S.no.

Topic Content
1 Marriage Or Nikah; In ML, marriage is a contract with 2 objectives –
procreation of children and legalizing of children.

1.1 Conditions for valid marriage i. Sound mind

1.2 Impediments to a valid marriage – what
makes a marriage void
1.3 Irregular or Invalid marriage (Fasid) -
marriage is temporally outlawed but not
necessarily restricted
1.4 Muta Marriage
ii. Attained puberty
Parents/ guardians can contract in marriage if not attained
puberty or of unsound mind
iii. Mutual consent
iv. Proposal (Ijab) and acceptance (Qubul) of marriage in same
meeting
 Either by or on behalf of parties to marriage
 In presence of witnesses – 2 males / 1 male and 2
females
v. Muslim woman – cannot marry non-Muslim man
vi. Muslim man – marriage of non-Muslim women
 Sunni Law – Allowed, if she is a Kitabia (a woman
who believes in a revealed religion possessing a
Divine Book viz Islam, Christianity and Judaism)
 Shia Law – Not allowed
i. Married woman contracting another marriage while marriage
subsists and husband is alive
ii. The bar of consanguinity (blood relations)
iii. Grounds of affinity (nearest relation)
iv. Fosterage
i. Marriage contracted without witnesses
ii. Marriage with a 5th wife
iii. Marriage with a woman undergoing Iddat
iv. Marriage with an idol worshipper or fire worshipper
v. Marriage with an unauthorized person
vi. Marriage contrary to the rules of unlawful conjunction
It is a kind of temporary marriage for a fixed period and is treated
as a marriage for pleasure. Invalid in Sunni Law and valid in Shia
 law.
1.5 Essentials of Muta Marriage i. Proper contract with proposal and acceptance; sound mind;
attained puberty; mutual consent.
ii. Subject:
 Muslim man only with Kitabia
 Muslim woman only with Muslim man
 Non-existence of degree of prohibited relationship
iii. Marriage time period to be fixed at time it is contracted; will
otherwise be treated as permanent union.
iv. Dower should be specified; otherwise, void.

1.6 Legal Incidents of Muta Marriage i. Mutual right of inheritance between parties not created
ii. Children born out of muta marriages –
 Legitimate
 Have the right of maintenance of both parties
iii. Marriage dissolution –
 Expiry of fixed period
 Mutual consent
 Death of either party
iv. No limit to number of wives.
v. Divorce – not recognized in Muta marriage; before decided
period –
 If husband ends, make gift of unexpired period to
wife
 If wife leaves, husband may deduct a proportionate
part of the dower
vi. Marriage consummation –
 Done – wife entitled to full dower
 Not done – wife entitled to half dower
vii. Wife is not entitled to maintenance.
viii. Husband is not bound to provide residence to muta wife.
ix. In case of pregnancy, period is extended up to delivery but

2 Restitution of Conjugal Rights (RCR)
2.1 Requirements of the provision of
restitution of conjugal rights
3 Judicial Separation (JS)
3.1 Grounds for JS for Muslim wife – Section
2 of The Dissolution of Muslim Marriages
Act, 1939
there is no co-habitation.
x. Muta wife should observe Hab period (4 months and 10
days) if husband dies.
Original Suit before Civil Court
i. The withdrawal by the respondent from the society of the
petitioner.
ii. The withdrawal is without any reasonable cause or
excuse or lawful ground.
iii. There should be no other legal ground for refusal of the
relief.
iv. The court should be satisfied about the truth of the
statement made in the petition.
Despite the fact that there is no law that specifically addresses the
relief of judicial separation for Muslim spouses, some landmark
cases have expanded the grounds for dissolution of marriage
under Section 2 of the Dissolution of Muslim Marriages Act, 1939,
to include judicial separation.
i. Absence of husband (period of 4 years)
ii. Husband’s neglect/failure to provide maintenance (period
of 2 years)
iii. Husband sentenced to imprisonment (7 years or above)
iv. Failed to perform marital obligations without reasonable
cause (period of 3 years)
v. Husband impotent at time of marriage and continues to
be so.
vi. Husband is insane for a period of 2 years or is suffering
from a virulent venereal disease.
vii. Wife has been given in marriage by her father or other
guardian before she attained the age of fifteen years and
repudiated the marriage before attaining the age of
 eighteen years, provided that the marriage has not been
consummated
viii. Cruelty by husband

ix. On any other ground which is recognized as valid for the

dissolution of marriages under Muslim law.

Some of the provisions are subject to certain conditions.

4 Divorce A contract of Muslim marriage can be dissolved on the following
grounds –
i. By the husband at his will i.e., Talaq
ii. By the wife
iii. Talaq by mutual consent
iv. Judicial Divorce under Dissolution of Muslim Marriages Act,
1939
4.1 Forms of Talaq i. Talaq-Ul-Sunnat
a) By the husband at his will  Also called as Talaq-ul-raje.
i.e., Talaq.  Revocable form of talaq - consequences of Talaq do not
become final at once; possibility of compromise and
reconciliation between husband and wife exists.
 It is regarded to be the approved form of Talaq; recognized
both by Sunnis as well as by the Shias.
Talaq-ul-Sunnat may be pronounced either in Hasan or in the
Ahasan form. –
I. Talaq-ahasan
Most proper method of Talaq. Requirements –
 Husband makes single pronouncement of
divorce during Tuhr period; if wife not
subjected to mensuration, anytime.
 After pronouncement, wife must observe
Iddat for three monthly courses; if
pregnant, until child delivery
 If husband does not revoke Talaq in
 expressed words or implied (co-habitation)
during Iddat, divorce becomes final.

II. Talaq-hasan
Requirements -
 Three pronouncements of Talaq are made
during successive Tuhr periods; single
declaration during each period.
 If there is no revocation between 1st and 2nd
or 2nd and 3rd pronouncement, and 3rd one
is made, divorce becomes final.
 Wife observes Iddat after 3rd
pronouncement.
ii. Talaq-Ul-Biddat
Disapproved form of divorce. Has been declared as
unconstitutional in Shayara Bano v. Union of India, 2017.
It is of 2 types –
I. Single Declaration
 The husband may make only one
declaration in a Tuhr period expressing his
intention to divorce his wife.
 After the pronouncement, Talaq is
irrevocable and permanent.
 Wife observes Iddat period after the
pronouncement.
II. Triple Declaration
 The husband makes three
pronouncements in one Tuhr period and
becomes irrevocable after pronounced.
 Wife observes Iddat period after
pronouncement.
iii. Ila
  The husband takes an oath not to have sexual intercourse
with his wife.
 Followed by this oath, there is no consummation for a period
of four months.
 After the expiry of the fourth month, the marriage dissolves
irrevocably; if husband resumes cohabitation within four
months, Ila is cancelled and the marriage does not dissolve.

It is single irrevocable divorce for Sunnis. For Shias,

marriage will not dissolve automatically; it gives the wife a
right to judicial divorce u/s 2 of The Dissolution of Muslim
Marriages Act, 1939.
iv. Zihar
 Husband compares his wife to a woman within his prohibited
relationship e.g, mother or sister etc.
 The husband would say that from today the wife is like his
mother or sister.
 After such a comparison the husband does not cohabit with
his wife for a period of four months.
 Upon the expiry of the said period, Zihar is complete.
Expiry of 4th month will give the right to wife to approach court
for RCR or divorce.
Husband can revoke Zihar if –
 He observes fast for a 2-month period.
 Provides food for at least 60 people.
 He frees a slave.

In Masroor Ahmed Vs. State (NCT of Delhi) and anr,, 2008 the high
Court of Delhi observed that “Ila and Zihara modes of divorce are
virtually non-existent in India. However, Lian is sometimes resorted
to.”
 If the husband levels false charges of unchastity or adultery against
his wife then this amounts to character assassination and the wife
has the right to ask for divorce on these grounds. Such a mode of
divorce is called Lian.

b) By wife i. Talaq-i-Tafweez
 Delegated form of divorce
 Husband free to delegate this power to wife or
any other person
 It can be temporary or permanent. Latter is
revocable, former is not.
 It can be absolute or conditional.
 Recognized by both Shias and Sunnis.

ii. Khula
 Offer from the wife.
 Gives or agrees to give consideration to the
husband for release
 Acceptance of offer by husband; it makes the
divorce irrevocable
Proposal may be retracted by wife before husband’s
acceptance. According to Muslim personal law, 3
days’ time has been given to husband and wife by
jurists.

c) Talaq by mutual consent Also called as Mubarat. Requirements –

 Either the husband or the wife can make the offer.
 The other must accept it.
 When an offer mubarat is accepted, it becomes
irrevocable
 Iddat period necessary

d) Judicial Divorce under Judicial divorce is a formal separation between husband and wife
 Dissolution of Muslim where there is no direct role of husband or wife but court separates
Marriages Act, 1939 them according to established custom or law. In such cases,
divorce does not depend on the will of the husband.
Under Dissolution of Muslim Marriage Act, 1939 the legislature has
made provisions for the divorce on the application of wife u/s 2.

5 Maintenance a) For Wife

b) For Husband
c) For Children
d) For Parents

5.1 For wife

i) During Marriage – Dissolution of Muslim Marriages
Act, 1939 u/s 2 provides that husband’s
neglect/failure to provide maintenance for a period of
2 years is a ground for divorce.
ii) After divorce – u/s 5 of Muslim Women (Protection of
Rights on Divorce) Act, 1986

iii) U/s 125 of CrPC,1973 - “Order for maintenance of

wives, children and parents” - the wife irrespective of
religion and pending matrimonial proceedings can claim
for maintenance.

5.2 For husband There is no provision for Muslim husband to apply for maintenance
from his wife.
5.3 For children
Son – Father has to maintain until age 15; has to maintain adult
sons if they are disabled by infirmity or disease
Daughter – Father has liability to maintain until they are married.

 Children’s custody under mother during infancy does not

relieve father from obligation to maintain them.
  Father does not have to maintain children who can maintain
themselves out of his/her own property

If father is poor and can’t maintain children, mother should. If

mother is also poor and can’t maintain, grandfather should,
provided he is in easy circumstances.

Children irrespective of religion are entitled to maintenance under

CrPC, 1973 from S125 – 128.

5.4 For parents i) U/s 125 of CrPC, 1973.

ii) U/s 4 of Maintenance and Welfare of Parents and Senior
Citizens Act, 2007.
6 Adoption  Muslim personal law gives partial recognition adoption.

 There is no provision which allows Muslims to adopt children

in India.

 Due to this reason, Muslims have no recourse rather to rely

on The Guardian and Wards Act, 1890. Because of the said
Act, the adoptive child gets the status as if the child is born
biologically to the adoptive parents.

 On the other hand, the adoptive child is not granted the right
to inherit the property of adoptive parents. Guardian Ward
relationship exists between them. Parent’s child relationship
does not exist.

However recently, the Supreme Court in a landmark judgment

extended the right of adoption to Muslims also. In this Case titled
Shabnam Hashmi v Union of India, (2014) 4 SCC 1, the Supreme
Court declared that the right to adopt a child by a person as per the
provisions of Juvenile Justice Act would prevail over all personal
 laws and religious codes in the country.

With this declaration, prospective parents, irrespective of their

religious background would be free to access the provisions of the
Juvenile Justice Act, 2015 – a secular act, for adoption of children
after following the procedure prescribed.

7 Guardianship
Father
 Father enjoys dominant position in custody and
guardianship; he is natural guardian. Even when child is
under mother’s custody, father has right of supervision and
control.

 Guardian of child when father dies- In Sunni Law, goes to

executor of father; in Shia law, goes to the paternal
grandfather.

Mother
 Mother’s right of custody in ML, called hizanat, is only until a
certain age according to child’s sex

 Son till 7 and daughter till puberty in Hanafi law; son till 2
and daughter till 7 in Shia law.

 Divorce does not end this right. Remarriage ends it, but
Court can deviate from this rule if welfare of child demands
it.

When there is conflict between application of personal law and

Guardians and Wards Act, 1890, the latter will prevail.
 The court remarked in Poolakkal Ayisakutty v. P.A.Samad, 2005,
that the principles exported by personal law cannot be read in
isolation and be divorced from the Guardians and Wards Act, 1890.
The overriding consideration is the welfare of the child and the
personal law would yield to the provisions of the Act.

The custody of illegitimate children belongs to the mother and her

relations.

Iddat is an Islamic concept that refers to the period of waiting for the divorced or widowed wife that follows
the dissolution of a Muslim marriage.
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx It is a
mandatory waiting period during which the woman cannot remarry.

Time period

the duration of Iddat varies depending on the circumstances of the divorce. The Iddat period is three
menstrual cycles if the husband is the one to file for divorce. The Iddat period is three menstrual cycles or
three lunar months, whichever is longer, if the wife is the one who files for divorce.

Iddat has legal implications for the parties involved in a Muslim divorce.

During the Iddat period, the woman is still legally considered the wife of her former husband. She cannot
remarry, and any sexual relationship during this period is considered adultery under Islamic law.
The Iddat period also has implications for property division and inheritance.

If the woman is pregnant at the time of the divorce, the child is considered to be the child of the former
husband, and the child has a right to inherit from his or her father. If the woman is not pregnant, the property
division is finalised at the end of the Iddat period, and the parties are no longer considered husband and
wife.