Muslim law - Ritu Gautam

MUSLIM LAW
By:
Ritu Gautam
Assistant Professor
Noida International University

Origin and development of Muslim law
• Muslim Law or the Islamic Law is believed to have
been originated from the divine. The Divine
communicated it to Prophet Muhammad who
prescribed them in Quran. In the later days, the
disciples of Prophet Muhammad (or Muslim
jurists) have refined and polished these
principles. The provisions of Quran are vast and
dealt with almost all aspects of human life

Who is a Muslim?
• Who is a muslim?
• To whom does Muslim Law apply?
• When is Muslim law not applied to Muslims?
• When is Muslim law applied to non-Muslims?
• Fiqh and Shariat

Usool-e-Fiqh (Source of Muslim Law)
• Quaran
• Primary and Secondary
• Customs
• Judicial Decisions
• Legislation

Fiqh or Islamic jurisprudence is the source of a range of laws in
different topics that govern the lives of the Muslims in all facets of
everyday life. The word “Fiqh” is an Arabic term meaning “deep
understanding” or “ full comprehension”.
Sources of Islamic Jurisprudence:
Fiqh is an expansion of Shariah or Islamic law based on five sources
which are classified into primary and secondary:
Primary sources:
 The Quran
 Sunnah
Secondary sources:
 Ijma(Consensus of opinion)
 Qiyas
 Ijtihad

The primary source of Islamic law is Holy Quran The
Quran contains a set of moral and judicial injunctions which are the
basis of Islamic law and concern life of human beings in every detail.
The Quran as a source L aw
The early revelations revealed in Makkah deal largely with beliefs
and morals. It was later, after the Prophet’s (PBUH) migration to
Madinah when Muslims lived in an organised society that the
principles regarding crime, succession and international law were
revealed. The basic law in Quran is mainly contained in a simple
sentence on which whole structure of law can be built.
Importance of Quran as source of law:
The Quranic law is everlasting , perpetual, and universal.

Introduction:
Sunnah is the actual embodiment of the will of Allah shown in the
actions of His Messenger(PBUH). Hadith means all sayings, deeds ,his
silent approval of behavior of his companions and description of his
personality.
Sunnah and Hadith as Source of Law
The Holy Quran being the word of Allah treats, major issues and often
deals with subjects in brief terms, leaving details to be explained by
Holy Prophet.
Example: In the Quran we are commanded to pay zakat by all
Muslims. But the percentage and exact amount is unspecified. All
these details were learnt by the Prophet’s deeds or words. The
clarification of the Quran was provided by the Holy Prophet(PBUH)
who himself participated in Shariah formation.

The Six Books of Reliable Hadith
The six books of hadith compiled by the four great imams are usually
consulted to formulate laws in Islam. They are,
 Sahih Bukhari compiled by, Imam Muhammad ibn Ismail-al-
Bukhari (194—256) A.H.
 Sahih Muslim compiled by, Imam Muslim ibn Hajjaj (202—261)
A.H.
 Al Jami compiled by , Al-Tirmizi (210—279 A.H.)
 Kitab al Sunnah compiled by, Al-Nasai (215—303 A.H.)
 Al Sunan compiled by, Abu Dawud (205—275 A.H.)
 Kitab al Sunnah compiled by, Ibn Majah.

Introduction
Ijma means agreeing upon or uniting in opinion. It means the consensus of
Islamic community on some point of law. It can operate only where Quran and
Hadith have not clarified a certain aspect of law.
Ijma as a Source of Law
The Holy Prophet(PBUH) said,
“Whatever the Muslims hold to be good before Allah. It is
incumbent upon you to follow the most numerous body. Whoever
seperates himself from the main body will go to hell. If you
yourselves do not know then question those who do.”
Types of Ijma:
1) Ijma or consensus of the companions of the Holy Prophet(PBUH) which is
also universally accepted and binding.
2. Ijma of jurists.
3. Ijma of the people, the general body of the Muslim community.
Among the Sunni jurists there is diversity on who is eligible to participate in
Ijma, as shown in table

.
School of
jurisprudence
Formation of ijma' Rationale
Hanafi
through public agreement of
Islamic
jurists the jurists are experts on legal
matters
Shafi'i
through agreement of the entire
community and public at large
the people cannot agree on anything
erroneous
Maliki
through agreement amongst the
residents of Medina, the first
Islamic capital
Islamic tradition says "Medina expels bad
people like the furnace expels impurities
from iron"
Hanbali
through agreement and practice of
Muhammad's Companions
they were the most knowledgeable on
religious matters and rightly guided
Usuli
only the consensus of the ulama
of the same period as the Prophet
or Shia Imams is binding.
consensus is not genuinely binding in its
own right, rather it is binding in as much
as it is a means of discovering the Sunnah.

Introduction:
Qiyas or analogical deduction is the fourth source of Shariah for
Sunni jurisprudence. Qiyas is the process of legal deduction
according which the jurists , confronted with an unprecedented case
, bases his or her argument on logic used in Quran and Sunnah. Qiyas
must not be based on arbitrary judgment, but rather be firmly
rooted in primary sources.
Qiyas as a Source of Law
According to a Hadith,
“Where there is no revealed injunction, I will judge amongst
you according to reason.”
The general principle behind the process of Qiyas is based on
understanding that every legal injunction guarantees a beneficial and
welfare objective. Thus if the cause of an injunction can be deduced
from the primary sources, than analogical deduction can be applied
to cases with similar causes.

Example:
Wine is prohibited in Islam because of its intoxicating effects.
Therefore , qiyas leads to the conclusion that all intoxicants are
forbidden.
The general principle behind the process of Qiyas is based on
understanding that every legal injunction guarantees a beneficial
and welfare objective. Thus if the cause of an injunction can be
deduced from the primary sources, than analogical deduction can
be applied to cases with similar causes.

Introduction:
Ijtihad is the making of a decision in Islamic law by personal effort,
independantly of any school of jurisprudence, following the decisions of
religious expert without necessarily examining the scriptural basis or
reasoning for that decision.
Qualification of Mujtahid:
A mujtahid is an Islamic scholar who is competent enough to interpret
shariah by ijtihad. He should fulfill the following conditions to be a mujtihad,
• Upright character whose judgment people can trust.
• Knowledge of the Quran.
• Knowledge of Hadith.
• Knowledge of Arab linguistics
• Knowledge of Qiyas. In this case, the above mentioned ruling (which is
derived from the Quran and Sunnah) should not be apparent in the Quran
and Sunnah or Ijma’.

Schools of Muslim Law
“Difference of opinion among my community is
a sign of the bounty of Allah”
-Prophet Muhammad.

There are three main schools in
Muslim law
Main schools in muslims are the Sunnies, Shias
and Motazila Both the segments are divided into
sub-schools. The Sunni school can be divided into
four sub-schools as Hanafi, Maliki, Shafi and
Hanbali. Shia school of thought can be divided
into three as Ismaila, Zaydia and Ithana Asharia.

Hanafi School:
• Hanafi School of thought is accepted as the most
influential and important School. Imam Abu Hanifa
was the founder of this school. The school was
named after him as Hanafi School.
The main features of this school are:
• 1. Less reliance on traditions unless their authority is
beyond any doubt;
• 2. Greater reliance on Qiyas;
• 3. A little extension of the scope of Ijma;
• 4. Evolving the doctrine of Istishan, i.e., applying a
rule of law as the special circumstances required.

• However, his teachings were not liked by the Caliphs and
so they throw him into prison. As so supposed they
poisoned him to death. He was held in such respect that
his funeral prayers as reported was said for 10days and
50000 people attended it on each day.
• The muslims of India, Afghanistan and Turkey are
Hanafis. Also in Egypt, China and Arab-they principally
found. He left his two disciples Abu Yusuf and Imam
Mohammod.
• So we can say that he was the founder of the theories
and principles of Muslim Jurisprudence.

Mailki School:
• The Mailki School of law was founded by Imam Malik
bin Anas. He was born in Medinah. Imam Malik was
a judge. He wrote a book named al-Muwata (the
Leveled Path). The pupils of Imam Malik included
Imam Muhammad and Imam Shafi. Though, Medina
was the birthplace of the Maliki School and from
there spreadout the Hijaz, North Africa and Spain. It
is still predominant in Morocco, Algeria, Tunisia and
Tripalitania, the Sudan, Bahrain and Kuwait.

Shafi School:
• The third school was founded by Imam al Shafi who was a
disciple of Imam Maliki. He was a great thinker, had an
unusual grasp of principles and a clear understanding of the
judicial problems.
• His most famous pupil was Ahmad-ibn-Hanbal.
• This School is followed in many parts of Egypt, Syria and
Lebanon (particularly in the city of Beirut) and also in Iraq,
Pakistan, India, Indo-China, Java and among the Sunni
inhabitants of Iraq and Yemen. It is predominate in Palestine
and Jordan.

• Hanbali School:
• This School was founded by Imam Ahmed bin Hanbal
who was born Bagdad. Imam Hanbal did not
establish a separate school himself; this was rather
done by his disciples and followers.
• The Hanbali was the most conservative of the four
schools. Its rigidity and intolerance eventually caused
its decline over the years. Today, Hanbali school is
followed only in Saudi Arabia. This school is very
strict in the observance of religious duties.

• Now to cope with this changing aspect of Islamic
society, particularly in the light of new facts,
specialists in the field of Islamic law asked to give
their decisions using the traditional tools of legal
science. Such a decision is called fatwa and the
religious scholar who gives this decision is called
a mufti.

Conversion to Islam
What is
Conversion?
Who can be
Convert?
Who can not
be convert?

Effect of Conversion
On marriage
On Property

Unit-2
MARRIAGE UNDER MUSLIM LAW

Pre-Islamic Background
• When news is brought to one of them, of [the birth
of] a female [child], his face darkens, and he is filled
with inward grief! With shame does he hide himself
from his people, because of the bad news he has
received! Shall he keep this [child] despite the
contempt [which he feels for it] or shall he bury it in
the dust? Oh, evil is indeed whatever they decide!" -
The Quran (16:58-59)

• The atrocious practice of female infanticide has become the
ultimate symbol of women’s oppression in pre-Islamic Arabia.
• As appalling as it is, however, female infanticide should not be the
sole basis for assessing the status of women in the society before
Islam.
• Arabia was a vastly diverse, tribal society, and women’s rights, in
turn, varied according to the prevailing customs and traditions of
the tribes.
• To claim that Arab women were universally inferior to men, and
had absolutely no rights before Islam is too simplistic, and does not
do justice to the women of this period. Their status, therefore,
deserves a more careful analysis.

• One of the few facts that is universally agreed
upon is the diversity of the Arabian society
prior to Islam.
• Arabia was comprised of diverse communities
with different customs, languages and
lifestyles.
• As the social and cultural norms varied from
place to place, so did women’s rights.
• To better understand this diversity and its
impact on women, a brief overview of the
pre-Islamic Arab society is in order.

Definition of marriage
• Islamic Marriages refers to all marriages that have
been contracted between a Muslim male and
Muslim female immaterial of their races and
ages, and have been witnessed by at least two
males or a male and two females. Generally, the
marriage is solemnized by a Muslim male and it is
immaterial whether the person who solemnizes
the marriage is considered a qualified scholar of
Islamic Law, has any form of qualification from
any Islamic Institute or whether he sufficiently
knew and understood the Islamic format of
executing a marriage.

• Justice Mahmood: “Marriage among
Muhammadans is not a sacrament, but purely
a civil contract”.
• M.U.S. Jung: “Marriage though essentially a
contract is also a devotional act, its objects are
the right of enjoyment, procreation of children
and the regulation of social life in the interest
of the society.”

• Nikah is a great bounty from Allah Ta'ala. The affairs
of this world and the hereafter are put in order
through marriage.
• There is a lot of wisdom and many benefits in
marriage. A person saves himself from sinning and his
heart is put at ease. He does not have any evil
intentions and his thoughts do not begin to wander
and stray.
• The greatest virtue is that there are only benefits and
only rewards in this. This is because a husband and
wife’s sitting together and engaging in a loving
conversation, joking with each other, etc. is better
than nafl salat.
Formalities of Valid Marriage

• A marriage can be executed by just two
words, e.g. a person says the following
words in the presence of witnesses: "I give
my daughter to you in marriage." The
person who is addressed replies: "I accept
her in marriage.“
• In so doing, the marriage is valid and both
of them are lawful husband and wife.
However, if the person has several
daughters, the nikah will not be executed
by his uttering the words mentioned
above. He will have to mention the
daughter by name, e.g. he says : "I give my
daughter, Fatema, to you in marriage", and
the person replies : "I accept her in
marriage."

• A person says: "Give so-and-so daughter of
yours to me in marriage." The father replies: "I
give her to you in marriage." In so saying, the
nikah will be valid irrespective of whether he
says that he accepts or not. (In other words, it
is not necessary for the word "accept" to be
mentioned).
• If the daughter is present and the father says:
"I give this daughter of mine in marriage to
you", and the person replies: "I accept her",
the nikah will be valid. It will not be necessary
to mention her name.

• If the girl is not present, it is necessary to
mention her name and the name of her
father in such a loud tone that all the
witnesses are able to hear. If the people do
not know the father and there is a strong
possibility that by mentioning his name
they will still not know whose nikah is
being performed, then it will be necessary
to mention the name of the grand-father
as well. In other words, such identification
is necessary whereby those present
immediately know whose nikah is being
performed.

• In order for a nikah to be valid, it is also
essential for at least two males or one male
and two females to be present, to hear the
nikah being performed, and to hear the two
words (i.e. the offer and the acceptance)
being uttered. Only then will the nikah be
valid. If two persons sit together in privacy
and one says to the other : "I give my
daughter to you in marriage" and the other
person replies : "I accept your daughter", the
nikah will not be valid. Similarly, if the nikah
was performed in the presence of one person
only, even then the nikah will not be valid.

• If there are no males present, but only
females, the nikah will not be valid even if
there are ten females present. Together with
two females, one male has to be present.
• If there are two males but they are not
Muslims, the nikah will not be valid. Similarly,
if both are Muslims but both or one of them is
immature, the nikah will not be valid.
Similarly, if there is one male and two females
but both or one of the females is immature,
the nikah will not be valid.

• It is preferable to perform the nikah in a large
gathering such as after the jumu'ah salat in a
jumu'ah musjid or in any other large
gathering. This is so that the nikah will be well
announced and the people will become aware
of the nikah. A nikah should not be performed
in secret and privacy. However, if due to some
reason many persons are unable to attend,
then at least two males or one male and two
females who hear the nikah being performed
in their very presence should be present.

• If both the man and woman are mature, they
can perform their own nikah. All that they
have to do is say the following in the presence
of two witnesses: One of them must say: "I
am making my nikah with you" and the other
must say : "I accept." In so doing, the nikah
will be valid.
• If a person does not make his nikah himself,
but asks someone to perform his nikah with
someone, or, he mentions the name of the
person with whom he wishes his nikah to be
performed and this person performs this
nikah in the presence of two witnesses - the
nikah will be valid. Even if this person rejects
or denies this later, the nikah will still be
intact.

Nature of Muslim marriage
• The judgment I Abdul Kadir v. Salma, ILR(1886) 8 All
149, iss one of those classic pronouncements of the
illustrious Mr. Justice Mahmood, the first Indian Judge
of the Allahabad High Court, which has acquired so
great a reputation that its obiter dicta carries the legal
sanctity of ratio decidendi. The case is one on the
restitution of conjugal rights, yet Justice Mahmood’s
observations on-
• a. nature of marriage
• b. husband’s liability to pay dower
• c. matrimonial rights of the husband and wife
• d. general rules of interpreting Hanafi Law
This judgment has won universal recognition not only of
various High Courts but also of the Privy Council and
the Supreme Court.

• In determining the nature of Marriage Fyzee has
enumerated three aspects:
Legal Aspect: Marriage has legal aspect. It has
legalized sexual intercourse and procreation and
legitimating of children.
Social Aspect: Marriage gives to the women a higher
status and restrictions upon unlimited polygamy.
Religious Aspect: Marriage is an institution leads to
the uplift of man and is a means for the
continuance of human race. Prophet Muhammad
(Sm) said: “No institution of Islam is liked by Allah
more than that of marriage.”
Personal Aspect: The basic object of marriage In Islam
are, securing comfortable atmosphere for a
husband and wife and, producing a new generation
of healthy, faithful and virtuous children.

Persons with whom Nikah is Haram
• Full Blood relation
• Half Blood relation
• Uterine blood relation
• Milk relation
• Adoption

• Marriage with one's children, grand-children,
great grand-children, etc. is not permissible. Nor
is marriage with one's parents, grand-parents,
maternal grand-parents, etc. permissible.
• Marriage with one's brothers, uncles and
nephews is not permissible. According to the
Shari‘ah, a brother is one whose mother and
father is the same, or they have one father but
two mothers, or one mother but two fathers.
They are all brothers. But if the father is different,
and the mother is also different; that person will
not be a brother. Nikah with him will be valid.

• Marriage with one's son-in-law is not permissible. This is
irrespective of whether the daughter is already living
with him or not. In all cases, nikah with him is haram.
• A girl's father passed away. Her mother married another
person. However, before the mother could even live with
her new husband, she passed away or he divorced her. In
such a case, the girl can marry this step-father of hers.
However, if the mother lived with him, it will not be
permissible for this girl to marry him.
• Nikah with one's step-children is not valid. In other
words, if a man has several wives, then one of the wives
cannot marry the children of the co-wives. This is
irrespective of whether she had lived with her husband
or not. Nikah with these children is prohibited under all
circumstances.

• It is not permissible for a woman to marry her
father-in-law or even the father or grand-father
of her father-in-law.
• As long as a sister is married to her husband, it is
not permissible for another sister to marry this
brother-in-law of hers. However, if her sister
passes away or he divorces her and she
completes her iddah, it will be permissible for
the other sister to marry her brother-in-law. In
the case where the brother-in-law divorces the
first sister, it is not permissible for the second
sister to marry her brother-in-law until her sister
completes her iddah.

• If two sisters marry one person, the marriage of the
sister whose nikah was performed first will be valid
while the marriage of the sister whose nikah was
performed later will not be valid.
• A man married a woman. As long as he remains
married to her, he cannot marry her maternal and
paternal aunts and nieces.
• If the relationship between two women is such that if
we had to regard one of them as a man, their nikah
will not be valid, then such two women cannot marry
a person at the same time. When one of them passes
away or one of them is divorced and completes her
iddah, only then will it be permissible for the person
to marry the other woman.

• If a woman and her step-daughter marry a person at
the same time, the nikah will be valid.
• Adoption is not considered in the Shar i ‘ah. By
adopting a boy, he does not become one's son. It is
therefore permissible to marry one's adopted son.
• If a man is not one's real uncle but he becomes an
uncle through some other distant relationship,
marrying him is permissible. Similarly, if a man
happens to be one's paternal uncle or nephew
through some distant relationship, nikah with him is
permissible. Nikah with one's cousins is also valid
irrespective of whether they are paternal or maternal
cousins.

• Two women who are not blood sisters but are maternal
or paternal cousins are permitted to marry one man at
the same time. In the presence of such a cousin, another
cousin can also marry the same man. The same rule
applies to a very distant maternal or paternal aunt. That
is, the niece and this distant maternal or paternal aunt
can marry the same man at one time.
• All the relations, which become haram on account of
lineage also become haram on account of breast-feeding.
In other words, if a girl is breast-fed by a particular
woman, then this girl cannot marry the latter's husband
because he will now be regarded as her father. A girl who
has been breast-fed by a particular woman cannot marry
a boy who has been breast-fed by the same woman. Nor
can this girl marry the children of this woman because
she is also regarded as a child of this woman. All the
maternal and paternal uncles and maternal and paternal
nephews who become related due to this breast-feeding
also become haram on this girl.

• If two girls have been breast-fed by one woman,
they cannot marry the same man at one time. In
other words, whatever has been explained
previously, will also apply to relations based on
breast-feeding.
• A man committed adultery with a certain woman.
Now it will not be permissible for her mother or her
children to marry this man.
• Due to the passions of youth, a woman touched a
man with evil intentions. It will now not be
permissible for her mother or her children to marry
this man. Similarly, if a man touches a woman with
evil intentions, her mother and her children will be
haram on him.

• In the middle of the night, a man decided to awaken
his wife. However, he mistakenly touched his
daughter or his mother-in-law. Thinking them to be
his wife, he touched them with the passions of
youth. Now, this man will become haram on his wife
forever. There is no way in which she can become
permissible for him. It will be necessary for him to
divorce his wife.
• If a boy touches his step-mother with an evil
intention, she will become haram on her husband.
There is no way in which she can be halal for him. If
the step-mother touches her step-son with an evil
intention, the same rule will apply.

• A Muslim woman cannot marry a man who
belongs to any other religion. She can only marry a
Muslim man.
• A woman's husband divorced her or he passed
away. As long as she does not complete her iddat,
she cannot marry anyone else.
• Once a woman marries a man, she cannot marry
another person unless and until she is divorced by
this person and also completes her iddat.
• The marriage of a Sunni girl with a Shia man is not
permissible according to the majority of the ulama.

• If a woman is not married and she falls
pregnant due to adultery, it will be
permissible to marry her. However, it will not
be permissible to have intercourse with her
until she delivers the child. But if the woman
marries the same person who had committed
adultery with her, it will be permissible for the
person to have intercourse with her.
• If a person has four wives, he cannot marry a
fifth woman. If he happens to divorce one of
his four wives, another woman cannot marry
him until the one who is divorced completes
her iddat.

Forms of marriage
There are three types of Marriage:
Valid Marriage or Shahi Marriage
Irregular Marriage or Fasid Marriage
Void Marriage or Batil Marriage

• A marriage may either be (A) Valid (Sahih) or (B) Void
(Batil) or (C) Irregular (Fasid). A marriage which conforms
in all respect with the law, it is termed as Valid, Sahih or
Correct.
• For a valid marriage, it is necessary that there is no
prohibition affecting the parties or it should not be void
or even irregular marriage.
• There are seven prohibitions to mary any person of the
opposite sex. Some of them are temporary whereas some
of them are permanent or perpetual. If prohibition is
perpetual or permanent, marriage is void.
• A void marriage is an unlawful connection which
produces no mutual right and obligations between the
parties. Such marriages are considered as totally non-
existing in fact as well as in law. If the prohibition is
temporary, marriage is irregular.

Sahih or valid Marriage
Capacity :Limitation on Age
• As earlier stated, the marriage agreement is a contract between
two persons bearing sound mind. Since the idea of ‘sound mind’
is quite broad, in order to avoid any confusion it only excludes
“insane” or “lunatic” from the contract of marriage.
• Attaining puberty is very important for a marriage contract. It
demonstrates that parties to the contract are mature enough to
independently express their consent.
• It is,however, confusing as to when one gets puberty. There are
many dissenting opinions on this issue among the different
schools of thought.
• Under Muslim Law a child becomes an adult upon attaining
puberty which varies with gender. An average female child ceases
to be a child upon attaining puberty at the age of 12 years and an
average male child on reaching 15 to 16 years of age. According to
the Hanafi school a girl attains her puberty at the age of 15, which
in other schools are even lower.

• The Hanafi school, nevertheless,does not rule
out a marriage contract written before the
age of 15. But in that case the girl has the
right to repudiate the marriage once she
attains puberty.
• In this case the marriage contract is arranged
by their guardians. According to prevailing
laws puberty is determined on the basis of
one’s attaining majority.
• As a matter of fact, the term puberty is no
longer relevant. What is relevant for a
marriage contract is whether one has crossed
the age of minority.
• Laws regarding majority were enacted at
different times and in response to different
situations.

• The concept of minor or child has, thus, been
given varied definitions by different acts and
statutes in force in Bangladesh.
• The Bangladesh Majority Act of 1875 defines
a person below the age of 18 years to be a
child. The Guardians and Wards Act of 1890
states that if a child is made a ward of court
then he/she will remain a ward until 21 years,
thus defining him/her as a child up to that
age.
• The Children (Pledging of Labor) Act of 1933
regards a person below the age of 15 years as
being a child.
• The Factories Act of 1965 defines a child as a
person who has not completed 16 years of
age.

• The Children Act of 1974 states that a child is a person
below the age of 16 years.
• The legal system in the country also makes a
distinction between boys and girls in defining a child.
This is especially apparent in the Child Marriage
Restraint Act of 1929. In this Act the age of majority,
defined in terms of contracting a valid marriage has
been placed at 21 years for boys but 18 years for girls.
It does not, however, contemplate that marriage
contract under that age is void. Rather such marriage
is subject to the condition that the parties have right
to repudiate upon attaining majority.
• Though a minor may be given in marriage, no minor
may contract herself in marriage during her minority
and any such marriage would be held to be void.
• Where a minor has been given in marriage and
marriage has been consummated before puberty such
consummation does not operate to deprive the minor
of the option to repudiate after puberty.

Forced Marriage
• Forced marriage is prohibited in Islam. It could be
assumed from the discussion of previous section that age
of puberty is necessary so that one can freely express his
or her consent.
• So, Islam prohibits marriage where a woman (or man)
does not have consent.There are guiding principles
through the Hadit in this regard.
• The Prophet Mohammad(SAS) had advised a girl, on her
complaint that her father had forced her to marry
without her consent, that she had a choice either to
accept or invalidate the marriage (Ibn Abbas, Journal of
International Women’s Studies Vol 5 #1 Nov 2003 98 in
Ibn Hanbal No. 2469).

• In another version, the girl said: “Actually I
accepted this marriage but I wanted to let women
know that parents have no right (to force a
husband on them)” (Ibn Maja, No. 1873).
• Therefore, it is established in Islam that forced
marriage is not at all a marriage if not accepted or
invalidated by a woman (or even a man).
• Free consent is a requirement for a valid marriage
under Bangladeshi law. A woman cannot be
forced and she cannot be given in marriage unless
she freely agrees on it.
• A free consent is to be expressed in front of at
least two witnesses and thereafter to be properly
signed in order to have the effect of valid
marriage.

• As mentioned earlier, one could only express his
or her free consent once he or she reaches the
age of marriage according to the applicable law.
• If a marriage is completed before that age through
the action of a guardian, it is subject to approval
upon reaching the prescribed age by the either
party and registered properly. Otherwise in the
eye of law it is not at all a marriage.
• In the year 2000, in the High Court Division of
Bangladesh a case6 concerning interim (hilla) a
forced marriage caused by a fatwa given by a local
Imam was declared illegal.
• There is no place for fatwa in Bangladesh’s legal
system, because laws are enacted in the
Parliament and applied through the courts.

Restriction to Marry Non-Muslim(s)
• This restriction comes from the classical Islamic
tradition that a Muslim man can validly marry a kitabi
(Muslim or Jewish or Christian) woman.
• The legal consequences of this kind of marriage
would follow a full valid marriage. Whereas a Muslim
man can also marry a non-kitabi, and the marriage
would be regarded merely as an irregular one. Such a
marriage would become fully legal when it becomes
regular. For example, when, if a man is married to a
non-kitabi woman, and she converts to Islam, the
marriage becomes regular or valid from the time of
her conversion.

• This rule discriminately applies for a
Muslim woman in Islamic law. No Muslim
woman can validly marry a non-Muslim
man, even a kitabi, unless he becomes
Muslim.However, marriage with a kitabi
man is not prima facie void, but irregular.
• Any marriage with other religion, for
example with Hindu, would amount to a
batil or void marriage where no legal
consequence would be followed from such
marriage. Rules regarding such restriction
on marriage are, without any change,
followed in the legal system of Bangladesh.

Fasid or Irregular marriage
• The irregular (Fasid) marriage creates a flimsy
tie giving very few rights but as regards the
issue, they are given full legal status.
• It was said by the Privy Council in a case
dealing with a Chinese conjugal union that "a
court may do well to recollect that it is a
possible jural conception that a child may be
legitimate though its parents were not and
could not be legitimately married."

• A Fasid marriage may be terminated by either
party at any time; neither divorce nor the
intervention of a court is necessary.
• One of them may say I have relinquished you"
and the unholy alliance ends. If there has been
consummation, the wife is entitled to dower
(Mahar), proper or specified, whichever is lesser
and she must observe Iddat for three courses.
• While between the wife and husband no right
of inheritance is created, the issues are entitled
to share of inheritance. The following marriages
have been considered to be irregular under the
Muslim Law:

1. i. Marriage without witnesses.
2. ii. Marriage with woman undergoing Iddat.
3. iii. Marriage prohibited by reason on
difference of religion.
4. Iv Marriage in contravention of rules of unlawful
conjunction.
5. v. Marriage with two sisters during the life time
of the other.
6. vi. Marriage with Fifth wife.

Batil or Void Marriages
• As aforesaid, there are seven prohibitions to
marry any person of the opposite sex. Some of
them are temporary whereas some of them are
permanent or perpetual.
• If prohibition is perpetual or permanent,
marriage is void. A void marriage is an unlawful
connection and no mutual rights of inheritance
between the parties arise and also children get
any right of inheritance. Children cannot be
even "acknowledged" as children are
illegitimate.

• Such marriages are considered as totally non-existing in
fact as well as in law. Marriage being void, no question of
separation arises.
• As a matter of law, either party can remarry without
Talaq; however, rule of prudence would require that
parties obtain a Decree of Nullity from the competent
Court of Law so as to avoid future confusions and
disputes.
• Marriage becomes void (a) on account of relationship -
marrying with mother or daughter or foster sister etc. or
(b) when man marries the wife of another man, (c) when
Marriage contracted without the requisite Consent or (d)
when Marriage is repudiated under Khairul Bulgh.

MUTA - TEMPORARY FORM OF
MARRIAGE• The terminology 'Muta' is used when parties
(bridegroom and bride) intent to enter into a
temporary nature of their marital union - in
which case - period of temporary union may be
either specified or unspecified.
• When period is unspecified and during the
subsistence of Muta (marriage), if one of the
parties (bridegroom or bride) dies then also the
character of marital relationship remains
unaffected. Muta remains Muta.

• It does not get converted into Nikah just
because the relationship lasted for life long. On
the other hand, when the marriage is for a
lifelong period and for one reason marriage
breaks down by Talaq or Divorce, the broken
marriage will be called as Nikah and it is never
transformed into Muta just because the
marriage did not last even for a day.
• The determining factor to ascertain as to
whether it is Nikah or Muta is to ascertain the
intention of the parties (bridegroom) at the
time of entering into a Contract of marital
relationship.

• If the intention is for a temporary
marriage, it is called as Muta but if the
intention is for a permanent marriage it
is called as Nikah. It may so happen that
Nikah may end up immediately after
solemnizing the marriage while Muta
may continue lifelong! Nevertheless, the
criteria and determining factor always
remains the intention of the parties'
(bride-bridegroom) at the time of
marriage and nothing else.

• Indeed, Muta is an exception to the general rule
of Nikah. Among Arabs, Nikah - Marriage is a
wide term, comprising many different forms of
sex relationship but in Islam it is a contract for
the legalization of sex relation in and
procreation of children.
• In a leading case Mahmood J. observes:
"Marriage among Mohammedans is not a
sacrament, but purely a civil contract and
though solemnized generally with recitation of
certain verses from the Quran, yet the Muslim
Law does not positively prescribe any service
peculiar to the occasion."

• The word Muta literally means 'enjoyment', 'use.' In
its legal context, it means marriage for pleasure for
a fixed period for which a certain reward is paid to
the woman. The institution of muta marriage was
fairly common before the after Prophet.
• It seems fairly certain that it was tolerated by the
Prophet for sometime but all schools of law except
Ishna Ashari agree that the Prophet of Islam finally
had declared such marriages unlawful. In Lucknow
and other places in India where there is Shia (Ishna
Ashari) population, ladies of the better classes do
not contract Muta marriages. The custom of Muta
was justified as being useful in times of war and
travels but it is well to remember that it is
forbidden by all schools except by the Ishna Ashari
Shias.

Form:
• There must be a proper contract i.e., Offer
and Acceptance are necessary.
• Subject:
• A man may contract a Muta with a Muslim,
Jew, Christian or a fire worshipping woman
but not with the follower of any other
religion. But a Shia woman may not
contract a Muta with a non-Muslim.
Relations prohibited by reason of affinity
are also unlawful in Muta. A man may
contract any number of women and the
prohibition of four wives at a time does not
apply to Muta marriages.

Term-Period:
• The period of existence of marriage must be specified at the
time of marriage. It may be one day, one month, one year or
a term of years or else for a life time. It was, inter alia, laid
down that where specification of period is omitted,
intentionally or inadvertently, a permanent marriage (NIKAH)
will be presumed because where the period is for life, Nikah
marriage will result. With respect, it may be submitted that
the view taken in this case does not appear to be correct. The
mere omission of a period may result in a valid Muta for life
but to equate the Muta with Nikah is a serious step, which
inter alia, fails to take into consideration the question of
intention.
• A Muta stands terminated on the expiry of period and
Divorce (Talaq) is not necessary. During the period, the
husband has no right of divorce but he may make a 'gift of
the term' (hiba-i-muddat) and thereby terminate the contract
without the wife's consent.

Dower:
• Mahar is a necessary condition of such a
union. Where the marriage is
consummated, the wife is entitled to the
whole amount and if not consummated,
half of the amount of Dower.
• A short period of Iddat of two courses is
prescribed if - marriage is consummated. If
there is stipulation of inheritance, in the
muta agreement, husband or wife would
inherit but not otherwise.
• The term 'wife' is not used for a woman
marrying under Muta. She is not entitled
for the maintenance under the strict
Islamic Law.

KABIN NAMA (MARRIAGE DEED)
• An agreement between man and woman designed to
regulate marital relations is favoured by the law, as
being in consonance with the Prophet's injunctions.
Such an agreement may be made either at the time of
marriage or thereafter. It is called as Kabin Nama or
Marriage Deed. The Courts will enforce it if it is not
contrary to the provisions or the Policy of Law. As the
husband has a right in general to control the actions
of wife, the wife can make safeguarding her right to
stay freely wherever she likes and with guarantee of
regular payments to her.
• In Kabin Nama, wife can ask the husband to give over
his right to divorce to someone else and/or not to
marry again with any other woman during subsistence
of the marriage. In this way she can protect her
interest very well.

• Wife can also ensure regular payments for her
day-to-day expenses. Such expenses are
termed as 'pandan kharchi' or 'kharchi-e-
pandan' or 'Meva khori' or 'Guzara.' In English
system, 'pin money' is meant for personal
expenses of the wife.
• The 'pin money' is described as a fund which
wife may be made to spend at the instance of
and at the advice of her husband. No such
obligation exists with regard to pandan
kharchi and the husband has no control over
the allowance.

• A father agreed at the time of marriage of his
minor son (wife also minor) that he would pay the
sum of Rs. 500/- per month in perpetuity to his
son's wife. The payments were to be made from
the date of 'reception' of the wife in her conjugal
home. Later, on account of differences, she left the
conjugal home and sued for the amount due to her.
It was held that she was entitled to recover the
whole amount notwithstanding the fact that she
was not a party to the agreement.
• She was clearly entitled in equity to enforce her
claim. Further, since there were no conditions
attached to the payments, it was quite immaterial
whether she stayed with her husband or not. The
only condition which was stipulated was that there
was a 'reception' and if that was proved, her claim
cannot be resisted.

Consequences of Breach
• The breach of a valid condition in a marriage
agreement does not necessarily give the wife
a right to have the marriage dissolved.
• As a result of breach in the marriage
agreement (1) wife may refuse her company
and/or the restitution may be refused (2)
certain right as to the Dower may arise (3)
wife may have the right to divorce herself if
such right flows from agreement and (4) in
extreme cases marriage itself may be
dissolved, ipso facto.

The Free Consent of the Parties
• The Quran [4:21] refers to marriage as a solemn
covenant or agreement between husband and
wife, and enjoins that it be put down in writing.
Since no agreement can be reached between
the parties unless they give their consent to it,
marriage can be contracted only with the free
consent of the two parties. The Prophet (peace
and blessings be upon him) said,"The widow
and the divorced woman shall not be married
until their order is obtained, and the virgin shall
not be married until her consent is obtained."
[Bukhari]
• This aspect is greatly emphasized by Imam
Bukhari. He, in fact, gave one of the chapters in
his Sahih the significant title:

• "When a man gives his daughter in marriage
and she dislikes it, the marriage shall be
annulled." Once a virgin girl came to the
Prophet (peace and blessings be upon him) and
said that her father had married her to a man
against her wishes. The Prophet gave her the
right to repudiate the marriage. [Abu Dawud]
• Divorced women are also given freedom to
contract a second marriage. The Noble Quran
says,"And when you divorce women, and they
have come to the end of their waiting period,
hinder them not from marrying other men if
they have agreed with each other in a fair
manner." [Noble Quran 2:232]

• With regard to widows, the Quran says,"And if any of
you die and leave behind wives, they bequeath
thereby to their widows (the right to) one year's
maintenance without their being obliged to leave
(their husband's home), but if they leave (the
residence) of their own accord, there is no blame on
you for what they do with themselves in a lawful
manner." [Noble Quran 2:234]
• Thus widows are also at liberty to re-marry, even
within the period mentioned above; and if they do so
they must forgo their claim to traditional
maintenance during the remainder of the year.
However, it must be remembered that the power of
ijbar given to the a father or the guardian by the
Maliki school over their selection of life- partner
obtains in all the situations considered above,
namely, whether the daughter or the ward is a virgin
or divorcee or widow.

Marital love in Islam inculcates the
following
• Faith: The love Muslim spouses have for each other
should be for the sake of Allah and to gain His pleasure.
It is from Allah that we claim our mutual rights (Quran
4:1) and it is to Allah that we are accountable for our
behavior as husbands and wives.
• It sustains: Love is not to consume but to sustain. Allah
expresses His love for us by providing sustenance. To
love in Islam is to sustain our loved one physically,
emotionally, spiritually and intellectually, to the best of
our ability. (Note : To sustain materially is the
husband’s duty. However, if the wife wishes she can
also contribute)

• Accepts: To love someone is to accept them for who they
are. It is selfishness to try and mould someone as we wish
them to be. True love does not attempt to crush
individuality or control personal differences, but is
magnanimous and secure to accommodate differences.
• Challenges: Love challenges us to be all we can, it
encourages us to tap into our talents and it takes pride in
our achievements. To enable our loved one to realize their
potential is the most rewarding experience.
• Merciful: Mercy compels us to love and love compels us to
have mercy. In the Islamic context the two are synonymous.
The attribute Allah chose to be the supreme for Himself is
that He is the most Merciful. This attribute of Rahman (the
Merciful) is mentioned 170 times in the Quran, emphasizing
the significance for believers to be merciful. Mercy, in
practical application, means to have and show compassion
and to be charitable.

• Forgiving: Love is never too proud to seek
forgiveness or too stingy to forgive. It is willing to let
go of hurt and letdowns. Forgiveness allows us the
opportunity to improve and correct ourselves. Islam
emphasizes the principle that if we want God to
forgive our mistakes, then we should be forgiving of
others too.
• Respect: To love is to respect and value the person,
their contributions, and their opinions. Respect
does not allow us to take for granted our loved ones
or to ignore their input. How we interact with our
spouses reflects whether we respect them or not.
• Confidentiality: Trust is the most essential
ingredient of love. When trust is betrayed and
confidentiality compromised, love loses its soul.
• Caring: Love fosters a deep fondness that dictates
caring and sharing in all that we do. The needs of
our loved ones take precedence over our own.

• Kindness: The biography of the Prophet
Muhammad (pbuh) is rich with examples of acts of
kindness he showed towards his family and
particularly his wives. Even when his patience was
tried, he was never unkind in word or deed. To love
is to be kind.
• Grows: Marital love is not static, for it grows and
flourishes with each day of marital life. It requires
work and commitment, and is nourished through
faith when we are thankful and appreciative of
Allah blessings.
• Enhances: Love enhances our image and beautifies
our world. It provides emotional security and
physical well being.
• Selflessness: Love gives unconditionally and
protects dutifully.
• Truthful: Love is honesty without cruelty and loyalty
without compromise.

Is Marriage obligatory?
• According to Imams Abu Hanifah, Ahmad ibn
Hanbal and Malik ibn Anas, marriage is
recommended, however for certain individuals it
becomes Wajib (obligatory).
• Imam Shaafi'i considered it to be nafl or mubah
(preferable).
• The general opinion is that if a person, male or
female fears that if he/she does not marry they
will commit Zina (sex outside of marriage), then
marriage becomes obligatory.
• If a person has strong sexual urges then it becomes
obligatory for that person to marry. Marriage
should not be put off or delayed, especially if one
has the means to do so.

• A man, however should not marry if he does
not possess the means to maintain a wife
and future family, if he will not consummate
the marriage, if he dislikes children, or if he
feels marriage will seriously affect his
religious obligation.
• The general rule is that the Prophet (pbuh)
enjoined people to marry. He said "When
one marries, they have fulfilled half of their
religion , so let them fear God regarding the
remaining half."
• This Hadith is narrated by Anas ibn Malik.
Islam greatly encourages marriage because it
shields one from wrongful actions and
upholds the family unit.

The husband/wife relationship
The wife's rights - the husband's Obligations
(1) Maintenance
• The husband is responsible for the wife's
maintenance. This right is established by
authority of the Quran and Sunnah.
• It is inconsequential whether the wife is a
Muslim , non-Muslim, rich, poor, healthy or
sick. A component of his role is to bear the
financial responsibility of the family in a
generous way so that his wife may be assured
security.

• The wife's maintenance entails her right to
lodging, clothing, food and general care, like
medication, hospital bills etc.
• He must provide for her where he resides
himself according to his means. The wife's
lodging must be adequate so as to ensure her
privacy, comfort and independence.
• If a wife has been used to a maid or is unable to
attend to her household duties, it is the
husbands duty to provide her with a maid if he
can afford to do so. The Prophet is reported to
have said: "The best Muslim is one who is the
best husband."

(2) "Mahr" (Dower)
• The wife is entitled to a marriage gift that is
her own. This may be prompt or deferred
depending on the agreement between the
parties.
• A marriage is not valid without Mahr. It does
not have to be money or gold. It can be non-
material like teaching her to read the Quran.
" Mahr" is a gift from the groom to the bride.
This is the Islamic law, unlike some cultures
whereby the bride's parents pay the future
husband to marry the daughter. This practice
degrades women and is contrary to the spirit
of Islam. There is no specification in the
Qur'an as to what or how much the Mahr has
to be. It depends on the parties involved.

(3) Non-material rights.
• A husband is commanded by the law of God to
treat his wife with equity, respect her feelings
and show kindness and consideration, especially
if he has another wife. The Prophet's Last
Sermon stresses kindness to women.

Wife's obligations - the husband's rights
• One of the main duties of the wife is to contribute to the
success and happiness of the marriage. She should be
attentive to the comfort and wellbeing of her husband
and vice-versa. The Quranic Ayah which illustrates this
point is:
• "Our Lord, grant us wives and offspring who will be the
coolness of our eyes and guide us to be models for the
righteous"
• The wife should be trustworthy and honest. She cannot
deceive her husband by deliberately avoiding
conceiving. She should not have any sexual intimacy
with anyone other than her husband. She should not
receive or entertain strange males in the house without
his knowledge and consent. She should not accept gifts
from other men without his approval. This is meant to
avoid jealousy, suspicion and gossip. She shouldn't
dispose of his belongings without his permission.

• A wife should make herself attractive to her
husband and be responsive to his advances.
The wife should not refuse her husband
without reason as this may lead to marital
problems and worse still - tempt the man to
adultery.
• The husband, of course, should take into
account the wife's health and consideration of
circumstances.

"Obedience."
• The purpose of 'obedience' in a
relationship is to keep the family unit
running as smoothly as possible.
Obedience does not mean blind
obedience. It is subject to conditions:
• (a) It is required only if what is asked
from the wife is within the permissible
categories of action.
• (b) It must be maintained only with
regard to matters that fall under the
husband's rights.

Classification of Dissolution of Marriages
Dissolution of Marriage
By Act of God (Death of
husband or wife)
By Act of Parties
(Divorce)
Extra-Judicial
Divorce
Judicial Divorce (By wife
under the Dissolution of
Muslim Marriages Act,
1939)
By Husband
(i) Talaq
(ii) Ila
(iii) Zihar
By Wife
(Delegated
Talaq)
By Mutual Agreement
(i) Khula
(ii) Mubarat

Divorce By Husband
TALAQ [308]
It means repudiation of marriage by the husband. It is peculiar because
Muslim Husband has unrestricted right to divorce without giving any reason.
Muslim law does not require the existence of any fault or matrimonial offence
as an excuse for divorce. It is applicable where it is impossible for the
spouses to live together so they must separate peacefully. However, an
indirect check upon this right is the obligation of husband to pay the dower
upon the dissolution of marriage.
CONDITIONS FOR A VALID TALAQ:
1. Capacity: Every Muslim husband of sound mind and who has attained the
age of puberty is competent to pronounce Talaq. The guardian cannot
pronounce Talaq on behalf of a minor husband. Some jurists also consider
that even Talaq pronounced against a minor or insane wife is void and
ineffective.

Contd.2. Free Consent: Except under Hanafi law, the consent of the husband in pronouncing
Talaq must be free. Under Hanafi law, a Talaq pronounced under compulsion, coercion,
undue influence, fraud and voluntary intoxication etc. is valid and dissolved the
marriage. However, even under Hanafi law Talaq pronounced under forced or
involuntary taxation is also void.
3. Formalities:
Sunni Law: (a) Talaq may be in oral or in writing.
(b) No particular word is required to constitute Talaq but the expression
should clearly indicate the husband’s desire to dissolve the marriage.
(c) It need not be made in presence of witnesses.
Shia Law : (a) Talaq must be pronounced orally except where husband is unable
to speak.
(b) It must be pronounced in the presence of two competent witnesses (i.e.
every Muslim male who has attained the age of puberty and is of sound mind).
Moreover in place of one male two adult female of sound mind may be
substituted.
(c) It requires the use of specific Arabic words in the specific formulae in the
pronouncement of Talaq.

Contd.4. Express words: The words of Talaq must clearly indicate the
husband’s intention to dissolve the marriage. So the pronouncement
must be express.
5. Presence of wife: The presence of wife at the time of pronouncement
of Talaq is necessary. The name of wife must be specifically referred
in the pronouncement. Where the husband has more than one wife he
must specify and name the wife against whom he is pronouncing Talaq.
6. Notice of Talaq: It is not necessary for husband to communicate the
pronouncement of Talaq to wife. Talaq becomes effective from the
moment of pronouncement and not from the time when the wife comes
to know.
7. Conditional and Contingent Talaq:
Sunni Law: A Talaq may either be absolute(i.e. unconditional) or
subject to a condition or contingent(dependent upon happening of an
uncertain future event). A conditional or contingent Talaq becomes
effective only upon fulfillment of the condition or happening of future
event. However the condition must not be un-Islamic.
Shia Law : A conditional or contingent Talaq is void and
inefective.

Kinds of Talaq
Talaq
Talaq–ul-Sunnat
(Revocable)
Talaq-ul-Bidaat
(Irrevocable)
Talaq Ahsan
(Most Proper)
Talaq Hasan
(Proper)

Talaq-ul-Sunnat
(Revocable Talaq)It is regarded to be the approved form of Talaq. It is based on
Prophet’s tradition (Sunna). The Prophet always considered
Talaq as an evil. If at all this evil was to take place the best
possible formula was one in which there was possibility of
revoking the effects of this evil so the Prophet recommended
revocable Talaq as the consequences do not become final at
once. There is possibility of compromise and reconciliation
between husband and wife. It is also called Talaq-ul-Raje. It is
followed by both Shia and Sunnis. It may be pronounced either
in Ahsan or Hasan form.

1. Talaq-ul-Ahsan (Most Proper)It is the most proper form of repudiation of marriage because there
is possibility of revoking the pronouncement before the expiry of
the Iddat period and the evil words of Talaq are to be uttered only
once. In this Talaq there is single declaration during the period of
purity followed by no revocation by husband for three successive
period of purity.
Formalities required:
1. Husband has to make single pronouncement of Talaq during the
Tuhr of the wife (i.e. the period of purity which is the period
between two menstruations). But if woman is not subjected to
menstruation either because of old age or pregnancy, a Talaq may
be pronounced anytime.
2. After this wife has to observe Iddat of three monthly courses. If
she is pregnant at the time of pronouncement then Iddat is till the
delivery of the child.
For Talaq to become final and effective the husband should not
revoke (either expressly or impliedly) the Talaq within the period of
Iddat . Cohabitation with the wife is an implied revocation.

2. Talaq Hasan (Proper)This is also regarded as proper and
approved form of Talaq. Here also
there is a provision of revocation but
it is not the best mode because the
evil words of Talaq are to be
pronounced three times in the
successive Tuhrs.

Talaq-ul-Bidaat (Irrevocable Talaq)
It is a disapproved mode of divorce. A
peculiar feature of this Talaq is that it
becomes effective as soon as the words are
pronounced and there is no possibility of
reconciliation between the parties. It is also
called Talaq-ul-Bain. This mode of Talaq was
introduced by the Omayyad Kings because
they found the checks in the Prophet’s
formula of Talaq inconvenient to them. It is in
practice among Sunni Muslims. Under Shia
law irrevocable Talaq is not recognized.

Ila
Besides Talaq a Muslim husband may also repudiate his marriage
by Ila. It is the constructive divorce by husband. The husband
does not expressly repudiate the marriage but the conduct of the
husband is of such nature that it is concluded that he intends to
dissolve the marriage
In Ila the husband takes an oath not to have sexual intercourse
with the wife. Followed by this oath there is no consummation for
a period of four months. After the expiry of four months, the
marriage dissolves irrevocably. But if the husband resumes
cohabitation within the prescribed period of four months Ila is
cancelled and the marriage is not dissolved.

Zihar
Zihar is also constructive divorce. In this mode the husband
compares his wife with 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 an objectionable
comparison the husband does not cohabit with his wife for a period
of four months. Upon the expiry of four months Zihar is complete.
But the marriage does not dissolve. After completion of four
months the wife has following rights:
i. She may go to the court for a judicial divorce; or,
ii. She may go to the court for an order of restitution of
conjugal rights .

Divorce by wifeA Muslim wife has no independent right of divorce. She
cannot divorce her husband whenever she likes, as her
husband may do. Under Muslim law divorce by wife is only
possible in the following three situations:
1. Where the husband delegates to the wife the right of
Talaq (Talaq-e-Tafweez).
2. Where she is a party to divorce by mutual consent (Khula
and Mubarat).
3. Where she wants to dissolve the marriage under the
Dissolution of Muslim Marriages Act, 1939.

Delegated Divorce (Talaq-e-
Tafweez)A Muslim husband has an unrestricted right to either
exercise his right of divorce himself or delegate it to someone
else including his wife. This is called Talaq-e-Tafweez or
delegated divorce.
The authority is given to the wife under an agreement at
the time of the marriage or anytime after the marriage. The
delegation of power may either be permanent or temporary i.e.
only for a specified time. The delegation may even be conditional
or even unconditional. But in case of conditional delegation the
conditions must be of reasonable nature and must not be against
the principles of Islam. In such cases the divorce takes place in
the same manner as if the husband himself has pronounced the
Talaq. If wife is delegated the authority to divorce she has
complete discretion to exercise this right and she cannot be
compelled to exercise this right.
Even if the husband has delegated the authority to divorce
he is not debarred from pronouncing the Talaq.

Divorce by Mutual consent
Under Muslim Law, a divorce may take place also by mutual
consent of the husband and the wife. Existence of any prior
agreement or delegation of authority by the husband is not
necessary for a divorce by common consent. It may take place
any time whenever the husband and wife feel that it is now
impossible for them to live with mutual love and affection as
desired by God. A divorce by mutual consent of the parties is
a peculiar feature of Muslim law. Before 1976 there was no
such provision under Hindu Law. There are two forms of
divorce by mutual consent:
1. Khula
2. Mubarat

Khula
It means divorce by the wife with the consent of her husband on
the payment of something to him. Quran lays down about Khula
that:
“……and if you fear that they(husband and wife may not be able to
keep within the limits of Allah, in that case it is no sin for either of
them if the woman releases herself by giving something to the
husband”.

Mubarat
In Mubarat both the parties are equally willing to dissolve
the marriage. Therefore, in Mubarat the offer for separation may
come from either the husband or the wife to be accepted by the
other. So who takes the initiative is irrelevant here. One of the
important features is that here both the parties are equally
interested in the dissolution of marriage so no party is legally
bound to compensate the other by giving some consideration.
Same conditions as Khula also apply in Mubarat.
It is similar to divorce by mutual agreement under section
24 of the Special Marriage Act, 1954 and under section 13-B of the
Hindu Marriage Act, 1955.

The Dissolution of Muslim
Marriages Act, 1939
This act is regarded as a landmark in respect of matrimonial
relief for Muslim wife. The salient features of the Dissolution of
Muslim Marriages Act, 1939 are:
1. Section 2 of the Act contains certain grounds on the basis of
which a wife married under Muslim law may file a petition for
divorce. There are 9 grounds out of which seven grounds are
matrimonial guilts (or faults) of the husband which entitle a wife
t get her marriage dissolved by a court of law.
2. These grounds are available only to the wife and not the
husband as Muslim law has already given an absolute right to
the husband to divorce his wife without judicial intervention and
without any reason.
3. For filing a petition for divorce under the Act the wife must be
of 18 years of age so the age of puberty as per Muslim law is not
applicable in this case. However a wife less than 18 years may
file the petition through her next friend.

Contd.
4. Section 4 provides that if wife renounces Islam and ceases to be
a Muslim then the marriage does not dissolve ipso-facto. So the
wife even after renouncing her religion is entitled to exercise her
rights of divorce under this Act. The grounds of divorce are
available to a woman married under Muslim law, so at the time of
filing of the Petition the wife need not be a Muslim.
5. The Act extends to the whole of India except Jammu and
Kashmir and it applies to all the Muslim wives of any sect or school.
Therefore, it made a uniform law in respect of judicial divorce by a
wife in any part of the country.

Husband is Missing for Four
YearsSection 2(i) of the Act provides that if the husband is
missing and his whereabouts are not known for a period of
four years or more then the wife may file a petition for
dissolution of marriage. He husband is deemed to be missing
if the wife, or any such person who is expected to have
knowledge of the husband, is unable to locate the husband.
Section 3 provides if the wife files the petition on this ground
then she has to provide the names and addresses of all such
persons who would have been legal heirs of the husband
upon his death.
The court issues notice to all such persons to appear
before the court and to state if they have any knowledge
about the missing husband. The decree under this section
becomes effective only after the expiry of six months from
the date of such decree. If the husband appears in person or
communicates through his agent to the court and satisfies
the court that he is prepared to perform his conjugal duties,
the court shall set aside the said decree and marriage is not
dissolved.

Husband’s failure to maintain
wife for two years
Section 2(ii) provides that if he husband has neglected or failed
to provide maintenance to the wife for two or more years the wife is
entitled to obtain a decree for the dissolution of marriage. It casts a
legal obligation upon every husband to maintain his wife. If the husband
is unable to maintain his wife due to poverty, unemployment,
imprisonment, ill-health or any other misfortune, even then the wife has a
right to get the decree for dissolving the marriage.
However, the husband’s obligation to maintain his wife is subject
to wife’s performance of matrimonial obligations. Therefore, if the wife
lives separately without an reasonable excuse then she is not entitled to
get a judicial divorce on this ground.

Imprisonment of husband
for Seven years
Section 2(iii) ,read with proviso (a), lays down that a
wife is entitled to get her marriage dissolved by an
order of the court of law if her husband has been
sentenced to imprisonment for a period of seven years
or more. The wife’s right of judicial divorce on this
ground begins from the date on which the sentence has
become final. Therefore, the decree can be filed only
after the expiry of the date for appeal by the husband or
after the appeal by the husband has been dismissed by
the final court.

Husband’s failure to perform
marital obligations for three years
Under section 2(iv) a wife is entitled to the dissolution of her
marriage if her husband fails to perform his marital obligations
for a period of three years without any reasonable excuse. The
Act does not define “marital obligations of the husband”. But
there are several matrimonial obligations of the husband under
Muslim law. But for the purposes of this section only those
conjugal obligations will be taken into account which have not
been accounted for in any of the clauses in section 2 of the Act..
If the husband deserts his wife or does not cohabit with her
without any reasonable excuse then it amounts to failure of the
husband to perform marital obligations.

Husband’s Impotency
Under Section 2(v) of the Act a wife may sue for dissolution of her
marriage on the ground of husband’s impotency. But for getting a
decree the wife has to prove the following two facts:
1. That the husband was impotent at the time of the marriage; and
2. That he continues to be impotent till the filing of the suit.
Before passing a decree on this ground the court is bound to give to the
husband one year’s time to prove his potency provided he makes an
application. Where the husband is able to prove his potency within one
year then the decree of divorce cannot be passed. Impotency here
means impotency with respect to wife and not with respect to any
other woman.

Husband’s Insanity, leprosy or
venereal disease
Section 2(vi) entitles the wife to obtain divorce on the
ground that her husband is insane or is suffering from leprosy or
venereal disease. The husband’s insanity must be for two or more
years immediately preceding the presentation of the suit but the
Act does not specify whether the unsoundness of mind should be
curable or incurable.
Leprosy may be white or black or cause the skin to wither
away. It may be curable or incurable. The Act does not specify its
form nor its duration.
Venereal disease is a disease of the sex organs. The Act
provides that this disease must be of virulent (permanent) nature
i.e. incurable. It may be of any duration.

Option of Puberty [330]This ground of dissolution of marriage is not based
on any fault of the husband. It is an independent provision
under which a marriage is voidable at the option of the wife
. Under section 2(vii) a wife can obtain a decree for
dissolution of marriage if her marriage was contracted by
her father or any other guardian during her minority. Thus
this clause gives her the option of repudiating the marriage
before attaining the age of thirteen years, provided the
marriage has not been consummated. This right was also
available under the old Muslim law and was known as
Khayar-ul-Bulugh but this right was not available to the wife
under the old law when:
1. The minor's marriage was contracted by her father or
father’s father. But now this exception has been removed
under the Act.
2. The wife had to exercise her option of puberty
immediately after attaining the age of puberty. Now the Act
provides that wife can exercise this right up to the age of
eighteen years provided the marriage has not
consummated.

Cruelty by Husband [331]Section 2(viii) provides that a wife can sue for divorce if her
husband treats her with cruelty. Even under the old law this ground
was recognized but its scope was limited to physical tortures and
mental cruelty by husband was not a sufficient ground for
dissolution of marriage. The Act has now enlarged the scope of the
Act to include mental cruelty. The Act defines cruelty by laying
down following acts on the husband which are regarded as cruelty
against the wife:-
1. Habitual assault on the wife or making her life miserable by
cruelty of conduct if such a conduct does not amount to physical
ill-treatment.
2. Association of the husband with women of evil repute or that he
leads an infamous life .
3. The husband attempts to force his wife to lead an immoral life.
4. The husband disposes off her property or prevents her from
excersing her legal rights over it.
5. The husband obstructs her in the observance to her religious
profession or practise.
6. If the husband has more wives than one and he does not treat
her equitably in accordance with injunctions of Quran.

Any other ground recognized as valid
for dissolution for marriage under
Muslim Law [332]
Section 2(ix) a residuary clause under which a wife
may seek dissolution of her marriage on any ground which
could not be included in this section, but it is recognized
under the Muslim personal law. A false charge of adultery by
the husband against his wife (Lian) was a sufficient ground
for judicial divorce under Muslim law. This ground may be
invoked under this provision.
However section 2(ix) is not limited to Lian. The wife
may seek divorce on any other ground not included under
any of the clauses of section 2. Under this clause complete
breakdown of matrimonial relations or total mental
incompatibility in itself ahs been regarded as a reasonable
ground for dissolution of marriage.

Legal Effects of Divorce [336]Divorce operates as complete severance of matrimonial
relationship between husband and wife. After divorce
the parties cease to be husband and wife and its legal
consequences are:-
1. Cohabitation between husband and wife becomes
unlawful
2. The wife is required to observe Iddat of three lunar
months after divorce or if pregnant till the delivery of
child. If divorce was before consummation had taken
place so no need of Iddat.
3. During Iddat the divorced wife is entitled to be
maintained by her former husband which is governed by
Muslim Women(protection of Rights on Divorce) Act,
1986.
4. The unpaid dower becomes immediately payable to
the divorced wife.
5. Both the parties are free to contract another
marriage.
6. The mutual rights of inheritance between the
spouses cease to exist.

DOWER (MAHR)
Defination of Dower
Classification of Dower
Subject matter of Dower
Increase/Decrease of Dower
The Object of Dower

Definition of Dower
Dower is the financial gain which is, a wife received
from her husband by the virtue of the marriage contract.
Otherwise Dower is a sum of money or other property
which the wife is received from her husband in
consideration of the marriage.
According to Ameer Ali, “A certain sum of money
given by the husband in consideration of the marriage is
dower”
According to Islamic Law, “where there is a marriage
there is a dower. It is a bridal gift and it is a token of
respect to the wife.”

In the Islamic law, there are two kinds of dower.
1. Specified Dower
2. Unspecified Dower
Specified Dower
Specified dower is fixed at the time of the marriage and
the Kazi performing the ceremony enters the amount in
the register, or there may be a regular contract, which
name is Kabin Nama. If the amount of dower is fixed
in the marriage contract, it is called the specified
dower. Otherwise if the amount of dower may be fixed
by the parties before the marriage or at the time of the
marriage, even after the marriage.

Specified dower are two kinds
1. Prompt Specified Dower
2. Deferred Specified Dower
Prompt Specified Dower
Promopt specified dower normally fixed at the time of
marriage, which is mentioned in Kabin Nama. After
marriage if a wife wants to get money of the dower then the
husband obey to his wife to give money of the dower,
which is mentioned in Kabin Nama. Example: At the time
of the marriage, it is mentioned that 50% money will be
paid instant and other 50% money will be paid after the
death or divorce. This is called prompt specified dower.

Classification of DowerDeferred Specified Dower
Deferred specified dower normally fixed after the death
or divorce. If by the divorce it may be realized by
compromise in the family court. If by death deferred
dower can be acquired from her husband’s estate by
compromise in the family court.
Unspecified Dower
Unspecified dower normally is not fixed at the time of
marriage. In the unspecified dower, a women is to be
fixed dower with reference to the social position of her
father’s family and her own personal qualifications. The
social position of the husband and his means are of little
account.

Subject matter of DowerSubject Matter of Dower
Subject matter of dower is not only confined to a sum of
money or property, it includes personal services and other
things. The following were recognized as the subject matter
of dower:
(i) A handful of dates.
(ii) A pair of shoes.
(iii) If the husband is a slave, his services to his wife.
(iv) The services of the husband’s slaves to the wife.
(v) Husband’s services executed to the guardian of a minor
wife.
(vi) Teaching Quran to the wife.

The husband may increase dower after marriage at any
time. Example: A wife may remit the dower partially in
favour of the husband or his heirs. Such a remission is
valid through made without any consideration and the
remission made by the wife, should be with free
consent. The remission of the dower by a wife is called
Hibe-e-Mahr. Otherwise the husband will not be able to
decrease dower after marriage.

The Object of Dower
The Object of Dower
Dower is the financial gain which is, a wife received from her
husband by the virtue of the marriage contract. Dower in fact, is
the name of that financial gain, that saved
(collect/gather/deposit/credit/income) in marriage to woman, in
exchange of the pleasure to be enjoyed of her, though the
marriage be either valid or irregular. The object of dower is three
fold:
• To impose an obligation on the husband as a mark of respect
of the wife.
• To place a check on the capricious/moody use of divorce on
the part of husband and
• To provide for her exixtence after dissolution of her marriage,
so that she may not become helpless after the death of the
husband or termination of marriage by divorce.

Period of Iddat
• Iddat of Talaq
• Iddat of Death

Legitimacy of child
• Maternity
• Paternity
• Legitimacy
• Presumption of legitimacy under Islamic
• Acknowledgement of paternity
• Adoption according to Islamic Law
• Differences between Adoption and
Acknowledgement

Types of Guardians according to
Islamic Law
– Natural Guardian
– Testamentary Guardian
– Guardian appointed by Court
– De-facto Guardian

• Guardianship for marriage
Under Shia
Under Sunni
• Guardianship of property
Under Shia
Under Sunni

• Powers and functions of Guardians
• Mother's rights of custody (Hizanat) of child
• Father's rights of custody (Hizanat) of child
• Custody of Illegitimate Child
• Custody of Minor Wife

Maintence
• Maintenance of Wife
• Maintenance of Divorced Wife
• Maintenance of Widow
• Maintenance of Children
• Maintenance of Illegitimate Children
• Maintenance of Parents
• Maintenance of Relatives
• Maintenance of Daughter-in-law

Unit-4
DISPOSITION OF PROPERTY

Gift
• Definition of Hiba
• Constitutional validity of Hiba
• Declaration of Gift
• Acceptance of Gift
• Gift to a child in womb

• Gift to a juristic person
• Gift to a Minor or lunatic
• Gift through a trust
• Gift of insurance policy or life estate

• Gift of dower
• Gift of services
• Doctrine of Musha
• Conditional and Contingent Gifts
• Revocation of gifts
• Irrecoverable gifts

Section. 129
• Gift not covered by this act.
• THE provision of transfer of property act
about gift do not apply to:
(1) gift of movable property made in
contemplation
(2)Affect the any rule of Muhammadan law.

Section 129
• Hiba(gift) is one of the ritual/tradition of
Muslim law so it is governed by rules of
Muslim personal law .
• 3 essential is required for gift under
mohmmadan law
(1) Declaration of gift by donor.
(2) Acceptance of gift by donee.
(3) Delivery of possession.

Section 129
• This 3 rules are fulfil gift is valid .
• Oral transfer is valid/allow under
Mohammadan law.
• Oral transfer of gift is allow under
mohammadan law it is said by supreme
court of India in case of Hafeeza BIbi v
Shaikh Farid.

Muslim gift
• But if the property is immovable worth
rs.100 or more and the gift is made in
writing , it must be registered under section
17 of the registration act which is apply on
Muslim also.
• In case of hiba donor must be a Muslim ,
religion of donee is immaterial/non-
imporatant.

• Like any Muslim donor give his any
movable/immovable property to
Christian/Hindu in gift (hiba) , that it is
exempted from operation of transfer of
property act.

Donation mortis causa
• Gift made by donor in contemplation of his
death is donatio mortis causa.
• Under Muslim law such gift is called death-
bed gift.
• Under Muslim law gift of movable property
as well as immovable properties which is
made in contemplation of death are
interpreted as wills.

Definition of Will
• A will or testament is a legal document by which a person,
the testator, expresses his or her wishes as to how his or her
property is to be distributed at death, and names one or more
persons, the executor, to manage the estate until its final
distribution. For the devolution of property not disposed of by will,
see inheritance and intestacy.
•

Essential condition of will
Competency of the testator(who can make will)
Competency of the legatee
Validity of the subject
Extent of power of Will

• Essential conditions of a will
• Joint legatee
• Lapse of legacy
• Subject-matter of will
• Abatement of legacies
• Conditional and Contingent Will
• Revocation of wills
• Death-bed gifts
• Death-bed acknowledgement of gifts

differences between Shia and Sunni
Law on Will
• Sunni Law
Bequest to an heir without consent of other heirs is invalid.
Bequest to unborn child is valid if the child is born within 6 months of making the
will.
Legatee who causes death even by accident is incapable of receiving.
For a bequest of more than 1/3 to a non-heir, the consent of heir must be
obtained after the death of testator.
Will of a person committing suicide is valid.
Recognizes rateable distribution.
If the legatee dies before testator, the legacy lapses and goes back to the testator
Legatee must accept the legacy after the death of the testator.
• Shia Law
Bequest up to 1/3 of the property is valid even without consent.
Valid if the child is born within 10 months of making the will.
Legatee who causes death by accident is capable.
Heir's consent may be obtained before or after death.
Valid only if the will is made before the person does any act towards committing
suicide.
Does not recognize rateable distribution.
The legacy lapses only if the legatee dies without heirs otherwise, it goes to
legatee's heirs.
Legatee can accept the legacy even before the death of the testator.

Doctrine of musha and pre-emption
• Doc. Of Pre-emption
• Essentials of Pre-emption
• Limitation of Doc

Waqf
1. Introduction
2. Definition
3. Essentials of Waqf
4. Kinds of Waqf
5. Waqf: How created
6. Revocation of Waqf
7. Salient features of Waqf Act, 2013
8. Conclusion
Bibliography

introduction
The institution of waqf has developed with
Islam. There were no waqf or any such
parallel institution in Arabia before the
advent of Islam. Credit must be given to the
Muslim jurists for having developed the
jurisprudence of waqf.
Omar had acquired a piece of land in Khaiber,
and proceeded to the prophet, and sought
his counsel to make the most pious use of it.

Continued.....
Whereupon the Prophet declared ”tie up the
property and devote the usufruct to human
being, and in accordance with this rule of
Omar dedicated the property in question, and
the waqf continued in existence for several
centuries, until the land became waste.

 Definition.
Literal meaning.- ‘Waqf’ literlly means
‘detention’ and technically it means a
dedication in perpetuity of some specific
property for some pious purpose.
 According to Abu Yusuf “waqf is the detention
of a thing in the implied ownership of almighty
God in such a manner that the profit may revert
to or be applied to the benefit of his creatures.

Continued.....
In Moti Shah v. Abdul Gaffar Khan:-
It has been held that the waqf means
detention of property in the ownership of God
in such a manner that its profits may be
applied for the benefit of his Servants. The
object of dedication must be religious or
charitable.

Essential of Waqf
1. A permanent dedication of any property.
2. By a person professing Mussalman faith.
3. For any purpose recognised by the Muslim
law.

Continued....
In N.R Abdul Azeez Vs. E. Sundaresa :-
The Madras High Court held that it is
fundamental principle of the Muslim law of
waqf that when a mosque is built and
consecrated by public worship, it ceases to be
the property of the builder and vests in God.
It can not be revert to the founder.

Continued.....
In Mohd. Khasim Vs. Mohd. Dastageer :-
The Supreme Court held that according to
Mohammedan jurists, the term waqf literally
means dedication by a person professing the
mussalman faith of any property for any
purpose recognised by the Mussalman law as
religious, pious or charitable.

 Waqf how created
• Muslim law does not prescribe any for of creating
waqf. It may be verbal or in writing.
Modes of creation
1. By an act of inter vivos
2. By will
3. During death illness
4. By immemorial user.

Revocation of waqf
• If a valid waqf has been created, it can not be
revoked by the waqif for it is in the power to
divest God of his ownership of the property.
• Thus-
 A testamentary may be revoked by the
author of the waqf before his death.

Continued.....
 A waqf during death illness without the
consent of heirs is valid only to the extent
1/3rd of the property and invalid beyond this
limit.
 A waqf created by ‘inter vivos’ is irrevocable.
If the waqif reserves the power of
revocation.

Kinds of waqf
Broadly, waqf are of two kinds :
 Public waqf.- Those which are dedicated to the public at
large having no restriction of any kind regarding its use: for
example, bridges, wells, roads, etc.
 Private waqf.- Those which are for the benefit of private
individual or class of individual which may be settler's family.

Salient features of the waqf act
2013
• As per this law waqf has been defined in such
a way that it shall be a waqf regardless of the
endower being a muslim or non-muslim and
that it would be a waqf for all legal purpose.
• If the survey has not be done each state
should complete the survey with in a year’s so
that no property remains unregistered.

Continued.....
• It is incumbent on the Revenue Department
officials to finalise land records.
• From section 32, the power of the board to
sell, exchange or mortgage or to gift has been
done away with.
• The tenure for the lease of the properties has
been fixed to 30 years now so that the waqf
property be developed.

Continued......
• The waqf tribunal shall now be tri-member
including an Islamic scholar apart from the judge
and the representative of the administration.
There scope has also be widened.
• The very much dispute section 87 has been
removed.
• The new act has strengthened the central waqf
council and widened the scope and to an extent
the state waqf board are now answerable to the
central waqf council.

Unit-5
SUCCESSION UNDER MUSLIM LAW

Right of Muslim wife and wives

Right of a wife v. unpaid debtor

Case study
• Shamima Farooqui v. Shahid Khan,
• V Sreeramachandra Avadhani (D) by LRS v Shaik
Abdul Rahim and Another
• Danial Latifi and Others v Union of India
• Shamim Ara v State of Uttar Pradesh, AIR
• Shaha bano v Mohd. Ahmad khan

Muslim law - Ritu Gautam

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