FAMILY LAW I: MUSLIM

LAW
  Who is a Muslim?
 What is the difference between Sunni and Shia
Muslims?
 Sources:
 Quran: divine revelations sent through
SOURCES OF Archangel Gabriel to Prophet Muhammad
MUSLIM LAW between 610 and 633 AD. Codified after 15
years. 114 Suras (chapters), Ayats (verses)
arranged in thirty parts known as juz’
(paragraph)
 Chapter II, IV called Al-Nisa and LXV Al-Talaq
 Hadith or Sunnat: traditions
  Sunni:
• Hanafi
• Shafei
• Maliki
• Hanbali
SCHOOLS • Find out which schools of Muslim Law exist in
India with specific territorial extent.
 Shia: three further sects, most prominent being
Ithna Asharis with the legal code Fiqh-e-Jafari,
which is recognised by most as the fifth school
of Muslim Law
Nikkah- it is a civil contract

No religious ceremony is necessary

The agreement between the parties arising out of a

proposal and its acceptance.
Attainment of puberty confers contractual capacity
MARRIAGE

15 years of age- age of puberty

Sound mind and attained age of puberty

  Dower or Mahr
 Mahr or Dower is a sum of money or other
property to be paid or delivered to the wife.

Consideration for  It is either specified or unspecified but in either

case, the law confers a mandatory right of Mahr
the marriage: or Dower on wife.
completion of  The Mahr (Dower) belongs to wife and she can
deal with it in the manner she likes it and neither
contract her husband nor husband’s relations nor even
her relations can dictate her in matter of using
the Mahr money or property.
  Mahr was originally analogous to sale price, but since the
inception of Islam, it is hardly correct to regard it as the price
of sexual intercourse.
 Muslim marriage is like a contract where wife is the property
and Mahr is the price or consideration. However, it is also true
that non-payment of Mahr does not void the marriage, so Mahr
DOWER or is not purely a consideration. 
MAHR  In pre-Islamic Arbia, Sadqua was a gift to wife but Mahr was
paid to the wife’s father and could therefore, be regarded as
sale-price. But after Islam, Mahr payment is required to be paid
to wife and not to her father, it could no longer be regarded as
Sale Price.
  Mahr or Dower has to be given to wife however she is vested
with discretion to remit it.
 Mahr is non-refundable even after divorce (unless she remits it
at her sole discretion) and it becomes the property of wife in
perpetuity.
Dower or Mahr  Payment of Mahr is mandatory even if marriage is not
consummated. But in that case, Mahr is half of the amount
fixed.
 In a way, Mahr provides a check on the capricious exercise by
the husband of his almost unlimited power of divorce.
The parties should have attained
puberty or the marriage contract
should be entered into by the
guardian
Capacity to
Parties should be of sound mind or Marry
the guardian can act on behalf of
the parties concerned
Proposal and acceptance should be at one
meeting

Shias: witnesses are not necessary

Forms of
Sunnis: two male or one male and two female marriage
witnesses should be present

Absence of witnesses would render the

marriage irregular and not void
  Mother and son
Prohibited  Grandmother (however high) and grandson
relationships: on (however low)
Brother and sister
basis of 

 Uncle and niece

consanguinity:  Nephew and aunt
blood relationship
  Wife’s mother or grandmother (howsoever high)
 Wife’s daughter or grand daughter (if marriage
Prohibited is consummated)
Wife of father or paternal ancestor
relationship: 

 Wife of son or son’s son or daughter’s son

grounds of affinity
  The marriage is not vitiated, these are temporary
disqualifications.
 On the side of the bridegroom:
• He has 4 wives already. 5th marriage is void for
Shias but only irregular for Sunnis
Irregular (fasid) • A Muslim man cannot have two wives who are
marriage related to each other as per prohibited
relationships. This kind of marriage is irregular
and such irregularity can be removed. It is not a
void (Batil) marriage. The bar of unlawful
conjunction (jama bain-al-mahramain) renders a
marriage irregular and not void.
 Shia Law: A Shia can marry his wife’s aunt but not his wife’s niece except with his wife’s
permission. In all other cases marriage is void.
 Difference of religion: Sunnis: irregularity can be removed if the groom converts. In Shias this
marriage is void.
 On the Bride’s side:
• She is undergoing Iddat. For a widow: whether the marriage is consummated or not, she has to
remain in seclusion for a period of 4 months and 10 days from the death of her husband. If she is
pregnant, then till the time of delivery.
• A divorced woman whose marriage was consummated must observe iddat for a period of 3 lunar
months or three menstrual cycles. If she is pregnant then iddat terminates at delivery.
• If the marriage is not consummated then no period of Iddat has to be observed.
• Among Shias if the man knows that the woman is undergoing Iddat the marriage is void.
  A Sunni Male may validly marry a non-Muslim Kitabia
(Christian or Jew woman) and a Shia Muslim may do so
provided the marriage is a Muta (temporary) marriage.
 A Muslim male cannot marry validly marry a non-kitabia
Effect of Religion:  Among Shias this marriage is Void but among Sunni’s it’s
irregular.
 Sarla Mudgal v. Union of India (1995) 3 SCC 635
 Lilly Thomas v. Union of India (2000) 6 SCC 224
  Status of husband and wife is conferred.
 Children are legitimate
 Right to each other’s inheritance is created but
no power over the property
EFFECTS OF A  Wife has the right to maintenance dower and
residence
VALID (sahih)
 Wife is mandated to allow conjugal rights and
MARRIAGE has to observe Iddat.
 Prohibited degree of marriage are created

  No marriage at all
 Void ab initio
Void Marriage:  No contractual capacity
Batil  No marriage contract
 Parties to a marriage are in prohibited degrees of
relationship
  No effect at all until consummated
 Children are legitimate
 Husband and wife don’t inherit to each other’s
Irregular marriage: property
Fasid  Wife is entitled to dower
 Wife has to observe iddat of 3 months
 Muta Marriage

 Only by Shia Law (Ithna Ashari School)

 Amount of dower should be fixed otherwise it is void
 If not consummated only half the dower has to be paid
 Period of cohabitation should be fixed
 Not available to Shia women
 Comes to an end at the end of the period of cohabitation
 If they continue to live together it is presumed that the terms of the muta marriage have been extended
 The husband can put an end to the marriage by giving the full amount of the dower
 Children conceived during the Muta marriage are legitimate
 Husband and wife can’t inherit to each other
 It is obsolete in India
  Right to repudiate their marriage which took place before they attained
puberty
 Nature of the right depends on: (i) who acted as the guardian (ii) whether
there is any bar in exercising the option
 Option of puberty is lost for the wife after the consummation provided it
was not (i) before attainment of her age ofpuberty, or (ii) against her
consent
Option of Puberty:   The marriage does not dissolve merely by the exercise of option of
puberty.Confirmation by court is necessary for dissolution of marriage.
Khyar-ul-Bullugh However, only a formalapproval by the court is sufficient; decree is not
necessary.It may be noted that as the marriage does not dissolve without
confirmation therefore,
 where any spouse dies after the exercise of the option but before court’s
confirmation,
 the surviving spouse is entitled to inherit the properties of the deceased.
 If the guardian is father or paternal grand-father (howsoever high):
• Marriage is valid
• Can be avoided only by showing that the guardian acted fraudulently
• this restriction has been removed by the Dissolution of Muslim Marriage Act, 1939 for women
• The marriage has to be repudiated before age of 18
• Under Shia law it has to be approved by the minor at the age of minority.
 Any other person acting as the guardian:
• Not possible under Shia law
• All paternal uncles, then maternal uncles, then anyone in the prohibited degrees of relationship
 DOWER
 Prompt Dower:
• Payable on demand
• Shia law: entire dower is presumed to be prompt dower
• Sunni law: half as prompt and other half is deferred dower but there is no hard and fast rule
• The wife may refuse to consummate if prompt dower is not paid
• Even after consummation sexual intercourse can be refused by the wife in case the prompt dower is not paid.
• A suit by the husband for RCR would be decreed conditionally
• When the wife makes a demand for prompt dower, it becomes due and if not paid, she has to enforce the claim through
the court within three years of the demand. Otherwise it will become barred
• If no demand is made, it still becomes due when marriage is dissolved (by death or divorce) and may be enforced
within 3 years by them or by their heirs.
Deferred Dower

 Payable on the dissolution of the marriage

 Under Muslim law husband has absolute right to divorce
 To deter him from exercising this right arbitrarily, this amount is fixed high.
 In case of no divorce, this is payable on the death of the husband.
 Can be recovered within three years
 Otherwise the claim is barred by limitation
Specified Dower and Proper Dower

 Agreed to as a part of the marriage is specified dower

 Not agreed to as a part of the marriage: proper dower (Mahr-i-misl)
 Proper dower is to be decided in accordance with the status and circumstances of the
family
Remedies to the woman to enforce her dower

 During the husband’s lifetime:

• Prompt dower is payable on demand
• Deferred dower is payable on divorce
• In case of property: only income from the property can be used and the property cannot be
sold
 After the death of the husband:
• Heirs of the husband will be liable to pay
• Haliman v. Md. Manir AIR 1971 Pat. 385
  Without intervention of the court
 Without assigning any reason for the act
 In the words of Prophet Mohammad, “Of all the lawful things, divorce
is the most hated by Allah.”
 There are three kinds of Talaq that are being practiced in the Muslim
society: Talaq-e-Biddat, Talaq-e-Hassan and Talaq-e-Ahsan. Only the
DIVORCE: by the latter two find relevance in the Quran.
 Biddat means innovation in religion, and is unacceptable in Islam, a
husband (talak) religion that has laid down guidelines for the world to follow till the
very end of time.
 The Quran promises to be relevant without a single change in it till the
end of time.
 Now, as the name suggests, Talaq-e-Biddat is the kind of Talaq which
is not sanctioned in the Quran. It is also known as instantaneous or
irrevocable Talaq.
  Opportunity to the husband to reconsider the talaq
 Has to be pronounced during the period of tuhr, which is the
period between two menstrual cycles.
 If not consummated then can be pronounced even during the
menstrual period.
 Pronouncing talaq means declaring his intention to divorce.
Talaq-e-Ahasan:  Presence of the wife is not important.

the most proper  The declaration must be made in the name of the wife
It can be oral or in writing
way


 Shia law does not permit talaq to be effected by writing

 Becomes complete only on the expiration of the period of iddat
 During the period of iddat the husband should abstain from
sexual intercourse
 If he resumes sexual intercourse it shows that he has changed
his mind and the divorce stands revoked.
  Talaq is pronounced during tuhr
 During the next tuhr second pronouncement is made and
then the third in the next period of tuhr
 There should be abstinence from sexual intercourse
Talaq-e-Hassan during all this time
 At the third pronouncement the talaq becomes
irrevocable.
 There is no requirement to wait for the period of iddat.
  Not approved by the Islamic theology
 Called heterodox divorce
 Not recognised by Shia Muslims
 Biddat means innovation, which is not permitted in Islam
Talak becomes irrevocable at once
Talaq-ul-Biddat 

 There is no waiting period

 The husband during the Tuhr period says: I divorce you by a
talaq-ul-bain or says talaq thrice in one go
 stringent condition is that the husband can remarry the wife
only after she marries someone else, consummates the marriage
and is divorced by him
  Khula:
• Wife may offer the husband a consideration, if the husband
agrees, the divorce becomes irrevocable and immediate.
• Consideration is presumed to consist giving in the claim to
dower. This presumption is rebuttable and the amount can
be higher.
• If the amount is not paid, it does not invalidate the claim,
Divorce by mutual only a legal suit to the claim arises.
 Mubara’at divorce:
consent • Dissatisfaction is felt by both the parties.
• Either party can raise the offer to dissolve the marriage.
• Presumed that the wife has given up her claim to dower.
• Iddat has to observed in both these divorces and the
husband has to maintain the wife during this period.
  Procedure of Li’am:
• when the husband falsely accuses the wife of
adultery, she can file for divorce.
Divorce by wife: • Marriage must be valid
Dissolution of • Wife has to prove that her husband has accused
Muslim Marriage her of adultery
• Husband has to prove that his accusation was
act, 1939 true
• Husband can withdraw his charge and this will
be a defence available to him
  Talaq by Tafweez (tafwid):
Divorce by wife: • Divorce power given to the wife by the husband
Dissolution of under an agreement between them.
• There can be conditions in this agreement.
Muslim Marriage
• Not revocable by the husband.
act, 1939
  Impotence of the husband:
• The husband can ask for a time period of one year.
 Husband has absconded and is not heard of for 4 years

Divorce by wife:  Wife was not provided maintenance for 2 years

Dissolution of  Husband sentenced to a term of 7 years of imprisonment.

 Husband failing without reasonable cause to fulfil his marital
Muslim Marriage obligations for 3 years.
act, 1939  Husband afflicted with insanity for 2 years or leprosy or a
venereal disease
 Legal cruelty
  Wife can claim dower. If before consummation then
only half the dower.
 Claim maintenance during iddat or until talaq is
Effects of divorce communicated to her, whichever is later.

upon the wife  Loses right of inheritance to the husband’s property

 Can marry someone after the period of iddat. If the
marriage is not consummated, she does not have to
wait.
  He has to pay dower.
 He loses his right of inheritance to the wife.
 He can marry another if as a result of the divorce he has
Effects of divorce less than 4 wives. He can do this only after the period of
iddat.
on the husband  If he wants to remarry the divorced wife, he may do so
during iddat. In triple talaq it is completely different.
 Cohabitation with the divorced wife without remarriage is
unlawful and the children of this union are illegitimate.
ZIHAR

 Woman can apply for divorce if her husband calls her his mother.
 Husband must not compare her to any woman in the prohibited degrees of relationship
 She can deny sexual intercourse
 Husband can do penance as prescribed by religion, then she has to admit him back
I’la

 Husband vows not to have sexual intercourse for 4 months and fulfils this vow
 Considered divorce or the woman can file for the divorce
 If sexual intercourse is resumed, then no divorce
  Similar to the concept of adoption under other laws
 Parents must be married at the time of childbirth for the
child to be legitimate
 Valid acknowledgment:
• The alleged father should have treated the child as his own.
• Legitimacy should be legally possible for an
Acknowledgment of acknowledgment to be effective
Paternity • An acknowledgment of paternity has no force when the
marriage is disproved
• Legitimacy should not be impossible at the face of it
• The acknowledgment should not have been repudiated by
the acknowledgee
Presumption to legitimacy

 If a child is born after six lunar months and one day or more
 If a child is born after the termination of the marriage:
• Within two lunar years under the Hanafi Law
• Within ten lunar months under Shia law
• Within four lunar months under the Maliki and Shafi law
 The presumption is rebutted by the act of the putative father; charge of adultery
accompanied with an implication that the curse of God be upon him if he was making
false charges
  Daughter: mother has custody until the daughter attains puberty. Once
she attains puberty and is unmarried, father has custody.
 In the absence of the mother:
• Mother’s mother
• Father’s mother, full sister, uterine sister
• Consanguine sister, daughter of full sister
• Daughter of uterine sister
Custody of • Daughter of consanguine sister; maternal aunt
daughter • Paternal aunt
 In the absence of the father:
• Paternal grandfather
• Full brother; consanguine brother
• Son of Full brother; son of consanguine brother
• Father’s full brother
• Father’s consanguine brother;
• No one who is not in the prohibited degrees of relationship can be a
  Till seven years of age: mother
Custody of the son  After which it is the father who is the custodian
Cases for tomorrow

 Mohammed Ahmed Khan v. Shahbano Begum AIR 1985 SC 945

 Daniel Latifi v. Union of India (2001) 7 SCC 740
 Noor Saba Khatoon v. Mohammed Quasim AIR 1997 SC 3280
 Shabana Bano v. Imran Khan AIR 2010 SC 305
 Iqbal Bano v. State of U. P. AIR 2007 SC 2215