Pre Islamic Arabian Customs

and
their Influence on Islamic Law
The Arab of society when the Laws of Islam came into force was
constituted of Nomadic people divided into tribes, sub-tribes and
then into families. There were also town dwellers. But no settled
from of Government or administration of law existed.
The Pre-Islamic Arabian customs as examined by Abdur Rahim in
his Mohammadan Jurisprudence (p.6) are interesting from the
point of view of comparison whether Islamic Law is somehow
influenced by the pre-Islamic customs.
It is said that:
The spirit of Law in Islam is religious and ethical
drawing its inspiration from the Quran and the Sunna
or teachings of the Prophet but the context of the law
is based upon the pre-Islamic customs and usages.
It is also said that:
The Prophet of Islam did not create new system of
Law but based the law on pre-Islamic customs.
However, if the Prophet overrides the prevalent usage
of the community then that became ultimately the
established doctrine of Islamic Law.
Among the ancient Arabian customs the most interesting were
those that regulated the relations between the sexes.

Abdur Rahim has cited (p.7) four types of Arabian marriages:-

1. A man would ask another for the hand of his daughter and
then marry her by giving the dower known as Sadaqa usually
to the guardian and sometimes to the bride herself.
2. A man desiring a noble offspring would ask his wife to stay
with a great chief and have intercourse with him. During this
period the husband would stay away and come back after she
is pregnant.
3. A number of men, less than ten, would be invited by a
woman to have intercourse with her. If she conceived and
was delivered of a child she could summon all of them and
say to one that it is your son!
4. Prostitution was legalized. The common prostitutes had a
definite number of visitors and if she conceived she could
call all the men who have visited her and the physiognomist
used to decide to whom the child belonged.

In Islam, these marriages except the first form were illegal

conjugal relations. Even in the first form it is not sale but Mahr
(Dower) is given as a bridal gift.
Temporary or Muta marriage was common practice. But it is still
practiced by Ithna Ashari (Shia School – Ithna Ashari , Ismailys,
Zaydis) school.
No restriction as to the number of wives – after Islam, no more
than four. An Arab was absolutely free to release himself from the
marital tie. He was not expected to assign any reason (same now)
but he could divorce and take back his wife as many times he
wanted, there Islam gave restriction. If divorce, she has to have an
intervening marriage & than could remarry her ex-husband. After
1961 she does not have to have hilla marriage upto 2nd divorce
then she must have intervening marriage.
Female infanticide was common. The property of an Arab only
went to his male heirs (Agnates) all females were excluded. After
Islam females were included although they got half the share of
male.
An Arab could Will out all his property to anyone, but Islamic law
gave limitations, one can’t Will out more than one third and make
his own blood & kin destitute.
Thus, it would not be correct to suppose that Islam professed to
repeal the entire customary law of Arabia and to replace it with
Code of altogether new laws.
The Pre-Islamic customs and usages which happened to be in
harmony with the religious and ethical criteria of Islam were
allowed to continue: it can be shown how the pre-Islamic usages
made inroads or infiltrated into the Sharia:

1st a number of texts particularly of traditions were based

upon usages e.g. In Hedaya it is stated that partnership is
lawful as prophet found people practicing it and confirmed it
therein.
2nd: Where the prophet gave tacit approval or was silent on
number of issues.
3rd: According to Imam Malik the customary conduct of the
citizens of Medina was reduced as a sufficient consensus of
Jurists (Ijma) and a source of law in the absence of explicit
text.

From this observation it can be concluded that the pre-Islamic

customary law have been embodied in the Mohammadan Code by
express or implied recognition.
 Concept of Law in Islamic Jurisprudence
-Meaning of Sharia

The concept of Law in Islam or the Islamic notion of Law is in the

words of Mr. Justice Mahmood, “It is to be remembered that
Mohammadan Law is so intimately connected with religion that
they can’t readily be disserved from it.”
There is in Islam a doctrine of Certitude (Ilm-Al-Yaqin) in the
matter of good and evil. Technically good and evil according to
Muslim doctors are Husn (Beauty) and Qubh (Ugliness)
In the ethical acceptance of the term, what is good or morally
beautiful that must be done and what is evil or morally ugly that
must not be done. - That is Law or Shariat.
But what is absolutely and indubitably beautiful? What is
absolutely or indubitably ugly? These are the important legal
questions; and who can answer them? Certainly not human being –
say the Muslim Jurists. They think that only the divine (Allah) can
answer it.
So we have the words of Allah – The Holy Quran. So we have the
teachings of his messenger – The Hadith /Sunna. And if it is not in
the Quran or Sunna to answer a particular question then we have to
follow the consensus of opinion of the Jurists – Ijmaa and finally
analogical deduction in accordance to certain definite principles of
Sharia – Qyas.
There are two concepts of Law:
 One is divine origin.
 And the other is man made.
The divine origin is Muslim Law, Hindu Law – Personal laws and
others are man made such as Greek Law, Roman Law, in fact all
modern legalizations. Modern Jurisprudence can be changed as it
is man made but Islamic Law cannot be changed. According to
Austin, “Law is the command of superior which obliges a person
or persons to a course of conduct.”
But in Islamic Law the Laws were made by Allah and the subjects
are human beings.
Islamic Law – Sharia is wider in its scope because it covers social
and spiritual aspects of life but man made laws covers only the
social aspects of life.
Sharia – Literally the road to the watering place, the path to be
followed. Technically means the canon Law of Islam. The
Totality of Allah Commandments is Sharia. Each of such
commandments is called “Hukum”

Shariat embraces all human actions. For this reason it is not “Law”
in the modern sense, it contains an infallible guide to ethics.
Shariat is fundamentally a code of obligations. It is fundamentally
a doctrine of duties. Legal consideration and individual rights have
a secondary place in it.

According to Sharia, religious injunctions are of 5 kinds:- Al

Ahkam Al Khamsa

1. Those strictly enjoined are Farz e.g. Five times daily

prayers.
2. Those strictly forbidden are Haram e.g. drinking
wine.
3. Things advised to do Mandub e.g. additional prayers
at Eid
4. Things advised to refrain from Makruh e.g. certain
kinds of fish.
5. Things about which religion is indifferent is Jaiz e.g.
Travel by Air

“Legal necessity is different from moral obligations if this is not

kept in mind then confusion will arise.” says Mr. Justice Mahmood
in the leading case of Gobind v. Inayatullah (1885) 7All 775.
Thus shariat or sacred Law is totalitarian; All human activity is
embraced in its sovereign domain. But it is only moral obligations
and not a legal one and there is difference between that which is
only morally enjoined and that which is legally enforced that is
Fiqh – Islamic Law proper.
 Sources of Islamic Law:

The study of any legal system requires considering the

sources. The science of Islamic Law (Fiqh) is the knowledge
of ones rights and obligations derived from the Quran,
Sunna, Ijmaa and Qyas.
There is a Hadith of the prophet which is usually invoked in
this connection, the prophet sent Muadh, one of his
companions as governor of Yemen and also as distributor of
Justice. No trained lawyer existed at that time and the
prophet asked:
Prophet: ‘On what shalt thou base thy decision?’
Muadh: ‘On the Quran – The scripture of Allah.’
Prophet: ‘If the Quran does not give guidance to the
purpose?’
Muadh: ‘Then upon the tradition of the prophet.’
Prophet: ‘But if that also fails?’
Muadh: ‘Then I shall strive to interpret with my reason.’
And then the Prophet said:-
“Praise be to Allah who has favored the messenger of his
messenger with what his messenger is willing to approve.”
 1. The Quran:

The Quran is the fundamental base of Islam. Its importance

is religious and spiritual, no less than legal, as it is in Muslim
belief, the word of Allah.

The Quran is al-farqan i.e. one showing truth from

falsehood and right from wrong. The holy book, divine in
origin is believed to have been revealed to the prophet
Mohammad (pbh) by the holy spirit (Gabriel) over 22 years.
It contains about 6666 sentences (Ayats) and 114 verses-
Suras (parts) in 30 Paras or chapters. But not more than
200 sentences (Ayats) deal with legal principles and there
are about 80 sentences (Ayats) more or less which deal with
the law of personal status.

The verses of the Quran although only a few of them deal

specifically with legal questions, are held to be of paramount
authority. As the Holy Quran is sacred and divine no court
can change it.

The prophet was ordained to preach the Quran and thus

established Islam. Anything contrary to Quran is not Islamic
law. The Quran was officially completed after the prophet’s
death at the time of the first Caliph Abu Baker.
 2. Sunna:
The second source of Islamic Law is the Sunna which
means the practices of the prophet, his model behaviour.
The Sunna comprises of:
a. Sunnat-ul-Qual:- All words, counsels of the
prophet.
b. Sunnat-ul-Fail:- All actions, works and daily
practices of the prophet.
c. Sunnat-ul-Taqrir:- His silence implying or tacit
approval on his part of any individual act
committed by his disciple.

The word Sunna should be distinguished from the term

Hadith otherwise confusion of thought will arise. The
misconception is Hadith is the story of a particular
occurrence and Sunna is the rule of law deduced from it.
Actually Hadith is the written form of Sunna which was
made 150 years after Sunna.

Sunna glorified the prophet and his spiritual deeds. The

Quran and Sunna are often called “Nass” (Binding
Ordinance) and represent direct and indirect revelation. The
principles which were stated in the Quran found their
application in the hands of the prophet. The Quran and
Sunna are also called Usl Al Usl or roots of the base. Thus
Sunna is also divine in origin as it contains the indirect
words of Allah.

The prophet Mohammad once said, “I am leaving behind two

weighty things i.e. the Quran and my personal experience. If
you hold fast to these you will never go astray.”

The relative authority of Quran and Sunna has been

ascertained by the prophet himself. He said, “My words
(meaning Sunna) are not contrary to the words of God (the
Quran), but the words of God can contradict mine.” Sunnah
was compiled into Hadith. Among the compilations six are
recognised as reliable:
a. Shahi Bukhari:- Compiled by Md. Bin Ismail Al
Bukhari (194-256 Hijri))
b. Shahi Muslim:- Compiled by Muslim Bin Al Hejaj
(204-291 Hijri)
c. Jameya Tirmiji:- Compiled by Abu Isha Md. Tirmiji
(209-279 Hijri)
d. Sunan-e-Abu Daud:- Compiled by Abu Daud Al
Sijistani (204-275 Hijri)
e. Sunan Nasaee:- Compiled by Abdur Rahman Al-
Nasaee (215-305 Hijri)
f. Sunan Ibne Maja:- Compiled by Abu Abdullah Md.
Ibne Maja (209-275 Hijri)
More over Imam Malik’s compilation known as ‘Al-Muwatta’
and other schools complications are also regarded as
authenticated.
 3. Ijmaa:
The third source of Islamic Law after exhausting Quran and
Sunna consists of the consensus of opinion of the
companions of the prophet, specially the four Caliphs- Abu
Baker, Omar, Osman and Ali on theological, civil and
criminal matters.
Ijmaa is of various kinds:
i. The consensus of opinion of the companions of
the Prophet (as suggested by Imam Ahmad Ibn
Hanbal)
ii. The consensus of opinion of the companions of
the jurists
iii. The consensus of opinion of the citizens of Medina
(as suggested by Imam Malik)

According to Sir Abdur Rahim ‘Ijmaa’ is “The agreemant of

the jurists among the followers of Mohammad in a particular
age on a particular question”. According to Saksena ‘Ijmaa’
of one age may be reversed or modified by the ‘Ijmaa’ of the
same or subsequent age. But it can not be questioned or
challenged by any individual jurists. The validity of ‘Ijmaa’ is
based upon a hadith of the Prophet which says that Allah
will not allow his people to agree on an error. e.g. Hefzur
Rahman case.
 4. Qiyas:

The fourth and last source of law is Qiyas or analogical

deduction. Literally means measurement or judging, by
comparing a thing or analogy. Qiyas or analogical deduction
consists in applying old established principles to new
circumstances. But “Ray” means individual reasoning or
opinion. Qiyas or analogical deduction is the reasoning by
analogy from the Quran, Sunna and Ijmaa., Qiyas is thus
defined as an extension of law from the original text by
means of a common cause. It is a process of deduction
which is not to change the law of the text. It is applicable in
cases not covered by the language of the text, but may fall
under the reason of the text. Therefore in importance Qiyas
occupies the place next to Quran, Sunna and Ijmaa. e.g.
Strong drink is explicitly prohibited for its intoxicating effect,
say wine is not explicitly prohibited but as the cause for the
prohibition is the effect of intoxication to which both give
rise, wine is also prohibited. But grape juice because it does
not effect intoxication is not prohibited.
So, we have dealt upon the four basic primary sources of
Islamic law namely the Quran, Sunna, Ijmaa and Qiyas.
There are also material sources of custom, legislation and
decisions of Supreme Court which are infiltrated in Islamic
law.

Apart from these four primary sources certain other equitable

sources of law were contemplated by different jurists. These
sources are not generally recognised and appear in the
works of jurists propounding term.

1. Istihsan or Juristic preference:

Imam Abu Hanifa is the architect of these source. Istihsan
means that a rule of law analogically deduced (Qiyas) is not
preferred for the exigencies of a particular case. There is no
direct abrogation of the law but a slight modification to meet
the demands of the society. e.g. Under Muslim law the
subject matter must be present at the time of contract of sale
or goods supplied in future is invalid. But on the ground of
necessity and universal practice it is valid.

According to Tyabji: This term was used by the great jurist

(Abu Hanifa) to express the liberty that he assumed, of
laying down such a rule of law, as, in the opinion of the
exponent, the special circumstances required, rather than
the rule that analogy indicated.
2. Muslahat or Public Welfare:
Imam Malik recognised this as a deduction where the basis
is for public welfare. Analogy of law can be disregarded only
if it is harmful to the public. It considers a thing to be good.

3. Istadlal:
Imam Malik is the architect of this source. Istadlal is
described as striving after the basis for a rule.

4. Istishab /Deduction by Presumption:

Imam Ash-Shafi and Ahmad Ibn Hanbal were the founder of
this source. Its means the things whose existence or non-
existence is proven in the past should be presumed to have
remained as such.

Conclusion:
These equitable sources play an insignificant role in shaping
Islamic law.
 Schools of Muslim Law and
Reasons for their Development

The history of Muslim law and jurisprudence are divisible into five
distinct periods:

1. The first period commenced (A.H 1-10) with the Hijrat or

retirement of the prophet to Medina from Mecca (A.D. 622
and ended with his death on A.D 632). This period is the
legislative period of Islam when laws were enacted by the
divine legislator (Allah) and promulgated in the words of the
Quran or by the precepts of Muhammad – the prophet of
Islam.
2. The second period extends from the date of the prophet’s
death (AD 632) to the time of the companions of the prophet
(Ashab) and their successors (Tabiun). Abu Baker has
elected the first Caliph, then Umar, Osman and Ali (Sunnis
for elections Shias for successor) then Umaiyad’s and
Abbasides. It was a period mainly of collection of laws.
3. The third period was marked by a theoretical and scientific
study of the law and religion and it was then that the schools
of Muslim jurisprudence were established (from A.H. 40 to
third century of the Hijra). Also collection of traditions took
place in the third period and collections of Bukhari and
Muslim came to be recognised as authoritative.
4. The fourth period (3rd century of Hijra till 1929 the abolition of
Caliphate in Turkey) in the history of Muslim law were Ijtihad
or power of independent interpretation has been restricted
 and taqlid or following or imitation within the limits of each
school was developed.
 Ijtihad: Exerting one’s self to the utmost degree to
attain an object or form an opinion or a rule of law.
Independent interpretation of law-considered opinion of
the M ujtahids or specialists becomes law. The
exercise of the independent judgment was not
permitted after some time. This is known as, “The
closer of the gate of interpretation during the 4th
century /10th century”.

 Taqlid: Imitation or following the opinion of another

person without knowledge of the authority for such
opinion. (Layman blindly following).

Whether the gates of Ijtihad or independent

exposition or interpretation are open or not
controversies are still prevalent. Islamic law is not a
corpus of legislative activity but a science developed
by juristic thought. However, there is hardly any
chance of anybody to have the rank of M ujtahid at
present. Unless a bold step is taken as suggested by
thinker Iqbal1 and the power of Ijtihad is resided in
the body of learned Muslim scholars its door will not
open.

1 Iqbal: Reconstruction of of Islam. Lahore 1930.

 5. The fifth period is a period wherein great inroads have been
made by the secular law in all Muslim countries. This tendency
is likely to prevent unless we prevent it. Otherwise Islamic law
will be largely secularised and it will be death to family law as
was done by Turkey and Albania.
 Flight from Mecca -622 (beginning of Muslim era)
 Mohammad (PBH) dies in AD 632 (10 A.H)

The first Caliphs were his disciples and early companions:

Abu Bakr (A.D 632)
Umar (A.D 634)
Osman (A.D 644)
Ali (A.D 656)
Hussain (A.D 680) in Karbala

The death of Hussain at Karbala made the breach between the

Sunnis and the Shias. Yazid was in the throne. Muavia was founder
of the Omeyads thou Abbasides succeed in the capital at Baghdad
(for 5 centuries). Then the Othmans (Turks) who ruled in
Constantinople in 1538 A.D the Sultan of Turkey assumed the title of
Caliph. The Caliphate was abolished by Mustafa Kamal Pasha in
1924.
 Schools of Law

The prophet made hijra or a flight to Medina from Mecca in 622 A.D.
from this the Muslim era started. Then Islamic society was formed in
Mecca and the people got the direct revelations of the Holy Quran
from the divine and also interpreted it.

What the prophet practiced said, acted and did during his lifetime was
recognized after his death (632 A.D) as Sunna. Then the consensus
of opinion or Ijmaa of the Caliphs specially the 4 Caliphs Abu Baker,
Omar, Osman and Ali was formed. Then the Omeyads and the
Abbasides came. In the reign of the Abbasides they collected all the
Islamic Jurists from Kufa and Medina to their court in Baghdad.

Then difference of the Jurists were there and from these difference of
Jurists the 4 Sunni Schools came into operation from the 3 rd period
of Islamic law. These schools are all equally orthodox:
 Hanafi School

The founder of the first school was Imam Abu Hanifa (80-150 A.H).
His schools name is Hanafi School. He was educated in the Shia
school of law and he received the first instructions of Jurisprudence
from the sixth Imam Jafar Ibn Sadaq in Baghdad.

Coming back to Kufa his native city he founded a new system of his
own different from the Shia school of law. He was endowed with
talents of an exceptional nature and had the true lawyer’s gift of
detecting nice distinctions and possessed remarkable powers of
reasoning and deduction which combined with the resources of a
retentive memory and clear understanding soon brought him into
prominence as the master of Jurisprudence.

So he acquired the title of the upholder of private judgment. In

arriving at legal conclusion he placed little reliance upon traditions
and more upon deductions. He stressed on Qiyas or analogical
deduction then traditions so some scholars think he was the upholder
of private judgment or founder of Qiyas. But he was not. He
employed Qiyas more because the science of Hadith did not fully
develop at that time and no recognised collections were available. He
modified law calling it Istehsan. He assigned a distinctive name a
prominent position to the principle by which the theory of law is
modified in its application to actual facts, calling it Istehsan (Juristic
preference), which bears in many points a remarkable resemblance
to the doctrine of equity.
He extended Ijmaa unlike other jurists he affirmed its validity in every
age. Ijmaa was also extended to the descendants (Tabiun) of the
companions of the prophet. From among his principle disciples he
instituted a committee of 40 men for the codification of the laws. It
took 30 years for the code to be completed. The entire work is lost,
but his contribution to the code is present. There is a small collection
of traditions based on his authority called Masnad-ul-Imam Abu
Hanifa.

Two very authoritative text of this school is Hedaya and Fatwa-i-

Alamgiri. His teachings were not liked by the Caliphs and so they cast
him to prison. As so believed they poisoned him to death. He was
held in such esteem that his funeral prayers as reported was said for
10 days and 50000 people attended it on each day.

The Muslims of Bangladesh, India, Afghanistan and Turkey are

Hanafis. Also in Egypt, China and Arab – they are largely found. He
left his two disciples Abu Yusuf and Imam Mohammad. So we can
say that he was the founder of the theories and principles of Muslim
Jurisprudence.
 Maliki School

The Kufa School of Imam Abu Hanifa is distinguished from the

Medina School of Imam Malik-Ibn-Anas (97-179 A.H.). The name of
his school is M aliki School. He was not only a Jurist but a
traditionalist. He exercised the judgment if other things failed with the
traditions and usages of Medina.

He introduced a principle corresponding of that to Imam Abu Hanifa’s

Istehsan which is known as M uslahat and which means public
welfare-as a basis of deduction.

He introduced a 5 th source of law known as Istadlal. Istadlal is

according to him a principle of Juristic deduction which does not
come within the scope of analogy. Malik recognizes the validity of
Ijmaa of the companions and successors residing in Medina –
Consensus of the Muslims of Medina (at that time).

Al-Muwatta a well known book of his contains of 300 traditions. His

followers are found in northern Africa especially in Morocco and
Algiers.
 Shafie School

Imam –Ash-Shafie (150-204 A.H) was the disciple of Malik-Ibn-Anas

and he also took lectures from Imam Mohammad (The disciple of
Imam Abu Hanifa). His school’s name is Shafie school. He had
exceptional juristic talents. He was not only a Jurists but a
traditionalist. He was known as the founder of the science of usul or
traditions although he applied Qiyas more than Malik. He was an
upholder of the traditions he examined them more critically and made
more use of analogy than Malik.

He introduced the middle course of Imam Abu Hanifa and Malik Ibn-
Anas on analogy and traditions. He allowed greater scope of Ijmaa
than Malik but he supported Malik Ibn Anas’s 5th source of law as
Istadlal and rejected Imam Abu Hanifa’s equity of the Jurists. He first
established a treatise (A long written work dealing thoroughly with
one subject) investigating the principles and methods of
jurisprudence known as “Risala”. His principles are followed in Egypt,
Africa, Arabia and in some parts of India specially Bombay and
Madras.
 Hanbal School

Finally we came to Imam Ahmad Ibn Hanbal (164-241 A.H.) pupil of

Imam –Ash-Shafie. He was the founder of Hanbal School. He strictly
recognised or had an extreme reaction to the school which was
known as Ahl-Al-Ray or people of opinion / Ahl-A-Hadith.

He strictly followed hadith literally. He was a very strictly in character

and was unbending on his interpretation of the hadith.

Tabari a historian refused to accept him as a jurist but recognised him

as a mere traditionalist. His Masnad-ul-Hanbal contains of 50,000
traditions. His followers are only found in middle of Arabia and no
where else. He allowed a narrow margin within Qiyas and Ijmaa.

Conclusion: So we conclude that though all jurists agree on Quran

and Sunna they differ in Qiyas and Ijmaa. Abu Hanifa was founder of
Qiyas and he was the first to use it. But Malik was in favour of
traditions and he used it. Shafie followed the middle course of
analogy and traditions. Hanbal was strictly and literally following the
hadith or traditions.
 Shia School of Thought

After the death of the prophet (632 A.D) it became necessary to elect
a Caliph or successor to the prophet to assume leadership of Islam.

The Hashimites the kinsmen of Mohammad (S.M) maintained that

the office belonged by right to Ali, the son-in-law and cousin of the
prophet. But the Koreishites insisted upon proceeding by election
and elected Abu Baker as the 1 st caliph. After his death Omar was
elected. Upon his decease the caliphate was offered to Ali on the
condition that he should govern in accordance to the precedents
established by the two former Caliphs. Ali declined to accept the
office on those terms, declaring that in all cases if there is no law, or
decision of the prophet, he would rely upon his own judgment.

The Caliphate was offered to Osman. In his life time he appointed

one of his kinsmen Muawiyah as the Governor of Syria. Osman was
murdered and Ali was elected caliphate. Defeated in several battles
Muawiyah appealed for arbitration. In the arbitration it was held that
Ali and Muawiyah should be set aside to heal the wounds which the
differences of Ali and Muawiyah had inflicted in the Muslim world. But
one of the arbitrators confirmed Muawiyah in his office. Ali was later
killed while he was engaged in prayers in a mosque in Kufa (see the
details, Ameer Ali, p3-7 (1928).
This Shias who attach themselves to Ali deny the rightful succession
of the first three caliphs (Fyzee p.39). The Shias do not admit the
genuineness of any tradition not received from the Ahl-I-Bait i.e. “The
people of the house” (of Mohammad) consisting of Ali and Fatima
and their descendants. They repudiate entirely the validity of all
decisions not passed by their own spiritual leaders and Imams (Ali,
p.7). According to Shias Imams are the final interpreters of the law on
earth. He is an Imam not by election but by divine right, because he is
descendant of the Prophet as Ali.
 The Prophet Mohammad (d. A.H. 10)

Ali (d. A.H. 41)

Hassan (d. A.H. 50) Hussain (d. A.H. 61)

Ali Zaynal –Al-Abedin (d. 94)

Zayd (d. 122) Md. Ali Baqir (d. 113)

Jafar Al Sadiq (d. 148)

Ismail Hussain Al- Kazim (d. 183)

(Seveners of Ismailies)

Ali Al- Rida (d. 202)

Md. Al- Jawad/Taqi (d. 220)

Ali Al- Hadi/Naqi (d. 254)

Al-Hasan Al- Askari (d. 260)

Md. Ali Muntazai (disappeared. in 260)

These are the 12 imams known
as Ithna Asharis or twelvers
 Introduction and Application of Muslim Law
under British Rule in India

Before the British Assumed political responsibility, Muslim Law

had been admitted as the law of the land. The law of the Moghul
Empire was founded on Sharia, Fatwa-I-Alamgiri and Hedaya.
Non-Muslims were guided by own laws.

The Farman of 1765 granted the Diwani (The right to collect

revenue and civil Jurisdiction) to the East India Company. In the
original form of the Forman – the East India Company was
bound to decide causes “agreeably” to the rules of Mahomet and
the laws of empire”. But this clause disappeared from later
versions of the treaty.

The early British administration more or less continued the

Muslim pattern of judicial administration. It was promised by
Warren Hastings in 1772 by the Regulation II that the Muslims
and Hindus will be allowed to be governed by their own laws in
all suits regarding inheritance, succession, marriage, caste and
other religious usages or institutions. The 1772 regulation was
also reaffirmed in the Act of Settlement of 1781.

U/S 17: “In inheritance and succession to land, rent and goods
and all matters of contract and dealing between party and party
should be determined in the case of Mohammedans and Hindus
by their respective laws and usages.
The Act of Settlement is an extension of regulation of 1772. The
impact of Warren Hastings scheme of 1772 was that for the first
time the laws were divided into general and personal Law. But
this apparent non–interference was only with regard to Hindus
and Muslims. The personal laws of the Christians and Parsis
were codified by the British e.g.: –
1. The Parsi Marriage and Divorce Act of 1865
2. The Indian Divorce Act, 1869
3. The Indian Christian Marriage Act, 1872
4. The Special Marriage Act, 1872
5. The Indian Succession Act, 1925

Tahir Mahmood in his personal laws in crisis (p. 98–99) says that
the English Matrimonial Causes Act, 1857, has found itself
reproduced into these Indian statutes.

The argument that significant dissent was not raised when

Muslim Law was reduced to personal law has been strongly
disputed by Indian Muslim Scholars or Alims. They reasoned that
the British policies were forced on the Muslims without their
consent as they were mere colonial subjects without any means
to protect their laws.
The judges who were administering justice were British or
Western trained. There was a general difficulty for the judges in
properly ascertaining the terms of Islamic Law from the
authoritative Arabic texts. (Coulson, Schacht). This led to
scholarship on translations and to the compilation of
commissioned texts. e.g. Ballie, Charles Hamilton (Hedaya),
Macnaghten, Wilson etc.

However, upto 1856 the judges were assisted by law officers i.e.
Muftis or Pandits to declare the rule of law applicable to a case.
Thus it is argued that a great part of Islamic Law has been
modified (Anglo-Indian Law) deliberately or accidentally since
1772.

The laws observed in suits on personal laws were the personal

laws of the individual community. In the absence of any law or
usage of the community justice, equity and good conscience was
developed as major gap filler. A significant example of the
application of English notions to family law in British-India was
the remedy of restitution of conjugal rights.

The concept of restitution of conjugal rights is based on Christian

ecclesiastical law. It caused immense hardship to women.
Before women who refused to join their husbands could stay with
their parents in their parental home and were not forced to
continue their conjugal life.
Restitution of conjugal rights was introduced under CPC of 1859,
but it was not clear how it should be enforced. In 1877 under civil
procedure code (Act XV) refusal of Restitution of Conjugal Rights
was made punishable with attachment of property and
imprisonment and it was enforced under the civil law of the
country. Subsequently in 1908 the British made punishment
discretionary and only in 1923 did they take away the
punishment of imprisonment.

According to the restitution of conjugal rights both the Muslim

husband and wife were entitled to force the other into marital
relationship. But such a remedy is not actually useful for Muslim
women as the husband could always unilaterally or extra–
judicially divorces the wife. Case: Bai Jina v. Kharva Jina
(1907) 31 ICR BOM. 366

However, there are many valid grounds of defence on the

principle of equity– (Case: –Moonshee Buzul–ul–Rahim v.
Shumsoonissa 1867 XI Mia 551) (Case: Sofia v. Zaheer AIR
1947 All 16) and also under Muslim Law e.g. cruelty, non–
payment, of prompt dower or false charges of adultery.
Thus, by introducing English notions, practice and procedure, the
British also interfered in the sphere of the personal law of the
Muslims and Hindus. This interference became gradually more
evident in the case law. This led to the emergence of “Anglo-
Muhammadan Law” which to some scholars distorted the pure
Muslim Law. (See Ameer Ali, 1912, p. 1–4). Not only in case law
British also supported to reform Muslim and Hindu Personal Law.
But this time legal reform was made to eradicate social evils. The
Indian social reformers also contributed greatly to eradicate the
glaring social evils of sati, widow remarriage etc. –which was not
conducive to substantial justice e.g. –

1. The Prohibition of Sati Act, 1829

2. The Caste Disabilities Removal Act, 1850
3. The Hindu Widows Remarriage Act, 1856
4. Hindu Women’s Property Act, 1937

While codification was largely used with regard to Hindu

Personal Law as it was issues of concern for the Hindu
community– there were problems which also affected Muslim
community as the child marriage– by the CMR Act, 1929.
There were also some codification in Muslim Law e.g. the
Muslim Personal Law (Shariat) application, 1937 and the
Dissolution of Muslim Marriages Act, 1939.
Interference with the Personal Law – Development
in British India

The Child Marriage Restraint Act, 1929:

In British India sexual intercourse was legitimate even at the age
of 10 under section 375 of the Penal Code, 1860. This was seen
as a slur (KjsK) on the British name in India as it suggested that
sex with any female was permissible in law from the age of 10.
Reform was attempted, 1st by an amendment to the Penal Code,
1860. However this was vigorously opposed by orthodox people.
By the Indian Criminal Law Amendment Act, 1891 section 1 the
age of cohabitation was increased to 12 years.

The central issue was the age of consent in marriage which was
raised as a result of the efforts of several Indian reformers. There
were also petitions from the Women Organizations for the
enhancement of the age of consent. This debate on child
marriages became prominent after the age of consent debate
and was given more importance after the census reports of 1929
– which showed:
612 Hindu Widows 1 – 12 Months Old
498 Hindu Widows 1–2 Years
1280 Hindu Widows 2–3 Years
6758 Hindu Widows 4–5 Years
Total= 12016 Hindu Widows under 5 Years of age
But the colonial Govt. declined this time to sponsor for any
legislation regarding the age of marriage, arguing that it might
impede the ruling of the country.

In 1927 Hari Singh Gour proposed a bill raising the age of

consent to 14 years. The govt. appointed a Consent Committee
in June 1928. The committee recommended that in order to deal
most effectively with early marriage and consummation, a law
should be enacted fixing the age of marriage of girls at 14 years.
The bill of child marriage was finally passed on 23 rd Sept, 1929
and the Act came in to force from 1st of October 1929 as C.M.R
Act of 1929.

The primary object of the Act as the author of the bill asserted
was to put a stop to child widowhood. Then there was a debate
whether it should be extended to all the communities. There
were petitions to exclude Muslims from it. T.A.K. Shervani a
member of the Central Legislative Council argued that the
Committee showed that the majority of Muslims were in favour of
the Bill. The Committee of Age of Consent found early marriage
prevailed among Muslims also as in Bengal who formed 42% of
the total population of the province.

T.A.K. Shervani: The Bill was un–Islamic as it was not against

the principles of Islamic law. As the Quran or Hadith do not
prohibit or prescribe child marriage (Legislative Assembly
Debates Vol. IV 1929 pp. 659 – 660). Child marriage was a
practice in pre–Islamic times. The Act had whole hearted support
of AIWC (All Indian Women’s Conference).

The title of the act itself indicates its lacunae as it suggests

restraint of child marriage and not its prevention or abolition.

U/S – 2:
a. Child means a person who if a male is under 21 (in Muslim
Family Laws Ordinance 18, 1984–21) years of age and if a
female is under 18 (before 14, Muslim Family Laws
Ordinance 16, 1984–18) years of age.
b. Child marriage means a marriage to which either of the
parties is a child.
c. Minor means a person who if a male under 21 years and
female under 18 years ( conflicts with Majority Act, 1875)

U/S – 4:
Whoever being a male above 21 years or being a female above
18 years of age, contracts a child marriage shall be punishable
with simple imprisonment which may extend to one month or
with fine which may expend to one thousand taka or with both.

U/S – 5: Punishment for Solemnising a Child Marriage:

Whoever performs, conducts or directs any child marriage shall
be punishable with simple imprisonment which may extend to
one thousand taka or with both, unless he proves that he had
reason to believe that the marriage was not a child marriage.

U/S – 6: Punishment for Parent or Guardian Concerned

in a Child Marriage:
Where a minor contracts a child marriage any person having
charge of the minor, whether as a parent or guardian or any
other capacity lawful or unlawful, who does any act to promote
the marriage or permits it to be solemnised, or negligently fails to
prevent it from being solemnised shall be punishable with simple
imprisonment which may extend to one month or with fine which
may extend to 1000 taka or with both. Provided no women shall
be punishable with imprisonment. This milder penalty is a
concession to women by the legislature indicating a paternalistic
attitude towards them.

More over, there were procedural loopholes for which the objects
of the Act could not be achieved. The Act could only be applied
when a complaint of any child marriage was made by a private
person– as the parent or guardian of either side will not complain
as they themselves will be liable.

U/S – 8: Jurisdiction under this Act:

Notwithstanding anything contained in section 190 of Criminal
Procedure 1898, no court other than of a magistrate 1 st class
shall take cognizance of, or try any offence under this Act. But
the mode of taking cognizance depends on the Chairman of the
Municipal Corporation.

U/S – 9:
No court shall take cognizance of an offence under this Act
(except on a complaint made by the Union Council, or if there is
no Union Council or if there is no Union Parishad or Paurashava
or Municipal Corporation in the area, by such authority as the
Govt. may in this behalf prescribe, and such cognizance shall in
no case be taken after the expiry of one year from the date on
which the offence is allowed to have been committed.

Thus, cognizance of the crime was limited to one year and to

keep the marriage secret for a year is not a difficult problem.

U/S – 12: Power to Issue Injunction Prohibiting

Marriage in Contravention of this Act:
1. Notwithstanding anything to the contrary contained in this
Act, the Court may, if satisfied from information laid before
it through a complaint or otherwise that a child marriage in
contravention of this Act has been arranged or is about to
be solemnized issue an injunction against any of the
 persons mentioned in Section 4, 5, 6 of this Act prohibiting
such marriage.
2. No injunction under 12(1) shall be issued against any
person unless the court has previuosly given notice to such
person and has afforded him an opportunity to show cause
against the issue of the injunction.
3. The Court may either on its own motion or on the
application of any person aggrieved rescind or alter any
order made under section 12(1).
4. Where such an application is received, the Court shall
afford the applicant an early opportunity of appearing
before it either in person or by pleader, and, if the court
rejects the application wholly or by part, it shall record in
writing its reasons for so doing.
5. Whoever knowing that an injunction has been issued
against him under section 12(1) disobeys such injunction
shall be punished with imprisonment of either description
for a term which may extend to 3 months or with fine which
may be extend to 1000 taka or with both. Provided that no
woman shall be punishable with imprisonment.

According to Sastri, L.S2: As a tool in the hands of some male

relations, women are not the principal offenders and so are not

2 Sastri, L.S.: The C.M.R Act, 1929 (Allahbad 1988) 4th ed. p.28
punished. This is a form of positive discrimination which shows
that the law also recognizes women as the weaker sex.

The objective of the legislature was perhaps noble, but the

British Colonialist Govt. pleaded that the Act was in advance of
public opinion and the responsibility to educate the people rested
on the Indians themselves.
The judiciary also was lenient to apply the penal provisions of the
Act. The Act itself only discourages child marriage and so child
marriage persists to this day and is still an issue in Bangladesh.

Empirical analysis3 shows rural area Netrokona 60% marriages

are child marriages. In urban 53% of Motijheel AGB Colony have
child marriages, 92% of Kazipara of Mirpur Dhaka have child
marriages. Practically the CMR Act 1929, have never been truly
effective particularly in rural and urban areas. As the Act or
under Muslim Law it is allowed. It was held in Mst. Baksh v.
Bashir Ahmed in 22 DLR (1970) SC p. 289 that if a girl below
16 is married in violation of the CMR Act 1929 that marriage
does not become void, although the adult husband or their
guardians may be held criminally liable.

3 Dr. Taslima Monsoor: Prevention of Child Marriages by the Child Marriage Restraint Act, 1929;
Legal implications and social reality: in Law Journal of R.U. pp. 87-108 at pp. 99-103
 The Muslim Personal Law (Shariat) Application Act,
1937

Within the realm of personal law, different states and Muslim

communities adopted and evolved their own system of law,
with the effort that the customary law or the local law was
given preference over Sharia Law.

This issue affected Muslim women, in particularly where they

were denied some of the Quranic rights Muslim women
could seldom exercise their rights of divorce, inheritance or
remarriage due to the prevailing customs. Saksena Kali
Prasad4 stated, “The status of Muslim women under the
Customary Law was appalling”. With regard to inheritance,
the Hindu law was applied, which deprived women of their
rights granted under Muslim Law. This situation was
sometimes confirmed by legislation e.g. under section 5(b) of
the Punjab Laws Act of 1872 provided that in cases where
the parties where Muslims, the decision was governed by
Muslim Law, unless modified by any custom. The latter was
normally the case. For this reason on 26 th Sept. 1935, H.M.
Abdullah introduced a bill in the legislative assembly to make

4 Muslim Laws Administered India and Pakistan, Lucknow 1949 p.23

provision for the application of the Muslim Personal Law
(Shariat) to the Muslims.

After 2 years on 1 st April 1937, the bill was referred to a

select Committee – which presented its report on 1 st Sept.
1937. The Muslim Personal Law (Shariat) Application Act
came into force on 16 th Sept. 1937. The Act was passed in
the central legislature stating the following reasons: “The
status of Muslim Women under the so called customary law
is disgraceful. The introduction of Muslim personal law will
automatically raise them to the position to which they are
entitled. In the legislative Assembly Mr. Abdul Qaiyum stated
that, “Muslim women have resented strongly the dead hand
of customary law which has reduced them to the position of
chattels”. When a Muslim died, his daughter, sister and wife
were thrown into the street and the reversioner in the tenth
degree could come and collar all the property.

Mr. M.A. Jinnah argued in the Legislative Assembly that the

customs and usages had been precariously excluding the
female heirs, making them entitled only to maintenance and
marriage expenses and he further stated that, “Under the
Muslim Law shares were defined and even if a woman got
half, she obtained it in her own right and was the sole owner
of that share”.

Under section 2 of MPL (Shariat) Application Act, 1937:

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

Under section 3 (1): Power to Make a Declaration:

Any person who satisfies the prescribed authority:
a. That he is a Muslim and
b. That he is competent to contract within the
meaning of section II of the Contract Act, 1872,
and
c. That he is resident of Bangladesh may by
declaration. Declare that he desire a declaration
and there after the provisions of section 2 shall
 apply to the declarant and all his minor children
and their descendent as if in addition to the
matters enumerate their in (u/s 2) adoption, wills
and legalizes were also specified.
The Muslim Personal Law (Shariat) Application Act, 1937
could not change the deep rooted custom of denying women
their inheritance. It was rightly stated by Mumtaz Khawar
and Farida Shaheed that the continued observance of
traditional customs rendered the law quite ineffective5.

In a study 6 of a village of 1200 people it was shown that 80%

of the women believed that their property will be destroyed if
taken from their brother, 95% of women believe that it is
immoral to ask for their shares and 20% of women thinks
that if partition, divine will be displeased. e.g. ÒAvj­ vni MRe
co‡evÓ

5 Women of Pakistan: Two Steps Forward and One Step Backward, London, 1987, p.57
6 Taslima Monsoor: “In Search for Security and Poverty Alleviation: Women’s Inheritable
Entitlements to Land the Untapped Resources” In Journal of Int’ Affairs Vol. 4, No. 2,
July-Dec 1998
 Marriage

‘Nikah’ literally means joining together or union of the sexes. In

law it means marriage. ‘Nikah’ in the Quran has been described
as ‘Hisn’ i.e. a fort- meaning the protection it affords –social,
physical and moral to the couple joined together in a
wedlock7.‘Nikah’ is not solemnised only for sexual enjoyment,
the main aim is ‘sukun’ i.e. satisfaction or comfort or peace of
mind, love –‘Muaddat’ and Rahmat or kindness or sympathy or
compassion- according to Md. Ali’s translation of the Holy
Quran8.

Definitions:
According to Hedaya translated by Charles Hamilton9- Nikah is
defined as:
‘In the language of the law it implies a particular contract
used for the purpose of legalising generation.” 10

According to Fatawa-i-Alamgiri,11
“Nikah is said to be a contract that is entered into by a
man with a woman for the enjoyment of the beneficiary
rights over her as an owner”.

7 Quran: Surah-al-Nisa the women-IV:28

8 Quran: XXX:21 p.92-93
9 Hamilton, Charles: The Hedaya. Lahore 1975.
10 p.25
11 Vol. II, p.2
This definition is not true as the concept of marriage developed
as companionship and not ownership.
According to Baillie (which is from Fatwai-i-Alamgiri):

“Marriage is a contract for the purpose of legalising

sexual intercourse, the procreation and legitimation of
children and the regulation of social life in the interest
of the society by creating the rights and duties
between the parties themselves, between each of
them and the children born from the union.

According to Mulla:

“A contract which has for its object the procreation

and the legalising of children”

These are distorted pictures of the Islamic concept of marriage.

The holy Quran describes marriage as a sacred covenant
(Mithaq-e-Ghaliz) between a man and a woman. Also in other
verses of the holy Quran12 the holy book ordains that man and
woman are joined in marriage so that they can live each other in
love and solace. Also in other verses13 that by marriage the man
and woman pass into each others protection. Repeatedly the
holy Quran describes married man and woman as Muhsan and

12 (XXX:21 & VII:189)

13 Quran: II: 187
Muhsanat i.e those men and women who had entered the
protective fortress of marriage14.
Thus marriage in Islam is much more then a contract for
production of children. 15

14 Quran: V: 6
15 Mahmood, Tahir: Personal laws in crisis. New Delhi 1986.p.66
Nature: According to Asaf A.A. Fyzee in his outlines of
Mohammadan Law (p.89)- the institution of marriage has three
aspects:
1. Legal
2. Social and
3. Religious

In its legal aspect it has legalised sexual intercourse, procreation

and legitimation of children. In its social aspect it has given
women higher status. In its religious aspect it leads to the
upliftment of man and is a means for the continuance of the
human race. In its legal sense marriage is a contract. In the
leading case of Abdul Kadir v. Salima (1886) 8 All 149 Justice
Syed Mahmud stated:
“A marriage among Mohammadan’s is not a
sacrament but purely a civil contract and though
solemnised generally with recitation of certain verses
from the holy Quran, yet Mohammadan law does not
positively prescribe any service peculiar to the
occasion.”

But in Anisa Begum v. Md. Istafa16 it shows that marriage is not

regarded as a mere civil contract but as a religious sacrament
(cweÎ ag©xq Abyôvb). In another leading case Khurshid Bibi v. Md.
Amin17 Justice S.A. Rahman said:
“Marriage among Muslim is not a sacrament but is in
the nature of civil contract. Such a contract
undoubtedly has spiritual and moral overtones and

16 (1933) 55 ALL 743

17 PLD 1967 (S.C) p.97.
 undertones but legally, in essence, it remains a
contract between the parties which can be subject of
dissolution for good cause.”
HINDU MARRIAGE

World

LHG HG H W WG LWG

Society

 Sacrament
 Ritual
 Dowry
 Unbroken
 Blood to Blood
 Soul to Soul
 Muslim Marriage

H Contract W

 Civil Contract
 No Ritual
 No Dowry

In practice I have seen that the marriages are usually broken for
the families and not the parties, thus it does influence. On the
other hand Nikah is a religious injunction and denominated by
the prophet as his Sunnah (teaching and practice). The holy
prophet said, “Men marry for their piety or their property, status
or their beauty: but you should marry for their piety (Ibadat).
Thus, marriage partakes the nature of Ibadat (worship) and
muamalat (worldly affairs).

Avey ûivBqv (ivt) bex (mt) †_‡K eY©bv K‡i‡Qb, bex (mt) e‡j‡Qbt
GKRb gwnjv‡K we‡q Kivi mgq PviwU welq j¶¨ Kiv nq| Zvi ab m¤ú`
Zvi esk gh©v`v, Zvi ˆmv›`h© Ges Zvi Øxb| myZivs †Zvgv†`i Øxb`vi
gwnjvB we‡q Kiv DwPr Ab¨_vq Zzwg ¶wZMÖ¯’ n‡e|
In substance a Muslim marriage is a contract but a sanctified
religious contract. Hence Muslim jurists regard Nikah to be both
temporal and religious at the same time. It is not purely a civil
contract or a sacrament but a religious, solemn and sacred
covenant for life.

The main aim of marriage under Islam is to protect the society

from foulness and un-chastity and to continue the human race. It
also confers the full status of wife and children.

The Essential Requisites of a Valid Muslim Marriage:

1. Declaration or offer or proposal –Ijab on the part
of one.
2. Acceptance or Qabul on the part of the other or
if minor guardians will accept. Consent by the
bride is essential. According to Justice Abu Md.
Abdullah:
“Unless it is established by clear direct and
specific evidence that the woman gave her
consent to the marriage anything just short of
that, will not prove marriage.”18

18 Case Dr. A.L.M. Abdullah v. Rok eya Khatoon (1968) 31 DLR 213.
 If marriage by guardians the bride has the option
to repudiate it by the doctrine of Khiyar-al-
Bulugh or option of puberty.
3. Before sufficient witnesses- two male or one male
and two females. The witness must be adult
Muslim of sound mind. But only females can’t be
witnesses.
4. The words must indicate with reasonable
certainty that a marriage has been contracted. It
must not be a mere promise to marry at some
future date.
5. The proposal and acceptance must both be
expressed at one meeting, e.g. agents may take
consent and go to the bridegroom.
6. The parties must be of sound mind – If lunatics
not insane they can be married by their
guardians.19
7. The parties must have attained puberty (Hedaya
says girls attains puberty or maturity or
menstruation at 9 years and boys at 12 years).
According to Majority Act 1875 a person is major
at 18 years otherwise they are to be represented
by their guardians. By the statutory legislation of
the Child Marriage Restraint Act, 1929
marriageable age was 14 for girls and 18 for
boys. By the Muslim Family Laws Ordinance ,
19 see Mulla –p.175, 186.
 1961 marriageable age was 16 for girls and 18 for
boys and the Child Marriage Restraint
(Amendment) Act, 1984 marriageable age was 18
for girls and 21 for boys.
8. Where there is marriage there is dower. It might
be implied or expressed- dower must be there.
9. It is necessary that men should be a Muslim and
female a Muslim or kitabia –not fire/idol
worshipper (AwMœ / gywZ© cyRvix).
10. There must not be any legal disability or bar to
the union. e.g. if they are related within prohibited
degrees they can’t marry.
11. There is no need of rituals, e.g. as Hindu law
saptapadi and lajohoma (AwMœ ¯^v¶x) is essential,
but Muslim marriage is a contract. I have said in
my thesis that this Mvu‡q njy` ceremony or Rusmat
ceremony and receptions are indispensable
which makes the social registration of the
marriage and makes it a social contract.

According to Fitzerald, Mohammadan Law (1931) p.38-39:

 A marriage feast is generally given by the bridegroom –
almost as a religious duty (but now it is given by the
bride’s father).
 The presence of one or two wakil (agents) to represent
in each side and work on the details of the contract.
  The Kazi is ordinarily present by invitation of the party
after Kazis Act 1880 present for registration.

Thus, the legal incidents of marriage in Islam are remarkable for

their extreme simplicity as marriage many be constituted without
any ceremonies. Justice Akram20 said:
“In Islam marriage is a legal notion (Amr-i-Sharayee).
It is an act of piety (ibadat) The Nikah (contract of
marriage) is sunnat-e-muakkada- A rule of conduct,
laid down by the holy prophet. The observance with
which is considered meritorious and a deviation from
which is regarded as a sin. It is a contract “Uberima
Fide”, requiring utmost good faith, it originated a legal
relation or consortium a partnership in life, securing
harmony, happiness, peace of mind, good fellowship
and connubial relations between the couple. The
marriage is solemnised by Nikah.”

In a valid marriage the husband is ahal possessed of the

capacity and the women a fit subject or Mahal to contract the
marriage according to Sharia. The pillar (rookn) on which it
rests is the proposal and acceptances by the two willing parties
to it21.

20 Justice Akram in Iftikhar Nazir Ahmed v. Ghulam Kibria

21 Case:- Iftikhar Nazir Ahmad Khan v. Ghulam Kibria (1968) 20 DLR (WP) 196.
 Registration of Marriage:

There is no need for registration in a Muslim marriage as it is not

made obligatory in the Quran or in the Sunnah22.

On the other hand there is no prohibitive sanction against

registration of marriage23. Thus registration is not a requisite of a
valid marriage but provides a legal restriction for various kinds of
protection, including prevention of denial of the marriage,
establishment of paternity. It also strengthens inheritance rights
for women and children, e.g. a man can’t deny his marriage.

As early as 1876 there was a regulation, the Muslim Marriage

and Divorce Registration Act of 1876 but registration was
voluntary. In 1961 the Muslim Family Laws Ordinance of 1961
under section 5 Marriage registration has been made
compulsory and penalties are provided for its contravention. In
Bangladesh the Muslim Marriages and Divorces (Registration)
Act 1974 has superseded earlier acts and made compulsory
under section 5 in contravention punishment under section 5(2)
with simple imprisonment for a term which may extend to 3

22 Mahmood, Tahir: The Muslim Law of India Allahbadc1982, 2nd ed. p.57
23 Rahman, Tanzil-ur: A Code of Muslim Personal Law. Vol. I Karachi 1978, p.88
months or with fine which may extend to 500 taka or with both. A
study shows 25% of rural marriages are registered. 24
Thus, registration is not for bureaucracy but for protection of
women and children. As security of documentary evidence is
there marriage can’t be denied by men.

It was also held by Justice Abu Md. Abdullah25 that non

registration of marriage shows that there was no valid
solemnisation of marriage.

“The solemnisation of the marriage if validity effected

might not be effected for non-registration of the
marriage. But the non-registration of marriage causes
a doubt on the solemnisation of marriage itself”.

Forms of Marriage:
There are three types of marriage:

i. Valid Marriage (Shahi Marriage)

ii. Irregular Marriage (Fasid Marriage)
iii. Void Marriage (Batil Marriage)

i. Valid Marriage: A marriage which confirms in all respects with

the law. It is termed as Shahi or correct or true in regard to legal

24 RDRS (Rangpur and Dinajpur Rural Services) and UNDP - Why marriages breakup Dhaka,
1990, p. 15
25 In the case of Dr. A.L.M. Abdullah v. Rokeya Khatoon 21 DLR (1969) p.213-217
requirements and there is no prohibition either perpetual or
temporary affecting the parties. It is lawful and completely valid
contract.
The legal effects of valid marriage has been elucidated by
Justice Mahmood in the leading case of Abdul Kadir v.
Salima26:
“The legal effects of marriage are that it legalises the
enjoyment of husband and wife with each other in
manner which in this matter is permitted by the law.”

The legal effects of a valid marriage are:

1. Sexual intercourse become lawful and the children born of
the union are legitimate.
2. Wife becomes entitled to dower or ‘Mahr’.
3. Wife becomes entitled to maintenance or ‘Nafaqa’.
4. The wife is not entitled to remarry by dissolution of
marriage either by divorce or by death without observing
Iddat/Idda.
5. A woman does not change her status by marriage; more-
over change of name is also not Islamic.
6. Mutual rights of inheritance,
7. The husband is entitled to restrain the wife’s movement in a
reasonable manner and exercise marital authority.

26 (1886) 8 ALL 147

ii. Fasid/Irregular Marriage: An irregular marriage is one which
is not unlawful in itself, it is unlawful for “some other things”. As
where the prohibition is temporary or relative or prohibition
springs from an accidental cause or circumstances and can be
made valid e.g. absence of witnesses. The following marriages
are considered irregular:
1. A marriage without witness.
2. A marriage with women under going iddat (waiting period
to remarry for divorce -3 months, for death-4 months 10
days).
3. A marriage with 5th wife by a person having 4 wives (by
divorcing any wife).
4. A marriage prohibited by reason of difference of religion (if
the women changes into a Kitabia as Christen or Jew but if
into a fire worshipper/idolalor the marriage is invalid)
5. A marriage by unlawful conjunction i.e. a man may not
have at the same time two wives who are so related to
each other by consanguinity, affinity or fosterage e.g. two
sisters or aunt or niece but by divorcing any wife it
becomes legal.

Legal Effects of Irregular Marriage:

3. As to Dissolution: Neither divorce nor intervention of a

court is needed. One of them may say: “I have
relinquished you” and the unholy alliance ends.
4. As to consummation:
 i.The wife is entitled to dower unspecified or
specified which ever is less.
ii. She is to obey iddat- but both on death and
divorce it is three menstruation courses.
iii. She is entitled to maintenance during Iddat.
5. As to Inheritance: No mutual rights of inheritance
between husband and wife.
6. As to Issue: The issues are treated legitimate and are
entitled to a share of inheritance.
iii. Void Marriage: Void marriage is a marriage which is unlawful
in itself. The prohibitions of such a marriage are absolute and
perpetual / permanent. A marriage with a woman prohibited by
consanguinity, affinity and fosterage are void marriage.
Connections which are unlawful in themselves are null and void
ab initio (batil). From the commencement of the union- marriage
is considered as totally non-existing- in fact and in reality.
According to some books of fiqh, the word void has been used
for the following Dr. Tanzillur Rahman27:

1. Marriage with woman within prohibited degree.

2. Marriage of an infidel (non-Muslim) with a Muslim
woman.
3. Marriage with a woman knowing to be the wife of
another.
4. Marriage contracted by putting the man under duress.

Legal Effects of Void Marriage:

27 Rahman, Tanzil-ur: A code of Muslim Personal Law. Vol.I, Karachi 1978, p.111.
 1. The issues are illegitimate.
2. No marriage at all.
3. It creates no civil rights and liabilities between the
parties.

Under the Ithna Ashari law there is only valid and void
marriages. Thus the irregular marriages under Hanafi law are
void under the Ithna Ashari law. The Shia law specifically Ithna
Ashari law does not recognise the difference between irregular
and void marriages28.

28 Fyzee, Asaf A.A.: Outlines of Muhammadan law. 1st ed. Bombay 1949, 2nd ed. 1955, 3rd ed.
1964, 4th ed. New Delhi 1974.
Mullah, Farduji Dinshad: Principles of Mahomedan law. 10th ed. Calcutta 1933.
Tyabji, Faiz Badruddin: Muhammadan law. 3rd ed. Bombay 1940.
 Prohibitions or Restrictions of Marriage

There are seven main prohibitions for a Muslim to enter into a

contract of marriage:

1. Absolute Prohibitions : Consanguinity, Affinity and

Fosterage:
i. Consanguinity (GKg~jZv/i†³i m¤ú©K): A man is
prohibited from marrying:
a. His mother or grandmother how high so ever
b. His daughter or grand daughter how low so ever
c. His sister whether full (m‡nv`i) or consanguine
(wcZ…MZ) or uterine (gvZ…MZ / ˆecwÎK)
d. His niece or great niece how low so ever
e. His aunt or great aunt how high so ever
The marriage is totally void and the children are
illegitimate.
ii. Relations- Affinity: A man is prohibited to marry
certain relations by affinity:
a. Ascendants or descendant of his wife.
b. The wife of any ascendant or descendants.
iii. Fosterage: A man can’t marry his foster mother or
sister.
Md. Mojibur Rahman in his book29 has said there are certain
exceptions in fosterage e.g.:
a. Foster sister’s mother
b. Sister’s foster mother

29 Md. Mojibur Rahman: Ògymwjg I cvwievwiK AvBb cwiwPwZÓ (1989) Netrokona p. 60

 c. Foster son’s mother
d. Foster brother’s sister
e. Foster brother’s aunt
2. Number: Islamic law is that a Muslim man can marry four
wives but if more than four wives it is irregular. Muslim women
can marry one husband at a time only.

3. Religion: A Muslim male can marry Muslim female or a

Kitabiya believing in revealed scriptures e.g. Jews or
Christians. But if he marries an idolatress or fire worshipper
then his marriage is irregular and the issues are legitimate.
But Muslim women can’t marry anyone except a Muslim.
According to Fyzee30 the present position appears to be that
the Nikah of a Muslim man with an idolater or fire worshipper
is irregular marriage but not void. But according to Mulla31,
marriage of a Muslim woman with a non-muslim is only
irregular not void. This is incorrect statement of the law as
marriage of a Muslim women with a non-muslim is decided by
the holy Quran to be batil or void and not merely irregular32.
Also in Rad-ul Muhtar and Darr-al-Mukhtar such marriage is
absouletly void and if co-habitation it is zina.

30 Fyzee, Asaf A.A.: Outlines of Muhammadan law. 1st ed. Bombay 1949, 2nd ed. 1955, 3rd
ed. 1964, 4th ed. New Delhi 1974.
31 Mullah, Farduji Dinshad: Principles of Mahomedan law. 10th ed. Calcutta 1933. (p.259)
32 Holy Quran II: 221
 In Bangladesh under the Special Marriages Act, 1872, a civil
marriage is allowed. It provides for a marriage between two
persons regardless of religion; provided that –
a. Neither party is an idiot or lunatic
b. Neither party has a spouse living
c. Male 21 years and female 18 years
d. Parties not within prohibited degrees of relationship
e. Marriage may be solemnised outside Bangladesh but
both parties are citizens of Bangladesh and domiciled
in Bangladesh. The succession of the parties in a civil
marriage is administered under section of 15 to 18 of
the Succession Act of 1925.

4. Unlawful Conjunction: A man is prohibited to marry two

wives at the same time, so related to each other by
consanguinity, affinity and fosterage that if one of them were
male they could not have been legally inter-married e.g. two
sisters, aunt and niece.

5. Iddat: Iddat is a specified period of time to wait to remarry

after dissolution of the first marriage either by death or
divorce. Waiting period for the ascertainment of pregnancy.
Marriage will be irregular. If marriage not consummated no
iddat. Duration of iddat:
i. If by divorce three menstruation courses;
 ii. If by divorce and pregnant the whole period of
pregnancy;
iii. If by death four months and ten days;
iv. If by death and pregnant the whole period of
pregnancy;
6. Kafaa - Equality: In order that a marriage may bear the
character of a suitable union in law, the husband must be the
equal of the wife in social status.

According to Hedaya,33 “Marriage must be contracted among

equals because cohabitation, society and friendship can’t be
completely enjoyed excepting by persons who are each
others equal as a woman of high rank and family would abhor
society and cohabitation with a mean man. It is requisite
therefore that regard be had to equality with respect to the
husband, that is to say that, the husband be the equal of his
wife, but it is not necessary that the wife be equal of her
husband.
According to Hanafi law equality between two parties is a
necessary condition in marriage and an ill assorted union or a
runaway marriage with the servant of the family, is under
certain circumstances liable to be set aside by the court. A
court alone has power to cancel such marriage.

33 Hamilton, Charles: The Hedaya. Lahore 1975.p.40

According to Radd-ul-Muhtar, the text of equality does not
apply to the wife for the husband can raise her to his rank,
however high.
In Hanafi law, the following factors must be considered for
determining equality:-
i. Family
ii. Religion
iii. Profession
iv. Freedom
v. Good Character
vi. Means

7. Pilgrimage: Under the Ithna Ashari and Shafi law, a

man who has gone to perform hajj and has entered the
precincts of Ka`ba and has put on the pilgrims dress
(ahram) may not enter into a contract of marriage while
on the pilgrimage.
8. Divorce: Divorce constitutes an important legal bar.
Briefly, when a man divorces his wife absolutely and the
divorce is effective remarriage between them is only
possible after she observes Iddat. Before had to marry
some one else, the second marriage was consummated
and then dissolved. This has been changed in 1961 by
Muslim Family Law Ordinance under section 7(6) unless
the divorce is third time so effective.
9. Supervening Illegality/Impossibility: If the husband
becomes fire worshipper or an Idolater or insane then
the marriage becomes void. But if the wife becomes fire
worshipper/Idolater the marriage becomes irregular but
not void.
 Muta Marriage (Temporary)

The word “Muta” literally means ‘enjoyment or use’. Muta

marriage is known as a marriage for pleasure. Pre-Islamic
Arabian custom it was prevalent for war times and travel.
The Mohammadans divided in two sects: Sunnis and the Shias.
Sunni sub sects are: Hanafi, Malikis, Shafies and the Hanbalis.
The Shias are divided into three sub sects: the Ithna Asharis,
the Ismailyas and the Zaidyas. The Ismailyas are subdivided
by three sects: Khojas/Bohras, Akhbari and Usuli.
Muta marriage is forbidden by all schools except Ithna Ashari
sect of Shia school. It is a marriage for a fixed period of time
e.g. It may be a day or a month or a year but once a ‘Muta’ is
always a ‘Muta’ even if it is extended for life.

Legal effects of Muta marriage according to Ithna Ashari law:

1. There must be a proper contract i.e. offer and
acceptance.
2. A man may marry a Muslim, Christian, Jew or a fire
worshipper (Majusiyaa) because according to Shia,
Ithna Ashari thought the fire worshippers are also
believer of scriptures.
3. A Shia woman can not contract a ‘Muta’ with a non
Muslim.
4. A man may contract a Muta with any number of women.
 5. A Muta marriage does not create mutual rights of
inheritance between a man and a woman but their
children are legitimate and are entitled to inherit their
property.
6. Muta marriage ends by expiry of the term of contract or
by death. No divorce is needed. If within the term
husband want to divorce the wife without her consent,
he must give a gift of the term34 to terminate the
contract which is known as Hiba-e-Muaddat.
7. Dower is there but if not consummated the wife is
entitled to half the amount of dower.
8. On the expiry of the period of cohabitation a short iddat
of two months is prescribed. If no consummation no
iddat is necessary.
9. Wife is not entitled to maintenance.

34 Hiba-e-Muddat
 Option of Puberty (Khiyar-al-Bulugh)

If a Muslim minor has been married during minority by guardian,

the minor has the right on attaining majority to repudiate such
marriage. The right of a minor boy or girl, on attaining puberty, of
repudiating their marriage contracted by their guardians including
their father and grand father during their minority, is called
‘Option of Puberty’/ Khiyar-al-Bulugh.
In Classical Muslim Law a minor girl contracted in marriage by
father or grandfather could not repudiate her marriage. This
restriction has been removed by Dissolution of Muslim Marriages
Act (1939) and the Muslim Family Laws Ordinance 1961.
Under section 2(viii) of Dissolution of Muslim Marriages Act
(1939) that she, having been given in marriage by her father or
other guardian before she attained the age of 18 years [before
15 years (1939), 16 years (Muslim Family Laws Ordinance,
1961)], repudiated the marriage before attaining the age of 19
years35 (before 18 years). Provided that the marriage has not
been consummated.However, consummation of marriage before
the age of puberty (15 years change to 16 years- Muslim Family
Laws Ordinance, 18 years-Amendment 1986).
The capacity of any party who is adult and want to contract
themselves in marriage is absolute. No contract can be said to
be complete unless the contracting parties understand its nature
and mutually consent to it. According to Justice Abu Md.
Abdullah in the case of Dr. A.L.M. Abdullah v. Rokeya
Khatoon (1968) 21 DLR 213:
35 By the Amendment XXV of 1986.
 “Unless it is established by clear, direct and
specific evidence that the woman gave her
consent to the marriage anything just short of
that, will not prove marriage”.
When the parties can’t give consent then the guardians or Wali
(Wilayat/guardianship) contracts the marriage.
 Wilayat-al-Ijbar: The right of a guardian to impose on his
ward his status of marriage.
 Hanafi Law: Wali in accordance to hierarchy are Asaba-bi-
Nafsihi in the order of succession:
i. S, SS, F, FF, FB (Full Brother), CB,FBS, CBS, FPU
(Full Paternal Uncle), CPU, FPUS, CPUS and then
ii. M, FM (Father’s Mother), D, SD, DD, MFF
(Maternal Grandfather), Sister and other uterine
relations.
A minor was married with the consent of a remoter relation
without the nearer relation – the marriage was void. Case:
Ayub Hasan v. Akhtari 36
 Wilson/Tyabjee/Fyzee: A guardian must be:
i. A person who has attained puberty
ii. Of sound mind
iii. A Muslim
Under Dissolution of Muslim Marriages Act the repudiation by
option of puberty must be confirmed by the court. The husband,
married during minority has the same right to dissolve his
marriage. But there is to statutory period of time within which he
has no exercise his right. The option can be exercised on his
36 AIR (1963 ) ALL 525.
attaining majority. If any party dies before confirmation of the
option of puberty by a court of law the other party has the right of
inheritance.
Polygamy
Polygamy in Islamic law is a qualified right by which a Muslim
man is permitted to many up to four wives. Recently there has
been a lively debate about whether the right was allowed as a
general rule or as an exception for natural calamities.
In Sura-al-Nisa37 it is ordained that the husband have the option
to have four wives at a time, provided the husbands possess the
capacity of dealing them justly among the wives in all respects.
However, the problem of Adl (equality between wives has been
categorized as technical) adl only.38
It is argued in my thesis that polygamous marriages abuses
woman and their rights (What about the first wife and children?).
Islamic law permits restricted polygamy with a view to meet
natural eventualities/calamities. 39 Recently there have been two
trends one is modernist view allowing it as an exception to the
general rule and the traditional view taking it as general rule.
This qualified right is being abused in society putting many
women in great trouble.
37 Quran: IV: 3
38 The dissenting note by Maulana Ehteshanmul Huq- a member of the commission which
was also published in the Gazette of Pakistan.
39 See for details, Monsoor ,Taslima: From patriarchy to gender equity: Family Law and its
impact on women in Bangladesh (Ph.D Thesis, University of London) a book published by
the University Press Limited (UPL) Dhaka, 1999, Pearl, David : A Text Book on Muslim
Law (1st ed.) London 1979, Tyabji, Faiz Badruddin: Muhammadan law. 3rd ed. Bombay
1940.
The Muslim Family Laws Ordinance, 1961 was promulgated by
the President of Pakistan, Field Marshal Ayub Khan in 2 nd March,
1961 to meet the demands of women in Pakistan and to give
effect to the report of the Commission of Marriage and Family
Laws of 20th June 1956. The dissenting note was also given by
one of the members of the Commission Maulana Ehteshamul
Huq on 30th July 1956. On this pressure from the modernist and
the traditionalist trend of reform the Muslim Family Laws
Ordinance came into being.
In the Pakistani period by the promulgation of the Muslim Family
Laws Ordinance, 1961, the right of polygamy has been curtailed
by providing some form of administrative assent before a
subsequent or second marriage.
The Commission of Marriage and Family Laws, 1956 was of the
opinion that a man intending second marriage should seek
permission of the court explaining the special circumstances
leading to the necessity of such marriage (as given in Muslim
Family Laws Rules Sec. 14):
“That the 1st wife is insane or is suffering from some
incurable disease or that there are other exceptional
circumstances which makes his second marriage an
inescapable necessity and he is not taking a second
wife merely because he wishes to marry a prettier or
a younger woman than his first wife”
By section 6 of Muslim Family Laws Ordinance 1961 the right of
polygamy has been curtailed, it states:
1. No man during the subsistence of an existing marriage,
shall except with the previous permission in writing of the
Arbitration Council, contract another marriage, non shall
any such marriage contracted without such permission be
registered under the Muslim Marriages and Divorces
(Registration) Act, 1974.
2. An application for the permission under subsection (1) shall
be submitted to the Chairman in the prescribed manner,
together with the prescribe fee and shall state reasons for
the proposed marriage and whether the consent of the
existing wife/wives has been obtained thereto.
3. On receipt of the application under subsection the
chairman shall ask the applicant and his existing wife or
wives each to nominate a representative and the arbitration
council so constituted may, if satisfied that the proposed
marriage necessary and just, grant subject to such
conditions if any, as may be deemed fit, the permission
applied for.
4. In deciding the application the Arbitration Council shall
record its reasons for the decision and any party may
prefer an application for revision to the Assistant Judge’s
Court and his decision shall be final.
5. Any man who contacts another marriage without the
permission of the Arbitration Council shall-
 a. Pay immediately the entire amount of dower-prompt
and deferred.
b. On conviction be punishable with simple
imprisonment which may extend to one year, or with
fine which may extend to Tk. 10,000/- or with both.
In the case of Abul Basher v. Nurun Nabi40 the High Court
Division held:
“It seems that the legislative intent of section 6 of
Muslim Family Laws Ordinance 1961 is to restrict the
practice of polygamy and to permit it only in cases
where it appears reasonable to the Arbitration
Council”.

If the Arbitration Council does not give consent and a man

marries for a second or subsequent time, he is liable to be
prosecuted and punished but the marriage is valid. However, the
wife can claim the full dower and can also dissolve the marriage
under section II (a) of the Dissolution of Muslim Marriages Act,
1939 (Amended by Muslim Family Laws Ordinance), if the
husband has taken an additional wife without permission.

40 39 DLR (1987) HCD 333

 Dissolution of Marriage

Marriage being a civil contract under Muslim law can be

terminated for the benefit of the parties as any other contract.
In pre-Islamic Arabian society males could take as many wives
they wanted or liked41 and also divorce was unlimited42.
Among the ancient Arabs divorce was free and easy occurrence.
The society was completely male dominated patriarchal.

According to the holy Quran43 :

“A divorce is only permissible twice; after that the
parties should either hold together on equitable terms
i.e. retain them with humanity or separate them with
kindness.”

Islamic reformation: The prophet of Islam has reported to have

said that,
“With Allah the most detestable of all things permitted
is divorce.”

In Shahi-al-Bukhari it was reported that the prophet said:

“If a woman be prejudiced by marriage, let it be
broken off.”

41 Statutory reformation: Polygamy was restricted by MFLO sec.6.

42 Statutory reformation: Dissolution was given procedural barriers by section 7 of MFLO.
43 The holy Quran under chapter II verse 229
The Forms of Dissolution of Marriage:
1. By death of any party
2. By the act of any party
a. By the husband:
i.Talaq (Repudiation) e.g. Talaq-al-Sunna, Talaq-al-Bida
ii.Ila (Vow of continence) mshg
iii.Zihar (Injurious Assimilation) Agh©v`vKi Zzjbv
b. By the wife:
i.Talaq-e-Tafwid (Delegated divorce)
c. By mutual consent:
i.Khula (Redemption)
ii.Mubara (Mutual freeing)
d. Judicial process:
i.Lian (Mutual imprecation)
ii.Faskh (Judicial rescission)

1. By the Death of any Party:

The marriage is automatically dissolved by the Death of any
Party. The husband may remarry immediately if his wife dies but
the widow has to wait for a certain period before she can remarry
i.e. ‘Iddat’. The period of ‘Iddat’ is four months 10 days but if
she is pregnant the whole period of pregnancy.
2. By the Act of any Party:
a. By the Husband:
i. Talaq: (Repudiation):
Talaq means repudiation. It comes from the word ‘Tallaqa’
which means to release an animal from its tether whence to
repudiate the wife, or free her from the bondage of marriage.
A Muslim husband of sound mind may divorce his wife whenever
he so desires without assigning any cause.
Muslim law places the right in husband with the expectation that
he will take recourse to it rationally and with justice. But this
unfettered and unilateral right of the husband to divorce his wife
without the intervention of the court is often exercised arbitrarily
and irrationally, making the lives of women miserable.
Under the Sharia law the divorce operates from the time of the
pronouncement of Talaq. The presence of the wife is not
necessary, nor need notice be given to her.
In Hanafi law, no special form is necessary. But in Ithna Ashari
School special form is needed. In Shia schools Ithna Ashari sub
school the words must indicate with a clear and unambiguous
intention to dissolve the marriage. It might be expressed, e.g.: “I
have divorced thee and render you haram for me.” In which
case no proof of intention is necessary but if words are
ambiguous proof of intention is needed. In Ithna Ashari thought-
the pronouncement needs to be in Arabic and must be uttered
orally in presence and hearing of two Muslim male witnesses.
The pronouncement of Talaq may be revocable or irrevocable.
As the prophet of Islam did not favour the institution of Talaq the
revocable forms of Talaq are considered as the approved or
Talaq-al-Sunna or Talaq-e-Rajee and the irrevocable forms as
disapproved forms or Talaq-al-Bain or Talaq-al-Bida.
In revocable forms i.e., Talaq-al-Sunna or Talaq-e-Rajee there
is an opportunity to reconcile the parties. But in irrevocable forms
Talaq-al-Bain or Talaq-al-Bida there is no chance to reconsider
the question.

The forms of Talaq:

1. Talaq-al-Sunna or Talaq-e-Rajee: In conformity with the
dictates of the Prophet are of the following forms:
a. Ahsan (The most Approved): One single
pronouncement in the period of purity or Tuhr (when
the women is free from menstrual courses) followed
by sexual abstinence. Where the wife is old and
beyond the age of menstruation the condition of
Tuhur is unnecessary. After Iddat the divorce is
irrevocable, if sexual intercourse in Iddat divorce is
void marriage is valid.
b. Hasan (Approved Form): It consists of three
successive pronouncements during three consecutive
 periods of purity or Tuhr. After the third
pronouncement the marriage is dissolved finally and
irrevocably. Each of these pronouncements should
have been made at a time when no intercourse has
taken place.
2. Talaq-al-Bida or Talaq-al-Bain: These forms are
disapproved by the Prophet, they are the following:
a. The Triple Declaration: In this form three
pronouncements are made in a single purity either in
one sentence e.g. I divorce thee for three times, or in
three sentences: I divorce thee. I divorce thee. I
divorce thee. Such a divorce is irrevocable.
b. One Single irrevocable Declaration: The
declaration is made during the purity or otherwise or
may be given in writing. It comes into operation
immediately.

Divorce when Effective in Talaq:

In the Ahsan form, the divorce is effective on the expiration of
the Iddat. Thus, if in Iddat there is sexual intercourse the
marriage is valid.
In the Hasan form the divorce is effective on the 3rd
pronouncement.
In the Talaq-al-Bida, the divorce is effective from the moment of
pronouncement or the execution of the writing of divorce
(Talaqnama).
Contemporary law: Under Muslim Family Laws Ordinance of
section 7(1) Talaq:
1. Any man who wishes to divorce his wife shall, as soon as
may be after the pronouncement of Talaq in any form
whatsoever, give the chairman notice in writing of his
having done so, and shall supply a copy thereof to the wife.
2. Whoever contravenes the provisions of 7(1) shall be
punishable with simple imprisonment for a term which may
extend to one year or with fine which may extend to
10,000/-taka or both.
3. Save as provided under section 7(5), a Talaq, unless
revoked earlier, expressly or otherwise, shall not be
effective until the expiration of 90 days from the day on
which notice under section 7(1) is delivered to the
Chairman.
4. Within 30 days of the receipt of notice under section 7(1)
the Chairman shall constitute an Arbitration Council for the
purposes of bringing about reconciliation between the
parties and the Arbitration Council shall take all steps
necessary to bring about such reconciliation.
5. If the wife be pregnant at the time Talaq is pronounced,
Talaq shall not be effective until the period, under section
7(3) or the pregnancy, whichever is later, ends.
 6. Nothing shall debar a wife whose marriage has been
terminated by Talaq effective under section 7 from re-
marrying the same husband without an intervening
marriage with a third person, unless such termination is for
the third time so effective.

Latest Developments in Case Laws: Muslim Family Laws

Ordinance Marriage, 1961 was promulgated to protect women
from unilateral and arbitrary Talaq. Under section 7(3) Talaq will
be effective after expiry of 90 days from the receipt of the notice
by the Chairman Union Parishad/Municipal Corporation. In Ali
Newaz Gardezi v. Md. Yusuf44 it was held that if no notice, it
was regarded that the husband has revoked his pronouncement
of Talaq and it was on advantage to the wife.
In Abdul Aziz v. Rezia Khatoon45 it was held that non-
compliance of the provisions of section 7(1) makes Talaq legally
ineffective. However, recently High Court Division of Supreme
Court in the case of Sirajul Islam v. Helana Begum46 said that
non-service of notice to the Chairman of the Union Parishad
under the provision of this section can’t render ineffective divorce
disclosed in an affidavit before a Magistrate. Thus, the
opportunity for wives to try to save their marriages is now
denied. But it was in the holy Quran. Before every dissolution of
marriage, the holy Quran counsels arbitration between spouses.

44 (1963) 15 DLR SC
45 21 DLR 733
46 48 DLR (1956) 53
The provisions of section 7 in Muslim Family Laws Ordinance,
1961 were based on Quranic verse47:
“If you fear a breach between the two (husband and wife)
then appoint a judge from his people and a judge from her
people; if they both desire agreement, God will affect
harmony between them.”
The Quranic injunction suggests that an attempt of reconciliation
should be made but recent pronouncements are taking away
those rights of women to save their marriages or reconciliation of
the parties were denied48.
2. By the Act of any Party:
b. By the Husband:
ii. Ila (Vow of Continence): The Quranic injunction says:
“Those who swear off from, their woman they must wait
four months; but if they break their vow, God is forgiving
and merciful”. 49
In Ila the husband swears not to have intercourse with the wife
and abstains for four months or more. The husband may revoke
the oath by resumption of marital life. After the expiry of the
period of four months in the Hanafi law the marriage is dissolved
without legal process but in Shafi law and in Ithna Ashari law

47 Quran: Verse 35 Sura –al-Nissa IV: 35

48 Carroll, Lucy: 'Talaq and polygamy: Some recent decisions from England and Pakistan'.
In Islamic and Comparative Law Quarterly. Vol.V, No.3-4, 1985, pp.226-297; Carroll,
Lucy: 'Talaq in Pakistan: The question of notification again'. In Islamic and Comparative
Law Quarterly. Vol.V, No.5, 1985, pp.287-297; Carroll, Lucy: 'Divorce and succession-
some recent cases from Pakistan'. In Islamic and Comparative Law Quarterly. Vol.IV,
No.4, 1984, pp.238-250.
49 Quran: II Sura-226
legal proceeding are necessary. This form is obsolete in India
and apparently there is no case law on the subject.

Ila is one of the recognized form of divorce, but the husband

must be major and of sound mind. It is mentioned in section 2 of
the Muslim Personal law (Shariat) Application Act, 1937. A case
of Ila was unsuccessfully raised in Bibi Rehana v. Iqtidar
Uddin50

Fact: After the marriage ceremony was over, the parents of the
boy pushed him into a room where his wife was waiting for him.
The husband was not interested in that marriage. Immediately in
entering into the room, he took a vow he will not have sexual
intercourse with her. Soon after that he came out and said the
same in front of his mother, father and aunt. The court held that
the husband failed to prove Ila as the vow can’t be taken in a
moment of excitement.
2. By the Act of any Party:
a. By the Husband:
iii. Zihar (Injurious Assimilation):
‘Thy back is to me as my mother’s back’- the husband swears
that to him the wife is like the back of his mother. If the husband
intends to revoke this declaration, he has to pay money by way
of expiation, or fast for a certain period of time. After the oath
has been taken the wife has the right to go to the court and
obtain divorce or restore the marriage on expiation. This is an

50 (1943) ALL 295

archaic form from pre-Islamic Arabia. It is no longer a common
form of dissolution.

2. By the Act of any Party:

b. By the Wife
i. Talaq-e-Tafwid
This is one of the most important forms of divorce because it
gives to the Muslim women a right to dissolve their marriage
without going to the court of law.
Both the Sunni and Shia schools allow the husband to delegate
his power of repudiation to a third person or to the wife herself. A
divorce may be pronounced, so as to take effect on the
happening of a future event provided that:
1. The option is not absolute
2. The conditions are necessary and not opposed to public
policy.
Thus, the husband in Muslim law has this power to delegate his
own right of pronouncing divorce to some third person or to the
wife herself. But the conditions of the delegation must be
reasonable and not opposed to public policy.
This power of delegated divorce is perhaps the most potent
weapon in the hands of a Muslim wife to obtain her freedom
without the intervention of any court and is now becoming fairly
common in South Asia.
An agreement by which the husband authorises the wife to
divorce herself from him in the event of his marrying a 2nd wife
without her consent has been held valid. Case: Baffatan Bibi v.
S.K. Abdur Salim.51 But in such cases, the mere happening of
the contingency is not sufficient; the wife must clearly exercise
her option after the event has occurred.
In the case of Abdus Sukkur v. Masuma Khatun52 the wife
uses her delegated power of divorce on the failure of her
husband to pay stipulated prompt dower.
In the case of Safura Khatun v. Osman Gani Mulla53 it was
held that the wife can resort to Talaq-e-Tawfid on husband’s
failure to pay maintenance in terms of Kabinnama.
But this is not an absolute right of the wife it depends on the
delegation by the husband. If the husband delegated his right to
divorce to his wife, his own right of effecting divorce does not
lapse, but subsists. So long the wife does not exercise the right.
The Muslim Family Laws Ordinance, 1961 provided this option to
delegate the right of divorce in the form of the Kabinnama itself
and the conditions are hand written by the guardians.
Lucy Carrol commented in the case of Aklima Khatun v.
Mohibur Rahman54:
“There is no reason in Muslim law why the delegation
to the wife of the right to pronounce Talaq should not
be unconditional but the courts of British-India period
staffed by Judges obviously influenced by the English
ideas of marriage, were uncomfortable with a such a

51 AIR (1980) CAL 304

52 (1955) 7 DLR 451
53 (1957) 9 DLR 455
54 14 DLR (1962) HCD 476
 concept under which the wife was authorized to
pronounce Talaq, were reasonable and not contrary to
public policy, thereby implying that an unconditional
delegation would be void55.”
In the case of Md. Kutubuddin Jaigirdar v. Nurjahan
Begum56: The Appellate Division of the Supreme Court
declared that the marriage had been dissolved by the exercise of
the delegated power of divorce by the wife57.
In the case of Nelly Zaman v. Giasuddin Khan58, the court
ascertained that the wife had exercised her delegated right of
divorce or Talaq-e-Tafweed legally. The court held that it had
been stipulated in the Kabinnama that the wife could exercise
this right if there was mutual recrimination between the parties.
As there was sufficient recrimination between the parties it
granted the right to the wife.
Talaq-e-Tafweed takes effect after 90 days under Muslim
Family Laws Ordinance 1961 as there is provision for notice to
Chairman, reconciliation by the Arbitration Council and after 90
days of the notice the divorce becomes final. It does not take
away the right of dower this is a misconception. However, the
wife is not automatically divorced without her will as in Talaq.

55 Carroll, Lucy: 'Talaq-i-Tafwid and stipulations in a Muslim marriage contract: Important

means of protecting the position of the South Asian Muslim wife'. In Modern Asian
Studies. Vol.16, No.2 (1982), pp.277-309 at p.279.
56 (1973) 25 DLR 21
57 See for details, Monsoor ,Taslima: From patriarchy to gender equity: Family Law and its
impact on women in Bangladesh (Ph.D Thesis, University of London) a book published by
the University Press Limited (UPL) Dhaka, 1999, p.182
58 34 DLR (1982) 225
The case law in Bangladesh suggests that women are benefiting
from this device of delegated divorce.

Case: Nasima Bilquis v. Md. Abdus Sammad59: The plaintiff

allowed that on ground of cruelty negligence to dissolve marital
obligation and demand of dowry she had given Talaq-e-Tafwid
and Talaqnama had been registered.

Held: The Family Court held that the right was exercised in
accordance with strict compliance of the terms and conditions of
the delegation, as it stated that it could be exercised “if there is
mal-adjustment any time” (g‡bi Awgj nB‡j hLb Lykx ZLb), the court
arrived at the conclusion that there existed mal-adjustment
between the parties.
In Khandaker Shafiqul Huq Masud v. Farida Begum and
Others60: The Family Court did not allow the husband to restore
his conjugal rights as the marriage itself had been effectively
dissolved by the exercise of Talaq-e-Tafwid by the wife.
To conclude we can say that Talaq-e-Tafwid is a conscious
effort of the female spouse or her guardian to balance the male
matrimonial power.

59 F.S. No.12 of 1992 (Unreported)

60 F.S. No.18 of 1990 (Unreported)
2. By the Act of any Party:
c. By Mutual or Common Consent:
i. Khula (Redemption):
Under the Muslim law a marriage can be terminated either by the
husband or by the wife or under mutual agreement between the
parties.
The Quranic injunction says:
It is not lawful for you to take from them anything of
what you have given them, unless both fear that they
can’t keep within God’s bounds. So if ye fear that ye
cannot keep within God’s bounds, there is no crime in
you both about what she ransoms herself with”61
The Prophet of Islam said, “If a woman be prejudiced by a
marriage, let it be broken off.”
According to Fatwa-i-Alamgiri, “When married parties disagree
and are apprehensive that they can’t observe the limits
prescribed by the divine laws, the woman can release herself
from the marital tie by giving up some property in return62.”
The Maliki Jurists refer to the Khula form of divorce as Al-
Talaq-Bil-Iwad or a divorce by giving something in return.
According to Abdur Rahman Doi63 :

61 Quran-ii, 229
62 Fatwa-i-Alamgiri vol. I, p.669
63 Abdur Rahman Doi: Sharia: The Islamic Law, (1984) London p.192.
 “To Hanafi Jurists Khula means the end of relationship
with consent either with the utterance of the word ‘Khul’ or
something that mean the same.”
Before the only effective mode of dissolution by the wife in
classical Hanafi law was Khula64.
Tahir Mahmood expresses the opinion that, ‘the wife’s right to
Khula is legally analogous to the man’s right of Talaq- in Talaq
man must pay dower in Khula wife is to forgo it in favour of the
husband65.
According to Fyzee, ‘Khula’ comes from the ‘Khola’ which
means literally to take off clothes and thence to lay down one’s
authority over a wife.
Two conditions were essential for a valid Khula although it has
changed by change of time:
i) Common consent of husband and wife
ii) Some Iwad (return, consideration), it may be all
benefits the wife has received from her husband or the
dower or more.
The amount of consideration is not fixed under Muslim law. A
tradition of the Prophet stated that, he didn’t approve of or even
allow payment of consideration greater than dower. It is usually
regarded as only the forgoing of dower by the courts in
Bangladesh.

64 David Pearl: A Text Book on Muslim Personal Law (1987) London p.162.
65 Mahmood, Tahir:: ‘The Grandeur of Womenhood in Islam”, in VI Islamic Comparative Law
Quarterly (1986) p. 1-20.
In Kutubuddin Jaigirdar v. Nurjahan Begum66, the court at the
1st appeal made out a new case of Khula. In 2nd appeal in the
Appellate Division of the Supreme Court it was held that as the
wife did not forgo her dower, Khula was not allowed. The
plaintiff wife asserted herself in her testimony, “I retain my right
of dower” (Avgvi †gvnivbvi `vex GLbI Av‡Q)Ó. However, the jurists have
stated that higher consideration is a moral offence and the
consideration is valid67.
In case: Sayeeda Khanam v. Md. Sami68: Where incompatibility
of temperament was not considered a valid ground for the wife
asking for Khula divorce although she forgoes her dower.
But in Bilquis Fatima v. Nazm-ul-Ikram Quraishi69, it was held
if in their relations to one another the spouses will not obey God
and a harmonious married state as envisaged by Islam, judicial
Khul was allowed even without husband’s consent.
This judicial Khul without the husband’s consent was reaffirmed
in 1969 by the Supreme Court of Pakistan by granting unilateral
judicial Khul to the wife for incompatibility of temperaments.
Case: Khurshid Bibi v. Md. Amin70: Incompatibility in
temperament, meaning a total lack of sympathy between
husband and wife, aversion and marital breakdown are

66 25 DLR (1973) p.21

67 Ahmed, K.N. :Muslim Law of Divorce, New Delhi, (1978) p.256-265.
68 PLD (1952) WP 113.
69 PLD (1959) WP p.566
70 PLD (1967) (SC) p.97
recognized as valid grounds for Khula through judicial
intervention. 71
In Hasina Ahmed v. Syed Abul Fazal72 Fact: Husband alleged
adultery of the wife falsely. The wife willingly parted with her
dower in consideration of divorce. Thus, this Khula form of
divorce, women now enjoy higher social rights with the change
of time.
Justice S.M. Hussain said:
“This divorce by way of Khula if not obtained with the
consent and agreement between the parties, can by
analogy, be obtained from a court of law before whom the
case of dissolution of marriage is pending.”
It projects that Bangladesh case laws are building on Khurshid
Bibi’s case – but the courts by blindly following Khurshid Bibi’s
case are abandoning the plaintiff’s own case and making out a
new case instead like Kutubuddin Jaigirdar v. Nurjahan
Begum.
In Md. Siddiq v. Mst. Ghafuran Bibi.73
Fact: Wife filed a suit for dissolution of marriage on the ground
of habitual cruelty and non-maintenance. Dismissed by trial court
wife appealed-the dismissal order was confirmed by the
Appellate Court.

71 Anderson Norman: Law reforms in the Muslim world. London 1976.p.80 also in Carroll,
Lucy: 'A note on Muslim wife’s right to divorce in Pakistan and Bangladesh'. In New
Community. No.13, 1986, pp.94-98.
72 32 DLR (1980) p.294
73 25 DLR (1973) SC p.1
On second appeal the High Court stated that, although the first
appeal failed the husband is not in a position to take back the
wife forcibly since relationship between the spouses was very
strained. In this circumstance High Court allowed the appeal on
the ground of Khula.
Husband appealed to the Supreme Court Appellate Division and
it held the following:
Held: High Court has acted illegally as the court has transformed
a case of cruelty to a case of Khula. The Supreme Court sent
the case back on remand to amend the plaint and to decide
whether the wife was entitled to such form of dissolution.
A Khula divorce might be the key to freedom for many Muslim
women. But the case law reveals that the courts are turning
other cases of dissolution to a case of Khula. Is it to deprive
women to their right of dower or giving freedom to men from their
duty to pay dower? Moreover husband are now not giving Talaq
but pressurizing the wife to give Khula when women can’t bear
anymore. This is unfair. Why should women always make
concessions and compromises? Whereas, Justice S.M. Hussain:
In Nelly Zaman v. Giasuddin Khan74 held that the concept of
forceful restitution of conjugal rights by the husband against an
unwilling wife has become outmoded and does not fit in with the
public principle and policy of equality of all men and women.

74 34 DLR (i982) p.225

2. By the Act of any Party:
c. By Mutual or Common Consent:
ii. Mubara (Mutual Freeing):
Dissolution of marriage by the common consent and effected by
mutual aversion. This type of divorce is recognized by the
Muslim Personal Laws (Shariat) Application Law, 1937.
However, they are often confused as Khula. The Muslim
Marriages & Divorces Registration Act, 1974 under section 24
did not separately mention Mubara form but amalgamated it with
Khula form.
The word Mubara denotes the act of “freeing one another
mutually.” In Mubara apparently both are happy at the prospect
of being rid of each other. Where the parties agree in private that
they can’t live their lives together. The procedure of Muslim
Family Laws Ordinance under section 7 and 8 is required. Khula
and Mubara operate as a single irrevocable divorce. Iddat is
incumbent on the wife. Thus, Mubara is dissolution of marriage
by an agreement. Mubara is when the aversion is mutual and
both parties desires dissolution. The offer of dissolution in
Mubara may proceed either from the wife or from the husband.
The main distinction of Khula and Mubara was pointed out in
the case of: Mst. Ghulam Sakina v. Umar Baksh75:
“The main distinction between a Khula a Mubarat is
that in the former the aversion is on the side of the wife
and she desires a separation. But in the latter the
aversion is mutual and both sides desire separation.
75 (19640 16 DLR (SC) 389
 Secondly, in a divorce by Khula some consideration
must be given by the wife to the husband for her
release from the marital tie. It is in effect an offer from
the wife for her release on payment of compensation.”
According to Doreen Hinchcliffe76:
“Khula is a divorce at the instance of the wife and she
has to compensate her husband for the release
whereas Mubarat is divorce on mutual aversion”.
According to Fyzee, as a general rule, in Khul the wife makes
some compensation to the husband or gives up a portion of her
Mahr, but this is not absolutely necessary 77. Some Jurists even
say that the husband can renounce the wife by Khul by paying
compensation of a greater amount than dower 78. There is no
general presumption that the husband has been released of his
obligation to pay dower court to decide with reference to each
particular case. The law is unduly stretched in favour of the
husband79.
Tyabji has shown that the Hanafi Jurists of authority differ on
this question80:
1. Abu Hanifa holds that in the absence of agreement,
Mahr is deemed to be relinquished by the wife both by
Khul and by Mubara.

76 Doreen Hinchcliffe: “Divorce in Pakistan: Judicial Reform”, No.2, 1968 Journal of Islamic
and Comparative Law p.13-37 at p.21
77 Fyzee, Asaf A.A.: Outlines of Muhammadan law. 1st ed. Bombay 1949, 2nd ed. 1955, 3rd
ed. 1964, 4th ed. New Delhi 1974, p.165.
78 Rahim, Abdur: The principles of Muhammadan jurisprudence. Madras 1911, p.159;
79 Wilson, Roland Knyvet: Anglo-Muhammadan law. 6th ed. London 1930, note-71; Mullah,
Farduji Dinshad: Principles of Mahomedan law. 10th ed. Calcutta 1933, note 320.
80 Tyabji, Faiz Badruddin: Muhammadan law. 3rd ed. Bombay 1940, note 167.
 2. Abu Yusuf lays down that Mahr is deemed to be
relinquished by Mubara but not by Khul.
3. Imam Md. holds that Mahr is deemed to be
relinquished neither by Khul nor by Mubara.
As the Jurists differ it entirely depends on the Court.
2. By the Act of any Party:
d. By Judicial Process:
i. Lian (Mutual Imprecation):
Divorce by mutual imprecation is mentioned in the holy Quran
and is supported by the traditions of the Prophet. It is reported
that a man accused his wife of Zina (adultery). The Prophet
thereupon asked them both to take an oath, and then he ordered
them to be separated from each other or marriage to be
dissolved.
The law of Islam punishes the offence of Zina. If the husband
accuses his wife of infidelity /adultery he must prove his
allegation. If the husband falsely alleges Zina the wife is entitled
to file a suit for dissolution of marriage. The procedure of lian is
that the husband is called upon to make an oath (who swears
that his wife has done Zina). This was followed by similar oaths
of innocence made by the wife. The four oaths by the husband
tantamount to the evidence of four eye witnesses (i.e. 8 eyes)
required for the proof of the adultery in Islam. After the mutual
imprecations, the judge pronounces that the marriage is
dissolved.
However, if the unchastity, infidelity, adultery on the part of the
wife is proved the wife’s action for dissolution fails- now if the
husband dissolves the marriage it is his wish.
According to the Fatwa-i-Alamgiri,81 the husband sears 4 times
“I attest by God that I was a speaker of truth when I cast at her
the charge of adultery” and the wife swears four times “I attest by
God, that he is a liar in the charge of adultery that he casts upon
me.” After this mutual imprecation the Judge pronounces that the
marriage is dissolved.
At the hearing of the suit, the husband has two alternatives:
1. He may formally retract the charge and the wife is not
entitled to dissolution.
2. Husband may not retract the charge and make oaths.

2. By the Act of any Party:

d. By Judicial Process:
ii. Faskh (Judicial Rescission):
Faksh means annulment. It refers to the power of the Muslim
Kazi or Judge to annul a marriage on the application of the wife.
According to M. Abdul Halim82:
“Faskh means abrogation or termination and is the
dissolution or rescission of the marriage contract
by judicial decree.”

81 Ballie I, 338
82 M.Abdul Halim: “Social Welfare Legislation in Bangladesh” Dhaka 1993 p.31
All schools of Islamic law recognizes that a Muslim wife has a
right to approach the Qadi or court for Faskh or Judicial
dissolution of her marriage83.
The basis of the law can be traced in the 4 th chapter verse 34-35
of the holy Quran.
There is no provision in the Hanafi code of Muslim law enabling
a married women to obtain a decree from the courts dissolving
her marriage in case the husband neglects or fails to maintain
her, makes her life miserable by deserting her or persistently
maltreating her or certain other circumstances.
The absence of such a provision has entailed unspeakable
misery to innumerable Muslim women in British India where
Hanafi law was dominant.
The situation became so alarming that women only for the
purpose of dissolution of their marriage renounced their faith.
There was a growing demand to reform the laws to ameliorate
the status of women.
The device to select and combine various elements of different
schools of Islamic law is known as Thakayyur or eclectic choice
between parallel rules of the various schools of Islamic law. The
doctrine of Thakayyur or selection was applied.
According to Esposito:

83 Carroll, Lucy: 'Muslim women and judicial divorce: An apparently misunderstood aspect of
Muslim law'. In Islamic and Comparative Law Quarterly. Vol.V, No.3-4, 1985, pp.226-245. at
p. 230
 “Thakayyur refers to the right of a Muslim to
select and follow the teaching of a law school
other than his own with regard to a particular legal
transaction.”84
Following the Maliki law on 17th April, 1936 a bill was introduced
by Qazi Md. Ahmad Kazmi. After a great deal of public agitation
the bill was made into law on 17th March 1939 as the dissolution
of Muslim Marriages Act of 1939 which lays that wife may obtain
a divorce on the following grounds:

Under Section-2:
Ground for Decree for Dissolution of Marriage:
A woman married under Muslim law shall be entitled to obtain a
decree for the dissolution of her marriage on any one or more or
the following grounds, namely-
1. That the whereabouts of the husband have not been known
for a period of four years
2. That the husband neglected or has failed to provide for her
maintenance for a period of two years.
2(a) That the husband has taken an additional wife in
contravention of the provisions of the Muslim Family
Laws Ordinance, 1961.

84 Esposito, John L.: 'Muslim Family Law reform: Towards an Islamic methodology.' In Islamic
Studies. Vol.XV, No.1, 1976, pp.19-51, at p, 20.
3. That the husband has been sentenced to imprisonment for
a period of seven years or upwards.
4. That the husband failed to perform, without reasonable
cause, his marital obligation for a period of three years.
5. That the husband was impotent at the time of marriage and
continues to be so (period of one year testing and prove).
6. That the husband has been insane for a period of two
years or is suffering from leprosy or a virulent venereal
disease.
7. That she, having been given in marriage by her father or
other guardian before she attained the age of 18 years
repudiated the marriage before attaining the age of 19
years.

Provided that the marriage has not been consummated;

8. That the husband treats her with cruelty, that is to say:

a. Habitually assaults her or makes her life miserable by

cruelty of conduct even if such conduct does not
amount to physical ill-treatment, or
b. Associates with women of evil repute or leads an
infamous life, or
c. Attempts to force her to lead an immoral life, or
d. Dispossess of her property or prevents her from
exercising her legal rights over it, or
e. Obstructs her in the observance of her religious
profession or practice, or
f. If he has more wives than one, does not treat her
equitably in accordance with the injunction of the
Quran;
g. On any other ground which is recognized as valid for
the dissolution of marriages under Muslim law.
 Dower (Mahr)
In pre-Islamic Arabia Mahr was known as Sadaqa and paid to
the wife’s father and could therefore be regarded as it
tantamount to sale-price. But Islam insisted on payment to the
wife, a provision for the rainy days of the wife. Socially it became
a check on the capricious exercise by the husband of his almost
unlimited power of divorce. The husband thinks twice before
divorcing a wife. He knows that upon divorce the whole of the
dower would be payable immediately.
Mr. Justice Mahmood defines dower in the case of Abdul Kadir
v. Salima85as:
“Dower under the Mohammedan law is a sum of
money or other property promised by the husband to
be paid or delivered to the wife in consideration of the
marriage and even where no dower is expressly fixed
or mentioned at the marriage ceremony, the law
confers the right of dower upon the wife.”
According to Ameer Ali, dower is defined as:
“A certain sum of money given by the husband in
consideration of the marriage.”
According Islamic law where there is a marriage there is a
dower. It is a bridal gift. It is a token of respect to the wife.

85
Abdul Kadir v. Salima (1886) 8 ALL 149
The dower is a sum of money or other property which becomes
payable by the husband to the wife as an effect of marriage86.
The Quran ordains:
“And give the women (on marriage) their dower as a free gift 87.”
The wife shall be entitled to half of the specified dower if the
marriage is dissolved before consummation. Under the Quranic
verse:
“If ye divorce them before ye have touched them and
ye have appointed unto them a portion, then pay the
half of that which ye have appointed88.”

Regarding dower there are three different views;

i. One is that in its incidents it is similar to Donatio
Propter Nuptias of the Romans;
ii. Second that it is given by the husband to the wife
as a mark of respect and
iii. Third that it is a device to control the unfettered
power of the husband to divorce his wife.

86
Nasir, Jamal J.: The status of women under Islamic law and under modern
Islamic legislation. London 1990. p.43
87
Quran: Sura Nissa, IV. V.4
88
Quran: Sura Baqara, II. V.237
 Kinds of Dower:

Dower

Specified / Unspecified/Proper
Al-Mahr Al-Musamma Mahr-al-Mithl

Prompt/ Deffered/
Muwajjal Muajjal

With regard to the mode of determining the amount of dower it is

divided into specified and unspecified or proper.

1. Specified: When the amount of dower is settled between the

parties of the marriage at the time of marriage. Any amount can
be settled as dower. But it must not be less than 10 dirhams in
Hanafi or 3 dirhams in Maliki law. The wife can forgive the
dower after marriage Hiba-al-Mahr or the husband can increase
the dower. Our Prophet once allowed the marriage of an indigent
person for a silver ring and on another occasion on the condition
that the husband will teach her the holy Quran.
In Hanafi law the specified dower is less than 10 dirhams it will
be increased to 10 dirhams. In Ithna Ashari law it can’t exceed
500 dirhams which was given by the Prophet on her daughter
Fatima’s marriage.
i. Prompt Dower: Becomes payable immediately after the
marriage and must be paid on demand. The wife claiming the
prompt dower stands as an unsecured creditor. If the prompt
dower is not paid she could refuse to stay with her husband and
also can take legal action.
ii. Deferred Dower: Becomes payable at the termination or
dissolution of marriage either by death or divorce. If by divorce
deferred dower can be acquired by compromise or by suing in
the Family Court. If by death deferred dower can be acquired
from her husband’s estate by compromise or by suing in the
Family Court.
Before Muslim Family Laws Ordinance, 1961, if dower is
unspecified 50% prompt dower and 50% deferred dower. But
after Muslim Family Laws Ordinance, 1961, the whole amount is
prompt dower if dower is unspecified. In Ithna Ashari law where
no dower is specified the whole amount is prompt dower. 89
Muslim Family Laws Ordinance, 1961 under Section 10
Dower:
If no details mode of dower is specified in the Nikkahnama,
entire amount of dower becomes prompt.
In Mst. Meherunnahar v. Rahman Khondekhar90 the Family
Court said that the amount of dower should be that which the
husband is able to give.

89
Ameer Ali, p. 442; Fyzee, p. 139
90
Family Suit no.24 of 1987
2. Unspecified/Proper: When the amount of dower has not
been settled at the time of marriage. Then also there is dower
the dower is fixed as to her paternal relations (paternal aunts).
In modern times it is fixed by the status of the bride and the
ability of the husband.
According to the Hedaya:- “The important rule is that her age,
beauty, fortune, understanding and virtue must be taken into
consideration before virginity was also considered.
The main consideration is the social position of the bride’s family.
Ameer Ali –says:
“The courts will consider the dower fixed upon her
female paternal relations such as sisters and paternal
aunts. However, in reality there is a trend to give
enhanced amount of dower”.
In Islamic law there is a doctrine of Assummat- where a large
amount of dower may be announced in public whereas privately
the parties agree to a smaller amount 91.
On Bangladesh case laws on the concept of Usool detailed
analysis has been made by an author 92.

91
Hodkinson, Keith: Muslim family law: A source book. London and Canberra 1984.
p.137
92
See for details, Monsoor ,Taslima: From patriarchy to gender equity: Family Law
and its impact on women in Bangladesh (Ph.D Thesis, University of London) a
book published by the University Press Limited (UPL) Dhaka, 1999, pp198-206
 Distinction
Prompt Deferred
1. Has to be paid 1. Paid after dissolution either
immediately on demand by death or divorce
2. If not paid , wife can take 2. If after divorce then suing
legal action in the Family Court and if
by death from the
husband’s estate (Widow’s
Lien-Right of Retention)
and suing in the Family
Court.
3. It is an immediate right of 3. It is a right for the provision
the wife. of her rainy days.
4. Wife stands as an 4. The widow has a right of
unsecured creditor but retention of her husband’s
can’t retain her property in lieu of her
husband’s property. dower debt.

Where the wife felt that possible way to win on retain the
affection of her husband was to act on his suggestion and to
remit the dower. It was held that she did not act as free agent
and it would be inequities to hold that a woman who remits
dower in such circumstances is bound by it.
Case: Shah Banu Begum v. Iftekhar Md. Khan93
Prompt Dower may be considered a debt, always due and
demandable and payable upon demand and the wife is under
the Mohammedan law entitled to refuse herself to her

93
8 DLR (WP) (1956) 133
116
husband until and unless the prompt dower is paid. Case:
Nuruddin Ahmed v. Masuda Khanam.94
Wife can refuse to live with her husband if dower is not paid
on her demand and consummation does not affect this right of
the wife. Case: Rahim Jan v. Md.95 But contrary case: Rabia
Khatoon v. Mukhtar Ahmad96 ; it was held that the right of
refusing herself is lost on consummation. Thus, if the husband
files a suit for restitution of conjugal rights before cohabitation,
non-payment of prompt dower is a complete defence. But after
cohabitation, the proper course for the court is to pass a
decree for restitution conditional on payment of prompt dower,
this was held in the leading case of: Anis Begum v. Md.
Istafa Wali Khan. 97

94
9 DLR (WP) (1957) 8
95
PLD (1955) Lahore 122
96
AIR (1968) ALL 548
97
55 (1933) ALL 743
117
The Widows Right of Retention/ Widow’s Lien

A widow whose dower has remained unpaid and lawfully in

possession of her deceased husband’s estate is entitled to
retain such possession until her dower debt is satisfied.
It is a right to retain and not to obtain. The right to retention
does not confer on the widow any title of the property.
Privy Council observed in the Case: Maina Bibi v.
Chowdhury Wakil Ahmed98:
Fact- Mainuddin died in 1890, his widow Maina Bibi entered
into possession of his immovable property until her dower is
paid. In 1903 the Trial Judge made a decree for possession in
favour of the plaintiffs on condition that the plaintiffs paid a
certain sum by way of dower- within six months. The sum was
not paid. In 1907 Maina Bibi purported to make a gift of the
property to certain persons. The Privy Council held that the
widow had no power to make a gift of the property.
There was another issue whether consent of the parties for
retention is essential the Jurists said it is immaterial. 99
The right of retention does not confer any title to the property.
Widow’s rights are twofold- as an heir and as a right of dower.
These two are distinguished rights.
There are two major issues: whether the right of dower to
retain the husband’s property is heritable or transferable?
It was held by Mysore High Court in the Case: Hussain v.
Rahim Khan100 and in the Case: Zaibunnessa v. Nazim
98
52 I.A (1924) p.147
99
Tyabji, Faiz Badruddin: Muhammadan law. 3rd ed. Bombay 1940. No.110
notes 8 and 18
118
Hasan101 : Allahabad High Court decided it is heritable and
transferable. But in Patna case of Jubair Ahmad v.
Jainandan Prasad102: It was held that such a right is not
transferable. The balance of authority is in favour of the Patna
case. Thus it is in essence a personal right given by
Mohammedan law to safeguard the position of the widow.

The Liabilities of Heirs for Dower/Debt:

The heirs are not personally liable for the whole dower debt of
the deceased but each heir is liable for the debt to the extent
only of a share of the debt proportionate to the share of the
estate.

Suit for Dower and Limitation:

If the dower is not paid to the wife, heirs can sue for it after her
death.

Prompt Dower: Must be filed within three years from refusal

after demand.

Deferred Dower: Must be filed within three years of divorce or

death.

100
AIR (1954) Mysore
101
AIR (1962) ALL197
102
AIR (1960) PAT147
119
120
 Custody – Hizanat (Guardianship of Person)

Muslim law recognizes that a mother is of all persons most

desirable to have the custody of a small child/infant/ tender
years, so that proper care and attention should be given to it.
There is no Quranic verse fixing the age limit of custody of
children and no evidence from the practice of the prophet
recorded. But in the moral sphere it is specified in the holy
Quran that the mother should breast feed her offspring for two
whole years103. This moral injunction implies in the ethical
sense that custody in the first instance belongs to the mother.
The Hanafi School entrusts the mother to have custody of her
daughter until she attains puberty and of her son till he is
seven years.
Hanafi law of custody is based on a Hadith which orders
children to observe prayers at the age of seven, making it
obligatory for the father to start religious education at the age
of seven. Hence, the father could take over custody at the age
of seven.
Shafi and Maliki School entitles the mother to have custody of
a female child until her marriage.
In Ithna Ashari law the custody of her male child till the age of
two years and of her female child till the age of seven years
are entrusted to the mother.

103
The Quran: Sura II:223
121
Disqualification: The right of the mother to the custody of her
children continues even when she is divorced by the father of
her children. But she forfeits the right by:
1. By marrying a stranger i.e. not related to the child
within prohibited degrees, or
2. If she lives in the subsistence of the marriage at a
distance from the father’s place of residence;
3. If she is leading an immoral life as where she is a
prostitute;
4. If she neglects to take proper care of the child.
If the mother forfeits her rights or is absent the following
relations are entitled to custody in order of priority:
i. Mother’s mother how high so ever
ii. Father’s mother how high so ever
iii. Full sister and other female relations including
aunts.
Failing the mother and female relations, the following male
relations are entitled to the custody of a Muslim child in order
of priority:
i. Father
ii. Nearest paternal grand father
iii. Full Brother
iv. Consanguine brother and other paternal relations
If there be none of these it is for the court to appoint a
guardian of the person of the minor. The cases of custody
show that the Judiciary in Bangladesh is deciding the issue on
the paramount consideration of the welfare of the minor.

122
In Md. Abu Bakr Siddique v. S.M.A Baker and others104 :
The Appellate Division held that the welfare of the minor was
assumed to be the determining factor which the court regards
as paramount consideration and the opinion of the well known
Jurists may not be followed. The Court held:
It is true that, according to Hanafi school, father is entitled to
Hizanat or custody of the son over seven years of age. But
this rule which is found neither in the Quran nor Sunna would
not seem to have any claim to immutability so that it can’t be
departed from, even if circumstances justified such departure.
The fact of the case were that mother, being a doctor, was
considered better suited to look after the minor than the father,
especially in view of the illness of the minor.
The paramount consideration is the welfare of the minor or
his/her best interests for which the rules of Muslim law can be
departed from. There are no firm criteria to evaluate best
interest of the child. Sometimes considering the best interest
of the child the courts are depriving the children the care of
their mother. As on the ground that, it will upset their settled
lives to be given in the care of the mother as they were under
the care of the father for one year while their mother was in
England; Case: Dr. Rashiduddin Ahmed v. Dr.
Quamrunnahar Ahmad.105
Appellate Division in the case of Abdur Razzaq v. Mst.
Jahanara Begum106 held that divorced mother is entitled to
custody of her minor daughter aged about 16 years in
104
38 DLR (1986) AD106
105
30 DLR (1978) 208-211
106
BLD (1996) AD p. 163
123
preference to the father considering the welfare of the minor
girl and her willingness to live with her mother.
In the case of Romana Afrin v. Fakir Ashrafuddin Ahmed107
it has been held that Muslim mother has absolute right against
the father over the minor children’s guardianship till she
remarries.
Even if she remarries with a stranger- it is open to appoint the
mother to be guardian/custodian if it for the welfare of the
minor. Case: Zohra Begum v. Maimuna Khatun.108
Moreover, mother does not lose her right when welfare of the
infant’s demand they remain in their mother’s custody. Case:
Rahela Khatun v. Ramela Khatun.109

107
BLD (1996) p. 487
108
16 DLR (1964) p. 695
109
PLD (1971) Dacca p. 24
124
 Guardianship (Wilayat)
There are three types of guardianship of property:-
1. The legal guardians
2. The guardians appointed by Court
3. De-facto guardians
1. The legal guardians: In Sunnite law, the father is the
guardian of the minor’s property. In order of priority, the legal
guardians are the following:-
1. Father
2. The father’s executor
3. The father’s father
4. The paternal father’s executors
2. The guardians appointed by Court: Failing the above, the
court can appoint a guardian for the protection and
preservation of the minor’s property. The Judge may appoint
the mother or some other person as such guardian. Case:
Mst. Johra Khatun v. Amina Bibi110
In appointing a guardian the court shall consider the welfare of
the minor under section 17 (1) (2) and (3) of the Guardian and
Wards Act, 1890. In considering what will be the welfare of the
minor, the court shall have regard to the age, sex and religion
of the minor the character and capacity of the proposed
guardian and his nearness of kin to the minor and the wishes
if any of a deceased parent.
If the minor is old enough to form an intelligent preference, the
court may consider the preference.

110
Mst. Johra Khatun v. Amina Bibi (1957) 62 C. W.N 357
125
3. De-facto guardians: A person who has voluntarily placed
himself in charge of the person and property of a minor is
called a de-facto guardian. A de-facto guardian is merely a
custodian of the person and property of the minor. The legal
effects of the alienation /disposal of immovable property of a
Muslim minor by:
I. Legal / De-jure Guardian: No power to sell property of the
minor except in the following cases:-
A. Immovable:
1. Where double price of the property can be obtained
2. Where the sale is necessary for the minor’s
maintenance
3. Where there are debts of the deceased and no means
of paying them
4. Where there are legacies to be paid (left by will) and no
other means of paying them
5. Where expenses exceed the income of the property.
6. Where the property is falling into decay
B. Movable:
The legal guardian has power to transfer by sale, mortgage
etc. the property of the minor if he is in need of necessaries
e.g. food, clothing, nursing and etc.
The leading case is Imambandi v. Mutsaddi111
Fact: Ismail Ali Khan died in March 1906 leaving three
widows- A, B and Zohra and several children of each widow.
Zohra had one son and one daughter. In June 1906 Zohra
conveyed for 10,000/- Rs. the shares of herself and her
children.
111
Imambandi v. Mutsaddi (1918) 48 I.A 73
126
Held: Privy Council held that the Mother has no power to
alienate property as she is not the legal guardian.

II. Alienation of Immovable Property by De-facto

Guardian: He has no power to transfer minor’s property. It is
void.

III. Alienation of Immovable Property by the Guardians

appointed by the Court: Such guardian has no power to
transfer by sale, mortgage, gift under section 262 of the
Guardians and Wards Act, 1890 without the previous authority
of the court. But such transfer is voidable and can be made
valid if courts permission is taken later, on the ground of
necessity.
Traditionally, the right of guardianship is always vested in the
father112. The judiciary in Bangladesh is not giving any
enlightened judgments in cases of guardianship. They are
mainly following the conservative interpretation of not
recognizing a woman as a natural guardian of her children.
The commission on marriage and family laws reported113 by
strictly following the principles of legal guardianship after the
death of the father the property is often not protected.
It was held in the unreported case of Syed Nurul Huq v.
Anjuman Ara Begum114 that in the absence of the father, the
guardianship of the child devolves to the grandfather and the
112
Anderson, J.N.D.: 'The eclipse of the patriarchal family in contemporary
Islamic law'. In Anderson, J.N.D. (ed.): Family law in Asia and Africa. London
1968, pp.221-234 at p. 222
113
The Report p.1221
114
Family Suit No. 106 (1989) Unreported
127
mother is not entitled to be the guardian. In Rehanuddin v.
Azizun Nahar115 the High Court stated that the mother in facts
and circumstances of the case was entitled to be appointed as
the guardian. The mother was not treated well by her in-laws
and it was apprehended that the minor will be treated in the
same manner. However, the High Court decided that she can’t
be allowed to be the guardian on the ground of being young
(26 yrs.) as she might remarry. The court sent the case back
to decide afresh. Thus, father’s guardianship of property is
dominant.

115
33 DLR (1981) 139
128
 Parentage and Legitimacy

Parentage involves certain rights and obligations. The relation

between a father and his child is called paternity, the relation
between a mother and her child is called maternity. Maternity
is established in the woman who gives birth to the child,
irrespective of the lawfulness of her connection with the
begetter. But paternity is established by marriage between its
partners (i.e. valid and irregular marriage, but not void
marriage).
Marriage may be established by direct proof. If direct proof is
not there it may be presumed e.g. prolonged co-habitation etc.
Marriage can also be proved by an acknowledgement of
legitimacy in favour of a child.
When the paternity of the child is established, its legitimacy is
also established. In order understand the present law we must
know the rules of presumption of legitimacy under
Mohammedan law:-
1. A child born within 6 months of the marriage is
illegitimate, unless the father acknowledges it.
2. A child born after 6 months of the marriage is
legitimate, unless the father disclaims it.
3. A child is legitimate if born after dissolution of the
marriage within 10 lunar months – Shia law
4. A child is legitimate if born after dissolution of the
marriage within 2 years– Hanafi law
5. A child is legitimate if born after dissolution of the
marriage within 4 years – Shafi and Maliki law
129
Under section 112 of the Evidence Act of 1872:

“A Child born during the continuance of a valid marriage or

within 280 days after its dissolution, the mother remaining
unmarried, is conclusively presumed to be legitimate, unless
there was no access when he could have been begotten.”
But now Muslim law supersedes evidence act in this regard in
Pakistan and now in Bangladesh but not in India.
In the case of Abdul Ghani v. Taleh Bibi116 it was held that:
The rule of the Mohammedan law of evidence repealed by
clause I of section 2 of the Evidence Act of 1872 were revived
by repeal of the section itself in 1938.
Thus, the court held that the rule of evidence of Muslim law as
to legitimacy has been revived. This judgment of Lahore High
Court was approved by the Supreme Court of Pakistan in the
case of Hamida Begum v. Murad Begum117.

116
PLD (1962) Lahore 531
117
PLD (1975) S.C 624 at p.650
130
 Acknowledgement- Iqrar
Where the paternity of a child can’t be proved
acknowledgement is a method whereby such a legitimate
descent can be established.
The principle is “child follows the bed” – Paternity is
presumed. Acknowledgement of paternity under Muslim law
takes place-
1. Where the paternity of a child is not known or
unknown paternity;
2. Offspring is not illegitimate, must not be offspring of
zina; Case: Md. Khorshed Alam v. M.A.S. Ali
Haider.118
3. Nothing to rebut the presumption.

Conditions of Acknowledgement:
1. The acknowledgement is not merely son-ship (e.g.
adoption) but of legitimate son-ship. Case: Fatima
Binti Hafidh v. Administrator General of Zanzibar
Protectorate119
2. The child must not be known to be the child of another
man unless direct proof is there.
3. The ages of the father and son relationship – at least
12½ years difference.
4. The acknowledger must confirm distinctly and
definitely his intention to acknowledges.
5. The acknowledger and the child’s mother were joined
in marriage at the time of marriage.
118
33 DLR (1981) 245
119
2 DLR (1950) P.C 1
131
132
 Inheritance
Administration of Estate of a Deceased Muslim

Where a Muslim man dies the estate of the deceased is to be

applied successively in payment of the following:

1. His funeral ceremony and burial charges

2. The discharge of his just debts
3. The payment of his legacies (will)
4. Lastly, the residue is to be distributed among the heirs
of the deceased according to the law of the Sect.

It was held in the case of Jafri Begum v. Amir Md. Khan and
others.120
Fact: One Ali Md. Khan died in 1878, leaving his mother,
widow, two sons, three daughters (Jafri Begum the youngest)
and a brother Amir Md. Khan. Jafri Begum’s husband Abdur
Rahman filed a suit and obtained a decree against the widow,
two sons and 3 daughters for a debt due by the deceased. In
execution of the decree a portion of the village belonging to
the deceased was sold and purchased by Abdur Rahman
himself. Later the brother Amir Md. Khan filed a suit to recover
his share of the estate.
It was held by J. Mahmood: That when a Muslim dies leaving
debts unpaid his estate devolves immediately on his heirs,
and such devolution is not suspended or contingent upon the
payment of debts.

120 A.I.R (1885) 7 ALL 822

133
That the law relating to administration of the estate is that
when a Muslim dies leaving debts unpaid his estate devolves
immediately on his heirs, who are entitled to pay the debts in
proportion to their shares.
If a Muslim registers his marriage under the Special Marriage
Act 1872 (India 1954) his personal law would be ousted and
the Succession Act of 1925 will apply.
Under Section 320, 321, 322, 32 3 & 325 of the Succession
Act of 1925 the payments to be made are in order of priority–

1. Funeral expenses and death–bed charges

2. Expenses for obtaining probate or letters of
administration
3. Wages for services rendered to the deceased within 3
months of his death by a labourer or servant
4. Debts, according to their priorities
5. Legacies, not exceeding 1/3 of the residue, after all
payments have been made– the heirs are entitled to
succeed.

134
 Inheritance–Faraid/z

In Muslim Jurisprudence a great deal of importance is given to

the laws of inheritance. The Prophet of Islam said: – “Learn
the laws of Inheritance and teach them to the people, for they
are one half of useful knowledge”.
The Law of Inheritance consists of two distinct elements: one
is the principles of Pre–Islamic Law & the rules lay down by
the holy Quran & the precepts of the prophet. Thus, the two
distinct elements were welded together into co–herent and
living organism. According to Tyabji the Holy Quaran is an
amending act rather than an exhaustive code which made
reform upon the ancient tribal law.

Principles of Pre–Islamic Law:

The principles of Pre–Islamic Customary Law are the
following:
1. The nearest male agnate (Asabat) or agnates (no
female relations in between) succeeded.
2. Females & female cognates (female relations in
between) were excluded
3. Descendants were preferred to ascendants &
ascendants to co–laterals
4. Where the agnates were equally distant, the estate
was divided per capita

Note: The second category of (class II) heirs of Sunni School

Hanafi Law retains the principles of the ancient tribal law.
135
The main principles of Islamic Law are:

1. The husband or wife was made an heir

2. Females and cognates were made competent to
inherit
3. Parents and ascendants were given the right to inherit
even when there were male descendants
4. As a general rule, a female were given one half the
share of a male

Islamic Law of Inheritance 3 classes of heirs:

1. Sharers (Koranic)–Zav–IL–Furuz
2. Residuaries Asabah/t
3. Distant Kindred Zav–IL–Arham

136
 Exclusion of Inheritance in Pre-Islamic
Customary Law
I. Exclusion by one group by another group in accordance to priority

FFFF Group-II

FFF

FF

F U (FFS)

P B(FS) US

S BS USS

SS BSS USSS

SSS BSSS USSSS

Group-I Group-III Group-IV

Group–I : – Descendent top priority

Group–II : – Ascendants
Group–III : – Collaterals – Fathers son
Group–IV : – Collaterals – Father’s Fathers son
137
 2. Exclusion by same groups or Persons:

Nearer of the deceased excluded the far Remote or nearer in

degree excluded the far remote. Within the same group
nearest in degree excludes remoter.

S1 (Died) S2 S3 F----x B----x

X-x Y (Died)

Z-x

3. The full blood excluded the half blood:

The Islamic law of Inheritance: There are three classes of

heirs, namely:
Islamic Law of Inheritance 3 classes of heirs:

1. Sharers (Koranic)–Zav–iL–Furuz
2. Residuaries Asabah/t
3. Distant Kindred Zav–iL–Arham

138
Sharers: – Are those who are entitled to a prescribed to a
prescribed share of the inheritance.

Residuaries: – Are those who have no prescribed sharer, but

succeed to the ‘residue’ after the claims of the shares are
satisfied or if there is no sharer.

Distant Kindred: – Are all those relations by blood who are

neither Sharer nor Residuaries.
Class 1:-
1. The Quranic Heirs or Asab-Al-Faraid / Zav- Il- Furuz
According to Hanafi Law the following 12 relations constitute
class-1, the Quranic heirs:-
(a). The Heirs by Affinity:- Relationship
(1). Husband (h).
(2). Wife (w).
(b). Blood Relations: - Consanguine
(3). Father (f).
(4). True Grand father, how high so ever (f.f.h.h.s).
(5). Mother (m).
(6). True grandmother, how high so ever (m.m.h.h.s).
(7). Daughter (d).
(8). Son’s daughter’s how low so ever (s.d.h.l.s.).
(9). Full sister (fs).
(10). Consanguine sister (cs).
(11). Uterine brother (ub).
(12). Uterine sister (us).
It will be noticed that out of these 12, 8 are females.

139
Agnate:- An Agnate is a person related to the deceased
through male links only e.g. son’s son, son’s daughter, father
or father’s father.

Cognate:- A cognate is a person related to the deceased

through female links e.g. daughter’s daughter, daughter’s son,
mother or mother’s mother.

A True Grandfather:- It means a male ancestor between

whom and the deceased no female intervenes e.g. father’s
father, f.f.f., f.f.f.f. h.h.s.

A False Grandfather:- It means a male ancestor between

whom and the deceased a female intervenes e.g. mother’s
father, mother mother’s father.

A True Grandmother:- It means a female ancestor between

whom and the deceased no false grandfather intervenes e.g.
father’s mother, mother’s mother, father father’s mother.

A False Grandmother:- It means a female ancestor between

whom and the deceased a false grandfather intervenes e.g.
mother’s father’s mother.

140
 Rules of Exclusion

1. Primary heirs are never excluded e.g. husband and wife.

Their shares are only reduced with the existence of
children.
2. Father excludes the higher Agnatic Ascendants and
male Collaterals like uncle, brother, nephew. Father also
excludes full, Consanguine or uterine sisters.
3. Mother and true Grandmother h.h.s:- The mother
excludes the Grandmother. The mother’s share is
affected by children (with children 1/6 and without
children 1/3) moreover with one brother and on sister
mother’s share becomes 1/3 but more than one brother
or sister mother takes 1/6.
4. The daughter is a primary heir but more than two
daughters excludes son’s daughter however with one
daughter, son’s daughter gets 1/6.
5. Two full sisters exclude the consanguine sister but with
one full sister consanguine sister gets 1/6.

Primary heirs:- Following heirs are primary heirs and are

never excluded by any heir:
1. Husband or wife.
2. Son.
3. Daughter.
4. Father.
5. Mother.
The case of an heir inheriting in two different capacities at the
same time:-
The father is the only heir who can hold in two capacities.

141
 P

F D
1
/6 ½

½ + 1/6 = 1/3

= (3+1)/6 = 4/6 = 2/3

= 1- 2/3 = 1/3

F=1/3+1/6 = (1+2)/6 = 3/6 = 1/2

D=1/2

142
 1. Quranic Heirs:
With Children Without Children
1. Husband ¼ ½

2. Wife 1/8 ¼

3. Father 1/6 Agnatic heir

4. True 1/6 Agnatic heir
(excluded by father)
Grandfather
5. Mother 1/6 1/3

(with 1 b & 1 sis, m=1/3

with more than 1 b & 1 sis, M=1/6)
6. Grandmother 1/6 1/3

(excluded by mother)
7. Daughters 1/2 Existence of s, d becomes Agnatic
(collectively /3)2

8. Son’s daughter 1/2 Existence of s.s, s.d becomes

(collectively 2/3) Agnatic
(excluded by son and more
than one d.
With one d, s.d gets 1/6.)
9. Full sister ½ Existence of b, f.s. becomes
(collectively 2/3) Agnatic.
(excluded by
s, s.s.h.l.s., f, t.g.f)
10. Consanguine ½ Existence of c.b., c.s. becomes
(collectively /3)2 Agnatic.
sister
(Excluded by
s, s.s.h.l.s., f, t.g.f, f.b. and
more than 1 f.sis.)
(With 1 f.sis., c.sis. gets 1/6)
11. Uterine brother 1/6

(collectively 1/3)
(Excluded by s, d, f, t.g.f)
12. Uterine sister 1/6

(collectively 1/3)
(Excluded by s, d, f, t.g.f)
143
2. The Residuaries/Asabat/Asabah

The Residuaries are in order of priority:-

(a). Descendants:
1. Son (s),
2. Son’s son (s.s.)
(b). Ascendants:
3. Father (f).
4. True Grandfather (t.g.f /t.f.f)
(c). Collaterals:
I. Descendants of the father
5. Full brother (f.b.)
6. Full sister (f.sis)
(In default of Full brother f.b and other above Residuaries, full
sister takes the residue if there is:
 Daughter or daughter’s (d., d.s.)
 Son’s daughter or son’s daughter how low so
ever (s.d., s.d’s h.l.s.).
 1 daughter or one son’s daughter how low so
ever (1d. + 1s.d or s.d.’s h.l.s.)

7. Consanguine brother (c.b.)

8. Consanguine sister (c.sis.)

(In default of consanguine brother c.b. and other above

Residuaries, Consanguine sister c.sis takes the residue if
there is:
 Daughter or daughter’s (d., d.s.)
 Son’s daughter or son’s daughter how low so
ever (s.d., s.d’s h.l.s.).
 1 daughter or one son’s daughter how low so
ever (1d. + 1s.d or s.d.’s h.l.s.)

9. Full brother’s son (f.b.s)

10. Consanguine brother’s son (c.b.s)
11. Full brother’s son’s son (f.b.s.s)
12. Consanguine brother’s son’s son (c.b.s.s.)
144
 II. Descendants of the true Grandfather:
13. Full paternal uncle (f.p.u.)
14. Consanguine paternal uncle (c.p.u.)
15. Full paternal uncle’s son (f.p.u.s.)
16. Consanguine paternal uncle’s son (c.p.u.s)
17. Full paternal uncle son’s son (f.p.u.s.s.)
18. Consanguine paternal uncle’s son’s son
(c.p.u.s.s.)

3. Distant kindred or Dhawul-Arham/Zav-Il-Arham

That is Female Agnates and Cognates; male or female. That

is why Ameer Ali calls this class as uterine heirs.
(a). Descendants:
1. Daughter’s children and their descendants (d.s.,
d.d.h.l.s).
2. Children or son’s daughters (s.d.s, s.d.d.h.l.s).
(b). Ascendants:
1. False Grandfather, h.h.s.
2. False Grandmother, h.h.s.
(c). Collaterals:-
1. Descendants of parents:-
 Full brother’s daughter and their descendants (f.b,
d/s h.l.s.)
2. Descendants of Grandparents:
Full paternal aunt and her descendants (f.p.a., s/d h.l.s.)

145
 Doctrine of Representation

In Islamic Law the rule is nearer in degree excludes the far

remote so:-

W=1/8 M=1/6 S1=X S2

S=X S=X

Thus, Grandson’s of the propositus does not inherit from their

Grandfather – Because the Grandson does not represent the
Son. The doctrine of representation is unknown to Sharia law.
It is justified on the ground of social benefit of the orphan or for
public policy or public good. Our Prophet did not change the
law to keep the balance. In 1930’s the issue arose that it is a
defect of the law that the orphans do not inherit. Egypt was the
first country who thought of this then Sudan and Morocco
thought of it. They did not change the law but solved the issue
by testamentary succession (will). They made obligatory
1
bequest to the extent of /3 of the estate to the orphan
grandson.

146
Our Prophet said make bequest in favour of near and dear
ones. Moreover it is incumbent for a person to make a definite
provision for the child and the grand child so that they do not
become destitute. There are problems in the Doctrine of
Representation:-

M=1/6th 2D=2/3 S=X

SD=X

According to section 4 of the Muslim Family Laws Ordinance

(MFLO, 1961) succession:-
In the event of the death of any son or daughter of the
propositus before the opening or succession, the children of
such son or daughter, if any, living at the time the succession
opens, shall per stripes receive a share equal to the share
which such son or daughter, as the case may be, would
received if alive.
This is a change in the Islamic Law. They could have made
“Obligatory Bequest” that the Grandfather has to will 1/3 or
has prohibited to his orphan Grandson.

147
 Agnate or Asabah/t

Agnate or Asabah/t means those who go to battle together

and have a common blood feud. Agnates are the persons
who are direct in the chain of family line.
In the pre-Islamic time only the male agnates could succeed.
They remain in the Sunni law of inheritance the second
category of heirs.
Agnates are of three kinds:-
1. Agnate by his own right-Asaba-bi-nafsihi
2. Agnate with the right of another-Asaba-bi-ghairihi
3. Agnate with another-Asaba-mai-ghairihi

1. Agnate by his own right-Asaba-bi-nafsihi:- It

comprises all male agnates e.g, s., f.,b., u. etc.

2. Agnate with the right of another-Asaba-bi-ghairihi:-

This contains four specified female Agnates, that when
they co-exist with male relatives of the same degree they
become agnatized by another and becomes a Residuary
e.g, d with s, s.d with s.s, f.s with f.b and c.s with c.b.

3. Agnate with another-Asaba-mai-ghairihi:- It comprises

two cases where full sister and consanguine sister inherit
with daughter and son’s daughter and no other male
heirs are there full sister and consanguine sister
becomes Residuary.

148
 The Doctrines of Owl and Radd

The reasons for the introduction of the doctrine of Radd and

Owl are to make the amount of shares equal to unity. The
doctrine of Radd arises in the situation when sum total of the
fractions of shares is less than unity and the doctrine of Owl
arises in the situation when a fraction allotted to the shares
exceeds unity. Thus to equal the share to unity these
doctrines are applied in the Islamic Law of intestate
succession.
There may be three possibilities of fractions of shares taken
together:-
1. Unity – equal to unity.
2. Less than unity.
3. More than unity.

149
 The Doctrine of Owl or Increase
It often happens that on assigning their respective shares to
the sharers, the total share exceeds unity. Then the share of
each sharer is proportionately diminished by reducing the
fractional shares to a common denominator and increasing the
denominator so as to make it equal to the sum of numerators.
This is known as the doctrine of Owl or increase.
There was no provision for this contingency is Sharia law, but
Hazrat Ali approved this doctrine. It is a technical expression
used by Sunni Jurists to signify a proportionate increase in the
common denominator for the purpose of yielding a requisite
number of shares. However the real effect if the proportionate
reduction of the share.
Illustrations

P
H 2 Fs
2
½ /3
½ + 2/3 = (3+4)/6 = 7/6 7
/7
Increase denominator: 3/7 + 4/7 = 7/7 = 1

W 2 Cs M
2 1
¼ /3 /6

¼ + 2/3 + 1/6 = (3+8+2)/12 = 13/12

13
Increase denominator: /13 = 1.
150
 Doctrine of Radd or Return

If there is a residue left after satisfying the claims of sharers,

but there is no residuary, the residue reverts to the sharers in
proportion of the shares. This right of Reverter is technically
called the return or Radd.
Exception: - Whether the husband or the wife is entitled to the
return so long as there is any other heir, whether he is a
sharer or Distant Kindred. But if there be no other heir, the
residue will go to the husband or wife, as the case may be by
return (this is Indian Law, pure Sharia Law says it will return to
the state121).
The rule is to give return proportionately:-
To reduce the fractional shares to a common denominator and
to decrease the denominator of those shares so as to make it
equal to the sum of numerators:-

Illustration: Sharia Law

M – 1/6 = 1/6 = 1/5

P- D – ½ = 3/6 = 3/5 = 5/5 = 1
SD – 1/6 = 1/6 = 1/5

The rule is husband and wife does not get return if there is any
other sharer. So their share will remain the same and the
others share will be increased by reducing them into a
common denominator and decreasing the denominator of the
original fractional share so as to make it equal to the sum of
numerator and multiplying the new fractional shares thus
obtained by the residue after deducting the husband and
wife’s share.

121
Fyzee p.417
151
 Illustrations:
Doctrine of Radd with wife:

P
W M D
1 1
/8 /6 ½

= (3+4+12)/24 = 19/24
1
/6+ ½ = (1+3)/6 = 4/6 = ¼, 3/4
M = ¼ X 7/8 = 7/32
D = ¾ X 7/8 = 21/32 32
/32 = 1
W = 1/8 X 4 = 4/32

Doctrine of Radd with husband:

P

H Us Ub
1 1
½ /6 /6
1
/2 + 1/6 + 1/6
=(3+1+1)/6 = 5/6= 1/5
1- ½ = 1/2
1
/6 + 1/6 = (1+1)/6 = 2/6
Decrease denominator: = 1/2+1/2
Us = 1/6 → 1/2 x 1/2=1/4
Ub = 1/6 → 1/2 x 1/2 = 1/4
1
/4 + 1/4 = 2/4 = 1/2
H = 1/2
Us = 1/4
Ub = 1/4
H + Us + Ub = 1

152
153
 Gift/ Hiba

The Arabic word of gift is Hiba means giving away of

something.
Hedaya has a defined Hiba as, an unconditional transfer of
property made immediately & without any exchange or
consideration by one person to another and accepted by or on
behalf of the latter.
Baillie has defined it as the conferring of a right of property in
something specific without an exchange.
Dr. Tanzilur Rahman defines:
“Transfer of movable or immovable property with immediate
effect without consideration by one person in favour of another
and the acceptance of the same by that another himself or by
someone authorised on his behalf is called Gift, provided that
one making the Gift must totally denounce all his title and
rights in the property gifted away on his independent free will.
According to T.P Act 1882, section 122
Gift (Hiba) is the transfer of certain existing movable or
immovable property made voluntarily and without
consideration by one person called the ‘Donor’ to another
called the “Donee” and accepted by or on behalf of the
Donee.”
The essential conditions of a valid gift are: A valid Hiba is
constituted by three things:-
1. Ijab:- Declaration of the gift by the Donor. The offer must
be clearly stating the intention of the Donor.
2. Qabul:- Acceptance of the gift by the Donee.
3. Seisin/Delivery of Possession: Gift is not complete
until the Donor delivers the possession of the gifted
154
 property to the Donee. The Prophet said that a gift is not
valid without seisin or delivery.
Therefore the taking possession of the subject matter of the
gift by the Donee, either actually are constructively is
necessary to complete a gift. But when the Donee is in
possession then after acceptance of the Donee gift is
complete. It is constructive acceptance, e.g:
1. In case of husband and wife
2. Between relations- Guardians to child
3. Residence in the same house- Donor and Donee
4. Part delivery
5. Where Donee is in possession
But it was held in a case where the 3 step sons (Donees) were
living with the Donor since the Donor married their mother and
they (Donees) were cultivating the land (which was the subject
matter of the gift) of the Donor on his behalf and for his
benefit. It was held that although the Donees were living in the
same house with the Donor, it does not necessarily follow that
the Donees were residing with the Donor in the property
consisting of agricultural land and actual delivery of
possession of the property to the Donees by the Donor is
absolutely necessary. Case: Jabbar Pramanik v. Nurjahan
Bewa (1960) 12 DLR 149.
In Anjuman Islamia, Muzaffar Garh v. Ashiq Hussain
(1907) 19 DLR (WP) 31.
“Essentials of valid gift are declaration of gift by
Donor, acceptance of gift by the Donee and delivery
of position to Donee by Donor. Mere recital of the

155
 gifts in the deed is not enough nor does registration
cure the defect.”
Every sane and adult person is entitled to transfer his
property by way of gift to another person in existence.
It is essential that the Donee be alive. Hence gift made in
favour of a child who is yet in the womb of his mother is
invalid. It is not essential for the gift made under Islamic law to
be in writing. Gifts made orally are also valid. If there is Ijab,
Qabul and Delivery of possession the gift is legally considered
to be complete.
It was held in Wazir Begum v. Nurjahan 122that the oral gift of
immovable property is valid provided possession too has been
made to the Donee.

122 PLD 1961 Karachi 165.

156
 Revocation of Gift

The Donor is entitled to revoke his gift at any time before

delivery of possession of the gifted property. The reason is
that before delivery of possession the gift is not complete.
The Prophet (P.B.H) has extremely disliked the revocation of
gift.There is a tradition in the “Shahi” Al-Muslim that the
Prophet said:
“The person who revokes his gift is like the dog that licks up
what it disgorges.123”
Saksena says under Hanafi School of thought, revocation of
gift has been deemed re-probative from a moral point of view,
but is not illegal124.
According to Fatwa-i-Alamgiri, “The revocation of a gift is
abominable under any circumstances, but is valid
nevertheless. e.g. If ‘A’ makes a gift of a house to ‘B’ and ‘B’
accepts the gift, but before delivery of possession ‘A’ changes
his mind and revokes his gift. Thus, revocation is possible
before delivery of possession.
The Donor is entitled to revoke his gift even after giving
possession of the gifted property except when:
1. The Donor is husband and the Donee is the wife or vice
versa.
2. The Donee is the blood relations within prohibited
degree.
3. The Donee is dead.

123
(p.64)
124
205
157
 4. When the thing gifted has been already transferred by
the Donee by gift, sale or otherwise.
5. When the thing given is lost or destroyed
6. When the thing given has increased in value, whatever,
be the cause of increase.
7. When the thing given is so changed that it can’t be
identified.
8. When the Donee has received something in exchange
(Iwad) for the gift.
It shall, however, be essential to obtain a decree from the
court for revocation of gift after delivery of possession.

Different Kinds of Gift:

1. Gift of Future: A gift can’t be made of any thing to be
performed in future nor it can be made to take effect at any
future period whether definite or indefinite. Case:
Chekhone Khuthi vs. Ahmed (1867) 10.MAD-196
e.g. ‘A’ makes a gift to ‘B’ of the fruit that may be produced by
his palm tree this year. The gift is void as being a gift of future
property.
2. Gift with a Condition: When a gift is made subject to a
condition which derogates from the completeness of the
grant, the condition is void, and the gift will take effect as if
no condition were attached to it. Case: Nizamuddin vs.
Abdul Gafur (1988) 13.BOM-269
3. Contingent Gift: A gift can’t be made to take effect on the
happening of a contingency or happening of an uncertain

158
 event. The contingent gift is void. Case: Abdul Karim vs.
Abdul Qayum (1906) 28.ALL-342
4. Testamentary Gift: When one gives a gift of property to
someone after his death by will. The testamentary gift takes
effect after the Donor’s death. Restrictions:
a. He can’t make a gift more than ⅓ of his property.
b. He can’t make a gift to his heirs.
5. Gift of Musha: Literal meaning of Musha is undivided and
legally means undivided share of a common property. The
gift of Musha is the gift of an undivided share in property
either movable or immovable. The general rule as laid by
Hedaya: “A gift of part of a thing which is capable of
division is not valid unless the said part is divided off and
separated from the property of the Donor, but a gift of an
indivisible thing is valid.
a. Gift of Musha where property indivisible: A valid
gift may be made of an undivided share (Musha) in
property which is not capable of partitions.
Case: Kasim Hussain v. Sharif-un-Nissa (1883)
5.ALL-285
Fact: ‘A’ who owns a flat, makes a gift to ‘B’ of the
flat and of the right to use a stair-case used by him
jointly with the owner of an adjoining flat. The gift of
A’s undivided share in the staircase, though it is a
gift of Musha is valid for ‘a staircase’ is not capable
of division.
b. Gift of Musha where property divisible: A gift of
an undivided share in property which is capable of
159
 division is irregular, but not void. It may be made
valid by subsequent partition and delivery to the
Donee of the share given to him. But the gift is valid
even if the share is not divided off and delivered to
the Donee in the following cases:
i. Where the gift is made by one co-heir to
another
ii. Gift to two or more persons
iii. Co-sharers in undivided land
iv. When the gift is made of freehold property in
a commercial town
It was held in the case of Shahzada Muzaffar Ali v. Mst.
Agha Begum (1968) 20 DLR (WP) 149. “If property is capable
of division, gift of part of such property will ordinarily be invalid.
– But there are exceptions- e.g. Gift of property in large
commercial town (Lahore regarded as such town)

160
 Hiba bil-Iwad & Hiba bil Sharitil-Iwad

The term Hiba bil-Iwad means a gift with return. A Hiba bil-
Iwad is a transaction consisting of two separate and distinct
parts, a Hiba (original gift by the Donor to the Donee) and an
Iwad (return gift by the Donee to the Donor). Thus the gift and
return gift are separate and distinct acts and where both are
completed, the transaction is called Hiba bil-Iwad (hi). E.g. ‘A’
makes a gift of a horse to ‘B’ and later ‘B’ makes a gift of a
camel to ‘A’. If ‘B’ says that the camels is given as and by way
of a return or exchange, then both the gifts are irrevocable.
The law requires that all the formalities of the law of hiba
should be strictly followed in each of the two gifts. In the case
of Rahim Baksh v. Md. Hasan (1888) 11 ALL1,5.
Justice Mahmood says:
“The fundamental conception of a Hiba bil-Iwad in
Mohammedan law is that, it is a transaction made of two
separate acts of donation, that, it is a transaction made
up of mutual or reciprocal gifts between two persons,
each of whom is alternately the Donor of one gift and the
Donee of the other.
It was held in the case of Asghar Ali v. Mst. 125, that Hiba bil-
Iwad need not be money only the promise to marry is also a
valid consideration. Hiba bil-Iwad in contemplation of
marriage is valid and irrevocable on solemnization of marriage
by performing marriage Donor obtains “a return for his gift”.

125 (1969) PLD Lahore 467.

161
 Hiba bi-Sharti’l-Iwad (h-s-i)

Hiba bi-Sharti’l-Iwad (h-s-i) means gift with a condition for

return. When a gift is made with a stipulation (Shart) for a
return (iwad) the translation as a whole is called h-s-i. It is not
so common in south Asia. E.g. ‘A’ makes a gift a house to ‘B’
puts him in possession with the condition that ‘B’ will gift ‘A a
horse as an iwad and therefore ‘B’ gives a horse to ‘A’. ‘A’
accepts it, later ‘A’ purports to sell the house to ‘C’. The sale
has no effect as it is irrevocable. The return stipulated for, may
or may not be specified.
DISTINCTIONS
H-I H-S-I
1. Voluntary gift and 1. The gift itself is made in
voluntary return. stipulation.
2. The intention to make 2. The gift and return goes
the return is after hand in hand, not one
thought. before other and the
return is in contemplation
by both parties.
3. The consideration or 3. Consideration is
return is independent to dependent of the original
the original gift. gift.
4. It is like a contract of 4. In its inception it is like a
sale. gift but operates like a
sale, when the promised
consideration is fulfilled.

162
Conclusion:

The chief characteristics of a gift as it is understand in modern

systems is that it is understood in modern systems, is that, it is
a transfer without consideration. As the time when the rules
about h-I or h-s-I arose in Muslim law, it seems to have been
more common than it is now-a-days. For persons to enter into
transactions that can be best described as lying midway
between gifts strictly so called and barter 126.

126 Tyabee p.462

163
 Marz-ul-Maut - Death illness

The term Marz-ul-maut means the “disease of death” or the

disease which causes death. Death illness is that, illness
which is argali probable, will ensue fatally. Buckley L.J
described, gifts made during Marz-ul maut or donation mortis
cause as a gift nor exactly a legacy, but partaking of the
nature of both. In the case of Rebeau Mon v. Ewbank (1902)
1 Ch. 889, 892. The essential conditions of Marz-ul-maut are:
1. illness
2. When one is not able to continue normal life.
3. Apprehension of death in the mind of the deceased &
his relations.
4. That the illness was started within 1 year of the death
(Hedaya & Fatwai-alamgiri).
5. The illness must cause the death of the deceased.

The essential conditions of Marz-ul-maut are:

1. A gift made during death illness is subject to all the
conditions & formalities necessary to constitute a gift
(or gift inter vivo), offer, acceptance & delivery of
possession.
2. In addition it is subject to all restrictions laid down in
the law wills- bed writeable* third no will to heir unless
consent of all heirs.

According to the case of Shamshad Ali Shah v. Syed

Hassan Shah (1964) 16 DLR (SC) 330, it was held that in
164
determining whether the donation of person suffering from
illness comes within the doctrine applicable to Marz-ul-Maut
gift, the court should consider the following facts:-
1. Was the Donor suffering at the time or the gift from a
disease which was the immediate cause of his death?
2. Was the disease of such a nature or character as to
induce on the person suffering the belief that death
would be caused thereby, or apprehension of Donor?
3. Was the illness such as to incapacial him from the
pursuit of his ordinary avocations- a circumstance
which might create in the mind of the sufferer an
apprehension of death?
4. Had the illness continued for such a length of time as
to remove or lessen the apprehension of immediate
fatality or to accustom the sufferer to the malady?

It was also held in the same case that gift in Martz-ul-Maut

operates as a Will. In order to operate as a Will it is necessary
that there should in the first place be a complete gift.

Fact: The person making the gift was suffering at the time of
making the gift from a disease which induced belief that death
would be caused thereby & that it actually caused death within
a few hours of the registration of instrument.
Hold: The gift was made during Marz-ul-Maut.

165
 Pre-emption - Shufaa

‘Shufaa’ literally mean adding. In law it means the acquiring of

a vendors (sellers) property for the price for which the vendor
has sold to the other party-vendee.

In Mohammedan Law it is the right which the owner of an

immovable property possess to acquire by purchase another
immovable property which has been sold to another.

AS for example: I have a right to pre-empt if my neighbor

sales his land without my permission because I have the first
right to buy it at other buyers price.

It was defined by Justice Mahmood in Gobinddayal v.

Inayatullah (1885) 7 All 775; “A right which the owner of
certain immovable property possess, as such, for the quiet
enjoyment of the immovable property, to obtain, in substitution
for the buyer, property possession of certain other immovable
property not his own, on such terms as those on which such
latter immovable property is sold to another person”.

There are thus, three requisites:

1. The pre-emption must be the owner of immovable
property.
2. There must be sale of certain property not his own.

166
 3. The pre-emption must stand in certain relationship to
the vendor in respect of the property sold.

It was held in the case Shamsuddin Ahmad @Tofa Mia v.

Abdul Latif Bhuiyan (1981) 33 DLR (AD) 359: When a pre-
emption right under the Muslim Law accrues-form activities to
be indispensably followed- Pre-emption right is not dependent
on the registration of the sale deed.

The important aspect or pre-emption is its formalities- no

person is entitled to pre-empt unless he takes the proper steps
at the proper time, and confirms strictly to the necessary
formalities. These formalities are known as the three
demands:-
1. The First Demand:- Declared his intension to assert
the right immediately on receiving information of the
sale. This is called Talab-i-Mowasibat- Literally
means demand of jumping i.e immediate demand.
2. The Second Demand:- The pre-emption must, with
the least practicable dorm, make a formal demand
affirming the intension, this is known as Talab-o-
Ishad laterally means the demand which is witnessed.
The pre-emption must:
a. Referred to his first demand
b. Do so in the presence of two witnesses
c. Do so in the presence of either the (seller)
vendor or the vendee (purchaser) in the

167
 premises. This also knows as Talab-i-Taqvir i.e.
the demand of conformation.
3. The Third Demand:- This is not really a demand but
taking legal actions and is always not necessary. It is
called talab-i-Tamlik ( the demand of possession) or
Talab-i-Khusumat (the demand where there is a
dispute).

A suit for preemption must be made within one year of the

registration of the instrument of sale or possession of the
property.

Who can pre-empt?

Three classess of persons are entitled to exercise the right of
pre-emption:
1. Shafi-i-Sharik: i.e. A co-sharer in the property. A co-
sharer (sharik) is an owner of an undivided share in
the property. e.g. A & B are brothers and co-sharer of
property-‘A’ sells his land to ‘X’, ‘B’ has a right to
preempt but her must be sale of land.
2. Shafi-i-Khalit: i.e. A participation in immunities and
appendicles. This expression means a person who is
entitled to such ******* as a right of way, or discharge
or *****
3. Shafi-i-Jan: i.e. the neighbor of the owner of an
adjoining property. This first class excludes the
second class and the second class excludes the third
but when there are two or more preemptions
168
 belonging to the same class. They are entitled to
equal shares of property in respect of which the right
is claimed.
If the vendor-vendee and the preemptions are Muslims, no
problems arise. But the question is whether the preemption
should be administered where vendee is Hindu.
It was held in Sheikh Kudratulla v. Mahini Mohan Shaha
(1869) 4
Bengal LR 134, it was held by Calcutta High Court that if the
vendee is non Muslim no preemption, because it is ***right of
re-purchased from the vendee. But it was held in Gobini
Dayal v. Inayatulla (1885) 7 ALL 775. Justice Mahmood held
that where the pre-emption and the vendor are Muslims but
the vendee is a Hindu the right of preemption arises. The right
of preemption is not a right to repurchase from the vendee but
is a right of substitution entitling the preemption to stand in the
shoes of the purchaser (P 809). Which creates a legal service
to or running with the land (P.800)?

169
 Wakf

The word wakf literally means detaining or binding in Islamic

Law. Wakf means lands which are in allowable, used for
charitable purpose & pious endowment. According to Ameer
Ali “The law of Wakf is the more important branch of
Mohammedan Law for it is interwoven with entire religious life
& social economy of Muslim.
According to Abu Hanifa- The conception of wakf is that the
corpus continues in the ownership pf the Wakif and the
dedication of its usufructs to others.
According to Dr. Tasnzilur Rahman- Wakf is a transfer of the
corpus of valuable property to the ownership of Allah with a
dedicating its usufruct perpetually for religious, charitable or
pious purposes recognized by Shariaa.
The dedication of property in Wakf is calked Wakif.
The person or persons for whose benefit the wakf is created is
called beneficiaries –Mawquf Alayhim.
The document through written* Wakf is created is called
Wakfnama.
e.g. School, hospital , morgue etc.
The impulse to endow property “in the way of God” (Li-wajhil-
lah, Fi-sabilil-lah)
A Wakf can’t be revoked if act inter vivos but if by will it can’t
be revoked as will can be revoked.
A Wakf made in Marz-ul-maut it can’t be made of 1/3 of the
property unless consent by heirs.

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Completion of Wakf:
According Abu Yusuf by mere declaration of endowment by
the owner. But according to Imam Mohammad, it needs
declaration of Wakf, a Mutawalli is appointed and delivery of
possession to the Mutawalli. The Wakf may continue himself
as a Mutawalli and no transfer needed- after him whomever
he executes as a Mutawalli. A Wakfnama by which
immovable property of the value of Tk.100 and upwards needs
to be registration Act of 1908.
To person who is appointed to carry out the purposes of the
Wakf and who acts in accordance called Mutawalli
(Manager). The 1st Mutawalli is made by the Wakif than
according to the Wakf.
Who may be appointed Mutawalli127?
1. Neither a minor nor a person of un sound mind can be
appointed Mutawalli. (If heriditory and Mutwalli a
minor court will appoint another till his minor in)
2. The Wakif may appoint himself, or his children and
descendants or any other person even a femaleor a
non-Muslim to be Mutawalli. But if the Mutawalli has to
perform religious duties as Imams of mosques
Mutawalli can’t be female or non-Muslims
How Mutawalli’s are appointed?
1. The founder of the Wakf has power to appoint the 1 st
Mutawalli and to lay down a scheme for the office of
Mutawalli and may invest the Mutawalli with power

127
Mullah
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 to nominate a successor after his death or
relinquishment of office.
2. If Mutawalli dies or refuses to act as such on is
removed by the court for breach of trust or the office
of Mutawalli is vacant and there is no provision in the
Wakfnama regarding succession to the office, a new
Mutawalli may be appointed by-
i. The Wakif
ii. By the Wakif’s executor
iii. Temporary Mutawalli himself at his death bed
iv. If no appointment is made court will appoint a
Mutawalli accordance to the following rules:
a. The court should regard the directions of
the founder;
b. The court should not appoint a stranger
when there is any member of the Wakif.
Remuneration of the Mutawalli :-Remuneration may be fixed
by the Wakif, if not fixed it can’t be more than 1/10 of the
income of the wakf property.
According to the Musulman Wakf Validating Act, 1913 under
section 2, “Wakf means the paramount dedication by a person
professing the Mussalman faith of any property for any
purpose recognized by the Musalman law as religious, pious
or charitable.”
Muslim law does not prescribe any particular form for creating
a Wakf. But where a wakf has been created by written words,
the words used must be such as to exhibit a clear and
unequivocal on thepart of the donor to constitute a permanent
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dedication of the property. It can be made orally and even if
someone admits that his property is a Wakf property it will be
presumed. A Wakf is personal, irrevocable and inalienable.
The following are essential conditions for the validity of Wakf.
1. The Wakf must be prudent, major and free
2. The Wakf must be the owner of property
3. The declaration of Wakf must be made voluntarily and
in good faith
4. The Wakf must be permanent
Dedication must be in the way of Allah and it must be
permanent. Case: Mofizuddin Howlader v. Abdur Rashid
and Others.128 A Wakf may be created by a will or in during
Marz-ul-Maut. It was held in the case of Abdur Rahim v.
Captain Mia,129 Wakf created without making provision for
charitable purpose of paramount nature is not valid and legal
Wakf provision made by Wakf for feeding persons who might
be present at his death and burial is not a charitable object to
make the Wakf valid. A Wakf is divided into malnur* private
and public.
The earliest Wakf mentioned by the legal authorities is that of
Umar the second Caliph (Bukhari).
Ibn Omar reported, Omar Ibn-al-Khatib got land in Khaybar, so
he came to the Prophet (PBU) to consult about it.
He said, “O messenger of Allah! I have got land in Khaybar
than which I have never obtained more valuable property.
What dost thou advise about it?”

128
35 DLR 1983 (AD) 36
129
25 DLR 1973 290
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The Prophet said, “ If thou likest, make the property itself to
remain inalienable and give (the right from) it in charity.”

Wakf-Al-Aulad:-
In the famous case of Abdul Fatha Md. v. Russomoy

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