MUSLIM/MOHAMMEDAN LAW

SOURCES OF MUSLIM LAW

The sources of Shariah, based on the “the philosophy of jurisprudence in Islam”, are
recognised throughout the world, including India. Two distinct sources of Muslim law:-
(A) Sharia sources/ primary sources
i. Quran:
It contains matter not only legal but social, moral, ritual, spiritual, economic, historical, etc.
covering every facet of human life. Only 80 of its verses may strictly be called legal in the
sense of today what we call legal. Quran never claims to be a code of law. The style of
Quran is the most beautiful, fluent, concise and posses great force of expression.
i. Quran is the primary source of Muslim law and the first source of Muslim law.
The Islamic religion and Islamic society owes its birth to the word of Quran, it is
the paramount source of law and it is the foundation upon which the very structure
of Islam rests.
ii. It contains very word of God as communicated to Prophet Mohammad through
angel Gabriel.
iii. It was given to the world in in fragments, extending over a period of 23 years.
iv. Its objects are: (a) repealing objectionable customs such as unlimited polygamy,
gambling, etc., (b) bringing social reforms, such as raising the legal status of
women and equitable division of the matters of inheritance and succession.
ii. Sunna (Traditions):
The literal meaning of the term ‘sunna’ is ‘the trodden (step or walk) path’. It denotes some
practice and precedents of the prophet, whatever the prophet said or did without the referece
to God, is treated as his traditions. It is the second source of Muslim law. Where the Allah
could not supply authority for a given law, Prophet’s words were treated as an authority
because it is believed that even his sayings derived inspiration from Allah.
In Muslim law there are two types of revelations i.e. manifest and internal. Manifest or
express revelations were the very words of Allah and came to prophet through the angel
Gabriel. Such become part of Quran. On the other hand, the internal revelations were those
which were the ‘prophet’s words’ & did not come through Gabriel, but Allah inspired the
ideas in his sayings. Such internal revelations became part of sunna. Sunna or traditions
consists of:
 Sunnat-ul-Qual (word spoken)
 Sunnat-ul-Fail (conduct)
 Sunnat-ul-Tahrir (silence)
iii. Ijma (Consensus):
With the death of the Prophet, the original law-making process ended, so the questions which
could not be solved either by the principles of the Quran or the Sunna, were decided by the
Jurists with the introduction of the institution of “Ijma”.
Ijma means agreement of the Muslim jurists on a particular question of law. Those persons
who had knowledge of law were called Mujtadhids (Jurists). When Quran and traditions
could not supply any rule of law for a fresh problem, the Jurists give their common opinion or
a decision and it was termed as “Ijma”. There are three kinds of Ijma:
 Ijma of companions: the concurrent opinion of the companions of Prophet was
considered most authoritative and could not be overruled or modified.
 Ijma of the Jurists: this was the decision of the jurists (other than companions).
 Ijma of the people or masses: it is the opinion of the majority of the Muslims which
was accepted as law. But this kind of Ijma has little value.
Once a valid Ijma is constituted, it is regarded equal to Quranic verse i.e. it is equally binding
on people. Without Ijma, these rules of Islamic law would be incomplete. Its principles cover
the vast subject. A few of the important requirements for the validity of Ijma are:
It shall not come into conflict with the Quran or Hadith, b) once a question is determined by
Ijma it cannot be reopened by individual jurists, c) one Ijma may be reversed by a subsequent
Ijma and d) when the jurists of an age have expressed only two views on a particular
question, a third view is inadmissible. It has made a worthy contribution to Islamic Law since
it has made possible changes to suit the needs of changing times and usages, also influenced
the opinions of the jurists.
iv. Qiyas (analogical deduction):
With the expansions of the Islamic state, and as centuries went by, new cases occurred which
were not provided in the Quran, Sunnah or the Ijma. The jurists found themselves compelled
in seeking solutions, thus became the fourth source of law. In Arabic Qiyas means
‘measurement, accord, and equality.’ In other words, it means measuring or comparing a
thing to a certain standard.
It is a process of deduction, which helps in discovering law and not to establish a new law. Its
main function is to extend the law of the text, to cases which do not fall within the purview of
that text.
All the four schools of the Muslim jurisprudence accept the authority of Qiyas as source of
law. But it was one of the causes of conflict between the two schools.
v. Equity and absolute good:
The following come under this:
i. Juristic preference: Qiyas has been accepted as definite source of law, and it
cannot be easily overridden, but in presence of stronger text such as Quran it can
be set aside and the stronger basis could have been adopted.
ii. Public interest: Iman Malik was the founder of this rule, according to him, public
good and public interest can be made the basis of a law.
(B) Secondary sources/ Extraneous Sources:
i. Judicial decision (Precedent):
Judicial precedents means the “judgement given by the court”, a judicial decision has a legal
principle that it is binding on the subordinate courts as once higher court has delivered a
judgement then court subordinate to it must abide by the precedent, it is based on the doctrine
of Stare decisis. Today, the doctrine of stare decisis is incorporated into Muslim law.
ii. Legislation:
The following are some sources legislative enactment which have considerably amplified,
altered or modified the true Islamic law:
1. The Guardian and Wards Act, 1890.
2. The wakf Act, 1954.
3. The Wakf (Amendment) Act, 1984.
4. The Muslim women (Protection of Rights on Divorce) Act, 1986, Etc.
iii. Justice, Equity and Good conscience:
In some cases a jurist could use good conscience also. The development of law represents the
justice equity of the Muslim law. Justice, Equity and Good conscience is the principle of
English law and it has been incorporated in Muslim law whenever possible.
SCHOOLS OF MUSLIM LAW

The Muslim community divided in two parts on the basis of politics. That is, Shia who
favours successor leaders and Sunni favours elected leaders.
SHIAS SCHOOL
 Ithana: this school is considered the most dominance school under Shias Muslims.
This type of school follows the successor of Prophet Mohammad. It further divides in
two parts i.e. Akhari and Ushali.
 Ismail: according to this school, in India there are two groups, the Khojas and
Bohoras and they both are considered as the followers of this school. It is considered
that the follower of these schools has special knowledge of religious doctrine.
 Zaidi: the followers of this school are not found in India and they are considered as
the political activism. This type of school follows the 1st son of the 4th Iman.
SUNNI SCHOOL
 Hanafi: Abu Hanafi was the founder of this school. He was known as a master of
jurisprudence. He also extended the doctrine of Ijma and interpretation of the Text.
 Maliki: Malik was the founder of this school. This type of school follows the tradition
and the validity of Ijma. This type of school is prevalent in North Africa and Spain.
 Shafei: Muhammed Ash Shatei was the founder of this school. He adopted views of
Hanafi and his master Iman Malik. He also wrote legal treatises.
 Hanbali: Abdullah Hamid was the founder of this school. He placed implicit reliance
on the tradition and restricted Qiyas and Ijma to narrow limits. He gave liberal
interpretations of traditions.
DIFFERENCES BETWEEN SHIAS AND SUNNIS
There are some basic differences between these schools based on the certain conditions and
the restrictions imposed by their founders. Some of them are as follows:
SHIA SUNNI
 There is no witness required for marriage
whereas.
Under this school, marriage between non-
Muslim are not allowed.
The talaq must be pronounced orally in
presences of two competent witnesses.
Muta Marriages i.e. a marriage for a
particular time period and is lawful.
Marriage cannot be cancelled on the ground
of inequality between the two parties.
Under Shia law, gift of undivided share in
the property is valid provided, it is capable
of partition.
There are two male witness or one male
witness and two female witnesses are
required for marriage.
In here they can marry Muslim man with
non-Muslim woman only if she is kitabia or
converted the religion before marriage is
allowed.
The talaq pronounced without witness or
even without presence of wife is considered
valid.
Muta marriages are not lawful.
Marriage can be cancelled on the ground of
inequality between the parties amongst
Sunnis.
Under Sunni law, a gift of undivided share
in the property is invalid if it is incapable of
partition.

WHO IS A MUSLIM

A Muslim is a person whose religion is Islam. The Arabic ‘Islam’ means submission to the
will of God. Islam is a religion in which it is believed that, god (Allah) is one and only one,
and Muhammad is his messenger. The word ‘Muslim’ is derived from Islam and signifies a
person who adopts faith of Islam. According to courts, a person may be Muslim either by
birth or thorough conversion:-
i. Muslim by Birth: A person whose both the parents were Muslims at the time of
his birth is regarded to be a Muslim by birth. Even if one of the parents of a
person was a Muslim, he may be treated as Muslim, but in India the courts have
held where only one of the parents of a child is a Muslim the child is to be
regarded as Muslim only when it is proved that he has been brought up as a
Muslim.
ii. Muslim by Conversion: any person of any religion who is of sound mind and has
attained the age of majority, can become the follower of Islam after renouncing
his own religion. By adopting Islam a non-Muslim becomes a Muslim and the
rules of Muslim personal law being to apply on him immediately. A non-Muslim
after conversion to Islam generally known as “Converted Muslim”. There are two
ways 1) when a person publicly declare that he has renounced his original religion
and is now professing Islam; 2) through ceremonies prescribed by religion of
Islam itself.
According to Aghnides a Muslim is (I) one, who believes Mohammad as Prophet, or (II) one,
who says that there is one god and the Mohammed is “His Prophet”, or (III) one who believes
in a number of other essential beliefs in God and Mohammad. This view has been followed in
Narantakh v. Prakkal, it was held that to be Muslim two things are required- one is that
Allah is one and the second is the Prophethood of Mohammad.
NIKAH (MARRIAGE)
DEFINITION
The Arabic word nikah literally means the union of the sexes and in law this term means
‘marriage’. Prophet of Islam is reported to have said that “Marriage is my Sunna and those
who do not follow this way of life are not my followers”. According to kefaya, marriage is a
contract and the object of which is the procreation of children; it was also instituted for the
comfort of life and is one of the prime or original necessities of man.
NATURE OF MARRIAGE
1. As marriage requires proposal (Ijab) from one and acceptance (Qubul) from the other
so is the contract. Moreover there can be no marriage without free consent and such
consent cannot be obtained by means of fraud, coercion or undue influence.
2. Just like in case of contract, entered into by a guardian, on attaining majority can be
set aside, so can a marriage contract in Muslim law, be set aside by a minor on
attaining the age of puberty.
3. The terms of a marriage contract may also altered within legal limits to suit individual
cases.
4. Although discouraged by the holy Quran and Hadith, yet like any other contract, there
is also provision for the breach of marriage contract.
The analogy of marriage contract with contract of sale as pointed out in the leading case of
Abdul Kadir v. Salima, emphasises on the contractual aspect of the Muslim marriage. From
the observation Justice Mahmood as he held to have taken the view that Muslim marriage is
nothing but purely a civil contract.
ESSENTIAL OF A VALID MARRIAGE UNDER MUSLIM MARRIAGE
The essentials of valid Muslim Marriage are as follows:
1. Proposal and Acceptance: in a Muslim marriage, proposal is referred to as ‘Ijab’ and
acceptance of the same as ‘Qubul’. A proposal should be made by or on behalf of one
party and same should be accepted by the other party. The proposal and acceptance
should be carried out at the same meeting.
2. Competency of Parties: the parties to the contract must be i) Major, ii) of sound
mind & iii) Muslims.
a. Major: in case of Huhammad Ibrahim v. Atkia Begum & Anr., held that under
Muslim law, a girl is considered to have attained the age of puberty if she has
attained the age of 15 years, or attaining the state of puberty at an earlier age. The
same is applicable for the Muslim Boy. Thus, it can be said that a Muslim is
considered to have attained the age of puberty at 15 years.
b. Soundness of Mind: at the time of marriage, both the parties should be of sound
mind. In eyes of law his consent will be considered as no consent. Unsoundness is
two types: (a) Idiocy: it refers to a complete abnormal state of mind and (b)
Lunacy: it refers to a curable mental disease. A lunatic can enter into contract at
the time when he is sane.
c. Muslim: the parties to enter into marriage must be a Muslim irrespective of their
sect or sub-sect. A marriage is considered to be as inter-sect marriage if both the
parties are Muslim of different sect but the marriage is valid.
 3. Free Consent: if the consent is obtained by means of coercion, fraud or mistake of
fact, it is considered as invalid and the marriage is considered as void.
4. Dower: it is referred to as ‘mahr’. It refers to the amount of money or other property
which a bride’s groom has to give to bride as a consideration of marriage. Its object is
to offer the bride a sense of financial security within and after the termination of
marriage.
5. Free From Legal Disability: under Muslim law, marriage is not permitted under
circumstances. The restrictions/prohibition can be divided into two parts:
a. Absolute Prohibition: a Muslim marriage cannot take place if the parties are
within blood relationship or prohibited degree of relationship of each other and the
marriage turns void.
b. Relative Prohibition: under Muslim law, certain prohibitions are relative and not
absolute. If marriage takes place in violation of such prohibition, it is only
irregular and it can’t be declared as void. The marriage becomes valid as soon as
the irregularities are removed. Relative prohibitions are Unlawful Conjunction,
Polygamy, Absence of Proper Witness, Difference of religion, Marriage during
Iddat.
6. Registration: it is not mandatory according to Muslim law. However, a few states
like Assam, Punjab, Bihar and Orissa have enacted laws for registration of Muslim
marriage. It is not an essential part of a valid marriage but it acts as an authentic
proof.
IDDAT

Iddat is an Arabic word and its literal meaning is ‘counting’. It means, counting the days of
possible conception to ascertain whether a woman is pregnant or not. It that period in which
women is prohibited from re-marrying after the dissolution of her marriage. During this time
the widow or divorced wife is required to live a pure and simple life and she cannot marry
again. The object of this period to ascertain the possibility of paternity, after divorce or death
of husband.
If the woman re-marries immediately and a child is born within normal course, then there is
every likelihood that the conception could be by the former husband and not by the present. It
would be difficult so to overcome this difficulty, Muslim law provides that when a marriage
is dissolved, the woman cannot re-marry before the expiry of a specified period called Iddat.
After this period the possible conception will become visible. Such marriage will be
considered irregular under Sunni law. Under Shia law the marriage contracted with woman
observing Iddat is void. Duration of Iddat:
i. Iddat of widowhood- when a person dies leaving a widow, she is prohibited from
marrying before the expiration of 4 months and 10 days.
ii. Iddat of pregnant woman- if the women is pregnant at the death of her husband,
the Iddat will not terminate until delivery or miscarriage.
iii. Iddat of Talaq- the period of Iddat in case of Talaq is three courses.
iv. Iddat when marriage is irregular- if the marriage is irregular and the parties have
been separated before consummation, there is no Iddat. If the consummation has
taken place, then wife is bound to observe Iddat.
KINDS OF MARRIAGES
 i. Void (Batil) marriage- a marriage which has no legal results is called a void
marriage. A marriage suffering from absolute prohibition is void.
ii. Irregular (Fasid) marriage- a marriage contracted by parties suffering from
relative prohibitory or directory incapacity is irregular.
Batil/ void Fasid/ irregular
If the defect is absolute and permanent the If the defect is relative and temporary, the
marriage is void. marriage is irregular.
Impediments can never set aside, in other In irregular marriages, where the
words, void marriages are void ab initio. prohibitions are relative, can be cured to
become valid.
It does not create any civil rights and In irregular marriage some legal
obligations between the wife and husband. consequences can be raised, provided the
marriage has been consummated.
Sexual intercourse is unlawful and the In irregular marriages the children born are
children born of such are illegitimate. legitimate.

iii. Muta marriage: whereas every marriage under Muslim law is a permanent union,
so much that any condition making it temporary is treated as illegal and void. But
one school in Shia jurisprudence recognises temporary marriage. Muta is not
recognise by all the four schools of Sunni law and among Shia, it is only
recognised by one school. The reason for rejection its reputation of being legalised
prostitution. It has vanished among Shia all the world.
Muta may be for a day, a month, or year, or whatever period is specified. Dower is
payable. All the conditions of a valid marriage would apply. The Muta marriage
will remain Muta without ever getting the status and respect of marriage, it will
continue to be Muta for life.
Children under Muta marriage are legitimate and are entitled for inheritance there
is no limit to the number of wives a husband may take in Muta marriage. Rules
governing Muta marriage:-
1. Automatic termination on expiry of the contract.
2. Divorce is not necessary.
3. No provision for the maintenance of the Muta wife after expiry of the period.
4. No right of mutual inheritance.
5. No limit on the number of wives.
6. If no consummation, wife gets only-half of the dower amount.
DOWER

The term Mahr was originally used to signify gifts given to the parents of the wife. The
dower, which was paid in the case of regular form of marriage, was approved by Islam.
DEFINITION
Mahr or dower is a sum that becomes payable by the husband to the wife on marriage, either
by agreement between the parties or by operation of law. According to Mulla, “Dower” is a
sum of money or other property which the wife is entitled to receive from the husband in
consideration of the marriage.
According to Amir Ali, “Dower” is a consideration which belongs absolutely to the wife.
KINDS OF DOWER
Broadly, there are two kinds of dower: 1) specified, and 2) unspecified. But the specified
dower has been further divided into a) prompt and b) deferred.
i. Specified dower
An amount settled by the parties at the time of marriage or thereafter is called specified
dower. If the bride’s groom is a minor, his father may settle the amount of dower. Hanafi law
says that the father is not personally liable for the dower; but, according to Shia law he will
be liable. The husband is bound to pay the specified amount of the dower, however excessive
or beyond the reach it may be.
Prompt and deferred dower.- Prompt dower is payable on demand, and deferred dower is
payable on the dissolution of marriage by death or divorce. The prompt dower can be
demanded by the wife at any time before or after consummation, but the deferred dower
could not be so demanded.
In customary law if the prompt dower is not paid on demand, the wife has a right to refuse
conjugal rights and in case of deferred dower there is no such restraint. Prompt dower in full
amount can be recovered by the wife even after the death of her husband; it will be charged
on his estate.
ii. Unspecified dower
In such cases where the dower has not been settled at the time of marriage or after, it is fixed
with reference to the social position of the wife’s family or her personal qualification. One
aspect of dower, the husband will remain under an obligation to pay it.
OBJECTS & IMPORTANCE OF DOWER
The object or importance of dower:
 To enforce an obligation on husband as a mark of respect towards his wife.
 To place a check on the misuse of power to give divorce by the husband.
 To provide for her livelihood on the dissolution of her marriage, so that she can lead a
dignified life after the death of her husband or divorce.
 Under Muslim Law, husband can give divorce to his wife as his will so the object of
dower is to prevent the misuse of such power and also to prevent polygamy.
Dower is so essential under Muslim law of marriage that even if an agreement made by the
wife before marriage that she will revoke her right of dower and will not claim for dower in
future she agrees to marry without dower, that agreement will be invalid as per law.
According to Fatwa-i-Quazi Khan “Mahr is so necessary to marriage that if were not
mentioned at the time of marriage, or in the contract, the law will presume it by virtue of the
contract itself”.
RIGHTS OF WIFE WHEN DOWER IS NOT PAID TO HER
Every woman under Muslim law has the right to claim a dower on the commission of
marriage. Like any other law, if such a right is violated, then the woman has some remedies.
 1. Refusal to cohabit: if the marriage has not been consummated the wife has the right
not to cohabit with her husband as long as the prompt dower is not paid. However, if
consummation has taken place after marriage, then the wife loses this absolute right
on the payment of prompt dower.
2. Right to dower as a debt: according to the lordships of Privy Council, it was held
that dower is a debt and the widow is entitled along with other creditors to have it
satisfied on the death of the husband. If the husband is alive, then the wife can recover
the dower by instituting a suit against him. In case if the dower debt is remain unpaid
the widow can institute a suit for the claim for the dower debt.
3. Right to retain possession in lieu of unpaid dower: Dower ranks as a debt and the
wife is entitled along with the other creditors to have it satisfied on the death of her
husband out of his estate. Her right is however no greater than that of any other
unsecured creditor, except that if she lawfully obtains the position of the whole or part
of his estate, to satisfy her claim therefrom she is entitled to retain such position until
it is satisfied, this does not give her any title to the property. Therefore, she cannot
alienate the property.
DIVORCE/TALAQ

The dissolution of marriage is known as divorce. Under Muslim law, marriage is a

contractual relationship between two parties. All the essentials that are required for a contract
are present under Muslim marriage. There is an offer, acceptance, consent, consideration,
capacity, etc. the purpose of marriage are- legalising sexual intercourse and procreation of
children. Under Muslim law there are two modes given for the dissolution of marriage;
divorce and talaq. If a person seeks “divorce”, he will be governed by the provisions of
‘dissolution of Muslim marriage act, 1939. Whereas, ‘Talaq’ proceedings are governed by
Muslim personal laws.
CLASSIFICATION OF DISSOLUTION OF MARRIAGE
BY HUSBAND
There are four modes available before a husband for dissolving the tie of marriage:
i. Talaq-ul-Sunnat
This form of talaq is effective in accordance with the traditions established by the prophet. It
further divided into two parts-:
a. Ahsan: it is known as the best form of talaq as the name clarifies the same. The
husband has to make a pronouncement of divorce in a single sentence, such
pronouncement must be made in a purity state. A husband must not indulge in any
form of sexual intercourse during Iddat. Once the iddat period has expired, the
divorce becomes irrevocable.
b. Hasan: the Arabic meaning of Hasan is ‘good’, therefore divorce pronounces through
Hasan mode is good but worth less than the one pronounced in Ahsan.
ii. Talaq-ul-Biddat
This is a sinful form of talaq, as it is recognised among the Hanafis. Sunni law recognises this
mode of talaq, though recognised as sinful by that too. Whereas Shias and Malikis do not
recognise this mode. Three pronouncements made in a single sentence or in separate
sentences.
The partners separated through triple talaq can’t remarry without the formality of the woman
marrying another and getting divorced from him. Although in a recent case of Shayara Bano
v. Union of India and Ors., SC of India declared that the practice of triple talq is
unconstitutional.
iii. Ila (vow of continence)
The situation where the husband who is of sound mind and has attained the age of majority
swears in the name of God that he will not have sexual intercourse with his wife and leaves
her to observe Iddat, he is said to make “Ila”. If the husband resumes the sexual intercourse
within the Iddat period it will lead to cancellation of “Ila”.
iv. Zihar (injurious Assimilation)
If the husband compares his wife to his mother or any other female within the prohibited
degrees, the wife has the right to refuse to have sexual intercourse with him. Muta marriage
which admits no other sort of divorce mat be dissolved by Zihar.
TALAQ BY THE WIFE
Divorce given by the wife under the husband’s delegated power.
i. Talaq-e-tafweez
The husband may delegate the power of divorce to his wife. It is a form of
an agreement made either before or after marriage providing that wife will be privileged to
get separated from her husband via divorce. Indian high courts have held this as valid
agreement by which ‘the husband authorises the wife to divorce her-self from him in the
event of his marrying a second wife without her consent’.
BY MUTUAL CONSENT
i. Khula: Khul is a form of divorce at the request of the wife. The husband delegates
his authority to the wife, where the wife can seek for a Khula if she wants to
dissolve the marriage, after which the husband can release her from the
matrimonial bond whenever she wants.
ii. Mubarat: it is a form of divorce by mutual consent, where the offer to dissolve the
marriage can be placed by either party. Khula is a redemption of the contract of
marriage, whereas Mubarat is a mutual release. In Khula, the aversion is more on
the side of the wife. In Mubarat, there is mutual aversion. Both Khula and
Mubarat are followed by an Iddat period.
DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939
i. Lian: Whenever a husband imposes false adultery charges on his wife, then a wife
can sue him and can also obtain a divorce on the same ground under the Act.
a. There must be a false charge of adultery on wife by husband.
b. The person charging must be above 18 and sane.
c. The husband can prevent the divorce by withdrawal of his false assertion, before the
court passes its decree.
d. Marriage is not dissolved until the court passes its decree, once the court passes its
decree then the dissolution is irrevocable.

ii. Faskh: if the husband and wife feels they are not compatible together they can
move to the court for the dissolution of marriage.
Section 2 of Dissolution of Muslim Marriage Act, 1939: it states nine grounds on which
a Muslim wife can obtain a decree of divorce:-
a. Absence of Husband- whereabouts of the husband are not known for past four
years.
b. Failure to maintain- if a husband fails to provide maintenance to his wife for
two years.
c. Imprisonment of a Husband- if the husband is imprisoned for seven years or
more.
d. Failure to perform martial duties- without any reasonable cause, the husband
is unable to perform his martial obligations for three years.
e. Impotency of husband- husband was impotent at the time of marriage and
continues to be so.
f. Insanity- if the husband is insane or suffering from any venereal disease.
g. Repudiation of marriage by wife- if the a married before age of 15 by her
father or guardian, then Muslim law provide the right to repudiate such
marriage after attaining the age of 18 years.
h. Cruelty- if the husband treats his wife with cruelty, then she can approach the
court and claim for a decree of judicial separation on the same ground.
i. Ground of dissolution recognised by Mohammedan law- wife is entitled to
obtain a divorce on the ground recognised valid under law.
MAINTENANCE (NAFAQA)
The obligation to maintain, and to bear the burden fooding, clothing and lodging, etc. of
others. Maintenance means provisions of fooding, lodging and other essential requirements
for the livelihood.
PERSONS ENTITLED TO MAINTENANCE
Under Muslim law, a person may have the right to maintained by the other on the basis of: a)
marriage, and b) the blood-relationship. Wife is entitled to be maintained by her husband
because of marriage and her right is absolute. Second category of persons entitled to
maintenance are blood related. In this manner, the following will be entitled to maintenance:-
1. Wife (during marriage and after divorce),
2. Young children,
3. The necessitous parents, and
4. Other necessitous relations within the prohibited degrees.
MAINTENANCE OF WIFE
Under Muslim law the wife’s right to maintained is absolute. It is the legal obligation of
every husband to maintain his wife even if the wife may have her own means to support
herself. It is interesting to note that in maintenance, the wife is preferred even over the young
children. The wife’s right to maintenance is regulated by Muslim personal law and also by
the statutory provisions of the criminal procedure code, 1973 (sections 125-128).
a) DURING MARRIAGE
I. As a legal obligation: wife’s right to maintenance is absolute. “wife”
includes “deserted wife”. The only exceptions are: when as a minor she is
living with her parents, she is disobedient, weather living with her
husband or not. But if the husband is guilty of cruelty, or has married a
second wife, or the husband not paid prompt dowry, then she may live
separately and still be maintained. It is irregular that she can maintain
herself while the husband has no means, and even if the marriage is
irregular.
II. By agreement: if the husband treats her with cruelty, she will have the
right to separate residence and maintenance and if the husband brings
another wife to the house and the existing wife could not adjust with her.
III. Implications of such agreement: the husband and wife or their guardians
may enter into an agreement whereby the wife is entitled to recover
maintenance from her husband on the happening of some specified event,
such as ill-treatment or disagreement, or husband’s second marriage, etc.
but the agreement in marriage where the wife is not to be entitled of
maintenance is void. The agreement should not be oppose to public policy.
b) AFTER MARRIAGE
I. Section 125 CrPC: section 125(1), explanation (b) defines the term ‘wife’ women
who divorced by or had obtained divorce from her husband and had not remarried.
Section 125 succeeds only if the person on whom the duty to maintain is imposed
has the means to maintain but he either refuses or neglects to do the needful. In a
case of Fuzlunbi v. Khader Vali, the SC observed that under section 127(3)(b),
 sum received by a divorced woman under any customary or personal law must be
sufficient for her maintenance.
II. Protection of Rights on Divorce Act, 1986: section 3 of the Act, divorced woman
is entitled to 1) reasonable and fair provision and maintenance to her to be paid to
her in the Iddat period by her former husband; 2) reasonable and fair maintenance
to her child for two years; 3) mahr amount and 4) all properties given to her
before, at time of, and after marriage.
Section 4 of Act requires relatives of a Muslim divorced women, and failing them
the Wakf, to pay her maintenance if she is unable to maintain herself after iddat.
Section 3(1)(a) the right of a divorced women to receive a reasonable and fair
maintenance from her former husband within the period of iddat. The SC in case
of Danial Latifi v. Union of India, while upholding the Act held that reasonable
and fair provision and maintenance under section 3(1)(a), it is not limited for the
iddat period; it extends for the entire life of a divorced wife, unless she remarries.
Section 5, of the Act gives the parties option to declare either jointly or separately
to be governed by either the provisions of Section 125-128, CrPC or the Act,
1986.
WAKF

Wakf is an Arabic word which means ‘detention’, ‘to prevent’, ‘restraint’, it is recognised
under Islam means permanent deduction of any property under Muslim law for the purpose of
charity. Where the person who deduce property is called the “wakif” and the deed is called
the “wakf nama”.
MAINING AND DEFINITION OF “WAQF”
The word waqf literally means “detention”. According to Abu Yusuf, it is the detention of a
thing in the implied ownership of God in such that its profits may be applied for the benefits
of human beings, and detention when once made is absolute so that the thing dedicated can
neither be sold, nor given, nor inherited.
In India Abu Yusuf is accepted. Wakf Act, 1954 defines Wakf as, “Wakf means the
permanent dedication by a person professing the Islam, of any movable or immovable
property for any purpose recognized by Muslim Law as religious, pious, or charitable.”
ESSENTIALS
I. Under Sunni law
1. Permanent dedication of property- the most important essential of a valid waqf is that
it should be ‘a permanent dedication of property.’ Its prerequisites are: there must
be a dedication, the dedication must be permanent and the dedicated property can be
anything. If the wakf is made for a limited period, it cannot be considered as a valid
wakf.
2. By a person professing Musalman faith- The person creating a waqf should be an
adult Muslim of sound mind.
3. For any purpose recognised by Muslim Law- The main objective behind creating a
waqf is that it should be dedicated for a purpose recognised as religious, pious or
charitable under Muslim law.
II. Under Shia law
 1. It must be never ending.
2. It must be absolute and unconditional.
3. Possession of the thing appropriated must be given.
4. The waqf property should be entirely taken out of waqf.
MODES OF CREATING A WAQF
1. By an act inter vivos- this type of waqf is created during the lifetime and takes effect
in the lifetime.
2. By will- a waqf created by will is contradictory to a waqf created by an act inter
vivos. It takes effect after the death of the waqif and also known as ‘testamentary
waqf’. Such a waqf cannot operate up on more than 1/3rd of the net assets, without the
consent of the heirs.
3. By immemorial user- limitation of time also applies to the creation of waqf property,
but waqf property can be established by way of immemorial use.
WHO CAN CREATE A WAQF
The person constituting the waqf of his own properties is known as the ‘founder of waqf’ or
waqif. To become a waqif, a person dedicating to do so according to the provision of law.
Following are the conditions, which need to be fulfilled to become waqif and constitute a
waqf:-
1. The person constituting the waqf should be a Muslim.
2. Should be a person of sound mind.
3. Should have attained the age of majority.
The Madras and Nagpur High Courts have held that a non-Muslim can also create a
valid waqf provided the objective of the waqf so created is not against the principle of
Islam. According to Patna High Court, a valid waqf can also be constituted by a non-
Muslim. However, such a waqf would only be constituted under a public waqf i.e. a non-
Muslim cannot create any private waqf.
HIBA

The term gift is known as ‘Hiba’ in Muslim law. Whereas in English, the word ‘gift’ has a
much wider expression, where an individual transfers his or her property to another without
any consideration for the same. In contradiction to this, the term ‘Hiba’ in Muslim law has a
much narrower connotation. A Muslim is allowed to give whole of his property in his lifetime
but he can only give away his1/3rd property through a will.
ESSENTIALS OF HIBA
There are mainly three conditions which need to be fulfilled for the successful transfer of
property or making a gift by a Muslim person. These conditions are as follows:
1. Declaration of gift by the donor.
2. Acceptance of gift by the donee.
3. Transfer of possession by the donor and its acceptance by the donee.
The person who signifies his willingness to the other person for transferring his property is
known as Donor. On the other hand, the person who expresses his consent for the acceptance
of the gift made by the donor is known as the donee.
KINDS OF GIFTS
I. Hiba-il-iwaz: Hiba-il-iwaz means, the gift for the consideration already given.
Under all the laws, there is no system where there is a consideration for the gift.
But under Muslim law, there is a system of gift with an exchange.
II. Hiba-ba-Shart-ul-Iwaz: A gift made with the stipulation. In this type of gift,
payment of consideration is postponed. Delivery of possession is essential and the
transaction becomes final on delivery of possession.
REVOCATION OF GIFT
Although old traditions show us that the prophet was against the system of revocation of
gifts. Today, it can be seen that it is the well-established principle of Muslim law that all the
gifts which are made voluntarily can be revoked. The revocation of the gift of different kinds
depends upon the different schools and Shia’s and Sunni’s. Muslim law categorised the types
as under:
 Revocation of gifts before the delivery of possession.
 Revocation of gifts after the delivery of possession.
Under Muslim law, the revocation of gifts before the delivery of possession is allowed.
Suppose A has transferred the property to B by the way of gift-deed. Now, if A revokes his
gift and no delivery of possession has taken place, this revocation is valid. On the other hand,
declaration of revocation of gifts by the donor after the delivery of possession is not sufficient
to revoke a gift.