he Muslim Law or Islam Law

(or the Law of Allah) is a part

of Family Law. It is a personal
law
and a branch of civil law that
is applied by courts in regard
to family matters when the
parties
are Muslims.
 Muslim Law is called
Sharia (Shariah or Syariah) in
Arabic.
 Fiqh = understanding of
details and refers to the
inferences drawn by scholars
 Sharia = Refers to the
principles that lie behind the
fiqh.
 The word 'Muslim' is
derived from the word 'Islam'
and signifies a person who
adopts
the faith of Islam.
 Muslim Law i
he Muslim Law or Islam Law
(or the Law of Allah) is a part
of Family Law. It is a personal
law
and a branch of civil law that
is applied by courts in regard
to family matters when the
parties
are Muslims.
 Muslim Law is called
Sharia (Shariah or Syariah) in
Arabic.
 Fiqh = understanding of
details and refers to the
inferences drawn by scholars
 Sharia = Refers to the
principles that lie behind the
fiqh.
 The word 'Muslim' is
derived from the word 'Islam'
and signifies a person who
adopts
the faith of Islam.
 Muslim Law i
The QURAN
MARRIAGE
Contract of marriage is defined as “it is a religious contract between a man and a
woman the object of which is legalization of sexual intercourse, procreation
(reproduction), legitimization of children, and regulation of social life.”

Importance: There are several Traditions of Hazrat Muhammad (PBUH) such as:
1. Marriage is my Sunnat and he is not among us who does not solemnize (celebrate,
venerate) it.
2. Marriage completes conviction (faith).
3. Whoever may pay dower must solemnize (celebrate)

marriage. The above Traditions prove the contract of

marriage obligatory.

Essentials of contract of marriage: A valid marriage cannot solemnize

without following essentials:
1. Offer (Ijab).
2. Acceptance (Qabool).
3. Two Muslim witnesses.
4. Sanity.
5. Capacity of parties.
6. No legal disabilities.
7. Same meeting.

According to Malki and Shafi schools contract of marriage is made only through
guardian. No one directly may solemnize (celebrate) marriage.

According to Hanfi school any wise and adult may give his consents.

Shia law does not follow the condition of witnesses. However they demand witnesses
at the time of divorce.

Who may be guardian: In Malki school only father is guardian. Under Shia school
father and grandfather are admissible. According to Hanfi school male relative within
prohibited degree (impediments) may be guardian.

Option of puberty is given to the minor when he attains the age of majority, which is
in this case eighteen (18) years. According to Hanfi school if father or grandfather
decides the marriage of minor then option of puberty is not granted to the minor after
he attains the age of majority, i.e., eighteen years. Imam Yousaf permits option of
puberty in any circumstances.

According to prevailing Law of Land, i.e., Dissolution of Muslim Marriage Act, option
of puberty is given to every person upon the attaining of age of majority. Two years are
given to the person concerned to decide whether he wants to accept the marriage of
minority or not. But if the marriage of minor comes into his knowledge late after
attaining the age of majority, then the period of two years of option of puberty will start
from the date of such knowledge. Period for option of puberty in the opinion of some
jurists is three years.

When contract of marriage is confirmed: When female demands her dower and male
pays it, marriage confirms. If female receives her dower but later on she tries to annul
the contract of marriage then rule of estoppel applies. Under the guardianship of father
or grandfather, consummation of marriage also confirms the marriage. It should be
with consents of both male and female. In case where Court appoints guardian who
 may be third person apart from blood relative, there Court grants permission of contract
of marriage keeping in view of interest of minor. Age of majority remains eighteen
years for the purpose of marriage.

1. Kinds of Marriage
Following are the kinds of marriage.

1. Valid Marriage
 According to the Islamic rules of law, such marriage is a valid marriage which is free
from all defects and illness and completes all the requirements of a valid marriage, is
perfect in all aspects such as:
 The existence of offer and acceptance
 Offer and acceptance should be by willful consent
 Both of the bride and groom should be major in age
 Both of should be non-mehram for each other
 Fixation of the amount of the dower (Mehar)
 Gender should be opposite
 Existence of witness
 They should be Muslims by faith

2. Void marriage
 According to the Islamic rules of law, such marriage is a void marriage which is in
itself an unlawful marriage and full of defects and illness and does not complete all the
requirements of a valid marriage is called void marriage. This type of marriage can be
terminated by either party without obtaining a divorce, and is imperfect in all aspects
such
as:
 The non-existence of offer and acceptance
 Where the consent is taken by undue influence
 Marriage on based of sympathy
 Existence of fosterage
 Marriage with the wife of another person

3.Irregular marriage
 According to the Islamic rules of law, such marriage is not unlawful in itself but there
are some other reasons of irregularity of this marriage such as:
 Marriage without witnesses
 Marriage with a woman who is in the period of IDDAT
 Marriage with a woman who is not a Muslim by faith
 Marriage with two women who are sister, at a same time
 And fifth marriage

5. Kinds of marriage under Shia law

Following are the two kinds of marriage as under. The shia law only recognizes only
following.
1. Valid marriage
 Valid marriage is such marriage which is lawful in the eye of law and completes all
the requirement of the law.
2. Void marriage
 Void marriage is such marriage which is an unlawful in the eye of law and does
not complete all the requirement of the law.

6. Difference between void and irregular marriage

Following are the differences between void and irregular marriages.
1. As to restriction
 The restrictions on void marriage are complete and absolute
 The restrictions of irregular marriage are temporary

2. As to enforceability
 Void marriage is not enforceable by law
 Irregular marriage is enforceable by law after removal of some restrictions which may
be made it irregular.
3. As to legal status
 Void marriage is completely unlawful marriage
 Irregular marriage is not an unlawful marriage

4. As to Children legitimacy
 In void marriage, the child born is not a legitimate
 In irregular marriage, the child born is a legitimate

5. As to conversion
 Void marriage cannot be converted into valid marriage
 Irregular marriage can be converted into valid marriage

6. As to rights and obligation

 Void marriage does not create any civil right and obligations
 Irregular marriage may create any civil right and obligation

7. Ways of avoiding irregular marriage

Following are the three ways to avoid irregular marriage.

1. By Husband
 A husband can avoid his irregular marriage by rejecting his contract of marriage.

2. By wife
 A wife can avoid her irregular marriage by rejecting her contract of marriage.

3. By court of law
 The court of law can avoid the contract of irregular marriage if it is brought under
the consideration of the court.
1.Essentials of marriage
Following are the essentials of a valid marriage.

1. Offer and Acceptance

 For a valid contract of marriage, there should be an offer by one party and it must
be accepted by the other party. It is called offer and acceptance.
2. Offer and acceptance must in same meeting
 For a valid contract of marriage, offer and acceptance should be in same meeting, if
an offer is made in another meeting and it is accepted in another meeting in this case
it will not considered a valid marriage.

3. Free consent
 For a valid contract of marriage, consent of both of the parties should be free from
any social pressure, misrepresentation or free from fraud. If the consent is taken by
undue influence, in this case it is not a valid marriage.

4. Majority
 For a valid contract of marriage, both of the bride and the groom have attained the age
of majority and must be an adult at the time of marrigae and no one should be minor by
age.

5. Fosterage
 For a valid contract of marriage, both of the bride and the groom should not be
fosterage (Mehram) for each other and they don’t have blood relation such as brother
sister, Uncle auntie etc.
6. Dower (Amount of mehar)
 For a valid contract of marriage, the fixation of the amount of the mehar (dower) is
necessary at the time of marriage because a marriage without the fixation of amount
of mehar (dower) is not a valid marriage.

7. Opposite gender
 For a valid contract of marriage, the marriage should be between the two person
of opposite gender such as man and woman. Because Islam does not allow to sign
the contract of marriage to the same gender.

8. Witnesses
 For a valid contract of marriage, there should be available two witnesses at the time
of marriage but the witness must be of sound mind as well as an adult.

9. Must be Muslims
 For a valid contract of marriage, both of the bride and the groom should be Muslims
by faith if anyone of the partner is non-Muslim so there is no valid marriage.

5. Objects of marriage
Following are objects of a marriage.

1. Legalization of sexual inter course.

 Under the Islam, the main object of the marriage is legalization of sexual intercourse
of the husband and the wife in order to protect both of them from evils of the society.

2. Breeding of children.
 Under the Islam, another object of the contract of marriage is breeding of children by
the husband and the wife.

3. Preservation of human race

 Under the Islam, another object of the contract of marriage is protection of the
human beings from committing an evil.

4. Regulation of social life.

 Under the Islam, another object of the contract of marriage is regulation of the social
life in order to run the business of the society without sexual offenses.

6. Number of Wives
 Under the Islamic rules of law, a person who is Muslim can have four wives at a same
time and it is permitted by Islam, but not more. If he marries a fifth wife because he has
already four wives, in this case such kind of marriage would be considered as
irregular or invalid.

7. Different benefits of Marriage

Following are the different benefits of marriage.
1. Social benefits
 The Holy Prophet (P.B.U.H) encourages the contract of marriage because Islam
gives high respect to a married woman and protects her from social evils and such
marriage becomes cause of stability of the social life of man and woman.

2. Religious benefits
 After a contract of marriage a Muslim man and a Muslim woman can save them
from committing illegal sexual intercourse which is sin in the eye of Islam so that
marriage saves them become guilty in the eye of Islam.

3. Legal benefits
 After a contract of marriage, the sexual intercourse and breeding of the
children become legal in the eye of the Islam because Islam legally allows these
act after contract of marriage. And a married woman cannot make another
marriage.

Impediments of contract of marriage: There are some legal disabilities or

prohibitions to make the contract of marriage. List is as follows:
1. Absolute prohibition: It is total prohibited contract of marriage and it cannot be
made in any circumstances.
(1) Consanguinity.
(1) Mother and all female ascendants (How high-so-ever – (HHS)).
(2) Daughter and her female descendents (How low-so-ever – (HLS)).
(3) Sister and her female descendants (How low-so-ever – (HLS)).
(4) Brother’s daughter (How low-so-ever – (HLS)).
(5) Mother/father’s sisters (not her descendants (How low-so-ever – (HLS))).
(2) Affinity (because of Marriage or Nikkah). According to Hanfi law
adulterous relatives are also included in affinity and daughter from such
woman is prohibited. According to Shia law it is prohibited as the
consanguinity is prohibited.
 (1) Mother-in-law.
(2) Wife’s daughter (stepdaughter).
(3) Son’s wife or son’s son’s wife (How low-so-ever – (HLS).
(4) Step mother.
(3) Fosterage. In Sunni law some relatives are allowed to make contract of
marriage in case of fosterage. They are as follows:
(1) Sister’s foster mother.
(2) Foster sister’s mother.
(3) Foster brother’s sister.

How the fosterage is established: When woman feeds child with her milk then
fosterage is established. According to Hanfi school feeding once creates fosterage. As
per Shafi school at least five times feeding establishes fosterage. Under Shia law 15
times’ or twenty four hours’ feeding establishes fosterage.

What is duration of feeding: Majority agrees on two years’ feeding. But Imam
Muhammad and Imam Yousaf who were disciples of Imam Abu Hanifa specify the
feeding upto 2½ years.
Age of foster mother: Majority agrees that the age of foster mother should be at least
nine years which is age of majority in some cases.

Plurality of husbands: It is not lawful for a Muslim woman to have more than one
husband at the same time. It is void marriage.

2. Relative or temporary prohibition: It defectives contract of marriage but in

certain circumstances it may be converted into valid contract of marriage if so
rectified.

(1) Unlawful conjunction. A man may not have at the same time two wives
who are so related to each other by consanguinity, affinity, or fosterage, that
if either of them had been 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.
(2) Polygamy. A Muslim man is allowed to marry upto four women at the same
time but at the same time he is not allowed to have fifth marriage. Such fifth
contract of marriage is irregular.
(3) Absence of proper witnesses. Two male witnesses or one male and two
female witnesses are necessary to confirm the contract of marriage while
marriage in contrast put the contract into irregular contract of marriage.
(4) Difference of religion. A Muslim cannot make contract of marriage with
Non-Muslim like Hindu, idol-a-tress, or a fire-worshipper.
(5) Woman undergoing iddet. A marriage with a woman before completion of
her iddet
is irregular.
Muta or Nikah mut’ah
The term literally means “pleasure marriage”. Muta marriage is a temporary agreement for a
limited time period, upon which both the parties agreed. There is no prescribed minimum or
maximum time limit, it can be for a day, a month or year(s). The marriage dissolves itself
after the expiration of the decided period, however if no such time limit was expressed or
written, the marriage will be presumed permanent. This type of marriage is seen as
prostitution by the Sunni Muslims and thus, is not approved by Sunnis. 
However, it is considered legitimate by the Twelver Shia sect, which is predominant
in Iran and constitutes 90% of India’s Shia population. In Iran, the word mut’ah is only from
time to time utilized and this practice is called ‘sigah’. The rules for sigah are fixed for eg-
the contract for temporary marriage can be attracted for one hour to 99 years; it can’t be for
an indeterminate period. This provision distinguishes mut’a from nikah or lasting marriage,
which has no time limit. However, just like in nikah, in sigah too, the bride must get some
monetary benefit.
No witnesses are required for mut’ah. And just like in any other contract, the woman
being a party can lay down conditions for her sexual union throughout this time limit, this can
also include her daily maintenance. Her temporary husband must respect these conditions.
The marriage automatically dissolves at the end of the stated period. No matter how short the
duration was, the woman has to practice abstinence lasting up to two menstrual cycles.
Interesting part is that, the temporary husband and wife can renew the contract but the
husband must regardless of this pay the amount to the bride. Husband has a unilateral right to
revoke the marriage-mark of his superior position in the relationship. But the woman can
refuse to be intimate with him or even leave him, but in such case, she must return back the
amount she received from him.
 India is a country that has partially approved live-in relationships; However, it will
still be quite difficult for the Supreme Court to constitutionally invalidate this form of
marriage. In modern day era, where feminists all across the globe see this arrangement
equivalent to prostitution. There are many advocates of Nikah mut’ah who believe that being
a contract, this arrangement is superior to the live- in relationships.

Q. 6: What dowers and remedies are available to the wife if

dower is not paid.
1. Preface
 If a husband does not pay the mount of dower, multiple remedies are exist in the
law and a wife can take legal action in order to recover the dower. Under the
Muslim Personal Law, dower means money which the wife is entitled to receive
from her husband in consideration of the marriage
2. Interpretations Dower
 Under Islamic law, dower is an amount which is payable by the husband to her
wife whether before the marriage, after the marriage or at the time of marriage.
3. Importance of dower
 The main object of the amount of dower is protection of the wife even after
death of her husband or after dissolution of the marriage. It is a financial support
of a widow or divorced wife. Furthermore, amount of dower is a check on the
powers of a husband to pronounce the divorce to her wife.
4. Remedies for unpaid dower
Following are the remedies available to the wife in dower are not paid by her husband
1. Refuse to cohabit
 Under Islamic Law, the wife is entitled to refuse herself to have sexual
intercourse until the prompt dower is paid. A wife and after her death, her legal
heirs can file suit for recovery of dower.
2. Legal action against husband
 Under Islamic law, the wife is entitled to take judicial action through the court
of law for recovery of the unpaid Dower against her husband.
3. Legal action against heirs of husband
 Under Islamic law, if the husband dies, the widow is entitled to take judicial
action through the court of law for recovery of the unpaid Dower against heirs
of her husband.
 Note: Heirs will not be personally liable but they will be liable to pay the dower
from the properties of deceased.
4. Right of retention of property (Holding)
 Under the Islamic law, a widow is entitled to retain the properties of her
deceased husband in lieu of unpaid dower. And this right is available to
both a widow and a
divorced woman. But possession should have been attained during the
lifetime of the husband or with the consent of the legal heirs after the death
of the husband.
5. Right of possession of property
 Under the Islamic law, a widow is entitled to possess the properties of her
deceased husband in lieu of unpaid dower. And this right is available to both
a widow and a divorced woman.
5. Minimum amount of dower
 Under the Islamic law, According to Fiqah e Hanfi, the dower of wife should not
less than 10 dirhams, and according to Fiqah e Malik, it should not less than 3 3
dirhams. But Under shia law there is no minimum dower is fixed
6. Maximum amount of dower:
 Under the Islamic law, the maximum amount of dower has not been fixed here.
But under Shia law amount of dower can’t be exceeded to 500 dirhams
7. Remission of dower
 Under the Islamic law, with her consent a wife has a right to remit all or any
portion of dower but acceptance by the husband in not needed in this regard.
8. Recovery of dower
 Under the Islamic law, by the rules of law, a woman is entitled to file a civil case
in order to get the amount of dower from her husband who has not paid dower so
far. There is no objection on her if she files a case against her husband.
9. When wife gets entitled of dower
Wife gets entitled to receive the dower due the following grounds.
1. On dissolution of marriage by divorce
2. On death of her husband
3. On valid retirement

10. Differences between Shia and Sunni Law on Dower

Following are the differences between sunni law and shia law on dower.

1. As to minimum amount
 Under sunni law, minimum amount of dower is 10 dirhams
 Under Shia law, no minimum amount is fixed
2. As to maximum amount
 Under sunni law, no maximum amount of dower is fixed
 Under Shia law, maximum amount of dower is 500 dirhams
3. As to payment
 Under sunni law, dower shall be payable at any time before or after
dissolution of marriage
 Under Shia law, dower only shall be payable if marriage is dissolved
4. As to agreement not to pay dower
 Under sunni law, agreement between the parties not to pay the dower is not valid
 Under Shia law, agreement between the parties not to pay the dower is valid

1. Kinds of dower
Following are the kinds of dower.

1. Specified dower
 Specified dower is such dower which is fixed even before the marriage or at
the time of marriage or even after marriage. Under Sunni law, specified dower
must not be less than the value of 10 dirhams. The wife is entitled to receive
this amount even if the specified dower is less. But under the Shia law, there is
no fixed amount of dower

A.Prompt dower
 Prompt dower is such dower which is payable on demand and it is paid
immediately on the event of marriage by the husband. And wife can refuse
to live with her husband even he has paid the amount of dower.

B. Deferred dower
 Deferred dower is such dower which is payable on the dissolution of the
marriage even by the death of either of either partner, or by divorce. If the
marriage was dissolved by divorce, in this case the wife is entitled to
receive the amount of whole unpaid dower immediately.

2. Unspecified dower
 Unspecified dower is such dower which is not fixed even before the
marriage or at the time of marriage or even after marriage. In this case the wife
is entitled to receive a
proper dower that is fixed by the courts based on Islamic rules

A.Proper dower
 The amount for proper dower is fixed keeping in view the wife’s social
status or her qualification.

B. Fixation of proper dower

 During the fixation of the amount of dower, following factors are
taken into consideration.
1. Qualification of the wife
2. Social position of the wife or her father
3. Local customs of the wife’s family
4. Social position of the husband

WAQF
1. Introduction
Waqf is an important social institution of Islam. It is a permanent dedication by a
Muslim of some specific property for religious and pious purpose. Every Muslim of
sound mind may dedicate his property by way of waqf. It may be made verbally or in
writing. The real purpose of making a waqf is to acquire merit in the eyes of the
Lord; all other purposes are subsidiary.
2. Meaning
Literal meaning is “tying up or detention”.
3. Definition
As per Waqf Act 1954
According to Sec 3 (i) waqf means the permanent dedication by a person professing
Islam of any moveable and immovable property for any purpose recognized by the
 Muslim Law as pious, religious or charitable.”

Imam Abu Hanifa defines:

Waqf is the detention of a specific thing in the ownership of the waqf or appropriator,
and the devoting or appropriator’s of its profits or usufruct in charity on the poor or
other good objects.
Thomas Patrick Hughes
Waqf means literally “Standing, stopping, halting”. A term which in the language of
the law, signifies the appropriation or dedication of property to charitable uses and the
service of God.
Qadi Abu Yusuf and Imam Muhammad
Waqf is the tying up of the substance of a thing under the rule of the property of
Almighty God, so that the proprietary right of the waqf becomes extinguished and is
transferred to Almighty God for any purpose by which its profits may be applied to the
benefit of His creatures.
The Shara’I ul-Islam (Shiite Law)
A contract, the fruit or effect of which is to tie up the original of a thing and to leave its
usufruct free.
1. Parties of the Waqf
Following are the parties of waqf. Details are as under:
1. Waqif
 Waqif is a person who donates his property for religious purpose is called waqif.
2. Mutawalli
 Mutawalli is the person who manages the property of waqf and
responsible for the distribution of the property.
3. Beneficiary
 Beneficiary is a person in whose favor the property is donated

5. Essentials of Valid Waqf

Following are the essentials of valid waqf.
1) Permanent donation
 Under the Islamic law, permanent donation is an essential element of waqf and
donation of the property should be permanent in nature, and should be in the
name of God. If it is a temporary donation, in this case it is not a valid waqf.
2) Donation by a competent Muslim
 Under the Islamic law, Property must be donated by only a Muslim person
who has attained the age of majority and is of sound mind. If it is donated by a
minor, in this case it
is not a valid waqf.
3) Transferable property
 Under the Islamic law, Property must be transferable to others such as
transfer of buildings, money, jewelry etc. These are those things which are
having physical objects and are transferable.
4) Religious purpose
 Under the Islamic law, religious purpose is also an essential of a valid waqf,
property must be donated only for the religious purposes and acts and those acts
which have been recognized by Islam as religious or pious acts.

5) Unconditional
 Under the Islamic law, property must be donated for religious purposes
unconditionally. If there is a condition for waqf, in this case it is not a valid waqf.

6. Objects of waqf
Following are the objects of waqf which are recognized by the Islamic rules of law and
are purely based on piety and charity. Waqf can be granted to:
1. For construction of Eidgahs where Namaz e Eid is offered
2. For maintenance of mosques and burning lamps in them
3. For construction of hospitals and dispensaries
4. For construction of Bridges
5. Mosques and the Imams to conduct worships
6. Schools and teachers who are teaching Islamic studies
7. Among poor to feed them
8. Keeping Tazias in the month of Muharram
9. Celebrating the death anniversaries of settlor or his family

7. Kinds of waqf
Following are the kinds of waqf.
1. Contingent waqf.
 Contingent waqf is such waqf which is dependent upon the possible
occurrence of a future happening, the happening of which is not guaranteed that
it may happen or not. It is called contingent waqf.
2. Conditional waqf
 Conditional waqf is such waqf where a condition is imposed that when the
property will be mismanaged, it will be divided amongst beneficiaries. It is
called conditional waqf.
3. Private waqf
 Private waqf is such waqf which is made for completion of religious duties of a
particular individual or a family. It is called private waqf.
4. Public waqf
 Private waqf is such waqf which is made for completion of religious duties
of general public. It is called public waqf.
5. Quasi waqf
 Quasi waqf is such waqf which is partly made for the benefits of particular
individuals, and partly made for the benefits of general public. It is called quasi
waqf which is partly private and partly public waqf.

8. Cancelation of waqf
 Under the Islamic rules of law, the property which is donated as waqf by will,
the waqif has a right to revoke the act of waqt at any time before his death.
 DIVORCE
Divorce: It is discussed in Quran in Sura Al-Baqra under verses nos. 226, 236, 237,
Sura Al- ahzab verse no. 49, Sura Mujadila verses nos. 3 and 4, and Sura Talaq
verses from 1 to 7.

Literal meaning: It means to discriminate, leave, or reject.

In Islamic law it is release from the tie of the marriage either immediately or
eventually. It can take place personally or through an agent.
Right to divorce may be
delegated. It may be
either express or implied.

Cessation of relationship (tie) of marriage: Following are the viewpoints of different

Muslim jurists:

1. Sunni school emphasis on the wording of divorce. A word of “divorce” can cease
contract of marriage. Intention is no more important in the case of divorce.

2. Shia law considers the presence of witnesses important at the time of dissolution of
marriage whereas Sunni do not regard the presence of witnesses on such occasion.

Presence of wife is not required for the dissolution of contract of marriage, i.e., divorce
but its communication to her is important.

Limitation of time period for the claim of dower money is three years from the date
of such communication of divorce in this case.

4. Kinds of divorces
Following are the kinds of divorces. Details are as under.
1. Talaq-e-Ahsan
 Talaq-e-Ahsan is such talaq where a husband pronounces talaq to his wife
in a single sentence and waits for the completion of the period of iddat. This
type of talaq can be cancelled during the period of iddat but after iddat, it
cannot be cancelled.
2. Talaq-e-Hassan
 Talaq-e-Hassan is such talaq where a husband pronounces talaq to his wife by
three times consecutively after a break of 30 days between each talaq. This type
of talaq can be cancelled during the period of iddat but after iddat, it cannot be
cancelled.
3. Talaq-e-Biddat
 Talaq-e-Biddat is such talaq where a husband pronounces talaq to his wife
thrice in a single sentence. This type of talaq cannot be cancelled once it has
 been stated at thrice. In this situation, in order to remarriage the husband and
wife will have to do “Nikah Halala.
4. Khula
 Khula is a kind of divorce where a woman can divorce her husband, after returning
the dower (mahr) that she had received from her husband. In this case the
husband takes the payment back and lets his wife go.
5. Mubarrat
 Mubarrat is such divorce where husband and wife dissolve the contract of
marriage by their mutual agreement and wants separation from one another. It
is called mubarrat.
6. Judicial divorce
 Under the marriage act 1939, judicial divorce is such divorce where a woman
can file a case in the court in order to get divorce from her husband on the
ground of false charge of adultery. Court gives order for divorce in this regard.
 Appeal
Appeal cannot be filed against the decree of the court on this ground
of falsely accusation of sexual intercourse.
7. Divorce in absence
 This is such kind of divorce which can be pronounced by the husband even in
the absence of wife. But it is necessary that husband must pronounce the name of
his wife. Such is a valid divorce and is called divorce in absence.
8. Ila
 Ila is such divorce where a woman can file a case in the court in order to get
divorce from her husband where he is of unsound minded, or has become
impotent to have sexual intercourse from four months, or he swears of God that
he will not have sexual intercourse with his wife.
9. Zihar
 If a husband compares his wife with his mother or any other female who are
his blood relatives, in this case the wife has a right to refuse to have sexual
intercourse with him until he does not seek forgiveness. The wife has the right
to take judicial divorce which is known as Zihar

Meaning of Hiba
Hiba (Gift) is a transfer of ownership in a property intervivos . Intervivos means living
person. Gift is transfer of property in which ownership is transferred by one living person to
another living person without consideration of existing property. Gift made by Muslim is
called Hiba. Gift is the subject matter of transfer of property Act 1882, Section 122 to 129 of
the Act deal with Gift while Hiba  is  governed by muslim personal law. The Transfer of
property Act 1882 does not apply on Hiba . The shariat Act 1937 also includes gift as one of
the matter to be regulated by muslim personal law If the parties are muslim.
Definition of Hiba
According to Mulla “  A hiba or gift is a transfer of property, made immediately, and without
any exchange , by one person to another, and accepted by or on behalf of the latter. “
According to Hidaya ” Hiba is an unconditional transfer of ownership in an existing
property, made immediately and without any consideration.”

Essential conditions of Hiba.

Following are the essential of a valid Hiba.
1. Declaration
2. Acceptance
3. The delivery of possession
Declaration
the declaration of intention is essential for the hiba. A muslim person who is of  sound mind
and have attained the age of majority may declare to make a hiba of his property. This
declaration may either be in oral or  writing. The only condition is that the declaration must
be made in clear words it should not be ambiguous.
Acceptance of Gift (Hiba)
The second essential of hiba is the acceptance of the gift. It is donee who accepts the gift.
Donee may be any person only requirement is that he or she must be in existence at the time
of declaration . Donee may be a Hindu , Christian or any non- muslim or minor or insane
person or a juristic person .
Delivery of possession.
For a Muslim gift it is essential that the property gifted should have been transferred to the
donee as without such transfer the Muslim gift does not attain its legality and finality. It will
be considered to be void or incomplete. If the possession of property has not been delivered
to the donee, the donor may revoke the gift befibe the actual delivery has been made. It is
only with the transfer that the gift becomes final.
Kinds of Gifts
Hiba-bil-Iwaz
Hiba-bil-Iwaj is like a sale where the vendee (donee) has already made some consideration to
the vendor (donor) and in return the vendor (donor) makes a gift to the vendee (donee). In
Hiba-bil-Iwaj unlike a normal Hiba there should first be the payment of some consideration
without any agreement by the done to the donor and thereafter the donor in lieu of that
consideration makes the gift to the done.

Unlike the requirements of an ordinary gift it is not required in the case of Hiba-bil-Iwaz that
the donor shall give proof of the gifted property to the donee. The giving of the consideration
by the done is must but thereafter the donor may merely promise to give a gift in lieu of the
consideration and an actual delivery is not a must. However, such gift needs to be registered
and a mere oral promise will not be sufficient. Once the registration has been done it becomes
irrevocable. The gift of Musha even in a divisible property is permissible.

Hiba-ba-shart-ul-Iwaz
The donor and the done are under an agreement that the donor will make the gift presently to
the done and in return of that as per the agreement the done will give something to the donor
in future. In such a gift the donor has to deliver the possession of the property to the done at
present. Musha cannot be gifted under Hiba-ba-shart-ul-Iwaz. Initially Hiba-ba-shart-ul-Iwaz
is amere gift but later on when the Iwaz is performed it becomes a sale.
Sadaqah
It is a gift with the religious motive and the corpus as well as the usufruct gifted by donor.
Once the gift has been made and possession has been delivered it becomes irrevocable. The
gift of Sadaqah can be made even to poor persons for charity. It can be made jointly to two or
more persons as well. The done can use or consume both the corpus and the usufruct.

Unlike a normal gift, in the gift of Sadaqah an express acceptance by the done is not required.
The difference between Sadaqah and Waqf is that even though in both the gift is made for
religious and charitable purposes however n Waqf the corpus of the gift cannot be consumed
whereas in Sadaqah the corpus as well as usufruct both can be consumed.

Ariyat
It is like a gift mainly for charitable purposes. The ownership of the property is not
transferred rather only the usufruct i.e. only the right to enjoy the benefits of the property is
transferred. Upon the death of the done the property will revert back to the donor or of the
donor is dead then to his legal heirs. It is a gift without any consideration and broadly it is
like a license. In Ariyat an express acceptance by the done is not required and also t is not
essential that the donor should be of the age of majority.
Musha
Musha or Hiba-bil-musha literally means confusion. It is merely an undivided share in
property to the donee. Therefore the gift of Musha is a undivided shae in the property. The
prohibition against Musha is applicable in the Hanfies (sunni) i.e. if the property is divisible
the it must be first divided and then only it shall be transferred.

If without dividing the Musha property is gifted then the gift will be irregular in the Hanafi
sunnis. However, if the gifted property is indivisible then the gift can be made and Musha is
allowed, for example, the gift of right to use the stairs or the beathing ghat that passes
through the property etc.

Q. 4: Define will. who can make will. It's essentials and

limitations.
1. Preface
 Under the Islamic rules of law, will mean the legal declaration of the intention
of a person towards his property, which he wants to be handed over to whom after
his death. It is a one-sided document and takes effect after the death of the
testator. Due to any reason this document can be cancelled or altered by the
testator at any time as he has power to dispose of his property.
2. Lexical Meaning of will
 A will means is disposition of the property which takes effect after the
death of the testator.
3. Interpretation of Will
 Will is a legal document in which a person shows his intention that who
should receive possession of his property after his death such type of a person's
choice in a particular situation is called will
4. Parties of will
Following are the parties of a will.
1. Testator
 Testator is a person who makes a will is known as testator
2. Legatee
 Legatee is a person in whose favor the will is made is known as legatee.
3. Executor
 Executor is a person who executes the will in favor of legatee is known as executor
5. Essentials of valid will
Following are the essentials of a valid will.
1. Existence of property
 It is a valid will if the property is exist at the time of death of testator
2. Existence of intention to give
 It is a valid will if the testator has an intention to give the property to other.
3. Existence of physical object
 It is a valid will if the thing is exist at the time of transfer and must have
physical object such as car, building, money etc.
4. Ownership of testator
 It is a valid will if the testator is owner of the property and has a complete
control over property by excluding all others.
5. Does not effect heirs
 It is a valid will if it does not affect the legal shares of heirs. if it effects the
heir it is not a valid will.
6. Not in favor of legal heir
 It is a valid will if it has not been made in favor of legal heirs of the testator.
7. 1/3 of total property
 It is a valid will if the property is less than from 1/3 of the total property of the testator.
6. Limitations on will
Following are the limitations which are imposed on will by Islamic rules of law.
1. In case of legal heirs
 Any testator cannot make a will in favor of his legal heirs, if he makes a will in
favor of his legal heirs; it is not a valid will.
2. In case of unborn baby
 Any testator cannot make a will in favor of unborn baby who is in the
womb of her mother, if he makes a will in favor of unborn baby; it is not a
valid will.
3. In case of any condition
 Any testator cannot make a conditional will in favor of others, if he makes a
conditional (mashroot) will in favor of others; it is not a valid will.
4. As to property
 Any testator cannot make a will more than 1/3 of his property, if he makes a
will more than 1/3 of his property; it is not a valid will.
7. Who can make will
Following are the person who can make will. Details are as under.
5. Sound mind
 Under the Islamic rules of law, each and every person who is of sound mind and
owner of a certain property can make a will related to his property in order to
appoint someone to collect his property after his death.
6. Major
 Under the Islamic rules of law, each and every person who is major and owner
of a certain property can make a will related to his property in order to appoint
someone to collect his property after his death.
7. Deaf, Dumb or Blind
 Under the Islamic rules of law, each and every person who is deaf, dumb or
blind and owner of a certain property can make a will related to his property
in order to appoint someone to collect his property after his death.
8. Ordinary insane person
 Under the Islamic rules of law, each and every person who is ordinary insane and
owner of a certain property can make a will related to his property during an
interval in which he is
of sound mind in order to appoint someone to collect his property after his death.
8. Who cannot make a will
 Under the succession act 1925, no one can make a will when he is in such a
state of mind, whether arising from from illness or from intoxication or from any
other situation that he does not know about the goodness or badness of his deed.
Minor and insane also cannot make will.
9. Revocation of will
Will is revocable, and it can be revoked at any time by testator even before his death.
Following are the ways of revocation.
1. Express
 Testator can revoke the will at any time either in express terms or orally or in
writing is called express revocation.
2. Implied
 Testator can revoke the will at any time without any express terms either
orally or in writing is called implied revocation

Forms of Will:
Will can be made either expressly or implied – verbally or in writing or regardless it is
verbal or written, intention of testator must be clear.

Exception: Although Will cannot be made in favour of heir or legatee but there is
exception to this rule. If there are more than one legatees and they do not object if Will
is made in favour of one, it shall be valid. If there is one legatee, he can acquire
property by way of Will. Free consents after death of testator should be obtained. Any
single heir may consent so as to bind his own share. If heirs deviate at the time of death
of testator, Will in favour of heir would become ineffective.

Bequest cannot be made in favour of murderer legatee. Bequest also can be made to the
person who is not legatee or heir.

In determining whether a person is or not heir, regard is to be had, not to the time to the
execution of the Will, but to the time of the death of testator.

Q. 8: Salient features of Muslim Family Law Ordinance

1961.
1. Preface
 Law, whether divine or manmade, is always for the well-being of the human
beings. The Muslim family laws ordinance 1961 came into force on 15th July
1961. It applies to all Citizens of the Pakistan who are living in this country. A
lot of changes have been made and imposed upon Muslims of the whole
Pakistan. Some of the changes made under this act are opposite to the Muslim’s
law.
2. Interpretations
1. Arbitration Council
 Arbitration council means a body which is consisted of the Chairman and
representative of each of the parties to a matter under the Ordinance
2. Chairman
 Chairman is a person who is authorized by the government and responsible to
resolve the disputes of the people of union council.
3. Application of this ordinance
 The Muslim Family Ordinance 1961 applies to all Muslims citizens of the
Pakistan wherever they live. It is not applicable to muslims of other countries.
And it is applied only on Muslims of the country because non-muslims have
their own laws in this country.
4. Changes brought in Muslim family law ordinance
Following are the changes are made in MFLO are as under.
3. Succession
 Before promulgation of the Muslim family laws ordinance 1961, the
grandson/granddaughter had no shares in the property which was left by the
grandfather. But now under the provision of sec 4 of the ordinance,
grandson/granddaughter have been entitled to get the shares from the properties
of their deceased grandfather.
4. Registration of marriage
 Under the provision of this ordinance, it was decided that every marriage
under Muslim Law shall be registered. For the purpose of registration of
marriage under this Ordinance, the Union Council shall grant license to one or
more persons known as Nikah Registrars. But one registrar will be hired for one
ward only.
 Record of Nikah Nama
 The record the nikah nama will be maintained by the Nikah registrar and
it will be kept in union councils further more the copies of nikahnama
shall be handed over to the parties. too and fee of these copies also will be
charged as prescribed.
 Fee of Nikah Nama
 Under the provision of this ordinance, parties shall pay fees for
registration of marriage as prescribed.
5. Polygamy
 Under the provision of sec 6 of Muslim Family Law ordinance a married
man cannot contract another marriage without the written permission of his
existing wife as well permission from arbitration council.
 Marriage without permission
 Under the provision of this ordinance if a man who contracts another
marriage without the permission of the Arbitration Council or his wife,
shall immediately pay the entire amount of dower or shall be punished to
simple imprisonment for the term of one month.
6. Divorce
 Under the provision of sec. 7 of this ordinance any person who wants to
divorce her wife and pronounces the words of divorce, is under an obligation to
give a written notice to the chairman of his intention as well as to provide a copy
of divorce to his wife. And it is stated in this sec that the divorce shall not
effective until completion of ninety days.
 In case wife’s pregnancy
 Under the provision of section 7 of this ordinance if the wife is pregnant
at the time of pronouncement of divorce, in this case it shall not be effect
until the period of pregnancy comes to an end.
7. Dissolution of marriage by agreement
 Under the provision of section 7 of this ordinance, a woman has been delegated
the right of divorce and she can exercise this right at any time and she can
dissolve the marriage other than talaq by mutual agreement.

8. Maintenance
 Under the provision of this ordinance, If any husband fails to maintain his wife
or wives or any of the wives, in this situation wife will submit an application to
the chairman in order to seek any legal remedy and Chairman shall constitute an
Arbitration Council to
determine the matter, and such council will decide that how much amount will
be paid by the husband as maintenance.
9. Dower
 Under the provision of this ordinance, if no detail is given about the payment of
dower in the nikahnama or the marriage contract, in this case the amount of the
dower shall be supposed to be payable on demand.
10. Power to make rules
 Under the provision of this ordinance, the Government is authorized to make
rules in order to force the rules of this ordinance; it is provided that a breach
of any of the rules shall be punishable with simple imprisonment which can
extend to one month, or with fine of two hundred rupees, or with both.
 Official Gazette
 Under this provision it is prescribed that the rules made under this section
shall be published in the official Gazette and shall have effect if enacted in
this Ordinance.