first Hindu marriage act will be followed even
though in general condiJons one personal law is not preferred over the other also IPC being a secular law
can over ride any of the personal laws. Same thing will be applicable on wife if she had converted instead of
husband.
The marriage of the Wife in quesJon is also void and not valid because aVer the conversion of husband a
right to divorce arose in her under secJon 13 but she never sued it. Hence conjoint reading of SecJon 17 of
HMA and SecJon 494 Indian Penal Code makes it void, illegal and punishable.
In Muslim Personal Laws if the husband converts then marriage is dissolved ipso facto therefor the wife is
free to remarry and so is husband. But if wife converts then there is no automaJc dissoluJon and husband
can marry only upJl 3 more Jmes, marriage with 5th wife will be void. However, under secJon 4 proviso, if
the wife was a non-Muslim and had converted for marriage only and now re-embraces her former religion
then marriage will get dissolved automaJcally. Therefore, both the husband and wife can remarry without
aUracJng 494 of Indian Penal Code.
PYQ 2009 DOWER
Dower is a mark of respect, security, and deterrent to Talaq. Dowers right arises on Nikah and it is not same
as maintenance because maintenance rights arise when husband refuse to maintain his wife. According to
Mulla, Dower is a sum of money or property which the wife is enJtled to receive from the husband in
consideraJon of marriage. In the case of Abdul Kadir vs. Salima 1886. It was said by the Court that even
where no dower is expressly menJoned or fix at the Jme of marriage the laws confers the right of dower on
the wife. If the wife right of dower is not paid then she can refuse to co-habit, file a civil suit or exercise the
right to lien. Dower is considered to be running parallel to the marriage and originate with the very act of
marriage. That is why it can be said that dower is not a condiJon for marriage rather it is a consequent of
marriage. In the case of Shah Banu Begum vs. Mohamad Ahmad Khan (1985) Supreme Court held that
dower is a mark of respect by the husband to wife because she has agreed to marry him. It is also a
guarantee of financial security to her and in some way put a restrained on the acts of husband against the
wife and his power to give her divorce. Hence the dower cannot be look from a limited perspecJve of being
a mere consideraJon of marriage because had it been so then the marriage without dower would be void
but it is not void and dower can be decided later on by husband and wife or the Court as the case may be.
JusJce Mehmood observed that the right of wife to her dower is a fundamental feature of marriage
contract and holds pivotal. The dower claim of the wife is in the form of unsecure debt upon which the
husband has not given any security or guarantee of property hence it can be said that the wife is unsecured
creditor and it is treated like she has given a loan to the husband without any guarantee. Hence, she will not
be given any preference against other unsecured creditors for example if the total assets of husband were
of 8 lakhs and there were no secure creditors but unsecured creditor were of 5 lakhs and unpaid dower of
wife was also 5 lakhs then both will get 4 lakhs each and no preference is given to wife. However, if the total
assets were more, then the balance can be wriUen in ‘will’ to the maximum of one third as a general rule. In
case there is charge on the property then she will on the same fooJng as a secure creditor. The charge can
be like a rent of the house etc.
PYQ 2009 DOWER V. STRIDHAN
In many well-off families, dowry has become a tool to deprive daughters of their righlul share with a car,
some gold and some furniture while the lion’s share including land, houses, and bank balances etc. are kept
exclusively for the benefit of sons. patriarchal parents oVen deprive their girl children of equal rights to
property. The parents should give the daughter’s share of property in her name voluntarily to ensure
financial security for an independent life, once she leaves her parental home for good. The word
’Streedhan’ has been derived from the words ‘Stri’ meaning a woman and the word ‘dhan’ means property.
Therefore, on combining these two words we get ‘property of woman’ her ‘Streedhan’. This is a concept,
which came down all the centuries from the Hindu SmriJs but has today, engulfed all forms of marriages in
all visible castes and regions. According to the age old SmriJs and all old schools of Hindu law it majorly
includes-
• The saudayika(giVs of love and affecJon) – giVs received by a woman from relaJons on both sides
(parents and in-laws).
• The non-saudayika– all other types of Streedhan such as giVs from stranger, property acquired by
self-exerJon, adverse possession, parJJon or the mechanical arts.
The bride has got an absolute, exclusive ownership over all her Streedhan, received during the marriage.
This includes both movable and immovable property, while she has the power to sell, alienate or give it
away as she pleases both during her lifeJme and thereaVer. Her husband and in-law’s family members have
no rights over a woman’s Streedhan. We need to understand that the marriage expenses and dowry are not
Streedhan. It has also been established by the courts that the ‘Streedhan’ property of a woman will not be
used to pay off debts taken by the husband and that this property cannot be proceeded against in an
execuJon of a husband.
It is usually pracJcal and preferable that any girl especially educated girls of today maintain a list of their
Streedhan has also become capable of looking aVer their own Streedhan in terms of its security such as
opening a bank locker in their single names for the purposes of storing jewellery and instruments of money,
property etc. or keeping it under their lock and key.
In the Supreme Court held that when the wife entrusts her Streedhan property with the dominion over that
property to her husband or any other member of the family and the husband or such other member of the
family dishonestly misappropriates or converts to his own use that property, or willfully suffers and other
person to do so, he commits criminal breach of trust under secJon 405 & 406 of Indian Penal Code. For
recovering the Streedhan, if a woman invokes SecJon 498-A, it would be deemed as miss-use of that
secJon unJl the ingredients laid down in that provision are not saJsfied. SecJon 498-A is meant to protect
the wives from physical and mental harassment for any reason including the reason of dowry demand.
The Hon’ble Supreme Court of India held that: “a Hindu married woman is the absolute owner of her
Stridhan property and can deal with it in any manner she likes and, even if it is placed in the custody of her
husband or her in-laws, they would be deemed to be trustees and bound to return the same if and when
demanded by her”. The Apex Court further explained that mere joint holding by a husband of the ‘Stridhan ’
property did not consJtute any legal partnership or co-ownership between the husband and his wife. The
court opined that a wife can file a civil suit under the S. 14 of Hindu Succession Act and under S. 27 of the
Hindu Marriage Act, if the husband declines to return the ‘Stridhan’ property of his wife.
SecJon 12 of the DomesJc Violence Act, 2005 provides for women right to her Stridhan in cases where she
is a vicJm of domesJc violence. The provisions of this law can be easily invoked for recovery of Stridhan .
Again, under secJon 18(ii) of the DomesJc Violence Act the law says that a woman is enJtled to receive
the possession of the Stridhan , jewellery, clothes and other necessary items.
Hence, it is totally different from the dower in Muslim Personal Laws or even the dowry demanded by
husband’s family.
FOR PRELIMS - PraJbha Rani Case is the landmark judgement of stridhan .
PYQ 1999 RIGHT TO LIEN REP 2003
(i) Widow's right of retenJon of husband's estate in lieu of dower. Whether this right is heritable or
transferable, or both ?
If no charge has been created by the husband in the favour of wife and husband dies, then she will have a
right of lien on the property of husband in lieu of her claim for dower provided that she has the possession
of such property here the possession can be actual or construcJve (like keys of the house). Akil Ahmad says
that right to lien can be exercised even when husband is alive(general rule). Lien in general sense means the
right to keep possession of the property belonging to someone else unJl the debt is waved or discharge by
the person. Right to lien is available only against the other legal hires of the husband and not against
outside creditors whether secure or unsecured. The other creditors can get such property sole to saJsfy the
debt and in such sale Muslim widow will have proporJonate claim like an unsecure creditor.
‘Right of retenJon’ in lieu of unpaid dower is an exclusive right of a widow and this right is available to her
only because her dower remains unpaid. Supreme Court in Kapore Chand v. Kadar Unnissa, the view taken
by Patna High Court is correct i.e. The right of retenJon is not transferable.
The ‘right of retenJon’ can be inherited by the legal heirs of the widow provided her own retenJon was
lawful and she died during such retenJon. The words of Mulla that “all that can now be said with certainty
is that the right to hold possession is heritable”.
The right to claim dower can broadly be classified upon Jme or amount. According to Jme it can be
deferred (MAHR- E- MUWAJJAL) or prompt MAHR-E-MUAJJAL.
According to amount it can be specified (MAHR-E-MUASSAMA) or unspecified/ proper/ customary(MAHR-E-
MISL).
Apart from them there is a ficJJous dower (MAHR-E-TALIJI) where Qazi has the power to reduce amount of
power.
In Shia two addiJonal dowers are provided (MAHR-E-TAFWIZ) amount decided aVer marriage by the parJes
or (MAHR-E-TAHKIM) amount decided by the Judge or arbitrator.
The remedy of resJtuJon of conjugal rights is not available in MPL but can be claimed under secJon of
family court Acts.
The wife gets the right of dower vested in her at the Jme of marriage even if there is no agreement
with respect to nature or amount. in a prompt dower the right to claim arises simultaneously and can be
claimed any Jme aVer the marriage. It has to be paid by husband immediately on demand and if the
marriage is not consummated. The wife can refuse co-habitaJon and also file a civil case. But if the marriage
was consummated then she cannot refuse co-habitaJon but if she sJll does the same husband will get the
right to file a suit for RCR under SecJon 7(1) read with explanaJon A of family courts act 1984. In this case
the wife will have a right to counter claim the dower amount on the basis of COA of being unsecured
creditor. Hence the courts will pass two orders the decree of RCR favouring husband and at the same Jme a
condiJonal order to provide the wife with dower amount as the general rule Bombay and Allahabad High
Court says that in a Sunni half dower is prompt and another half is deferred and in Shias the whole dower is
prompt CalcuUa High Court have a dissenJng opinion with says whole is prompt dower for both Sunnis and
Shias.
Sheik Abdula vs. Husnara Praveen 2012 Bombay High Court
Where there is a mutual consent that dower can be claimed upon fulfilment of condiJon or dissoluJon
(Death or Divorce) then it is a deferred dower even though right to claim dower got vested in the wife at
the very Jme of marriage. Even a prompt dower can be converted to deferred dower but not vice-versa if
both husband and wife are of the age of puberty(more than 50 years).
In the case of specified dower(MAHR-E-MUASSAMA, the dower is fixed either at the Jme of marriage or
thereaVer by mutual consent.
PYQ 1996 (D) MEHAR-I-MISAL
in the case of unspecified/ proper/ customary(MAHR-E-MISL). the amount is never fixed and it will be
decided as per the rule of “dower among her equals”.
1) TradiJon of dower in the wife families.
2) Personal qualificaJon of wife like her age beauty educaJon cooking skills etc.
3) Change in the facts and circumstances.
4) Economic and financial condiJon of the husband.(Akil Ahmad only)
In the Shia laws, Mehar-i-Misal should not exceed 500 dirhams.
Mahr is so necessary to the marriage that if it is omiUed in the Nikah Nama then the court presumes it to be
a mistake of contract.
PYQ 1998 RIGHTS OF A MARRIED WOMEN ON NON-PAYMENT OF PROMPT DOWER.
1. She has the Right to refuse co-habitaJon but Here H has the power to prove that marriage was
consummated by way of valid reJrement( Hanafi Sunni) which means that husband can prove the
circumstances aVer which it was possible to have a sexual intercourse with wife and the court will
presume that marriage was consummated. For other sects and Shia Muslim same presumpJon can
be raised under SecJon 114 of Indian Evidence Act but if there is a physical impediment (Paralysis/
Impotency, legal impediment (Hajj), Moral impediment (Menstrual cycle).
2. She has the Right to file civil suit: It can be filed even aVer or before the dissoluJon of marriage but
there is a limitaJon of 3 years. If the husband is alive then he is personal reliable and if he is dead
that his legal heirs has to pay.
3. She has the Right to lien: It is essenJal that wife was in lawful possession of the property when
husband died or divorce her if the husband is died and wife do not have any possession then she
cannot claim the possession from legal heirs since she has right only to lien that is conJnuing the
possession she is not owner of the property rather she has usufructuary rights that is enjoyment or
usage Jll her life but in a case where she was dispossessed of the possession by legal heirs or any
other person then she can file a case under SecJon 6 of SRA. She is also bound to maintain a book
of accounts for rent, profit, expenses if any made on the up-keeping on the property. She cannot
alienate the property by sale or giV. If she tries so, LR can file a case against her claiming the sale
deed to be void and also the possession of the property in dispute.
Maina Biwi vs. Chaudhary Vakil Ahmad 1924 Privy Council
The husband died in 1890 and wife was in lawful possession of husband property. In 1902 legal heirs of
husband filed the suit for possession of that property. Wife claimed that husband has giVed it to her and in
alternaJve she also claimed right of lien. The trial court in 1903 passed condiJonal order in favour of LR if
they pay the dower amount within 6 months. But the decree was not executed by LR. In 1907 wife giVed
the property to someone else. LR filed a new case for cancellaJon of giV and grant of possession and also a
declaraJon that they are ready to pay the dower amount. The main issue before the Court was whether at
the Jme of alienaJon the wife had absolute ownership of the property or not. Court held that wife was
having right to lien which means right to conJnue with possession only unJl dower is paid. She never can
be absolute owner rather ownership is with LR in their respecJve share also in the first decree of 1903 she
was not granted absolute ownership by the Court. Hence, she cannot have the right to transfer property to
anyone. Thus, the giV is void and LR will succeed in subsequent suit. They can be in back the possession of
the property because wife has voluntarily given up her possession and thereby lost right to lien. Now wife
has no claim on the possession of such property.
T. Ravi vs. VB Chinna 2017
A Muslim dies living behind wife and brother wife was in possession of property and hence had right to lien.
Wife subsequently sells whole of the property to saJsfy the debt. Supreme Court held that SecJon 2 of
transfer of property Act states that Chapter 2 will not apply to Muslim personal law. MPL has no provision of
doctrine of “Lis pendis” (during the pendency of the suit right to immovable property in quesJon cannot be
transferred) and hence TPA will apply. SecJon 52 of TPA provides that transfer made during the pendency of
suit is not void but subject to rights of parJes which are in dispute in the case. The pendente lite purchaser
would be enJtle to same legal rights and obligaJons of vender as will be decided by Court. Therefore, sale is
not void completely and is valid to the extent of share of wife. The court also observed that succession in
MPL in specific shares as tenant in common that is the shares are definite and subject to MPL which gets
vested in the property on death of Muslim. Where equity is in conflict with law, law will prevail as equity
can supplement the law but not over right it.
Kapoor Chand vs. Kadar Unnisa Begum 1950
It was held that as per Quran husband is obliged to give favourable treatment to wife and children but it
does not mean that wife claim will be given preference over others. But if husband is created a charge then
she can claim such preference. If a husband executes a deed in favour of wife giving her property rights of
land in lieu of dower then he must be in possession of such property. He cannot claim that he will in aVer
some Jme get the possession of the property.
In a case where wife was a convert to Islam and sued LR for recovery of dower but LR pleaded that
she was just a concubine(Mistress) and hence is not eligible for sale. Court held that marriage is valid if it
has been consummated and wife is enJtled to immediate payment of whole unpaid amount of dower. But if
such marriage was not consummated that she is enJtled only to half of the specified amount of dower.
PYQ 2006,2007, 2009,2013, 2015 APPLICABILITY OF SECTION 125 OF CR. P.C. TO MUSLIM AFTER THE ENACTMENT OF
MUSLIM WOMEN PROTECTION OF RIGHTS ON DIVORCE ACT 1986
Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556- (J5) -Before Y.V. Chandrachud, C.J.I
First issue before the Court was between dower and maintenance and it held that from the point of origin
dower originates at very incepJon of marriage but maintenance originates when husband start neglecJng
his wife. Maintenance is not a mark of respect rather a duty owing to implied undertaking of the marriage.
If the dower amount is not paid wife has the remedies as discussed earlier. While maintenance is generally
granted at the Jme of divorce. Some payable to wife as a mark of respect cannot be acquiUed to the some
payable to divorce. Second issue before the Court was that for maintenance can secJon 125 of CrPC apply
on Muslim Personal Laws because it gives a speedier method to get maintenance and is also secular in
nature. It held that if a Muslim wife is deprived of this provision then it will be violaJve of ArJcle 14 right to
equality of the ConsJtuJon. 125 only saves wife it means of any religion or even an atheist. Thirdly whether
the husband is required to maintain the divorced wife unJl the period of Iddat or even beyond that. Court
held that to apply SecJon 125 of CrPC wife has to prove (1) neglect by the husband for sufficient need (2)
inability to maintain herself (3) She has not re-married.
SecJon 125 Clause 1 read with explanaJon states that this statutory right is unaffected by any personal law
applicable on her. The maintenance provided by MPL during the period of Iddat does not prohibit CrPC and
hence CrPC enables wife to claim maintenance unJl she remarriage. Therefore, there is no conflict between
CrPC and MPL and even if there were CrPC being circular law and 125 being a social legislaJon would
prevail over Muslim Personal Laws . Its purpose is to prevent vagrancy( homelessness and desJtuJon) of
the wife.
But it is worth noJng that aVer the enforcement of Muslim Women (ProtecJon of Rights on Divorce) Act,
1986 the Muslim women were restricted to get maintenance under SecJon 125. In 1986 Act JMIC can try
and has a widest scope then 125 CrPC and also its speedier as it is disposed of in one month rather than 60
days.
Idris Ali Khan Vs. Khalin 1989 Guwahab High Court
Husband and wife were tried under SecJon 125 CrPC and a decision came on 1-March-1986. Wife filed the
execuJon peJJon but husband contended that as on 19.May.1986 the case should be decided as per 1986
Act and not CrPC . Since the execuJon peJJon is filed it means that husband right to appeal has ended and
the decree is finalized, also SecJon 7 clearly says that aVer commencement that is 19 May 1986 it cannot
apply to back date orders. Therefore, no retrospecJve effect on the finalized decree. The 1986 Act was
passed to materialized the following points.
1. This Act would override SecJon 125 of CrPC and any other laws.
2. Husband has to make fair and reasonable provision of maintenance to wife within Iddat period.
Danial Labfi v. Union of India, (2001) Supreme Court SecJon 5 makes it clear that 125 CrPC may apply if on
the first hearing of applicaJon under SecJon 3(2) both husband and wife either jointly or separately declare
it in wriJng that they want to be governed by CrPC. Affidavit regarding the same has to be filed by husband
and wife. Although on the face of it, restricJng the wife to file maintenance under 125 directly is
unconsJtuJonal as being violaJve of ArJcle 14,15, 21 Supreme Court avoided the same.
Shabana Bano vs Imran Khan 2010
Supreme Court held that wife can file peJJon under 125 CrPC before the Family Court as long as she does
not re-marry. SecJon 7(1) explanaJon F has to be read with SecJon 20 of Family Courts Act 1984. In such
cases SecJon 5 may be dispensed with. The essenJal feature of this is that there is a Family Court in the
area where women resides. Supreme Court remain silent on the issue if there is no Family Court in the area
where women makes which means that she will be governed by 1986 Act only.
PYQ2000. 2(A)
A divorced Muslim wife has in her custody children born out of wed lock before divorce. Can the children
claim maintenance from her and if so, how long ?
SecJon 3(1)(B) provides maintenance to wife up to 2 years of the age of her children if she is maintaining
the children born to her herself. Therefore, it gives addiJonal maintenance for the infant children of such
wife for a period of 2 years. SomeJmes it is interpreted to provide maintenance for children but actually it is
just an addiJonal support for 2 years. In the case of Noor Sabha Khatun vs. Mohammad Qassim Supreme
Court also held the same and said that the children can claim maintenance from the father under SecJon
125 CrPC also the addiJonal benefit under SecJon 3(1)(B) of 2 years is given because of special care needed
to the mother and child during the nursing face this extra maintenance for extra nourishment cannot take
away the children right to get maintenance under SecJon 125 CrPC. Court also held that 125 CrPC will start
once the Jme of maintenance under MPL that is Iddat has ended provided such wife remain unmarried and
is enable to maintain herself. The male child can claim maintenance up to age of majority and female up to
her marriage. If the father is unable to give maintenance to them then mother is under obligaJon to
maintain her if she is capable.
PYQ 1999. 4(A)
With the help of decided cases discuss the meaning of "reasonable and fair provision and maintenance" as
envisaged in SecJon 3(I) (a) of the Muslim Women (ProtecJon of Rights on Divorce) Act 1986.
The same was challenged in Danial Labfi v. Union of India, (2001) 7 SCC 740 Supreme Court
Supreme Court observed that both SecJon 125 CrPC and 1986 Act have a social purpose. In the maUers of
divorce discriminaJon cannot be done to a wife only because she is Muslim that is her right to maintenance
should conJnue unJl she is re-married. A restricted interpretaJon of 1986 Act will lead to the defeat of the
purpose of the Act. When two provisions clash liberal interpretaJon should be done to serve the purpose of
the Act. In the present case a liberal interpretaJon of SecJon 3(1)(A) would render the provision
consJtuJonal and a strict interpretaJon would make it unconsJtuJonal. Therefore, will violate ArJcle 14 of
the ConsJtuJon. Therefore, the Court held that the word “…… within” should be read as “…. On or before”
Therefore, it would mean that on or before the expiraJon of Iddat husband is bound to make fare and
reasonable arrangements of maintenance and it would extent to whole life unJl the divorced wife re-
marries. If the husband refuses wife can file a case under SecJon 3(2) of this Act.
Iqbal Bano vs. State of Udar Pradesh 2007 Supreme Court.
It was held that 1986 applicaJon cannot be filed if the women is not divorced.
PYQ 1999
(b) Can a Muslim divorced woman claim maintenance allowance directly against the Wakf Board, or, she
should follow the procedure menJoned under SecJon 4 of the Muslim Women (ProtecJon of Rights on
Divorce) Act 1986.
As per secJon 4 of the act the liability to pay maintenance to the divorce women if she is unable to
maintain herself aVer the period of iddat is on the relaJves who are eligible for inheriJng her property aVer
her death or other relaJves or if no relaJve is available then on the Wakf board the supreme court held that
the women should not be harassed and if he is able to prove all the relevant facts of her unable to maintain
herself, then she can directly go to the Wakf for her maintenance. However, the Wakf board is free to add
the relaJves who are denying her maintenance as a party to the case.
Kharcha-E- Pandan also called the beetle box expenses is a personal allowance given in Muslim families to
female as a custom. It is payable as long as she lives with her husband and it is her absolute property. It is
also called MEWA-Khori it is different from Nafaqa which literally means maintenance.
REMISSION OF DOWER
The wife can always aVer her dower claim has arisen remit/forgive/relinquishes her claim. This process is
called Hiba-E-Mahr. The wife must be sound mind a age of puberty 15 years as per Allahabad High Court or
the age of majority that is 15 years as per Madras/ Patna High Court. As it is a relinquishment of her dower,
which may be in the form of money claim. Therefore, should be in wriJng, signed and registered.
Right to dower is not transferrable but can be inherited. It is given to her because of her special
status being a wife. The sancJty of dower claim lies in her relaJonship with the husband. It is a personal
claim between husband and wife. Therefore, she cannot transfer it to a third person. The moment wife dies
the sancJty of marriage is lost and she states as unsecured creditor and such unsecured debt can be
inherited by the legal heirs of deceased wife.
Zaibunnisa Vs. Nazim Hassen
Court said that sancJty of marriage is lost either by way of death or divorce and right to lien being the right
of unsecured creditor can be inherited by legal representaJves or be transfer to any third person it is not
necessary that LR is it possession of the property on which the right to lien was being exercised by be wife.
Begum Shah Bano vs. Abdul Gafoor
Supreme Court held that as per explanaJon to SecJon 125(3) rights of Muslim husband to contract more
than one marriage is not affected. He must not lower down legal, social status of other wife but has to place
them on an equal fooJng. The matrimonial injury suffered by first wife due to second marriage should not
be there. It would not maUer that the neglected women are first wife or subsequent wife or a mistress. It
clearly provides for separate residence to the neglected wife.
MARRIAGE(NIKAH)
Marriage should be performed in same si^ng that is conJnued transacJon if one of them says that I need
Jme then conJnuity is lost. However, si^ng should not be confused with the place because a Muslim
marriage can even take place on a Video Call. The only requirement for Sunni is to 2 witnesses who are
male or one male or two female in Shia there is no such requirement. Like a contract there should be no
anJquity and uncertainty in that terms of marriage. The spouses should be of sound mind( Rashid). They
should be age of puberty that is above 15 years if any of them is above 7 years but below 15 years or of
unsound mind then marriage can be performed by guardian (wali). In the case of Malikies and Shafis if the
female is virgin of any age then consent of guardian is mandatory. If the consent is taken by fraud then
marriage is void and cannot be recJfied by consummaJon either expressly or impliedly. Just like a contract
mistake of fact is void.
PYQ 1998 (D) NATURE OF MUSLIM MARRIAGE REP 2006, 2007, 2010, 2013
The quesJon before the Supreme Court was that is Nikah a Civil Contract.
Answer: JusJce Mehmood and Mullah said that Nikah is a pure Civil Contract just like a contract there is a
free consent competency of parJes, consideraJon (dower) along with signatures of both the parJes on
paper(Nikahnama). In the case of Hamina vs. Hassen 2003 Supreme Court said that it is a seUled law that
Muslim Marriage is contract but Hindu Marriage is sacrament. There is ijb(offer) and Kabool(acceptance).
However, it cannot be asserted that it is only a civil contract. In Lily Thomas vs. Union of India 2000 Supreme
Court said that every marriage is sacred insJtuJon irrespecJve of the personal law. Keeping this in mind it
can be said that Muslim marriage is contract in procedure but socio religious in essence. The purpose of
marriage is not just to enter into a contract rather it is to create basic unit of society that is family with a
religion sancJty aUached to it. Also, there are certain elements which are otherwise violaJve of law of
contracts. For example, a minor or unsound can never enter into contract even with the consent of the
guardian a contract without consideraJon is void but it is not so in case of dower. Contract is generally
temporary but marriage is presumed permanent a contract is alterable but a marriage cannot be novated.
In case of frustraJon a contract becomes void but marriage is frustrated that is broken down irretrievably
will not dissolve automaJcally. In contract there are damages for breach but in a marriage, there may be
maintenance but not damages. A marriage by coercion is valid in Hanafi Sunni but is void for others, in
contract it is always voidable.
MARRIAGE OF MINOR BY GUARDIAN(WALI-JABBER)
In the case of Shia males and females the father and the grandfather can give consent of valid marriage.
However, if the closer relaJve is alive and is capable of giving consent than farther relaJve is excluded. If he
sJll does so then it will be void unless the parJes on aUaining age of puberty raJfy the marriage. Such void
marriage is called AQDFAZULI.
No other relaJves’ con consent of marriage of minor. The spouses may raJfy by express declaraJon or
implied conduct. In the case of Mohammad Nihal vs. State 2008 Delhi High Court it was held that marriage
of Muslim minor female without guardian is void and she or any other relaJve cannot consent to the same.
In Shias if any one expect father or grandfather given consent then marriage will be void unless raJfied on
puberty. It is required only when marriage by guardian is valid and spouses want to avoided. This is called
opbon of puberty. In Shias marriage by guardian is considered to be in best interest as they are related that
blood but if it is done by negligence of fraud then opJon of puberty can be used to reject the marriage
(KHYAR-UL-BULUGH).
PYQ 1999 OPTION OF PUBERTY UNDER MUSLIM LAW
when marriage of minor is contracted by guardian and spouses want to avoided aVer aUaining the age of
majority. This is called opbon of puberty (KHYAR-UL-BULUGH). If the marriage is contracted by father/
guardian in case of female then she is governed by DMMA 1939 SecJon 2(7) and she has a right to reject
marriage between 15 to 18 years if she has not consummated. If consummaJon has happened before 15
years then it will not affect this right, also any forced sexual intercourse does not amount to raJficaJon. But
in the case of male there is no age limit, only requirement is that they should not be no sexual intercourse
aVer aUaining the age of 15 years.
PYQ. 1996 4 EXAMINE THE VALIDITY OF THE FOLLOWING :-
(a) A Muslim male marries the daughter of his own step mother from previous husband - VALID
(b) A Sunni Muslim boy of 16 years marries a ChrisJan woman of 81 years. – as per Muslim Personal Laws
valid but as per special marriage act boy is minor and hence void.
(c) A marries the daughter of his own wife from previous husband. – if the marriage between husband and
wife was consummated then void if not then valid.
(d) A Sunni girl marries a ChrisJan male. - VOID
(e) A Shia male marries a ChrisJan girl. – VOID , but if Muta marriage only then valid
PCMA VS. MPL
AVer the enactment of prohibiJon of child marriage act 2009 it has been stated that secJon 3(1), child
marriage is voidable, the age of wife was less than 18 years and husband was less than 21 years. They can
file a peJJon within 2 years of aUaining majority even if marriage was consummated. In the case of Seema
Begum 2013 Karnataka High Court said that preamble of PCMA makes it applicable to all Indian ciJzens
expect Jammu and Kashmir and Pondicherry irrespecJve or religion. Similar view was taken by Madras High
Court with said PCMA is not violaJve of ArJcle 25 or 26 of the ConsJtuJon. Supreme Court in independent
thought vs. Union of India 2017 held that PCMA is a secular Act dealing with the protecJon of the children
and will prevail over all personal laws as far as the children are concerned. It is to be noted that it was
‘obiter dicta’ (opinion).
Marriage during pilgrimage is void in Shias but irregular in Sunnis.
PYQ 1998 (B) EXAMINE THE VALIDITY OF THE FOLLOWING :-
(i) A marriage with a woman undergoing iddat. - Marriage during Iddat is void in Shias and irregular in
Sunnis.
(ii) A marriage with a wife's sister aVer the death of wife. – there is an absolute prohibiJon on marriage
with wife’s sister if the wife is alive, but if wife is dead then such marriage is irregular and not void.
(iii) A giV to an unborn person. - A Sunni Muslim can make a valid giV to an unborn child if it is born within
six months. It means that the child was already conceived. In the case of Shia Muslim if the child is born
within 10 Lunar Months that is around 280 days then the giV is valid.
(iv) A giV by a mother to an infant child without delivery of possession. - As a general rule the donor must
physically depart from the possession and the donee must accept the giV along with the possession of the
property, for the giV to be complete and valid. however, it was observed by the court in various cases that
when the father giVs to his minor/ lunaJc son any property and they both reside in the same house then
delivery of possession is not an essenJal condiJon. similarly, when the mother make a giV to an infant child
without the delivery of possession then the giV will remain valid.
Divorce Iddat-It is only if marriage has been consummated generally the period is 90 days. In some case
which is 3 mensuraJon cycles if menstruaJng or three lunar months if not menstruaJng. If the women are
pregnant then unJl the child delivery or terminaJon of pregnancy. In the case of death of the husband it is
always 4 months and 10 days. If the lady is pregnant and child is delivered or terminated aVer 4 months and
10 days then it will conJnue up to that date.
PYQ 2003 KINDS OF DIVORCE
(i) AHASAN
(rep 2009)- THUR It is a period when woman id undergoing mensuraJon cycle in the period of puberty that
is when she is ferJle to conceive child. The pronouncement of divorce is made in this period only once and
has to be proved by husband that he did not cohabit with wife aVer that date to the end of 3 successive
cycles. He should not have revoked this divorce during this period. AVer the 3 cycles are complete divorce is
complete and final. The Iddat period will start from the first Thur when a husband pronounce divorce
because this is a single pronouncement, they can re-marry without Halala. It is considered as minor
separaJon. In a case where wife was not subject to mensuraJon or had been staying away from husband
there is no need to make pronouncement during specific period. It is the only form of divorce where the
divorce is not final but Iddat begins.
(ii) Hasan Talaq (rep 2009)- AVer the first pronouncement is made in the Thur period then husband has to
make to successive pronouncement in two successive Thur periods. When the third pronouncement is
made divorce is complete, irrevocable, Iddat periods starts. Husband has the power by express declaraJon
or implied (Sexual Intercourse) conduct to revoke it before third pronouncement. It is a major separaJon
and Halala is necessary.
(iii) Talaq-I-Biddat (BAIN)-It is followed in Sunni Muslim only and is not approved form of divorce.
Pronouncement is made three Jmes in one sentence or three separate sentences or with any other
statement that indicate clear intenJon of husband to divorce the wife. It is irrevocable and Halala is needed
to re-marry.
As a general rule aVer the divorce there is no need for wife to follow death Iddat. If it is a revocable divorce
and husband dies before the compleJon of divorce then women have to keep the death iddat.
(iv) ILA- In this husband who has aUained majority as per MPL and is of sound mind and abstains himself
from having sexual intercourse with wife for four months without using the word Talaq then it is a valid
form of divorce. In Shias it is not automaJc divorce rather wife gets the right to filed divorce under SecJon 2
Clause 9 of DMMA 1939. However, it abolished in India by the Court in Masroor Ahmad vs. Delhi in 2008.
(v) Zihar(injurious assimilaJon ) It was also abolished by the Court in the above case. It is incomplete(in-
choate) divorce where the husband compares his wife to any women of prohibited degree. He expresses
dissaJsfacJon and this gives right to the wife to refuse co-habitaJon with the husband. However, husband
can either free a slave, feed 60 poor or keep a fast for two months. If he fails to do any of this then wife can
file a case of divorce under SecJon 2(9) of DMMA in Shia such comparison of Wife should be made in
presence of at least two witness.
(vi) Lian- In this husband accuses wife of adultery but allegaJons are not proved. The wife can file a case
and husband is given a chance to re-tract his words before the trial ends. If husband do not agree and
makes four oath of wife being adulteress and wife make four oath of being innocent then court will grant
divorce.
(vii) Khula- It is the purchase agreement in Shias wife gives the offer and husband accept it. Husband has no
power of revocaJons. Wife has to give some consideraJon to husband from her property to get this
divorce. Wife also have to give compensaJon to husband for demanding divorce.
(viii) Mubarat- It is a mutual release by agreement and can be from any other parJes. Wife is bound to
observe Iddat but is not bound to give something to husband as consideraJon. Children and wife also have
to right to maintenance but only during the period of Iddat.
(ix) Delegated Divorce (TAFWEEZ)- Husband may repudiate his wife himself or give this power to someone
else (including wife ) by an agreement. Such agreement is made before or aVer the marriage but the terms
must not be against public policies. Such agreement does not take away husband right to pronounce
divorce.
(x) Conbngent Divorce( TALIQ)- It is in Hanafi Sunnis only and may take affect either immediately or on
future date/event/condiJon etc. Such future happening or non-happening should not be a opposed to
public policy.
(xi) Judicial Divorce(FASKH)- It was repealed by DMMA in 1939 and the Act gave ground to divorce only to
women. It is based on Maliki School.
Halala- In the case of Saba Adnan Sami vs. Adnan Sami 2010 Bombay High Court
The main issue was whether in the case of irrevocable divorce irrespecJve of its mood is the wife acquired
to observe Halala to re-marry former husband. The court observed that as per MPL Halala has to be
observed by marry someone else having in sexual intercourse with him and then dissolving that marriage.
Such second marriage should not be a sham. In the case of AHASAM divorce only single pronouncement is
made hence Halala is not required but if the same is repeated two Jmes more then there will be three
pronouncement and Halala will be observed. Marriage without Halala is irregular in Sunni Muslim and void
in Shia. In the case of Khula or Mubarak Halala is not to be observed because it is minor separaJon.
Unlawful Conjuncbon
In this case of unlawful conjuncJon, a men cannot have at the same Jme two wife’s who are related by
consanguinity, Affinity or fosterage. The presumpJon is made that if either of them had been made then
they could not have lawfully intermarried. In Shia Muslim this is void and irregular in Sunni. Furthermore, if
two witnesses are present at marriage it is irregular in Sunni and valid in Shia. If a Muslim men marry fiVh
wife then it is irregular in Sunni and void in Shia.
Absolute Prohibibon
It is a mandatory provision which makes marriage null and void. In both Shia and Sunni for example one
cannot marry his own ascendant or descendant or their fathers or mothers or their brother or sisters,
mother in law wife daughter son in law step mother foster relaJons. When a mother of a child is enabling to
breast feed the child and he or she is breast fed by some other women then she is called foster mother. If a
marriage is performed without respecJve foster relaJon then it is void. However, certain excepJons are
granted to Sunni. If the couple enters into irregular marriage and it is not consummated then it is as good as
void. The spouses may separate without any formal divorce. But if the marriage was consummated former
divorce is needed and wife is enJtled to specific dower or proper dower whichever is less. Also, she is
bound to observe death or divorce Iddat of 90 days. A maternal uncle’s marriage with niece is void,
daughter of brother with sisters’ sons is valid, pre-deceased wife’s mother is void, mother’s, sisters,
daughter is valid, step brother or step sisters is void, foster mother daughter is void and foster sons’ real
sister with foster brother is valid.
Muta Marriage
It is a temporary marriage in Shia only and it is not approved as such. Shia male can get into Muta Marriage
with a Shia female, Kitabia female, fire worshiper. It is only for sexual pleasure and pro-creaJon. The only
requirement is age of puberty, sound mind, free consent. It cannot be performed by guardian and there is
no limitaJon on the number of wives. Also, husband is not required to give maintenance or residence to the
wife. However, the term of marriage and dower is essenJal. In a case Andhra Pradesh High Court held that if
the term of marriage is fixed but dower is absent then it is void marriage but if dower is fixed but term of
marriage is not fixed then it will result in permanent marriage. When it is terminated on expiry on fixed
period then in the case of women having mensuraJon cycle will observe two cycles of iddat otherwise 45
days. If the wife has become pregnant then delivery of child or terminaJon whichever is earlier. In the case
of death of husband, it is four months and ten days it cannot be performed in a prohibit relaJonship. There
is no right to divorce to eager of the parJes even if they agree to terminate the marriage before the fixed
period and husband wants compensaJon for the remaining marriage plus dower then it is called HIBA- I-
MUDDAT and if the wife wants the same then she will compensate by remi^ng her dower amount. It is
called HIBA-I-MAHR. If the marriage was consummated then amount of dower is full but if not then it is
half. There is will no mutual inherence between husband and wife. Children though legiJmate can inherit
only from father and mother. Although wife has no right of maintenance under MPL She can file a case
under SecJon 125 CrPC to get the same if husband neglect or refuses to maintain her.
Condibonal Marriage.
These are those type of marriages where condiJon runs parallel to marriage. The marriage itself is not
condiJonal upon such condiJons and it will remain valid even if condiJon is not fulfilled. In the case
consummaJon happens then marriage is valid and condiJon void there will be no civil suit. If
consummaJon has not happened then it is voidable at the opJon of other party.
Conbngent Marriage.
Where acceptance is made condiJonal upon certain happening or not happening of event it means that
intenJon of the spouse is not accept the marriage immediately. Hence it is presumed to be no marriage at
all. It violates the very principle of acceptance in same si^ng.
When the dissoluJon of marriage starts from husband then his power is absolute and Court has also
observed Jme and again that it is arbitrary act of husband and they oVen divorce the wife for them on
pleasure without any reasonable cause. Gujarat High Court also said except certain provisions of MPL in all
other cases like property contract a Muslim men or women will be governed only by Indian majority Act.
Shayara Bano vs. Union of India 5J
The Court by majority held that triple Talaq is not protected under ArJcle 25 as it is not essenJal pracJse of
Islam. It also violates SecJon 2 of Shariat Act 1937. Merely if a pracJse is conJnuing for a long period it
cannot be said that it will get protecJon under ArJcle 25. To be an essenJal pracJse it should be such
without which a religion will be no religion or the nature of religion will change fundamentally. It also
observes that divorce as per Koran should be for reasonable cause and there must be a aUempt of
reconciliaJon. CommunicaJon of Talaq to the wife his also essenJal. Kerala High Court also said that
polygamy in MPL is opposed to Koran because equal treatment to all wife’s in all senses is impossible. Triple
Talaq is irrevocable and leaves no scope for reconciliaJon, it is oVen given without any reasonable cause, it
is arbitrary therefore, violaJve of ArJcle 14 of the ConsJtuJon. Hence JusJce UU Lalit pronounced Triple
Talaq as unconsJtuJonal and void.
PYQ. 1998, 2010 DMMA
The husband is not providing maintenance to his wife because of her refusal to live with him. State whether
the wife can claim decree of dissoluJon of marriage under the DissoluJon of Muslim Marriage Act, 1939.
Refer to decided cases.
SecJon 2(ii) of DMMA gives ground of divorce to women if husband has neglected or has failed to maintain
her for 2 years. It is immaterial if the failure to maintain is due to poverty, bad health , imprisonment or any
other reason. Further, SecJon 2(iv) of DMMA gives ground of divorce to women if husband has failed to
perform marital obligaJons without any reasonable cause for 3 years. However, in a case where the wife
voluntarily stayed away from her husband despite the husband's repeated request to return and live with
him then it cannot be said that there is a neglect of failure on the part of husband to maintain his wife.
Moreover, where the wife deliberately deserts her husband and Husband is prepared to maintain her on a
condiJon that she will start living with him again, then it cannot be said that the husband is at fault and no
divorce will be granted. In the present proposiJon The husband is not providing maintenance to his wife
because of her refusal to live with him, therefore, neither SecJon 2(ii) nor SecJon 2(iv) is meted out and no
divorce to wife under DMMA.
Similarly, where W leV H for reasonable cause and instead of giving W maintenance for 2 years, he married
W2. It will be a case fit for granJng divorce.

Marriage Between Sunni Male S u n n i Shia Male (Except Shia Female

Female Muta Marriage)
Sunni Male - Valid - Valid
Sunni Female Valid - Valid -
Shia Male - Valid - Valid
Shia Female Valid - Valid -
Kitabia Male - Void - Void
Kitabia Female Valid - Void -
Non-Kitabia Male - Void - Void
Non-Kitabia Female Irregular - Void -

Types RelaJve ProhibiJon

Non-kitabia (Fire/Idol) Kitabia (follow A Book)
Parsi Turat (Jews)
Hindu Bible/Ingile (ChrisJan)
Buddishts Zabur (King Dawood) - Now ExJnct
Jain Quaran (Muslims)
Sikhs

Issue Valid(shiah) Irregular(fasid) Void(baJl)

Are children legiJmate Yes Yes No
Is sexual cohabitaJon Yes Yes No , zina(sin)
lawful
Right of RCR Yes Yes No
M u t u a l i n h e r i t a n c e Yes No No
between H &W on
death of either
Can children inherit Yes Yes No, only from mother
father’s property
Iddat required Yes Yes, if consummated No
Dower payable Yes Yes, if consummated No, but if proper dower
and marriage
consummated then yes
H bound to maintain W Yes Yes No, but if live in
relaJonship proved then
yes under secJon 125
CrPC
F a t h e r b o u n d t o Yes Yes Not under MPL but yes
maintain children under CrPC
Does prohibited relaJon Yes Yes No
start with marriage

Divorce by H By W Mutual
Talaq, ila, zihar Tafwiz, khula (purchase) Mubarat
Talaq
Sunnat – ahsaan , hasan Biddat – triple Talaq
Statutory divorce
Lian Fashk ( not used in India) DMMA 1939
Format
Shia Sunni
2 witness, oral with Arabic words, No witness, oral or wriUen,
wriUen only when H cannot intenJon to divorce by words is
speak clear
Khula Mubarat
P u r c h a s e , s t a r t e d b y W , Agreement, mutual, iddat, same
consideraJon moves from W to J m e , n o c o n s i d e r a J o n ,
H, same Jme not necessary , W maintenance by H
and children enJtled to
maintenance

PYQ 1998 (E) CONDITIONS OF VALID ACKNOWLEDGEMENT REP 2001, 2006

Acknowledgement is a declaraJon by father to find out the legiJmacy of a child for the purpose of
inheritance. in the case of Maternity of a child when the parents are Shia Muslims only the legiJmate child
will inherit from the mother. such a child should be from a valid marriage only. valid marriage includes off
springs of Muta marriage.
In the case of Sunni Muslims both legiJmate and illegiJmate children can inherit from the mother. it is a
material If the marriage is valid or irregular or void.
In the case of Shia Muslims while finding out the paternity of child only legiJmate children will inherit from
the father that should be a valid marriage and the off springs of Muta marriage are included.
In the case of Sunni Muslims while finding out the paternity of a child legiJmate children can inherit from
father which means that the marriage should be either valid or irregular but there is no space for an
illegiJmate children that is the children of void or adulterous relaJonship.
It is the right of a man to legiJmate a child born within a specific Jme by acknowledging expressly or
impliedly that the concepJon of child took place in the wedlock. Child born within 6 months aVer marriage
is considered illegiJmate unless the father acknowledges it but if born aVer 6 months (i.e., six lunar months
plus one day or more) then it is deemed legiJmate unless father de-claims it. A child born aVer dissoluJon
of marriage is illegiJmate is Shia if born within 10 Lunar Months (291 Days) and in Sunnis two lunar years
(Hanafi), four lunar years (others) but Allahabad High Courts and other High Courts Jme and again have said
that Indian Evidence Act SecJon 112 should be applicable on Muslim also instead of their personal laws.
However, it may conJnue to apply on irregular marriages because SecJon 112 is only for valid marriages.
One cannot make someone else child his own, just by the way of acknowledgment. Hence, the
legibmisabon i.e. process to confer legiJmacy on child who was never legiJmate is absent in Muslim
Personal Laws. Whereas, in Hindu laws this concept is accepted under secJon 16 of Hindu Marriage Act
which make the children of void and voidable marriages as legiJmate.
ADOPTION V. ACKNOWLEDGEMENT
In the case of acknowledgment of father, it is deemed from, the date of when the child was born and not
when the child was acknowledged which means that it has retrospecJve effect. In adopJon when
biological parents of child are different it will take effect from the date of adopJon only. There should be an
age gap of at least 12 and half year between child and acknowledger the child should not have denied
acknowledgment on aUaining age of puberty the child is not from void marriage or adulterous intercourse.
The child will get legiJmacy, inheritance and presumed to be born from lawful marriage. The father must be
a sound mind and above 18 years o f age.
Shabnam Hashmi vs. Union of India 2014
Supreme Court said that MPL do not allow adopJon but as a custom it is sJll prevalent and perceivable.
KAFALA is a system for welfare of the child where a Muslim can be his guardian but not adopted. Juvenile
JusJce Act read with central adopJon resource agency guideline declare that they apply on all person
irrespecJve of religion because it is enacted for welfare of child. If a Muslim choose to be governed by MPL
then he cannot adopt but if not then he can adopt under Juvenile JusJce Act. As of now Indian Society is
not in a condiJon to declare right to adopt or right to be adopted as a fundamental right.
PYQ 1996 GUARDIANSHIP(HIZANAT) REP 2007
De jure a Guardian is the father but De facto guardian is a mother however, she can be disqualified from
having custody of the child if she is leading immoral life, neglect child marriage is a person not relaJng a
child in prohibited degrees, resides away from the father. As a general rule if no female is present in the
family then father may or may not be given the custody of the child. In Shia when the child is a boy mother
can keep custody for 2 years and for girl 7 year and in case of Sunni if child is boy, she can keep for 7 years
and for girl 15 years. Her right to custody will conJnue even if she is divorced by the husband but she
should not have re-married.
PYQ 2000 (B)
Can a Muslim mother, who is not appointed guardian of minor's property, effect sales of minor's property
for their benefit ? Discuss with decided cases.
Supreme Court has held that father is the legal guardian of the minor and in his absence, guardian will be
appointed by competent court, who has to take permission of court before alienaJng the property of minor.
In present case neither mother was appointed as guardian of the minor’s property nor she took permission
of the court before making the sale even if it was for the benefit of the minor. Hence, sale is void.
PYQ 2001 4(A) WHO CAN CLAIM HAQ-SHUFA (PRE-EMPTION)
and what are the formaliJes to claim right to pre-empJon ? State the legal devices for evading right of pre-
empJon.
It is a right to acquire a property by compulsory purchase but cannot be used for part of property. The
owner of immovable property possesses the right for its quite enjoyment but if someone else will purchase
some part of it then his enjoyment may be interfered. Hence, he should be given first preference to by that
part of immovable property rather than a third person. It is not a right of re-purchase but a right of
subsJtuJon by standing into the shoes of vendee in respect of all rights and obligaJons arising from such
sale. The right of pre-empJon will apply only in the case of sale or not in mortgage, giV, will agreement to
sell etc. According to Muslim law sale is complete when price is made by buyer and delivery of possession is
complete. The registraJon is not necessary as per MPL but SecJon 54 of transfer of property Act provides
that sale of property of or above Rs. 100 will be registered compulsorily. Supreme Court also held that TPA
will apply in all cases of sale and the personal laws cannot over ride the secular statutory law.
SHAFI-I-Jar
The right of VICINAGE (vicinity or neighbourhood ) The Supreme Court held that it is unconsJtuJonal as
restricJons imposed by law of pre-empJon are not in public interest. Also, the seller is restricted to sell his
property only to a few selected individuals.
SHAFI-I-Khalid
It is common immunity or appendages this concept is applicable in Sunni but not in Shia.
SHAFI-I-Sharik
When there are co-owners or co-sharer then this rule is applicable first preference will be given to Shia in a
Shia Sunni conflict in Shias it is applicable when there are only two co-owners but there is no restricJon in
case of Sunni.
For example, the owner of a plot X is enJtled to irrigate the land from water of a canal which is running
from clot y. Clot y is besides Clot Z. But Z is not irrigated by the canal. If Y wants to sell his plot then X will
have the right to pre-empt. Here the seller must be a Muslim, pre-emptor must be a Muslim but as per
Allahabad High Court buyer can be of any religion.
Talab(Demand)
The first demand is made immediately on the knowledge of the sale(MOWASIBAT), without unreasonable
delay. Second demand is made with two witnesses(TAQRIR), third demand is made for possession of
property by legal proceeding under ArJcle 97 of limitaJon Act from the date of purchaser taking possession
of the property. (TAMLEEK) Supreme Court held that it is valid, In Shia it is also inheritable by LR but in
Sunnis it is not. If the pre-emptor has not died but just become of unsound mind then in both the cases of
Shia and Sunni LR can conJnue. Supreme Court in 1991 also held that pre-empJon is a week right and can
be defeated by estoppel like bonafide purchaser and acquiescence that is reluctant acceptance without any
protest.
PYQ 2009 GIFT (HIBA)
It is an uncondiJonal transfer of property made immediately without exchange, consideraJon or anything in
return. It must be accepted by or on behalf of donnee the donor must by sound and major as per Indian
MajoriJes Act 1875 while a will takes effect aVer death of legator the giV takes effect inter-vivos that is life
Jme. The donor must be a Muslim but donnee can be any of religion, same applies to wills. When the
donnee is a minor the giV can be accepted by guardian, father, grandfather. The GuwahaJ High Court
observed that even though under MPL mother is not legal guardian or minor property she can accept giV on
behalf of minor but only with consent of guardian. If the lady is a pardanasheen then other party has to
saJsfy the court that she was made fully aware of the deed and transacJon. In case of immovable property
delivery of possession can be seen from intenJon like handling over the keys of a house etc. The property is
corpus when ownership is complete but usufruct when it is just a usage right (Shia only).
In Muslim Personal Laws usufructuary rights are available to Shia Muslim only. A life estate giV can be made
but it will not confer complete ownership rather the Donnee can only use the same Jll the end of his
natural life. There can be no giV for the services. Amir Ali however, says that giV of services in Shia Muslim
is valid.
There can be a giV for in corporeal/intangible rights. Here the delivery of the possession is not required.
There can also be a giV for acJonable claim which will be governed by TPA. Here no delivery of possession is
required for example right to collect that from a person.
There can be no giV for spec succession that is chance of ge^ng property in future. A donor cannot pass a
beUer Jtle then he already has. In the case of equity of redempJon where interest in immovable property is
at stake like when mortgage is made by giving papers of the property only High Courts say this giV is valid if
possession is also transfer to Donnee. But when mortgage is done by handing over possession and paper of
the property then acts as per Bombay High Courts the property cannot be giVed but Madras and CalcuUa
High Court say that it can be giVed by construcJve possession like handing over the keys of the property.
If the giV is condiJonal then the condiJon will be void and giV will remain valid. But if the giV is conJngent
on happening or non-happening of future event then such is giV is void.
In the case Shia Muslim such giV is allowed only on death of a person called Ruqba.
PYQ 1999 (B)
A Muslim executes a deed of giV of his property to 'B', but the giV is not accompanied by delivery of
possession. 'A' subsequently executes a deed of giV of the same property to 'C' and the giV is accompanied
by delivery of possession. Both the deeds are registered. Is 'B' enJtled to the property ? In this regard
discuss the relevant provisions of the RegistraJon Act.
As per secJon 17(1)(a) of the Indian registraJon act giV of immovable property must be registered and also
the same thing is reiterated in secJon 123 of Transfer of Property Act but secJon 129 of Transfer of
Property Act expressly exclude the applicaJon of secJon 123 to them Muslims therefore the Muslim giV
must follow all the steps that is given in Muslim law only i.e. declaraJon of giV, acceptance and delivery of
possession. hence in the present case registered giV deed without possession to B is of no use as the giV is
not yet complete and the giV to C will be valid because it is accompanied by possession.
PYQ 2003
Mohd. Yashin giVed his dwelling house to his wife orally. Both were residing in the house. AVer one year,
he executed a deed staJng the fact of giV of the house to his wife. The deed was not registered. Whether
giV was valid?
As per secJon 17(1)(a) of the Indian registraJon act giV of immovable property must be registered and also
the same thing is reiterated in secJon 123 of Transfer of Property Act but secJon 129 of Transfer of
Property Act expressly exclude the applicaJon of secJon 123 to them Muslims therefore the Muslim giV
must follow all the steps that is given in Muslim law only i.e. declaraJon of giV, acceptance and delivery of
possession. In the present case even the delivery of possession is not required as The delivery of possession
and vacaJon of the possession of donor is not required when the giV is made by H to W or vice versa as
they are both living in the same house.
PYQ1996 Q5 HIBA-BIL-IWAJ REP 2007, 2009
When the giV is in lieu of dower (Hiba-Bill-iwaz), it is mandatory registraJon under SecJon 54 of Transfer of
Property Act because it is a kind of sale. For example, husband owes Rs. 10,000 as dower to wife and he
giVs property of equal amount to her instead of cash. This is valid and delivery of possession is not required.
This giV basically exchanges debt with property. hence provisions of compulsory RegistraJon under SecJon
17(1)(b) of the RegistraJon act applies.
PYQ 2000 (C)
A Muslim executes a deed in favour of his wife whereby he grants certain immovable property to her in lieu
of her dower but possession is not delivered to her. what is the nature and validity of this transacJon?
The delivery of possession and vacaJon of the possession of donor is not required when the giV is made by
H to W or vice versa as they are both living in the same house. Even if the H conJnue to live in the house, or
takes rent of house in case of let out, the transacJon will be deemed valid and it will be assumed that H is
collecJng rent on behalf of W.
--
When the giV is in lieu of return (Hiba-Bill-Shart-Ul-Iwaz) It is a return giV where donor makes a condiJon
that Donnee will also giV him something in return. Here delivery of possession is mandatory and nature of
sale makes it mandatory to register under SecJon 54 of TPA. The donor can defer the payment of price and
giV will remain revocable unJl the payment is made. It becomes final immediately on delivery of the
property. The payment of price is the consideraJon for the giV which makes it in the nature of sale with
respect to TPA.
When the giV is made for religion purposes it is called SADAQAH it is an absolute transfer of ownership by
the donor and as soon as delivery of possession takes place it becomes irrevocable. It can be for both
movable and immovable property.
When the giV is made for usufruct right aUach to the property it is called Ariyat. It is meant for enjoyment
of property.
When the giV is made of undivided share of property it is called doctrine of Musha. It depends upon the
kind of property to giVed. If the share is unspecified, they know that they will get one third part in case of
three person but they do not which part will they get. In Shias giV of such divisible and indivisible property
is valid and in the case of Hanafi Sunni giV of individual property is valid but of divisible property is irregular.
If a parJJon takes place then this irregular will change into valid otherwise will become void. There is
certain excepJon to the irregular rule like when it is made by one heir to another, Zamindari (now
abolished) , shares of company, freehold property, giV of undivided but divisible property to two or more
persons jointly. The giVs can be revoked before the delivery of the possession because the transacJon of
giV is incomplete. In a case where delivery of possession is complete in Shias a declaraJon for revocaJon
has to be made except when giV to any blood relaJon or spouse is made. In case of Sunni Muslim
declaraJon for revocaJon is made by donor with concept of donnee. In some cases, formal decree of Court
for revocaJon is needed if the giV deed is registered. There can be no revocaJon when giV is made to
spouse prohibited degree, possession is lost or converted, value has increase, it was for religious purpose. In
a case where husband giV a house to wife and deliver of possession is complete it is revocable in Shias but
not in Sunni.
PYQ 1998 LIMIT OF TESTAMENTARY POWER OF A MUSLIM / WILLS.
Rep 1999,2013 as Q. 5(a) Define 'Will' / wasiyat and explain the principles of abatement of legacies.
For a valid Will the legator should be a Muslim of at least 18 years but legatee can be of any age or religion.
If such a legator commits suicide then ‘Will’ will remain valid for Sunnis but invalid for Shias. If the legator
has converted to another religion then in Hanafi Sunnis it remains valid but in Maliki Sunni it is deemed
annulled. For other sects of Muslim, the quesJon is not decided by Court. If the legatee murders legator
then Shias he will not get anything from the will even if it was an accidental death. In Sunnis also, he does
not get any share. In the case of Shias Muslim maximum 1/3rd ‘will’ of property can be made without
consent of LR if it is made for more than 1/3rd then LR can consent before or aVer the death. In the case of
Sunnis Muslim, a Will in favour of non LR is maximum for 1/3rd without consent of LR but a Will to LR even
up to 1/3rd of property also needs consent of other LRs, aVer the death of the legator. A Will can also be
revoked either expressly or impliedly.
(b) 'A' dies leaving a will in which he has leV a legacy of Rs. 10,000/- to B. The will is in the hand wriJng of
A, but not signed by him, nor are there any witnesses aUesJng the will. The heirs of 'A' challenged the will.
Can they succeed ?
A ‘will’ can be either oral or in wriJng and it is not necessary that it should be always in wriJng. The
intenJon of the testator should be clear. In the present case the ‘will’ is in the handwriJng of the testator
but is not signed by him nor was there any witness to aUest the same. But under the Muslim law it is not an
essenJal condiJon for a valid ‘will’. Hence, the ‘will’ shall be Deemed to be valid up to the share of 1/3rd.
PYQ 2007, 2010 TRUST(WAQF)
DetenJon of property to the trust is made to devote its profits and usage for charity to poor. The
permanent dedicaJon of property should be perpetual that is complete ownership is transferred. Such trust
can be made by a Muslim who is sound and above the age of 18 years. There cannot be any condiJon or
conJngent or aUached to the work. The purpose of trust should be valid as per MPL and when no period is
given in the trust and 20 or 30 years have elapsed then it is deemed to be a permanent. In a case where half
of the trust is valid and half in valid it was held that if the property is divisible, they will be separated if not
divisible whole property will be deemed to be the trust property. It is governed by Waqf validaJng Act
1995. In Shia Muslim it is complete when aVer the permanent dedicaJon and delivery of property a
Mutawalli is appointed as administraJve head who may be a male or female but must be Muslim. In the
case of Sunnis, a mere declaraJon is enough. If the purpose for which the trust is created is complete then
it can sJll conJnue its operaJons for a similar purpose. It is called doctrine of Cypress. If the manage of the
Waqf is on death bed illness that he can also appoint another manager even though he has no ownership of
the trust because ownership lies with the god. His duty is to check the working of the trust and ensure that
the property income is used for the purpose of the trust. If the trust is made aVer death through will then
the executor of Will or the Court can appoint the manager and a preference is given to the LR of deceased.
The manager must have the knowledge of local customs and pracJces and he cannot alienate/ charge the
property of trust except when empowered by the Court or trust deed.
PYQ 1996 SAJJADANSAHIN
A Sajdanashin is a religious head of trust who has to be Muslim male and can even raise a loan without
permission if it is for religious purposes. He has even more power then the manager. He may also hold both
the offices of religious head and the manager.
Some part of trust can be used by the children of the deceased it is called private Waqf (Waqf-ALAL-Aulad).
It is valid as per SecJon 3 of Waqf validaJng Act 1995. However, it is observed that the maximum porJon
should be for religion and charity only. In Hanafi Sunni Muslim if the person who makes the trust is alive, he
can maintain himself from the trust property. Trust as per Indian Trust Act 1882 is much wider in scope
because it can be made by any person, any religion, any kind of charity and can also be closed as per
statute. Generally, the owner of property is trusty himself or he can appoint a manager also the trust can be
made for benefit of a specific person.
PYQ 1998 (B) GIFT MADE DURING MURZ-UL-MAUT- DEATH BED ILLNESS
It is a long conJnuous illness which is very serious and creates apprehension of death in the mind of paJent
even though he may not die. A giV made in such condiJons is valid up to one third in the case of Stanger
and for more than one third can consent of LR is required. If such a paJent is the male and his marriage in
such condiJon has consummated then it a valid marriage otherwise it is void. But if such paJent is a
women then it will be always valid irrespecJve of consummaJon.
INHERITANCE
There is a rule of heritable property vested inheritance which means that the moment a person died his
heritable property gets vested immediately in LR even though actual calculaJon of share may take place in
future. In MPL there is no concept of ancestral property, joint property, coparcenary property etc. whatever
property is leV by the deceased is to be considered as his separate and absolute property. IllegiJmate child
can inherit only from Sunni mother and her relaJves born before such child.(मामा & नाना). If male and
female both LR are residuary then male will get double from what the females gets. As per the doctrine of
primo-genitor extra benefit and preference is given to eldest son in Shia but not in Sunni. There is no such
concept for eldest daughter. There will be no inheritance to step father or step mother from the death of
there step son and vice versa step brother and step sister can inherit from each other nearer relaJve will
exclude farther relaJve if intenJonal murder is commiUed in Shia Muslim then he is excluded in Sunni
Muslim murderer his always excluded. As per the per capita rule if above generaJon is alive then property
wont go to lower level but if father dies his share will go to his sons and if his son is also dead that his
grandson. This is called doctrine of representabon Where the grandson steps into the shoes of his father.
This is valid only in Shia Muslim. When the share is distributed the total share are found to be more then
the total fracJons of property which is available then to meet the demand of all fracJons of property are
increased. In such a case there is a decrease in the individual site of each fracJon of property. It is also
called doctrine of aul or increase. PracJcally in such a case there is a proporJonate reducJon of size of
share applicable to Sunnis. In Sunni law of inheritance total number of sharers is 12.
PYQ2006. 7.(A) WHAT IS 'BEQUEATHABLE PROPERTY'? HOW IS IT DIFFERENT FROM 'HERITABLE PROPERTY'?
'Bequeathable property' is the property that can be given under a will and under Muslim Personal Laws
there is a restricJon of 1/3rd. to arrive at 'Bequeathable property' one must deduct funeral expenses,
secured and unsecured creditors from the total property of the deceased.
'heritable property' is the balance of property leV aVer deducJng the 'Bequeathable property' from the
total property. virtually it would be 2/3rd in case where , a will of full 1/3rd was made. If no will was made
then both the terms would mean the same thing.
Literally Capable of being passed from one generaJon to the next is the 'heritable property' while capable
of being given to is the 'Bequeathable property'.
(b) A Muslim, who died leaving behind his widow, made a will of his enJre property in favour of his friend
'F'. What is the maximum share to which 'F' is enJtled to under Muslim law ? - 1/3rd valid without consent
of widow, and if consented whole is valid.
(d) A maternal grandfather made a giV in favour of his newly born grandchild. The mother of the child
accepted the giV on behalf of the minor. is this giV valid under Muslim law REP 2007 ? - mother is not a
legal guardian hence cannot accept except when father, grandfather etc are not alive. Same being not
menJoned can be assumed to be dead and the acceptance will be valid.
PYQ 2007
A Muslim, who died leaving behind her husband, made a will of his enJre property in favour of her friend
'F'. What is the maximum share to which 'F' is enJtled to under Muslim law ? 1/3rd valid without consent
of husband, and if consented whole is valid.
PYQ 2007
A dies giving ½ property to X and ¼ to Y but Legal heirs dint consent. – as the total is ¾ > 1/3 and Legal heirs
rejected the will, it will be invalid. If A was Sunni then X 2/9 and Y gets 1/9. But if A was Shia then X gets 1/3
i.e. maximum possible and Y gets nothing.
PYQ 2015
(a) Can a Muslim girl below 18 years contract valid marriage without consent of parents ?
Answer – in Muslim Personal Laws age of majority is that of puberty i.e. 15 years therefore, she can contract
valid marriage if above 15 years.
(b) Can Muslim claim custody of 9 yrs old daughter from estranged wife?
Answer - In Shia when the child is a boy mother can keep custody for 2 years and for girl 7 year and in case
of Sunni if child is boy, she can keep for 7 years and for girl 15 years. Hence, if the male is Shia, he can claim
the custody otherwise not.
(c) is the giV by father to minor son valid?
Answer – if any person other than father giVs to minor then it is complete when possession is given to
father, in absence of father to grandfather or guardian. If the father giVs his own minor son then there is no
need to transfer possession hence, it is a valid giV as per Muslim Personal Law.