FAMILY LAW II NOTES

ACCORDING TO KSLU SYLLABUS

SUBJECT TEACHER:
MRS YASMEEN TABASSUM
(VICE PRINCIPAL)

UNIT I

Muslim law as personal law Personal law is that branch of civil law which
regulates the personal matters of the individual e.g. Marriage, divorce,
guardianship, inheritance etc they are all called personal matters of individuals,
as they relate to the affairs of an individual & is affected by the family in which
the individual is born. Personal law is also called family law.
Prophet Mohammed (PBUH)
Birth – 571 AD at Mecca
Father – Abdullah
Mother-Amina
Grandfather – Abdul Mutalib
Uncle – Abu Talib
From childhood prophet was serious child, & began to think about what he saw
around him .At the age of 13 he joined his uncle at his business. Being a keen
observer he noticed many customs & practices in Arab society. At 25 yrs he got
married to Kathija for looking after the business, prophet lived with her till she
died from her he had two sons & four daughters. But only his fourth daughter
Fatima survived him. From other wives he had no children. After her death
prophet married another women Ayesha, a daughter of his friend & his disciple
Abu Baker. Prophet began to think seriously about the evils in the society &
became anxious to find a remedy for removing them; he often visited alone a
cave in mountain (Hira) where he thought the concept of God, religion& the
reforms in the society. It was believed in the holy month of Ramadan in
609A.D, when prophet was meditating in the cave, the voice from the angle
(Gabriel)sent to him by God(Allah) whispered in his ears, “Read in the name of
Allah, the creator of all things, who made man from the clot of blood. Read for
thy Lord is most generous, he who teaches the use pen , teaches man what he
does not know.”This was the first message to Prophet, followed by a series of
divine communication or messages of god were revealed to him on different
occasions till his death. Quran is the collection of such divine messages
revealed to prophet (PBUH) from time to time.
Through his preaching Prophet laid down new principles of life & abolished the
existing evil customs in the society. First to believe was his wife Kathija later
the rest of the people. But majority of the people opposed his preaching's &
made things difficult for him, he left Mecca & went to Medina in 622A.D, this
journey is considered as ‘holy mission’ (Hejarat), at Medina he was welcomed
with open hands by the people & majority of them became his followers.
Prophet not only united the people through his new faith but also organized
them as a strong political group to face strong opposition, many wars were
fought & the personality of Prophet Mohammed dominated the minds of Arabs
to such an extent that within a very short period he succeeded in spreading the
new religion(Islam) among majority of the people. At the time of his death in
632A.D Prophet was the religious, social & administrative head of a big Islamic
commonwealth.

DEVELOPMENT OF ISLAMIC LAW CAN BE STUDIED UNDER FIVE

DIFFERENT PERIODS

1. First period(622-632AD)
2. Second period(632-661AD)
3. Third period(661-900AD)
4. Fourth period(900-1924)
5. Fifth period(1924AD to present)

First period(622-632A.D),the Legislative period: Began with Hijarat 622AD

ends with death of prophet in 632AD, from the first revelation of Message of
god in 609AD, followed by the rest, most revelations were in Mecca & most
people opposed him, his first task was to make them believe them the existence
of one god. The revelations contained religious & spiritual messages & they did
not contain positive law(Fiqh) .622AD when prophet went to Medina with the
revealed messages of god, it was easily believed by the revelations at Medina,
prophet laid down the principles to regulate the conduct of people(positive law)
there had been revelations solving the problems of the society this continued till
his death. The sayings & doings of prophet without divine inspiration were also
followed by the people as his traditions(sunnah).Laws which were not available
in direct words of God were formulated through traditions of the prophet. The
last ten years of the life of prophet before his death were very important from
the point of view of legislation of Muslim law.Important rules of law were laid
down during this period either through the words of Quran or through the
prophets traditions. This period was considered as legislative period where laws
were enacted by the divine source

Second period (632-661), also period of four caliphs (Khulfai-i-Rasheeden):

prophet(PBUH) had been an absolute authority on law & religion.He was
considered as spiritual head as well as an administrative head of Muslim
state.He was spiritual as well as the administrative head of Muslim state.After
his death the question arose as to who would be the successor of
Prophet(PBUH) .Majority agreed for election for his successor.Accordingly
Abu Baker was elected as the first caliph & headed the community of Muslims,
he was a very popular during the times of Prophet & as a leader thought the
community. He died in 634A.D after him Osman was the chief for 10yrs he was
assassinated in 644A.D, after him Osman became the third caliph through
elections. He led the community for 12yrs he was also assassinated by
opponents in 656 A.D. After him Ali husband of Fatima daughter of Prophet
was elected as the fourth caliph. Ali too was killed in 661 A.D. These were
known as the ‘rightly guided caliphs, These four caliphs were called as Khulfai-
i-Radhidin cause they had the privilege of being very close companions of the
prophet .After the death of prophet the divine communication was in a scattered
form & some were only in the minds of the people. One of the important feature
of this period is that the divine messages were collected written & given a
proper final shape. This collection is called as Quran.
First collection of Quran was done by Zaid, during the rule of Abu Baker. This
collection was found incorrect & contradictory in some places.
Osman the third caliph asked Zaid once again to revise the holy book & correct
it. The earlier version was destroyed by him. The only authentic version of
Quran available to us is Osmans compilation.
Another important feature of this period was the ‘traditions of prophet’, were
strictly followed.
In Second stage of development of Muslim law the only sources of law was
Quran & traditions of prophet.
The administration of justice, it was during the time of Omar the second caliph
appointed the first ‘Qazi’to decide the disputes of secular in nature, it was
he(omar) who declared that law is supreme & is above the executive authority.

Third Period (661-900A.D): The fourth & the rightly guided caliphs had two
sons. After Ali death his first son (Hasan) was made the caliph. As he being a
saint did not want to involve in administration, he resigned from the post in
favour of Muavia of Ummaiyad family, & from him began the Ummaiyad
dynasty.
Two notable events of this period, the seat of caliphate were shifted from
Medina to Damascus. The elective office for caliphate was made hereditary.
Muavias son ‘Yezid’ became the next head of Muslim empire. Hasan was
poisoned mean while, his brother who opposed & revolted against Yezid, but he
too was killed mercilessly at Karbala .Caliphate became a regular kinship. In
750A.D the Umayad dynasty was captured by the Abbasids who were decedents
of Prophets Uncle Abbas. They made they capital at Baghdad & proclaimed
religious or spiritual headship of Muslim empire. In absence of states lawful
authorities the scholars began expound the laws themselves, & began to claim
his interpretation of law to be correct. The academic differences among the
scholars lead to the formation of different schools of Sunni sect.

Sunnies were further divided into four sub-sects

Hanafi
Shafie
Maliki
Hanbali.
Each of these sub sects were named after the scholar who expounded the law
according to their own interpretation & reasoning.
Shias were also divided into three sub-sects
Itna –Ashara
Ismailia
Ziadia
First the traditions of prophet (PBUH) which were numerous & also scattered
were collected & examined. Only authoritative traditions were accepted to be
law. The only authoritative collections were accepted to be law were collection
of ‘Bukhari, Muslim & Malik-Ibn-Anas .Secondly, where law was not available
in the text of Quran or traditions of the prophet, theoretical exposition was
undertaken by the jurists. Due to the expansion of the religion it became more
complex. Quran & the traditions could not solve many problems of the society.
In such situations theoretical formulation of law on the basis of the texts were
only alternative. One method was to obtain a law through the consensus opinion
of the jurists (ijma)
Another method was to deduce the law directly from the text Quran or traditions
by establishing the similarity b/w the situations enumerated in the text. This is
called analogical deductions called as the (Qiyas) & it was the most scientific
method of legislation.
Superb juristic approach in finding of law to the society.New concepts in the
juristic science such as equity, reasoning, public welfare, etc. were also
introduced during this period.
Fourth period (900-1924AD) : In this period the Islamic legal history begins
with the establishment of the four Sunni school & extended upto 1924 A.D, the
Abbasids ruled for five centuries & were overthrown by the Mongols in 1258
A.D, for sometime the sunnies were left without a caliph. In 1261 A.D Abdul
Kasim Ahmed was made the caliph with his capital as Cairo.
They were in power for more than two centuries. Important feature of this
period was that the caliphs were not given power.In the beginning of the 16 th
century, the Ottoman ruler Selim-I was invited to head the community
(1571A.D), by the passing of the caliphate in the hands of Ottomans;
Constantinople became the ‘Dar-ul-kalifath’. With the abolishing of Sultanate
of Turkey by Mustafa Kamal Ataturk in 1922, the caliphate was also abolished
forever in 1924, by the National Assembly of Ankara.
This period was not significant at all as further expounding of laws was stopped.
Cause after the death of the founders of four Sunni schools, no scholar of they
learning was available who could propound new theories of law.
As there were no jurists competent for individual interpretation the, laws could
not be formulated through istihad (opinions of jurist) as a result the laws which
were already laid down, by those four jurists was simply followed by the
society. In this manner, there developed Taqlid (imitation or followings), under
this doctrine the opinions of great jurists were followed by the scholars without
adding anything new to it. But the scholars of the period have written
exhaustive commentaries on the laws already laid down by the jurists of
respective schools, they being low in ranking could not give independent
judgments on the point of law. The opinions of those scholars are termed as
fatwas, these cannot be treated as Muslim law, yet they explanation cannot be
ignored.
The important fatwas were Fatwai-Almagiri & Fatwa Quadi Khan.
Fifth period(1924 A.D to present days): From here begins the modern period
of Islamic law, this still continues.
After 1924, they was no caliphs as a religious head to administer & execute the
traditional law, without any competent authority to execute it, the Islamic
religion became the moral code of conduct whereas Muslim law with the
sanction of the states was viewed juridical.
As Muslim law being influenced by the science of law, many modern Islamic
countries put efforts to codify their laws in such a manner that the inherent
character of Shariat is being preserved; the law is formulated in accordance
with requirements of the present society.
Another important point is that all aspects of human conduct (civil & criminal)
were regulated by the traditional Islamic law, but, subject after subject was
gradually excluded from the preview of traditional law in the several parts of
the Muslim world. As a result the scope of Islamic law was narrowed down.
Before the advent of British in India the Moghals applied Muslim rule as law of
the land in all matters whether family or others. This system was changed by the
Britishers, by enacting several laws which was made applicable to Muslims &
the non-Muslims in the non personal matters .The modern period began with the
establishment of the British courts. The feature of these courts is that they did
not apply Muslim law in each & every affair of the Muslim matters, after
independence the same setup has been adopted & followed. The enactment of
Shariat Act 1937, all matters of Muslim except agriculture land can be decided
according to Muslim law. Just after two years of passing of shariat Act the
Dissolution of Muslim marriage act 1939 was passed, which brought
revolutionary changes in the law of divorce. The Muslim Women (protection of
Rights on Divorce) Act 1986, after this there has been no other law enacted, in
relating to the rules of Muslim law. The present Muslim law of India includes
the traditional law, the legislative enactments, & the judicial precedents.
 CONVERSION

A Muslim is a person whose religion is Islam .Islam, means submission to the

will of God. Islam is a religion where it is believed that God (Allah) is one &
only one & Prophet Mohammed (PBUH) is the messenger of God. The court
looks into the belief, i.e. in the oness of God as a requirement for a person to be
called as a Muslim. According to the court a person may be a Muslim either by
birth or by conversion.
Different modes of Conversion,
Two types, 1. Declaration in public, 2.through ceremonies (reciting kalmia &
giving him a Muslim name).
They is no objective test for testing a persons sincerity in a faith. Conversion to
legalize an act under the Muslim law such conversions are not deemed to be
lawful.
In Skinner V/S Orde (1871, 14, MIA 309), the Christian widow living with a
Christian man who had already a wife living . cohabitation with a person other
than his wife is illegal .To legalise their cohabitation both of them converted to
Islam & became Muslims as under te Muslim law a male can have four wives at
a time . It was held by the privy council that the conversion was illegal & not
bonafide because it was to commit fraud upon people .
In Sarala Mudagal V/S Union of India (1995, 3, SCC, 635), hindu husband
converted to Islam & thereafter converted to Islam & thereafter contracted
marriage with a muslim girl without divorcing the hindu wife. The SC held that
the conversion was malafide. declared the second marriage as void. In Lily
Thomas V/S Union of India(AIR [2000], SC 1650), the SC confirming its
earlier view in Sarala Mudagals case, held that conversion to Islam only for the
purpose of legalizing the second marriage as void.
Islam does not differentiate b/w a born Muslim & a converted Muslim, religion
is a matter of faith. Person who mockingly adopts a religion just for enjoying
the benefits under the mohammaden law is not legal conversion. There is no
problem if a Child is born out of marriage performed according to Muslim law.
They are considered to be legitimate. It is said a child born is presumed to
belong to the religion of father. If a Hindu lady converts to Islam her previous
marriage with Hindu husband is not dissolved. Before legally dissolving the
marriage if she marries a Muslim after converting to Islam she commits an
offence if bigamy u/sec 494 IPC. Applicability of law, Muslim law is applied to
a non-muslim in certain cases, the policy of the courts is that where the parties
to the case are of different religion the law of defendant applies.
A women renouncing Islam to Hinduism is not a Muslim, But for divorce on
any grounds mentioned u/sec2 of the Indian Divorce Act. Laws relating to right
of pre-emption (right to choose neighbourhood) is applicable to non Muslims ,
in some parts of India .
Yet separate law for pre-emption is applied to both Muslims & Hindus in
certain places in India Muslim Marriage Act 1939 even after converting to other
religion may obtain decree.

SOURCES OF ISLAMIC LAW

A source of law refers to the original material(s) where the contents of law are
found. It is essential so as to have the law, its explanation and its right
interpretation.

SOURCES OF MUSLIM LAW

The sources that the Prophet Mohammad directed will be the primary sources.
These are to be followed in their respective order of priority. They are also
called formal sources. The whole of Muslim personal law is based on these
these sources explain or modify the primary sources, they deal with the needs of
the Islamic society in the modern era these are also called extraneous sources.
Some of the personal rules may find places in the sources, e.g., customs.

Basically there are two sources of Muslim law.

1. Primary
2. Secondary

THE PRIMARY SOURCES

1) QURAN
The term “Quran” has its roots in the Arabic word ‘Qurra’ and refers to ‘the
reading’ or ‘what ought to be read’. The first revelation (Wahi) came to the
Prophet in 609 A.D. They continued for about 23 years. These revelations were
the messages of God made by Angel Gabriel. These revelations were given out
then to the people through the preaching of the Prophet.
These delivered messages were remembered and some were reduced to writings
on animal skin, palm leaves, etc. After the Prophet’s death, theses were
collected, assembled and then systematically presented under the authority of
the third Caliph, Osman. The first version is said to have been in the custody of
the Prophet’s wife and Osman’ daughter, Umme Hafsa. There were other
versions, too, but either they were not accepted or they were suppressed.
SALIENT FEATURES OF QURAN
1) Divine Origin: The religious book has a divine origin. It is believed that these
were the words of God himself and the Prophet mere uttered these words. Thus,
it is unchangeable and its authority is beyond reproach. The Quran is the Al-
furqan, the one that shows the truth from falsehood and the right from the
wrong.
2) First Source: It is the first and fundamental source of Muslim law and Islamic
principles. It is ultimate source of laws.
3) Structure: It is in form of verses, each verse is called an ‘Ayat’. There are
6237 ayats in 114 chapters, each called ‘Sura’. The holy book is arranged topic
wise with respective titles. The first chapter praises the almighty God. Other
chapters include, surat-un-nisa (chapter relating to women), surat-ul-noor (rules
relating to home-life) and surat-ul-talaq (the rules relating to divorce).
4) Mixture of religion, law and morality: It is believed that the verses relating to
law were revealed at Medina while the ones relating to religion and mortality
were revealed at Mecca. In some places in the book, all three can’t be separated
at all. Thus, the whole of Quran cannot be source of a law, instead we refer to
the 200 odd law-making ayats scattered all over the book as the basic source of
Muslim Law.
5) Different forms of legal rules: It has many categories, the ones that remove
social evils like child infanticide, gambling etc, and the ones that create
specifics so as to solve daily life legal problems as well as providing for the
basis of juristic interpretations or inferences.
6) Unchangeable: The Quran can be in no way altered or changed, thus, even
the courts of law have no authority to change the apparent meaning of the verses
as it does not have an earthly origin.
7) Incompleteness: In the 200 odd verses of law in the Quran, only 80 or so deal
with the personal law. Hence, we say that it is not a complete code of Muslim
personal law; it only lays down the basic principles.
Further, on many an issue, the Quran is silent.
With the spread of Islam, the necessity arose to explain and supplement the
Quran so as to deal with the new problems of a growing Islamic society.

2) SUNNA OR AHADIS: TRADITIONS OF THE PROPHET

In the pre-Islam Arabia, Sunna meant an ancient and continuous usage that has
been established in the society. Sunna literally means the “ trodden path”. Sunna
or Ahadis means the traditions of the Prophet. It means that whatever the
Prophet said or did without the reference to God is his tradition. The Prophets
acts and words are believed to have been inspired by God and thus are treated as
internal revelations. Thus, tradition is another source of law in the language of
the Prophet. So wherever the Quran is silent, the Sunna /Ahadis were referred
to.
WHAT CONSTITUTED SUNNA OR AHADIS?
Everything the Prophet did or said as well as his silence was taken to be a rule
under authority except when he used to give the revelations of God.
i) Sunnat-ul-Qaul: refers the words spoken by the Prophet.
ii) Sunnat-ul-Fail: includes the conduct and behaviour of the Prophet.
iii) Sunnat-ul-Taqrir: by his silence, the Prophet gave an implied approval to
pre-islamic customs, practices and questions.
Sunna must be differentiated from Hadith. While the latter is a story or
occurrence of an incident, sunna refers to the law that was derived of such
conduct of the Prophet.

NARRATORS OF THE TRADITIONS

The traditions noticed by competent and qualified person were treated as
authoritative if they were found to be reliable. The competence was judged by
the mental understanding, power of retention, righteous conduct of a person and
on the basis of whether he was a Muslim or not.
i) Companions of the Prophet: The Muslims who lived with the Prophet during
his lifetime and were close to him are called the Companions. Their testimonies
are the most reliable ones.
ii) Successors of the Companions: The Muslims who came in contact with the
Companions of the Prophet are called the Successors. They stand second in
reliability.
iii) Successors of successors: The Muslims who were in constant
companionship of the Successors come last in the line.
The further a narrator from the Prophet, the lesser authority is given to his
narration.
KINDS OF TRADITION
i) Ahadis-i-Mutwatir are the universally accepted traditions. There is no doubt
as to their certainty and have been narrated by many people. All sects of Islam
follow them.
ii) Ahadis-i-Mashoor are the popular traditions which were narrated by the
companions of the Prophet and have found mass acceptance. It is the source of
law for a majority and not all.
iii) Ahadis-i-Ahad are the isolated traditions that have not been followed
regularly or by many. Generally, the acceptance and practice is a localised one.
Traditions were passed on from generation to generation and soon became the
practice. They were not written or systematically arranged initially. Muvatta is
regarded the first systematic collection even though a few efforts were made
before. The number of traditions is staggering, for example, Masnad has about
80,000 traditions collected and written in it.

DRAWBACKS
Some of the traditions have a doubtful origin and some are even contradictory
to each other. There are no uniform or certain rules on certain issues. Mixture of
law and religious or moral principles makes the extraction of the actual law a
rather tedious task. Traditions derive authority from the writers, with the death
of successors and others; this means could no longer be practised. In addition,
the Shias followed only those traditions that came from the Prophet’s family.
The importance and role of traditions is immense but another source of law was
needed to deal with the expanding Islamic Society.
3) IJMA: UNANIMOUS DECISIONS OF THE JURISTS
Ijma means the opinion of the learned. When persons knowledgeable in law
would agree upon a point, such consensual opinion was referred to as Ijma.
Thus, Ijma is the unanimous decision of jurists for a particular question with
reference to that age or communal legislation. It is through the tradition of the
Prophet that Ijma derives its validity and authority as a source of law. The
Prophet is believed to have said that, ‘God will not allow his people to agree on
an error’. The Hanafi doctrine of law changing along with times found support
in the Maliki view that new facts require new decisions.

FORMATION OF IJMA
Whenever law needed a new principle, the jurists used to give a consensual
opinion so as to enable a solution. To be a jurist or Mujtahid, it was essential
that a person was a Muslim with adequate knowledge of law and was competent
to form logical deducements. Ijtihad refers to the process of creating law
through consensus on the basis of ‘exercise of one’s reasoning so as to create a
new rule of law’. The Ijma had to be justified with references to the principles
given in the Quran or the tradition as well as public policy, interest of the
community and equity. The Mujtahtids are the recognised interpreters of law.
KINDS OF IJMA
i) Ijma of the Companions: the consensual opinion of the Companions is
believed to be most authoritative and accurate. It cannot be overruled or
modified by subsequent Ijmas.
ii) Ijma of the Jurists: the opinion of learned scholars was believed to be the
next best Ijma after the Ijma of the Companions.
iii) Ijma of the People: At times, the mass acceptance of a principle as law was
also accepted. Nevertheless, it is of little consequence with respect to core
issues and principles of the Islam.
As can be seen, the authority of Ijma depends upon the capabilities of the
people participating in its formation.

IMPORTANCE
A major concept of the fiqh or actual Muslim law came through Ijma. It
explained the Quran and traditions in terms of actual applicability as well as laid
down new principles of law so as to help the society to cope up with growth and
progress. It was through Ijma that the real opportunities for interpretation of the
hereto rigid Quran and Traditions came up. It is even referred to as the ‘living
tradition’ at times.
DEFECTS
The Ijma lead to various reading and versions or interpretation of the Quran,
Sunna, custom etc. As a result, different sub-sects were formed. The choice of
unanimous opinion or majority opinion is another bone of contention. The Ijma
of the jurists and the people could be overruled at any time; thus, they were not
able to contribute substantially to certainty in law. With the spread of Islam and
lack of a well- established communication network, obtaining consensus of all
the jurists was a major problem. Again the stock of learned and accepted
scholars ran short of the requirement and by 10th century, the Ijma had to be
abandoned.

4) QIYAS: ANALOGICAL DEDUCTION

Qiyas refers to ‘measurement’ in the Arabic language. It also refers to
comparing a thing in relation to a standard or ‘to establish an analogy’. Some
have described it as the analogical deduction from the reason of a text to a case
not actually covered by its language. In simple words, it is a method of
comparing a problem in present times to a similar problem for which the
solution is provided in the texts.
It is a weak Ijtihad, one’s own exertions to find a solution through reason. But it
is more important and powerful than a mere rai or opinion of a jurist.
First, a similar problem with a solution is found and the reasoning behind it was
taken so as to establish a common cause. Then solution to the present problem
is directly deduced from the texts in form of a law derived. Here, the spirit or
the implied meaning of the text is taken into consideration.
Unanimous consensus between those deducting was not essential. The only
requirements are that the person deducing is a Mujtahid and he deduces the law
from a text of Quran, Traditions or Ijma.

QIYAS AND ISIHSAN

Istihsan means juristic equity, thus, it is a conclusion of law based on the jurist’s
sense of justice or equity rather than any text. It is recognised only under Hanafi
Law.

QIYAS AND ISTIDLAL

Istidlal refers to inferring one thing from another. Here only an inference is
drawn and analogy is not established. This rule of interpretation is accepted
only in Maliki and Shafei schools.
NOTE: There exist differences in all schools and sects regarding the Primary
sources. For example the Shia Sect doesn’t recognise the Qiyas as a source of
law but recognising
traditions of the Prophet’s family only along with the conduct of the Imams.
Fatwas are not a source of law but they have contributed a fair bit in the
improvement and expansion of law.

THE SECONDARY SOURCES

1) URF OR TAAMUL: CUSTOM

Before Islam, customary law governed Arabia. Then the Prophet abolished most
of them, as they were un-Islamic and bad. Some customs, however, were
continued due to the Prophet’s silent approval. Some were even included in his
traditions. Otherwise, some customs survived due to their incorporation in the
Ijma.
IMPORTANCE
It is not a formal source, yet, in the absence of rule of law in the texts of the
primary sources, the customary practices are regarded as law. The British
Courts in India held that a custom would prevail over a written text provided
that the custom was ancient and invariable.

PRESENT POSITION
The Shariat act, 1937 has abolished most of the customs. Section 2 lists ten
matters including inheritance, marriage, divorce, wakf and, maintenance
wherein customs and usages cannot be applied anymore. Customs are still
applicable to Muslims with regard to agricultural lands, charities and religious
endowments. Even in matters of wills, adoption
and legacies, the customary law will apply unless a Muslim expressly states that
the Shariat should regulate them.
Additionally, the Shariat Act is not applicable to the state of Jammu and
Kashmir. Thus, the rules of Muslim law there are subjected to customs and
usages.

2) JUDICIAL DECISIONS
The Privy Council decided many a case related to Muslim law. These cases
continue to have a binding force on all the High courts and the lower courts of
India and a persuasive value in the Supreme Court of India. This box of
precedents will lose its binding force only if the Supreme Court overrules a
particular decision. Elsewhere, an opinion seems to be forming that judges are
now making the law the way the early Muslim jurists did.
Judgments of a superior Court are an authority for the lower courts. Plus the
judgments of the higher court become the law of the land and thus are binding
on all the lower courts. This is called the principle of Precedents. Law of pre-
emption, validity of gifts to minor wife, additional grounds of dissolution of
marriage and even interest on unpaid dower are few of the fields where courts
have stepped in with new interpretations or discretion on the basis of justice,
equity and good conscience to develop the law further.
Many a times, legislations have overruled or negated the rules; they are still a
source of law.

3) LEGISLATIONS
God is the Supreme legislator as per Islam. Thus, sometimes, legislative
modifications are also treated as encroachment. Still, there are a few acts that
modify or lay down principles of Muslim law and serve as a source of law for
the courts with respect to the content covered by them.
a) The Mussalman Waqf Validating Act, 1913 – It merely re-established the
validity of family-wakfs.
b) The Child Marriage Restraint Act- It makes the marriage of a boy under 21
years of age and a girl under 18 years a ‘child marriage’ and punishable without
affecting the validity of it.
c) The Muslim Personal Law (Shariat) Application Act, 1937 – It reiterated the
Muslim Stand that custom couldn’t be an independent source of Muslim law all
the time
d) Dissolution of Muslim Marriage Act, 1939 – It provided rights to judicial
divorce under the grounds mentioned in it to women who traditionally had no
independent right to seek divorce.
e) Muslim Women (protection of Rights on Divorce) Act, 1986 – The issues of
maintenance after divorce, maintenance during idddat are dealt with
comprehensively.
f) Punjab and Haryana’s Muslim in Muslim Shrine’s Act, 1942.
There are other Acts too which deal with Muslim personal Law. Some lay down
the procedure rather than altering substantive rules of Muslim personal Law.
Acts like the following replaced or restricted the application of those personal
law principles with reference to the Act’s objectives and aims:
a) The Caste Disabilities Removal Act, 1850 changed the laws of the pre-
existing rights of converts;
b) The Indian Evidence Act, 1872 changes the traditional outlook on legitimacy
via Section 112;
c) The Indian Majority Act, 1875 differed on its definition of majority; and
d) The Dowries Prohibition Act, 1961
Similarly, alternate legislation available to all religions have made its impact
felt on the Muslim personal law. For example, a couple that marries under the
Special Marriage Act, 1954 will be regulated by, the inheritance and intestate
succession of the spouse or heirs will also be governed under the Indian
Succession Act, 1925. It does not matter whether the persons getting married
under this law are from the same religion or sect or not.
 MARRIAGE

Before advent of Islam concept of marriage, Customary law, in favour of men.

Object of marriage was to only for cohabitation& procreation of children.
Prevalence of limitless polygamy. No restriction of arraying a girl except real
mother & sister. Different forms of marriage were recognized .No proper
matrimonial status given to women. After advent of Islam Nikah, means tie up
together for indefinite period. Social status given to women. Definite form of
marriage was practiced. Defined independent status was given to married
women .Prophet declared that in a marriage the husband has to pay something
to the wife but not as a practice but as a mark of respect towards her. Islam
prohibits limitless polygamy & no Muslim is allowed to marry more than five
wives at a time.
POLYGAMOUS NATURE OF MUSLIM MARRIAGES

Husband is allowed to marry four wives at a time, it is legally permissible.

Islam entertains limited polygamy .Quran very clearly lays down conditions in
for this ,‘Marry of the women who seems good to you, 2or3or4 if you fear that
you cannot do justice To many than to one’ (Quran Sura IV Ayat 3)‘You will
not be able to deal equally b/w your wives however much you wish to do so’
(Quran Sura IV Ayat 129)

DEFINATION OF MARRIAGE:

Under the Muslim law marriage is a civil contract for legalization of

relationship & for legitimization of the children. According to Hedaya,
Marriage (Nikah) implies a particular contract used for the purpose of
legalization children. Justice Mahmood had defined marriage as a pure civil
contract & not a sacrament.
The object of the Muslim marriage is, to provide legal validity relationship of
husband & wife, to legalize the children, without a valid contract of marriage
the cohabitation b/w the man & women is unlawful (Zina).

Legal aspects of Marriage:

Muslim marriages are termed as contract, because the elements constituted are
similar to contract. Contractual in nature on the basis of the following facts,
Like contract, parties to the contract must be competent. Marriage is not
complete without offer, acceptance, & consideration.
Social aspects:

Nikah is a well established social institution which gives to a women a separate

& dignified status in the society, Muslim marriage is not simply a contract but
also a social institution. Social institution on the following basis;
Dower must be given or promised to be given by husband during his lifetime.
They must be limited polygamy. Prohibition in the marriages b/w certain close
relatives. Certain circumstances in which the Muslim law disapproves the
contract of marriage. E.g. A Shia Muslim is not allowed to marry in duration of
Hajj journey. Marriage promotes the development of healthy society free from
evils.

Religious aspect:

According to Quran, it directs every Muslim to marry a suitable woman. It is a

religious duty of every Muslim to contract a marriage according to the rules of
Islam. Marriage is also the traditions of prophet (PBUH) . In Islam it is believed
that marriage is Sunnat Muwakkidah which means if a person does it, he gets
religious benefits if he abstains from it he is commits sin.
Marrying a suitable girl is not only social activity but also a religious duty of
each Muslim.
In Anis Fatima V/S Mohd Istafa (1933, All 55) C.J Suleiman has pointed out
that apart from being a contract, Muslim marriage is also a religious
sacrament .The essence of Muslim marriage is socio-religious, it creates rights
& obligations of husband & wife confers a defined social status on them. Also
deemed to be religious duty.

ESSENTIALSOF MUSLIM MARRIAGE

Marriage is valid (sahih) if it is recognized by the courts as lawful.

Following conditions must be fulfilled in a valid marriage.
Parties to the marriage must be competent.
Consent of the parties or of the guardian must be free consent.
The required formalities are duly completed &
There must not be any prohibition or impediment in contracting the marriage.

I. Capacity to marry:
Every Muslim of sound mind, who has attained puberty, may enter into a
contract of marriage. Puberty means the age at which a person comes to a
marriageable age. A person is presumed to have attained the age of puberty on
the completion of 15 years. So the boy and girl who has attained puberty can
validly contract a marriage .A marriage under Muslim law is perfectly valid if
the parties have attained puberty and satisfied all other conditions specified by
the law.
Thus if two Muslims marry before attaining the age prescribed under the child
marriage restraint Act they are liable to be punished. However the marriage
between two Muslims who have attained puberty is valid though they have
violated the provisions of Child Marriage Restraint Act.
2. Free consent:
Free consent of the parties is absolutely necessary for a valid marriage.
If there is no free consent a Muslim marriage is void. Under the Muslim Law, a
marriage of a Mohammedan who is of sound mind and has attained puberty is
void; if it is brought about without his consent. The marriage of a girl who has
attained puberty and is of sound mind would be void if her consent is not
obtained.
When the consent to the marriage has been obtained by force or fraud, the
marriage will be invalid, unless it is ratified. When a marriage was
consummated against the will of the women, the marriage is void. The person
who has been defrauded can repudiate the marriage. Lunatics and minors who
have not attained puberty may be validly contracted by their respective
guardians.
When the consent to the marriage has been obtained by force or fraud, the
marriage will be invalid, unless it is ratified. When a marriage was
consummated against the will of the women, the marriage is void. The person
who has been defrauded can repudiate the marriage. Lunatics and minors who
has not attained puberty may be validly contracted by their respective guardians.
A minor is incompetent to give valid consent. The right to contract a minor in
marriage belongs to the following persons:
i)Father
ii)Paternal Grand Father (How high so ever)
iii)Brother and other male relations on the fathers side
iv)Mother
v) The maternal uncle or aunt and other maternal relations.
Under the Shia law only the father and the paternal grandfather are recognized
as guardian for contracting marriage of a minor.
If a minor, whether male or female, be contracted in marriage by a remoter
guardian, while a nearer guardian is present and available and such nearer
guardian does not give consent to the marriage, the marriage is void.
But if the parties ratify it after attaining puberty, it will be valid. However if the
nearer guardian is absent at such a distance relative can also give consent on
behalf .The marriage contracted by the remoter is also lawful.
THE CHILD MARRIAGE RESTRAINT ACT 1929

This act is applicable to every person including Muslims. Sec 2 of this Act
provides for Minimum age for marriage i.e. 18yrs & 21yrs for girl & boy.
Marriage conducted below the prescribed age by the guardians is deemed to be
a penal offence. The amendment of 1978 includes provision for strict
implementation of the act. According to Sec 7, it is a cognizable offence & the
police can investigate it in the same manner as it does for offences under CrPC .
No arrest can be done without the order of the Magistrate. U/sec 12, a child
marriage may be prevented by means of an injunction from the court before
such marriage takes place. Violation of such an injunction is also punishable.

OPTION OF PUBERTY ( Khair-ul-Bulugh)

In Muslim law a minor attaining puberty has a right to approve or disapprove

the marriage contracted by the guardians. This is called as Option of Puberty.
If a person after attaining the age of puberty chooses to repudiate the marriage
he could do so the marriage is dissolved with immediate effect.
On the other hand if the parties on attaining the age of majority approve the
marriage it is considered from the date of its inception.
This right is not compulsory the parties may or may not exercise their right.
According to Shia law a minor after he attains the age of majority must approve
his marriage otherwise it is not a marriage in the eyes of law.

Rules relating to Option of Puberty;

The Husband cannot exercise if the marriage was contracted by father or

grandfather.
Exception to this is that if the father or grandfather contracts the marriage
fraudulently the husband then has the right to repudiate the marriage.
1. The option of puberty can be exercised by the wife even if her marriage was
contracted by her father or grandfather, before 1939 she could not do so.
Dissolution of Muslim Marriage Act 1939 has modified the law, in regards to
option of Puberty by wife u/sec2 (Vii) of this Act, provides that Muslim wife
has to take order of the court if the marriage was contracted by her father or
guardians where she is below the age of 15yrs, but today she can repudiate the
marriage even if it was contracted by her father or guardian.
1. The option must be exercised by the wife immediately after the
attainment of puberty. If there is unreasonable delay in the exercise of the
option she will be losing her right.
But under sec 2 (Vii) of DMMAct 1939 a Muslim wife has the right to exercise
this option till she attains the age of 18 yrs. If she fails to exercise then it may be
considered as unreasonable delay & her right may be lost.
2. In case of husband, the option of puberty continues till the he approves
the marriage either expressly or impliedly.
3. Payment of dower to the wife or cohabitation with her is regarded as
implied approval of marriage by husband.
4. When consummation takes place the husband & wife looses the right of
option as it is regarded as implied consent provided it is not before the age of
her puberty or against her consent.
5. The marriage does not dissolve merely by the exercise of option of puberty.

Confirmation of the court on Soundness of mind: at the time of marriage both

the parties must be of soundness of mind. Persons of unsoundness of mind have
no capacity to enter into marriage because their own consent for marriage is no
consent in the eyes of law. Unsoundness is of two type’s idiocy & lunacy,
Idiocy refers to an abnormal state of mind in which a person is completely
incapable of entering into terms of contract lawfully & such a person cannot
enter into a contract of marriage & termed to be void.
Lunacy is a decease which may be cured, marriage during the lucid period or
interval is held to be valid .Marriages of Lunatic & an Idiot are void except in
lucid intervals. But a person of unsoundness of mind may be contracted in
lawful marriage by the marriage guardian.
Same rules of Option of puberty are applied as in the case of minors marriage.
An insane person has the right to repudiate the marriage if the marriage is
contracted by a guardian other than father & grandfather. Inter sect marriages
are valid
Inter religion, Muslim male marriage by Muslim boy with a non Muslim is
irregular & not void.
Shia male does not have a right to marry a katibaya or a non Muslim female.
Female, whether she belongs to Sunni or Shia school she does not have a right
to marry a katibaya or a non Muslim male.

Inter Religious Marriage:

In regards to this the Sunnie law & the Shia law are different.

Sunnie law: under this school the Boy is entitled to marry a Muslim girl of any
sect & also is entitled to marry any Kitabia girl. A girl is kitabia if she belongs
to community the origin of which is believed from the heavenly revealed kitab.
Under this schools law the Christians & the Jews are regarded as Kitabia
community people. Hence the sunnie male is entitled to marry these
communities (kitabia) of girls & the marriage is regarded to be as perfectly
valid.
If a Sunnie male marries a female who is neither a Muslim nor a kitabia, the
marriage is not void but it is merely irregular. Marriage with a fire worshipper
(Parsi) or a Hindu girl becomes valid only when the irregularity is removed i.e.
when the girl converts to Islam or katibia. Hence it can be said that sunnie male
marriage with a non Muslim & non kitabia is not void but is just irregular.

Shia Law: A Shia male has no right to contract marriage with a non-Muslim &
a katibia girl. The marriage of a Shia man with a Hindu, Jew. Christian or a
Parsi girl is void.
But a Shia male is entitled to enter into a Muta marriage with a kitabia or a Parsi
female it is considered as valid.

II. Free consent.

Compulsion, consent for marriage is obtained by force, under threats, or
coercion or any other compulsion, it is not free & it cannot be said that such a
person has intention .under all schools of Muslim law except Hanafi if the
consent of the parties or of the guardians has been obtained under compulsion
the marriage is termed to be void.
Under the Shia law such marriages contracted by force, compulsion & mistake
of fact, are void in all sub sects.

III Formalities in marriage.

1. Offer & acceptance;

Offer signifies the willingness of the person to contract a marriage with the
other. Generally the offer is a declaration & is made from the side of the boy or
his guardian.

Acceptance; is made by the girl or her guardian. No specific words are

prescribed for an offer an acceptance.

Oral or written: the acceptance may be either oral or in writing ie to say the
offer or the acceptance may be through words of mouth or may be reduced to
writing. When it is put down in writing it is called as Kabinnamha which acts as
an important document of marriage.

In the valid marriage the offer & acceptance should be in one sitting. It means
the proposal for the marriage & its subsequent acceptance are at one palce of
meeting.
2. Presence of witness.
Witnesses are essential, a male who has attained the age of majority can be a
witness.
Two male witnesses or one male & two adult female witnesses are essential to a
Muslim marriage are essential. According to Sunni law
According to shia law the presence of witnesses is not essential.
-Conditional of contingent (promise to marry in future)
Registration of Muslim marriage;
Registration of Muslim marriages is not necessary. But in some places of India
like Assam, Bengal, Bihar,Orrissa,Punjab registration of marriages as well as
divorce is essential.
In certain places in India it is a customary practice & law to register the
marriage.
In Jainoon V/S Amanullah Khan(AIR 2000, Mad 381)
Madras HC stated that though under the Muslim law registration of marriage is
not compulsory it cannot also be said that it is prohibited.
Hence Suit filed for recovery of violation of customary right & causing mental
agony would be maintainable.
Court held that secretary of jamath (congregation of people for non political
purpose) & ordered him to pay Rs 5000 to compensate the plaintiff.

IV. Absence of prohibition;

In Muslim marriage there must not exist any prohibition. Prohibitions are
nothing but restrictions upon the right of a person to marry.
Marriages must not be against the interest of the society, law prohibits the
marriage b/w certain persons or being contracted under certain circumstances.
Two types of prohibitions,
Absolute
Relative

1. Absolute
a. Consanguinity
b. Absolute
c. Affinity
Fosterage

2. Relative prohibitation
Unlawful conjunction
Marriage with 5th wife
marriage with non-Muslim.
Marriage without witness.
Marriage during Iddat.
ABSOLUTE PROHIBITION

This is mandatory in nature, marriages conducted in violation of absolute

prohibition is null & void under all the schools of mohammaden law.
Consanguinity (relation by blood):
Under consanguinity or blood relationship, a Muslim cannot marry with any of
his or her following relations;
Ones own ascendants or descendant, how high soever
Descendents of father or mother how lowsoever ( own brothers &sisters & they
children).
Brothers or sisters of ones ascendants how highsoever (brother& sister of
parents).
2. Affinity(relation by marriage);
This means nearness, this relation is created by marriage. On this basis one
cannot marry with following relations.
a. Ascendants or decedents of ones wife (son/daughter & grand children).
b. Wife or husband of ones own ascendants or descendants( father/mother &
grand parents).
3. Fosterage(by milk);
Where the child below the age of 2yrs, has been fed(milk) by any other women
other than its own mother that women becomes the foster mother of that child,
marriage with such women by the child is invalid though there is no blood
relationship b/w them.eg. A male cannot marry foster mother, her
daughter ,sister etc..
Marriage in violation against these rules is void ab initio. In Sunni law
marriages with certain foster relations are valid eg. Sisters foster mother, foster
sisters mother, foster brothers sister .

RELATIVE PROHIBITION
1.Unlawful conjunction : A Muslim is prohibited from having two wives at a
time who are related to each other (consanguinity, fosterage, affinity). Muslim
cannot marry his aunts (phuphu or Khala) or niece of his wife. He can marry his
wifes sister after his wifes death or divorce. This is Sunni law. According to the
shia law, marriage with the aunt is not unlawful conjunction. But cannot marry
his wifes niece without the consent of his wife.
2. Marriage with the fifth wife:
Polygamy limited for four wives. Marriage with fifth wife is irregular, after the
death or divorce of any of the four wives this irregularity is removed & the
marriage is regular.
3. Marriage with non-Muslim: Sunni male cal lawfully contract marriage with
the Kitabia women.
Marriage with a non Katabia is irregular & not void.
Shia, Marriage with non-Muslim is void.
4.Marriage without witnesses: Sunni law prohibits a marriage without witnesses
or with incompetent witnesses, is irregular.
Shia : under shia law, the presence of witness is not necessary . A marriage
contract without witness is held valid .
5. Marriage during Iddat: Iddat is one which the married women has to undergo
after divorce or death of the husband.
Marriage with a women undergoing Iddat is merely irregular, but according to
Shia law the marriage is void.
DIFFERENT KINDS OF MARRIAGE
Different kinds of marriage according to Sunnis & shia school
Sunni;
Valid(sahih)
Void(Batil)
Irregular(Fasid)
Shia ;
valid(sahih)
2. Void(Batil)
3. Temporary(Muta)
Kinds of Sunni marriages,
Valid marriages: Under all schools of Muslim law a valid marriage is that
which has been constituted with the essential conditions prescribed under the
law. Marriage is valid only if it is constituted according to prescribed essential
conditions.
Competency of parties.
Consent of the parties or guardians is free.
Offer & acceptance has been made by the parties is free.
There is no prohibition for marriage b/w the parties.
Void Marriage: such marriages are no marriage at all. They exist neither in fact
nor in law.
Following are void marriages.
Marriage in violation of absolute prohibition.
Marriage with a lawful married women.
Shia law: under shia law following marriages are deemed to be void.
Marriages against the prohibition of unlawful conjunction.
Marriage with fifth wife.
Marriage during pilgrimage.
Marriage with any non-Muslim
Marriage with a women undergoing Iddat.

Legal effects of void marriage;

1. Marriages are termed to be void-ab-initio .
2. No conjugal rights or obligations b/w the parties.
3. Mo mutual rights of inheritance to either's property.
4. The cohabitation is unlawful & children born are illegitimate.
5. The wife is neither entitled for dower nor maintenance.
6. The parties are free to contract lawful marriage with other party.

Irregular marriage: These are recognized only under Sunni law. They are
incompetent marriage if the irregularity is removed it is termed to be regular &
valid. Marriage contracted in violation of any of the relative prohibition is
considered as irregular marriage. As they could be removed afterwards as they
are temporary in nature.
Following marriages are termed to be as irregular.
1. Marriages against the rule of unlawful conjunction.
2.Marriage with the fifth wife.
3. Marriage without two competent witnesses.
4. Marriage with a non-Muslim &
5. Marriage with a women undergoing Iddat.

Legal effects of irregular marriage;

Cohabitation is lawful.
Children are legitimate.
Husband & wife no rights or inheritance to property.
Wife not entitled to dower.
5. Where consummation takes place wife entitled to specific or proper dower
which ever is less.
6. If the marriage is not consummated the wife is not entitled to Iddat.
7. On consummation the wife is to observe the period of Iddat only for 3 months
on divorce or death of the husband.
8. Unionism is not perfect but unholy .
9. Dissolution of marriage takes place through Kazi,court or by parties
themselves.
Shia law; Irregular marriages are not recognized.
Temporary Marriages (Muta);
This is only recognized by the Itna Ashara sub sect.
Muta, means ‘enjoyment’ in Arabic . Literally muta means marriage for
pleasure.

Essentials of Muta marriage;

Parties must have attained the age of puberty, soundness of mind, guardians
cannot contract muta for minor.
Muta with a minor is void.
The shia may contract muta with any muslim,Katabia or a fir worshipping
women.
4. Shia women cannot contract a muta with any non-Muslim male.
5. There is no restriction for contracting muta .
6. Consent must be free of both parties.
7. Essentials of marriage are required to be present here.
8. Muta may be contracted without witnesses lawfully.
9. There must not exist any prohibitory relationship b/w the parties.
10. Period of muta must be Cleary specified i.e for a day, week, month or
years.
In Shazada Qanum V/S Fakhr Jahan(AIR 1953 Hyd 6)
The court observed that there is no difference b/w muta contracted for life &
Muta in which
In which the period is not specified. It was held that muta for unspecified period
& it must be treated to be as permanent marriage.
11. Dower must be specified at that time of the contract.
Legal effects of Muta marriage;
Cohabitation b/w the party is lawful.
Children are legitimate & have succession rights.
3. Muta husband & right has no right of succession.
4. Wife is entitled to get full dower even if the husband does not cohabits with
her for complete period & leaves the wife before the time specified.
5. Muta wife cannot claim maintenance under shia law but can claim under
Crpc.
6. Iddat of muta wife, where consummation has not taken place the wife need
not observe Iddat. If muta terminated after consummation then wife has to
undergo only 2 months of Iddat.
Marriage dissolves due to the death of the husband; wife has to maintain 4
months 10 days as Iddat. When the wife is pregnant iddat Exceeds till delivery.
7. There is no divorce in a muta marriage. Marriage in this form dissolves;
By death of the husband on completion of the period. Husband leaves the wife
before the period. If the wife leaves the husband before the period she is entitled
for deducted dower.
8. If period of muta is not known & cohabitation continues after the expiry of
the period till husband’s death it is termed to be muta for life. Children born are
legal & can inherit property.
Husband & wife cannot inherit property.
SHARIAT ACT 1937

Notwithstanding any custom or usage to the contrary, in all questions (save

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

Explanation of Section 2:
Section 2 of the Shariat Act provides that in a case where both the parties are
Muslims the rule for decision shall be Muslim Law, if the case involves any of
the following matters:
(1)Intestate succession (i.e. inheritance),
(2)Special property of the females,
(3)Marriage (including all incidents of marriage),
(4)Dissolution of marriage (including all kinds of divorce),
(5)Maintenance,
(6)Dower,
(7)Guardianship,
(8)Gift,
(9) Trust and trust properties, and
(10)Wakf.

a. It is therefore, clear that in respect of the above-mentioned matters, if both the

parties to a case are Muslims, the courts shall apply only the Muslim personal
law and nothing else. A custom or usage contrary to Muslim law cannot be
applied now.
It is significant to note that the words, “rule for decision shall be Muslim law”
in Section 2 of the Act, are mandatory, meaning thereby that the courts are not
only empowered but also bound to administer only Muslim personal law in the
situations mentioned therein.

b. In the cases involving adoption, wills and legacies, the courts have no
authority to apply Muslim law under Section 2 of the Act, because these
subjects are not included in the said section. But Section 3 of the Shariat Act
provides that courts may apply the rules of Muslim law in cases of adoption,
will and legacies provided a Muslim expressly declares that he wants to be
governed by Muslim law also in respect of these matters in addition to the
aforesaid ten matters. On this point the relevant provisions of

Section 3 of the Shariat Act, are given below:

3. Power to make a declaration.

(1)Any person who satisfies the prescribed authority—
(a)that he is a Muslim; and
(b) that he is competent to contract within the meaning of section 11 of the
Indian Contract Act, 1872 (9 of 1872); and
(c) that he is a resident of 4 the territories to which this Act extends, may by
declaration in the prescribed form and filed before the prescribed authority
declare that he desires to obtain the benefit of 5 the provisions of this section,
and thereafter the provisions of section 2 shall apply to the declarant and all his
minor children and their descendants as if in addition to the matters enumerated
therein adoption, wills and legacies were also specified.

2) Where the prescribed authority refuses to accept a declaration under sub-

section (1), the person desiring to make the same may appeal to such officer as
the State Government may, by general or special order, appoint in this behalf,
and such office may, if he is satisfied that the appellant is entitled to make the
declaration, order the prescribed authority to accept the same.

Explanation of Section 3:
(1)Any person who satisfies the prescribed authority:
(a)That he is a Muslim, and
(b) That he is competent to contract within the meaning of Section 11 of the
Indian Contract Act, 1872, and;
(c) That he is a resident of a territory to which this Act extends.
may by declaration in the prescribed form and filed before the prescribed
authority declare that he desires to obtain the benefit of the provisions of this
section, and thereafter the provisions of Section 2 shall apply to the declarant
and all his minor children and their descendants as if in addition to the matters
enumerated therein, adoption, wills and legacies were also specified.”

It is, therefore, clear that since adoption wills and legacies are not mentioned in
Section 2, the courts will not apply Muslim law to all the Muslims in these three
matters unless they desire to be governed by Muslim law also in these matters.

This desire must be expressed through a declaration to that effect. Procedure for
such a declaration has been laid down in Section 3(2) and Section 4 of this Act.
It may be noted that the effect of such a declaration is that not only the declarant
but also his children and all the descendants shall be governed by Muslim law in
these three additional subjects.

On the other hand, if there is no such declaration by a Muslim, the courts are not
bound to apply Muslim personal law on these matters and they may freely apply
customs and usages or the local enactments, if any.

(c) The Shariat Act, 1937, was enacted by the Central Legislature and it was
beyond its legislative competence to make laws for provincial (State) subjects.
Agricultural lands, charities and charitable endowments, being provincial
(State) subjects, had to be expressly excluded from Section 2 of the Act.

The result is that the courts cannot apply Muslim law on these questions under
the authority of the Shariat Act. But State legislatures are competent to enact
laws on these subjects. In most of the States of India, therefore, succession to
agricultural lands is regulated by local tenancy laws and not according to the
Muslim law of inheritance.

However, in the States of Andhra Pradesh and Tamil Nadu, in the matters of
agricultural lands, charities and charitable institutions, Muslims are governed by
Muslim personal law.

The reason is that in these States an amendment in Section 2 of the Shariat Act
has been made under which these matters have not been exempted from the
application of Muslim personal law.

(d) Section 6 of the Shariat Act repeals certain provisions of those earlier
enactments which gave authority to the courts to apply Muslim law before the
commencement of the Shariat Act. For example, Section 26 of Bombay
Regulation Act, 1827, Section 16 of the Madras Civil Courts Act, 1873, Section
3 of Oudh Law Act, 1876, Section 5 of Punjab Laws Act, 1872 and the Central
Provinces Laws Act, 1875, have been repealed and are now not in force.

But two points must be noted regarding the repeal of these provisions:

(1) The whole of the above mentioned Acts have not been repealed by Section 6
of the Shariat Act. Therefore, except the repealed sections, other provisions of
these Acts are still enforceable within their own limitations.

(2) The provisions which have been repealed were such provisions which
authorised the courts to apply customs or usages to the Muslims. At present,
therefore, all customs and usages, contrary to Muslim personal law, have been
abolished and cannot be applied on matters enumerated in the Shariat Act.
SEC 4 RULE MAKING POWER

(1) The State Government may make rules to carry into effect the purposes of
this Act.
(2) In particular and without prejudice to the generality of the foregoing powers,
such rules may provide for all or any of the following matters, namely:—
(a) for prescribing the authority before whom and the form in which
declarations under this Act shall be made;
(b) for prescribing the fees to be paid for the filing of declarations and for the
attendance at private residences of any person in the discharge of his duties
under this Act; and for prescribing the times at which such fees shall be payable
and the manner in which they shall be levied.
(3) Rules made under the provisions of this section shall be published, in the
Official Gazette and shall thereupon have effect as if enacted in this Act.
6 (4) Every rule made by the State Government under this Act shall be laid, as
soon as it is made, before the State Legislature.
5. Dissolution of marriage by Court in certain circumstances.

DOWER

Before Advent of Islam, Purchasing girl from guardian. Sale of girl by

guardian was prevalent Price of girl was given to the guardian. The money or
property given by husband to the guardian was compensation or price of the girl
& was called Mahr ( Ball marriage).
Beena marriage, the husband directly approached the girl gave her some money
& started to stay with her another kind of marriage, the wife did not accompany
the husband. The money or property give by the husband to the wife was the
gift for marriage & was called ‘sadaq’, the wife was called sadeeqa (girl
friend) .
Common feature of Beena & sadaq the husband has to pay something for
marriage.
Mahr is the amount or property which the husband had to pay to the wife as a
mark of respect towards to her.
Definition of Mahr,
Abdur Rahim; Mahr or dower that sum of money which a Muslim women is
entitled to get from her husband on marriage as a token of respect towards
herself also called as ‘mahr’. Dower or mahr is one of the essential religious
requirements of a muslim marriage. Without dower, muslim marriage can’t be
performed .concept of dower was introduced by prophet during origin of islam.
Dower or Mahr is a sum of money or other property which the wife is entitled to
receive from husband in con sideration of the marriage Mahr or Dower is that
financial gain which the wife is entitled to receive from her husband by virtue of
the marriage contract itself. Dower money is a debt payable to a wife and she is
within her legal right to even press for its payment.
The word “consideration” is not used in the sense in which the word is used in
the Contract Act. Under Islamic law dower is an obligation imposed upon the
husband as a mark of respect to the wife. It is that money or property which a
husband must pay to the wife to acknowledge her dignity as his wife.
The dower is the fundamental feature of Dower may be specified or unspecified
but in either case, the law confers a mandatory right of Mahr or Dower on wife.
The Mahr (Dower) belongs to wife and she can deal with it in the manner she
likes it and neither her husband nor husband's relations nor even her relations
can dictate her in matter of using the Mahr money or property.
The Mahr fixed by Prophet of Islam for his favorite daughter Fatima (wife of
Ali) was 500 Dirham's. A dirham (derived from the Greek) is the name of Silver
coin of 2.97 grams in weight. It wouldn’t be correct to give too much of
importance upon the monetary value of the Mahr amount. It is said that in the
case of an extremely poor man, the Prophet requested him to teach the Quran to
his wife.

Object of dower is two-fold.

1. It provides financial support to the wife, in case of termination of
marriage by the husband.
2. It is a type of check on husband’s right in pronouncing talaq.

FIXATION OF DOWER

Criteria's for fixing amount as dower of Mahr are as follows:

1. Personal qualifications of the wife
2. Social position of the girl’s father
3. Custom or tradition which prevails in the wife’s paternal family in respect
of the amount of dower.

KINDS OF DOWER,

Specified dower (mahr-i-musamma)

a) Prompt dower
b) Deferred dower
Unspecified dower or proper dower customary dower (mahr-i-misl)
The amount is already specified and fixed. It is usually fixed at the time of
marriage or it is also fixed after the marriage. Where the amount has been
specified, the husband will be compelled to pay the whole of it, howsoever
excessive it may be. Fixation of Dower may be orally or in writing (Mahr-
Nama).

PROMPT DOWER
It is a kind of specified dower. Dower which the wife can demand any time
during her marriage is called prompt dower. As soon as prompt dower is
demanded by the wife, it is the duty of the husband to pay it immediately. Wife
may refuse consummation of marriage, until the dower demanded by her is paid
by the husband.

DEFERED DOWER

Deferred means delayed.Dower which is payable on the dissolution of the

marriage or on happening of a specified event agreed is called as deferred
dower. In case of death of wife, the legal heirs can claim the deferred dower.

UNSPECIFIED DOWER
Unspecified during marriage.
Proper amount of dower is fixed by the court in case if the parties have not
specified it negligently or intentionally.
In Hamida Bibi V/S Zubaida Bibi(1916, 43, IA 294) ,
Mahr is essential & Integral part of the marriage.What is unspecified at the time
of marriage, the law declares that it must be adjudged on definite principles.
In Marina Jatoi V/S Nuruddin jatoi (1967, SC PLD 580)
Marriage b/w a Muslim & Christian wife in Pakistan, through reg marriage.SC
of Pakistan held that, though it is valid marriage & competent Talaq. Wife is
enatitled to get proper dower if it was not specified at the time of marriage.
Obligation of the husband to pay dower No proper amount which may be
regarded as proper dower, it could vary.

Following are to be taken into consideration at the time of fixing dower.

1. Quqlificqtion
2. Social position of wife's father
3. Customs or traditions prevalent.
In Shias, proper dower does not exceeds 500 dirham's (dower of Fatima
daughter of Prophet (PBUH).

VARIATIONS IN FIXING DOWER

Depending upon the status of marriage, the amount of dower keeps varying.
Valid marriage:
(if marriage is consummated)– full dower amount wife is entitled to get.
(if marriage is not consummated) – half of the specified amount.
(if marriage gets dissolved on option of puberty, before consummation) – no
dower is given.
Irregular marriage:
1. (if marriage is not consummated) – no dower.
2. (if marriage is consummated) –specified amount of dower.

REMISSION OF DOWER

Right to dower is the personal right of a wife.wife has a liberty to claim or not
claim her dower from her husband.Wife also has a right to relinquish or remit
her right to dower in favour of her husband. Remittance can be for full amount
or for a part of the amount.

RIGHT TO DOWER WHEN LOST

The right to dower of wife is lost in case of certain events:

If the wife renounces Islam or
If she commits suicide or
If she commits adultery or
If she commits murder of her husband.

ENFORCEMENT OF RIGHT OF DOWER

Right to dower is an inherent right of the wife. She can enforce this right
through various means like;
Refusal of conjugal rights (no consummation and dower is prompt)
Claim it as debt (consummation)
Widow’s right of retention (when husband dies without paying dower).

LIMITATION OF SUIT FOR DOWER

Marriage subsists – claim could be made within 3 years from the date on which
dower was demanded.
Marriage dissolves on divorce or on death of the husband – claim could be
made within 3 years from the date of death or dissolution.
If wife dies before claiming dower – claim can be filed by her legal heirs as per
limitation Act, 1963.
Therefore, dower is a personal right, exclusive right and inherent right of every
Muslim wife. And it is the fundamental of every Muslim marriage.

WIDOWS RIGHT OF RETENTION OF PROPERTY

After the death of the husband most effective method of enforcement is the
‘right of retention’.
A widow whose dower is unpaid could retain the property of the husband till the
dower is paid.
The right of retention in lieu of unpaid dower & it is available to the widow,
whether there is any agreement b/w the party or not.

Features of the right of retention by wife under Mohammedan law;

1. Possession of husband’s property.
2. Only possessory right.
3. Payment of dower from the income of the property.
4. Property non-transferable.
5. Once procession is lost property is lost forever.
6. Heritably the right of retention.

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