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Islamic personal law

Muslim family law

(1) Marriage:

Def; “It is a legal relationship established by an agreement between

opposite sex (man and woman) entitling them for sexual intercourse”.

Nature of Muslim marriage:

The institution of marriage is recognized by all civilized society

marriage regulates the conduct and behavior of man and women when they
start living as husband and wife. The marriage confers a legal and social
status, with rights and responsibilities, on the parties who enter into it.

Marriage is also a devotional act. Prophet MUHAMMAD SAW says,

“He who marriage completes his half religion, it now rests with him to
complete other half by leading a virtuous life in constant fear of GOD”.

Legal status of Nikah:

According to zahri, marriage is obligatory and if you do not commit

nikah then you commit sin.

While jamhur says, it is normally sunnah.

For whom nikah is obligatory?

A person who is able to pay dower and maintenance of children and

wife and cannot control his sexual desires, then nikah is obligatory for them.

For whom nikah is recommended?

Nikah is recommended for a person who are able to pay dower and
maintenance, but he control unlawful sex.

For whom nikah is prohibited?

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A person who are not able to pay dower and have no sexual desires or
have deases deceases which can transfer to his child, then nikah is prohibited
for him.

Promise to marry?

Promise to marry is allowed in shariah. That a man promise to women.

The seeing of a woman before marriage is also allowed for man. That
promise is not binding in shariah. So the gifts are not reasonable by suit
which was given by each others.

Once, Mughirah ibn shubah wished to marry some woman, prophet

MUHAMMAD SAW said, “go and look at her”.

Elements of marriage ?

According to ahnafi, there are only two elements of marriage;

(i) Offer (ijab) and

(ii) Acceptence (qabul) called sigha.

According to maliki and shafi, there are four elements of marriage;

(i) Sigha (offer and acceptance),

(ii) Parties,

(iii) Witnesses and

(iv) Guardians.

Condition for sigha (offer and acceptance):

(1) It should be in same session.

(2) It should not be contingent on future events.

(3) These should ambiguous and must denote a permanent and immediate
rather than a temporary and differed relation.
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(4) Offer or acceptance may implied or express.

Condition for a valid marriage?

(1) Legal capacity:

In Islam there are two basic attributes of a legal competence to a

contract a marriage;

(i) Sound mind and

(ii) Puberty.

Every Muslim who is of sound mind and has attained the age of
puberty may enter into a valid marriage contract. The word puberty required
some explanation;

In Muslim law puberty and majority are one and same. It is generally
presumed that a person has completed the fifteenth years of his age has
attained the puberty.

So the offer and acceptance when made by an insane person is not valid.

(2) Two witnesses:

According to sunni Hanfi law, at least two witnesses are required at the
time of nikah. As per shariah law witness are not essential.

(3) Proportionality of status (kufah):

If a woman does nikah without kufah, then wali can objection against it.

Similarly, if father do the marriage of a woman without kufah, then this

woman has also right to break the nikah.

(4) Willayah in certain cases:

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Willayah is the authority of a person over a property given by shariah.

 If the wali arrange the marriage of a person who is insane or minor,

with kufah, it’s valid.
 If the marriage is done by the guardian who is not his/her father,
with kufah, so he/she has the right to cancel or keep this marriage
after puberty.

Dissolution of marriage:

Dissolution of marriage means “cutting off or repudiation of marriage”

Following is the classification of dissolution of marriage:

1). By the death of a spouse,

2). By the act of parties:- are farther divided into two kinds:

i).by husband :- may through :

a). talaq b). Ila c). Zihar

ii). By the wife:

a). through a talaq tafwid (delegated divorce)

3). By common consent :- farther divide into two kinds;

i). khula (redemption),

ii). Mubarat (mutual freeing).

4). By Judicial process:- farther divide into two kinds:

i). lian (mutual imprecation)

ii) Faskh (judicial recession)

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dissolution of marriage

by the death of a spouse by the act of the parties by common consent by judicial process

by husband by wife khula faskh

through
talaq talaq tafwid

mubarat lian

ila

zihar

Talaq:

It comes from a root “tallaqa” which means to release froma tether. In

literral sense talaq means “speration”. Technically talaq means “ termination
ofv relationship of marriage”

Tlaq is right which only given to the husband. Any muslim of sound mind
and who has attained puberty may pronouce talq:

i). by himself,

ii). Through any person including the wife empowered to pronounce talaq
(delegated talaq).

Period of talaq:

Talaq is strongly prohited in the time of mensturation.

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When a person do sex with woman during the purification period so it is also
not allowed to divorce wife .

Islam says give talaq on strong basis. If a person give talaq for unreasonable
reason, then divorce will occur but there is sin for him.

Classification of talaq:

I). Classification of talaq with regards to attribures:

Classification of talaq on the basis o attributes are as following:

a). talaq Ahsan:

talq ahsan is a single pronouncement in the period of tuhr, followed by

abstinence from sexual intercourse durind the period of purity as well as
durind the whole period of iddat. That type of talaq can be revoked at any
time before the completion the period of iddat. It is also called talaq ul
sunnat.

b). talaq hasan:

it also aproved form but less than talaq ahsan form. Itv consist of three
successive pronouncement during three consecutive tuhr. When the third
pronouncement is made, the talaq becomes final and irrevocable. It is also
called talq ul sunnat.

c). talaq bidat

in this form talaq is made in a single tuhr either in single pronouncement

eg:- “I divorce you thrice” or in three separate sentences. when the this type
of talaq is made the marriage stand dissolved irrevocably.
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II). Classification of talaq with regards to its consequence:

Are of two types:

a). talaq raji:

a talaq which is revocable is called talaq raji.

Legal consequence of talaq raji:

1. It does not dissolve marriage.

2. Husband has right to restore marriage.
3. Wife has right of inheritance.
4. Husband is not allowed to marry with fifth wife.

b). Talaq bain:

a talaq which is irrevocable , is called talaq bain.

Types of talaq bain:

1. Bainunah sugrah,

2. Bainunah kubrah.

III). Classification of talaq with regards to its words:

Are of two types:

a). express :

a talaq in which husband use the words clearly. It does not depends upon
intention.

b). Implied:
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in this husband use words other than words of talaq. According to majority
it depends upon intention.

Legal status of triple talaq in one session:

According to majority three talaq in one session consider as a three talaq.

According to zahri zaidi , three talaq in one session will be consider as a one
talaq.

Modern legislation in India, Markish says, that three talaq in one session will
be a single talaq. Islamic ideology council also give same opion of a single
talaq.

There are two opinion about these.

First Opinion:

i). Umar bin Qais give three talaq in one session to Fatima , one person came
to the prophet Muhammad (saw) and told this, Muhammad (saw) said there
is no maintenance for her.

Now according to this hadith the three talaq in one session will consider as
three talaq.

Second opinion:

i). Rukhsan yazid gave three talaq to his wife in one session and he became
depressed and went to Muhammad (saw) and told this, Muhammad saw said
that go and raju with her.

Now according to this hadith , three talaq in one session will be a one talaq.

Khula (Redemption):

The word Khula literally means to put off. In law Khula means lying down
by an husband of his right and authority over his wife for exchange.
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Essential of Khula:

i). Common consent of husband and wife,

ii). Some return or consideration from the wife to husband.

Dalil:- a woman namely Jamila went to Muhammad saw and said I did not
like my husband namely sabit. he is very good but I did not like ,
Muhammad saw says give him consider which you received as dower.
Prophet Muhammad saw said to sabit to talaq.

Quantum of consideration:

According to hanafi, it should be equal to dower. According to other it may

more than that of dower.

Talaq Tafwid (Delegated Divorce):

Delegated divorce means right of talaq delegated to to some other.

Kinds of delegated divorce with respect to the person:

i). Delegated to third person:- A husband in a Muslim law has the power to
delegated the right of pronouncing talaq to some third person. Such a power
of delegation is called tafwid.

ii). Delegated to the Wife:- :- A husband in a Muslim law has the power to
delegated the right of pronouncing talaq to his wife. Such a power of
delegation is called tafwid.

Kinds of Delegated talaq with respect to time:

i). absolute time: husband delegate his right of talaq to wife absolutely.

ii). Qualified time: means delegated talaq with some condition.

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Kinds of talaq with respect to the words:

i). express:- delegation of talaq by using thes words:- divorce yourself.

ii). Implied:- eg. Your matter is in your hand.

Talaq tafwiz may be for forever, for specific time, and may without time.

Lian (Mutual imprecation):

Lian means testimony confirmed by oath and accompanied with

imprecation. Divorce by mutual imprecation is mentioned in the Holly
Quran and is supported by the tradition of the Holly Prophert
MUHAMMAD saw.

Procedure of Lian:

Husband said four times that I am true in my blame and fifth time he said if I
am lie Allah curse upon me.

wife said four times that she is lie in her blame and fifth time he said if I lie
Allah curse upon me.

Legal consequence of Lian:

After Lian the relationship of marriage is repudiate. According to Hanafi it is

talaq bain . according to majority it is called fasik and they will not marry
again. After lian woman is entitled for dower.

Prohibited woman:

Are of two types:

1. Permanent prohibited,

2. Temporary prohibited.
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Ila (Vow of Continence):

The term ila literraly means oath or vow.

Ila has four situation:

i). no time limit is fixed

ii). Time limit of four months

iv). Time limit of more than fore months

v). time limit of less than four months

if the swear is less than four months then for this just kafarrah.

Zihar :

Literally Zihar means Back. this is a inchoate divorce. In this the husband
swear that to him the wife is like the back of his mother, sister, or any other
woman within the degree of prohibited.

If a person control zihar that lady or wife remain his wife and divorce cannot
occur but he has to pay kafara for doing sexual relation.

Kafara:

i). free one slave.

ii). Two month of fasting continuously or

iii). Fooding to sixty people for one time.

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Maintenance of wife during iddah:

A woman who gets divorce either one, two or three, maintenance must be
paid to her during iddah period.

Situations:

i). A woman divorce three at once,

ii. A woman gets single divorce,

iii). A divorced woman who is pregnant,

iv). A woman passing iddahb after khulaah,

v). A woman whi is separated by lia’n,

vi). A woman passing iddah due to apostasy.

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