FAMILY LAW (INTERNAL)

THE PROPHET

1. Prophet Mohammad was born at Mecca in 571 AD.

2. He became a prophet at the fortieth year of his age, when he received his first ‘Wahi’. Wahi means
message of God or inspiration.
3. The flight of the Prophet to Medina is known as Hijrat and it marks the beginning of Muslim era.
He had to flee due to his condemnation of paganism.

ISLAM
4. Islam means submission to the will of God and in secular term means the ‘establishment of peace’.
5. Islam means peace, greeting, safety and salvation.
6. Islam is a religion of works. The service of man and the good of humanity constitute pre-eminently
the service and worship of God.

A MUSLIM

7. A Muslim is a person who (according to Aghnides)

a. Believes in the mission of Mohammad as prophet.
b. Says there is one God and Mohammad is his prophet.
c. Believes in the essential beliefs in God and Mohammad.
8. Amir Ali says that a Muslim is one who professes the religion of Islam and accepts unit of God
and prophetic character of Mohammad.
9. A Muslim is not just by birth. He can be so by profession or by conversion.
10. In Skinner v/s Orde, it was held that the child is presumed to belong to the religion of the Father.
MUSLIM LAW

11. Muslim law means ‘that portion of Islamic Civil Law which is applied to Muslims as a personal
Law’.
12. Muslim Law consists of
a. injunctions of Quran,
b. of traditions by ‘practice of the Prophet’ (Sunna),
c. of common opinion of the jurist (Ijma),
d. of analogical deductions of these three (Qiyas) and of pre-Islamic customs not abrogated by the
prophet.
13. Muslim law originated in Arabia.
14. Muslim law is founded upon Al-Quran. It originates from Divinity. It is law which is established by
a communication (Khitab) from God. The Quran is the first and the greatest legislative Code of
Islam.
15. God alone is the legislator in Islam and Quran is the Holy Law Book.
16. Muslims acknowledge no divine inspiration subsequent to Mohammad.
17. Whenever the Quran was silent on any particular matter, guidance was taken from the Sunnat i.e.
whatever the prophet had done, said and tacitly (implicit or quietly) allowed.
18. Shariat
a. The law is known as Shariat. It means the totality of Allah’s commandment. Each
commandment is called hukum. It is divinely ordained path of morality.
b. Shariat is road to the watering place or the path to be followed. The Quran, Sunna, Ijma and
Qiyas form part of the Muslim law of Shariat.
c. The path of Shariat is laid down by God and His apostle - the Prophet.

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19. Fiqh is science of jurisprudence. It is intelligence by Imam Shafi. It implies the independent
exercise of intelligence as regards points of law in the absence of their solution by the Quran or
Hadith. It is result of human effort. It is the science of law.
20. The fundamental religious injunctions are:
Farz - duties.
Haram - forbidden actions.
Mundub - what one is advised to do.
Makruh - advised not to do.
Jaiz - indifferent things.
21. Islamic conception of law, Shariat and Fiqh is connected with religion. The postulates of Muslim
jurisprudence are:
a. The first postulate (proposal) is Imam or faith in God and acknowledgment of His authority over
our actions.
b. The second is the belief in the prophethood of Mohammad.
22. The development of Muslim law may be divided into five periods. They are:
a. The period of Quranic precepts: The beginning is the ‘flight or Hijra’ of Muslim era. Quran
was revealed. Therefore the Medina Suras differ from Mecca Suras. The Wahi (inspiration) may
be of two kinds: Zahir Wahi or Batin Wahi. Quran is Zahir Wahi which means it is written in the
very words of God. Zahir means clear or manifest. Hadith is Batin Wahi because they are
indirect and not direct inspiration. They are the actions, sayings, teachings and judicial decision of
the prophet. Batin is internal or indirect.
b. The period of Orthodox Khilafat: The Prophet died without any successor. After his death
there were two groups. One was headed by Ayesha Begum. The youngest wife of the Prophet.
Abu Bakr, the father of Ayesha Begum was appointed first Caliph (kalifa) by election. The
second group was headed by Fatima, the daughter of the prophet. She advocated that the spiritual
leader must come from nobility of blood therefore by Succession/Inheritance. They stressed
spiritual leadership rather than administrative control. Ali, Fatima’s husband and cousin of
prophet was made the first Imam. The Khalifa’s were assisted by an advisory council of the
Ashab (companions) of the Prophet, who claimed to be repositories (store house) of thoughts,
and ideals of the Prophet. It is also the period of Sunnah because close adherence was kept to the
conduct and sayings of the Prophet.
c. The period of theoretical study and collection: The reign of Ummayyads. Period when
tradition as source of law began. The commandments and prohibitions of God were in the hearts
of men. These were collected. Bukhari’s compilation were recognized as authoritative Hadiths.
During the period of Abdul Abbas-As-Saffah who defeated Ummayyad Khalifa there appeared
four schools of Sunni Law - Hanafi, Maliki, Shafi, Hanbali.
d. The Period of evolution of Ijtihad and Taqlid: There emerged two doctrines, namely, the
Ijtihad and Taqlid. Ijtihad means laboring hard or studying intensely to arrive at a sound opinion
or judgment. The person doing this was called Mujtahids. Taqlid means following the opinion of
another person without knowledge of the authority for such opinion.
e. The Fifth Period (1924 A.D. to present day): Modern period. The Caliphate was abolished.
Shariat now merely a moral and religious code of conduct and lost is juristic sanction. The law
are now codified to fulfil the needs of modern society without losing the inherent character of
Shariat.

SOURCES OF MUSLIM LAW

23. The primary sources of the Muslim law are Quran, Ahadis (Hadis), Ijma and Qiyas.

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24. The secondary sources of Muslim law are custom, judiciary, legislation, justice/equity and good
conscience.
PRIMARY SOURCES OF MUSLIM LAW

25. Quran
a. The Holy Book of the Muslims is Quran, which is believed by the Muslims to have existed from
eternity, subsisting in the very essence of God. It is the word of God (Kalam Allah).
b. Muslim law is founded upon Al-Quran.
c. The Quran which is the divine communication and revelation to the prophet of Islam, was the
first and the great legislative Code of Islam and the first source of Muslim Law.
d. The Quran was revealed by Angel Gabriel.
e. There are 6666 verses and 114 chapters in the Quran.
f. The verses of Quran are called Ayat.
g. The chapters of Quran are called Sura.
h. Quran is divided into 4 parts: Metaphysics, Theological, Ethics and Mystical, preachable and
legal.
i. There are 200 verses of Quran which are legal principles. Out of these 80 verses deal with
Marriage, dower, divorce and inheritance.
j. There are those revealed in Madina and Mecca. Those revealed in Madina contain legal
principles. And those revealed in Mecca are for quality of life and about Islamic religion.
k. It is believed that Abu Bakr collected the passages of the Quran.
l. Quran is believed to be a holy book showing the right and wrong path and helps to choose
correct path. It has spiritual value.
m. It was given to the world in fragmentary forms, extending over a period of twenty three years.
n. The Quran cannot be changed, modified by any human.
o. It was originally meant for:
Repealing objectionable customs, such as usury, unlimited polygamy and gambling, etc.
Effecting social reforms, such as raising the legal status of women and equitable division
of the matters of inheritance and succession.
p. The legislative functions of Quran are: The Quran has influenced the creation of Islamic legal
system in the following ways:
Prophet and companions faced legal problems - Quran guided them to get solution.
Lawyers and jurist use Quran. There are 6166 non-legal texts.
Non-legal text help to understand legal rules based on moral exercises and Divine principles.
No Previous revelation. Any other revelation before the Quran is unreliable. But follow
customs.
Devotion. The heathens have to convert as there is only one God who is whole.
q. Rules of Interpretation
The interpretation of a legal text is governed by principle called Istidlal.
The General and the Specific.
The absolute and the qualified.
The primary and the secondary.
Denotation and connotation.
r. Doctrine of Repeal (Naskh): Naskh literally means to delete. Repeal of a legal provision by
another legal provision.
Quran texts can’t be repealed. It can be understood differently.
They can be tradition from another tradition.
Tradition can be by Quranic text.

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 Quranic text by tradition.

26. Sunnat and Ahadis (traditions)

a. Sunnat and Ahadis is what the prophet told, did. They are traditions.
b. Traditions or revelations are of two types:
Zahir and Batin. Zahir means clear or obvious. That which is manifest by God by angel
Gabriel. Quran is composed of manifest revelations.
Batin is internal revelation. It is opinion of prophet. What he said, did, upheld. They were
inspired by God too.
c. Sunnat is the path, procedure, way of action, practice or precedent of prophet.
d. There are 3 kinds of Sunnat. They are ahadis-i-mutwatir, ahadis-i-mashoor, ahadis-e-wahid.
e. Sunna means the model behavior of the prophet.
f. The narrations of ‘what the prophet said, did and tacitly allowed’ is Hadis (Ahadis or Hadith).
g. When a Hadis is confirmed by one person it is known as Khabar-al-wahid and is a weak Hadis.
When a Hadis is proved by several declarations, it becomes strong Hadis.
h. Shia’s do not believe in Hadis which is not derived from the house of the Prophet, particularly
the house of Ali.

27. Ijma
a. Ijma is consensus of opinion. It is written. When Quran and Sunnat gives no solution then rely
on Ijma.
b. The authority of Ijma as a source of Muslim law is also founded on Quran and Hadith.
c. Sir Abdul Rahim says that Ijma is agreement of jurist among the followers of the Prophet in
a particular age and particular question.
d. There are three types of Ijma.
1. Ijma of Companions (direct connection, authentic, universally accepted, can’t be repealed).
2. Ijma of jurist (scholars, jurists),
3. Ijma of people (legally no value, but valuable in matters of religion, prayers, fasting,
pilgrimage).
e. Essential Ingredients of Ijma are:
Consensus by majority.
Jurist given.
Jurist of particular period.
Jurist must be Muslim.
Consensus on religious matters (point of fact and law)
f. Ijma can’t be repealed. It can be reversed by subsequent Ijma of the same age. Ijma of one age
can be superseded by Ijma of a subsequent age, but Ijma of the companions is incapable of being
reversed or superseded.

28. Qiyas
a. Qiyas means analogical deduction. It means reasoning by analogy from 3 sources - Quran,
Sunnat, Ijma. Arabic Qiyas means measurement. It is a process of deduction by which the law
of the test is applied to cases.
b. Qiyas does not create new law, but merely applies old established principles to new
circumstances.
c. It is the last primary source of Muslim Law.
d. Shias do not accept Qiyas because they are of the opinion that if law need to be enlarged it must
be done by the Imam and none else.

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 e. Qiyas has emerged due to Quran which has two categories of verses - Mukakamat and
Mutashabehat. The Mukakamat are clear in meaning, whereas the Mutashabehat are such verses
capable of various meanings.
f. Conditions of Validity of Qiyas
1. Original source must be extended not of spiritual nature.
2. Reason of existence cannot be understood as useless.
3. Original order of Quran or hadith can’t be abrogated or repealed.
4. Not inconsistent with versus of Quran.
5. Applied to ascertain point of law and not to determine meaning of words.
6. The deduction must not be such as to involve change of law.

SECONDARY SOURCES OF MUSLIM LAW

29. Customs: Urf means custom.
a. They have the force of Ijma and its validity is same as Ijma.
b. Requirements of valid custom
General prevalence.
Territorial
Need not exist from prophets companions
Must be immemorial.
Must be ancient and invariable.
Not opposed to public policy.
c. Shariat Act 1937 abolished customary laws but in the following matters a Muslim is still
governed by customary law: agricultural land, testamentary succession in certain
communities, charities, other than wakfs.
30. Judicial Decisions:
a. These include decisions of the Privy Council, the Supreme Court, as well as of the High Courts
of India. In deciding particular cases the judges enunciate what that law is. These are regarded as
precedents for future cases.
b. The Muslim law has been supplemented on many points by judicial decisions. They have
modified the pure Muslim law. E.g. Under pure Muslim law no interest is allowed on a loan.
But in Hammeera Bibi v/s Zubaida Bibi, the Privy Council allowed interest.
31. Legislation:
a. In India Muslims are also governed by various legislations passed either by the Parliament or
by State Legislature. E.g. The Usurious Loans Act, 1918. The Guardian and Ward Act, 1890.
Wakf Act, 1913. The Shariat Act, 1937. Muslim Woman (protection of Rights on Divorce) Act,
1986.
32. Justice, equity and good conscience:
a. These principles of Muslim law are known as Istihsan or Juristic equity.
b. Istihsan means approbation (Consent) and may be translated as ‘liberal construction’ or
‘juristic preference’. Laying down the law according to discretion, the special circumstances
rather than law which analogy indicated.
33. The Shias accept only three sources of law - Quran, Sunnat and Ijma. They do not accept Qiyas.

SCHOOLS OF MUSLIM LAW

34. There are two main schools of Muslim Law - the Sunnis and Shias. Both sects are divided into a
number of schools.
35. There are three sects among Muslims. They are Sunni, Shia and Motazilla.
36. Sunni means people of tradition and assembly.

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37. The Sunni sect was advocated by Ayesha Begum. The youngest wife of the Prophet. She advocated
to appoint successor of the Prophet by Election.
38. Abu Bakr, the father of Ayesha Begum was the first Sunni to be appointed Caliph by election.
39. Shia means faction i.e. separate from majority.
40. The Shia sect was advocated by Fatima, the daughter of the prophet. She advocated that the spiritual
leader must come from nobility of blood therefore by Succession/Inheritance. They stressed
spiritual leadership rather than administrative control.
41. Ali, Fatima’s husband and cousin of prophet was made the first Imam.
42. Third Sect was Motazila or separate sect. It started in 9th century as a defection from Shia. This was
due to progressive society or Greek-Alexandrian philosophy. It held that Quran only basis and
rejected other traditions. They believed in Monogamy and divorce only with interference of judge.
THE SUNNI SUB-SCHOOLS:
43. There are four schools of Sunni School: Hanafiyya School, Maliki School, Shafi School and
Hanbali School.
44. Hanafiyya School or Hanafi School (699-767 A.D.)
a. It was started by Abu Hanifa 699. It was the earliest school (2nd Century) in Kufa a famous city
of Learning. They contain the views of the jurist of Iraq. They were theologian and religious
lawyers.
b. His legal thought is very consistent, uses high degree of reasoning, avoids extremes, and lays
great emphasis on the ideas of the Muslim community.
c. Ahmadi Muslims generally follow the Hanifiyya School.
d. The simple Islamic society had to face various political, social and legal problems. It was Abu
Hanifa who felt the need of time and with a sacred goal to preserve the divine law of Islam started
study of Islamic jurisprudence and began the codification of Islamic law.
e. He based his doctrine on Quran and Hadith. He also accepted Ijma and it was to be limited to the
prophet’s companions and other successors not further. He also gave prominence to Qiyas. He is
also famous for his Istihsan, which is the law of preference or suitableness of an act.
f. His main contribution was that instead of accepting each and every tradition as law, he tried to
find out the law in the text of Quran itself through analogical deduction. They believed that
if no law then get it through unanimous decisions of jurist. They believed in juristic equity
(Istihsan).
g. In this manner he preferred scientifically concluded private judgments based on Quran over a
blind reliance on the traditions.
h. According to him the law must be formulated in accordance with the changing needs of the
society.
i. In the absence of a law in Quran it may also be obtained by the unanimous decisions of the jurists.
He further suggested that if justice could not be done under the law then the principle of juristic
equity (Istihsan) may be applied in interpreting that law.
j. He is therefore, rightly called the ‘upholder of private judgments’ and the founder of Muslim
jurisprudence.
k. With certain modifications, his doctrines were further developed by his two disciples Abu Yusuf
and Imam Mohammad.
l. Out of a large number of traditions, the Hanafi School recognizes only those traditions which
have passed through the severe test regarding their originality. Those traditions which are not
authentic are not to be accepted as law. Abu Hanifa is said to have relied upon eighteen traditions
only.
m. Imam Abu Hanifa in short:

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 He was the first jurist who laid the foundation to systematic and scientific study of legal
principles.
He was the jurist of the highest Rank.
Love of justice was outstanding feature of his character.
Codification of law - his great contribution.
He was a pious man with an independent character.
He shouldered his responsibility with undaunted courage and unsurpassable genius.
45. Maliki School
a. Maliki School was started by Malik Ibn Anas (713 - 795 AD).
b. Maliki School began in Medina, therefore also called Madani School.
c. They based authority on tradition. Tradition consists of companions of prophets, successors of
the companions. If no tradition then follow Qiyas/Ijma.
d. They accept only Medina jurist’s teachings. Judges solve day to day problems. They introduced
Istidlal i.e. infer from another for public welfare and good.
e. Property under control of husband. Wife no right over her own property too.
f. Malik and the subsequent jurists of this school had the privilege of being judges and as such they
had to solve day-to-day problems of the public. This made their approach to law more practical
than that of the Hanafis.
g. In addition to Quran, Traditions, Ijma and Qiyas the Maliki School accepts also the customs and
Istidlal as additional sources of law.
h. The principles of this school spread over to the Central and West Africa, Spain, Kuwait, and
Bahrain. There are no Malikis in India.
i. Imam Malik was a great jurist and traditionalist.
j. They accept Ijma of the companions and their successors residing at Medina.
k. Malik wrote book ‘Muwatta’ Kitab-al-Muwatta’, ‘Khalil-ibn-Ishaqs’, ‘Al-Mukhtasa’.
l. Kitab-al-Muwatta’ is the oldest corpus jurist of the Sunni branch of Islamic jurisprudence. It
represents a codification of the fiqh as it developed in the Hijaz in its theological centre Madina.
Its objects is to give to survey of law and justice, ritual and practice of religion according to Ijma
of Islam in Madina.
m. Khalil-ibn-Ishaq’s ‘al-Mukhtasar’ is another important work containing Maliki principles.
46. Shafi school
a. Imam Shafi’s full name was Abu Abd Allah Muhammad Ibn Idris Ash-Ashafi. He was born
in Gaza.
b. He was a great thinker, had an unusual grasp of principles and a clear understanding of the judicial
problems.
c. Modern Jurist place him very high as a jurist. He is the creator of the classical theory of Islamic
jurisprudence and is regarded as founder of the science of usual.
d. He based his doctrines on Holy Quran which is the basis of legal knowledge. He stressed on the
prophet’s sunna next to Quran.
e. According to Ash Shafei, there was not a single problem of human life which could not be solved
by Quran or the traditions of the Prophet. Such solutions may be obtained either directly in these
texts or from analogical deductions.
f. He made the greatest use of ‘Qiyas’ and had fully established it as a source of law. But according
to him Qiyas is to be considered only after considering Quran, Traditions. He is the first to lay
down regular rules for Qiyas.
g. He was the strong supporter of Ijma. It should be consensus of a majority. He has not only
approved Ijma as a source of new law but also enlarged its scope.

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 h. He gave a middle course between independent legal investigation and the traditionalism and
gave clear and balanced theory of law.
47. Hanbali School
a. Imam Hanbal or Imam Abu Abdullah Ahmed Ibn Muhammad Hanbal was the founder.
b. He used the Quran and Hadith extensively to formulate legal principles. He studied Hadith and
Fiqh his whole life.
c. The result is that the doctrines of this school are rigid and uncompromising. Because of this,
Ibn Hanbal and his followers were always regarded as reactionaries and were harassed by the
authorities from time to time.
d. His interpretation of Hadith was literal and unbending. He learned so much hadith that it is said
he accepted even weak Hadith and did not adhere to the strict principle of scrutinizing the
transmission of Hadith.
e. He was of the opinion that Ijma was easier to be occurred in the age of companions of the Prophet
due to their less number who could get informed of the Ijma.
f. He was also of the opinion that, Ijma may be based on Quran or Hadith or an analogy.
g. He allowed Qiyas merely in sheer necessity and always tried to derive law from traditional
sources

48. Difference between Sunni and Shia schools

Sunni Shia
1. Muta Marriage is unlawful Muta Marriage is lawful.
2. Sunni recognize long list of guardians for Shias only father and grandfather are guardians
marriage besides father, grandfather, for marriage.
father’s father, brother, other paternal
relations, mother, paternal uncle, etc.
3. Sunni law prescribes two male witnesses No need of witnesses. But need two witnesses
at the time of marriage. at dissolution of marriage.
4. Sunni law presumes consummation if Under Shia law consummation is presumed by
there has been a valid retirement of the actual intercourse only.
husband and wife into the nuptial chamber
under circumstances that leave no doubt to
sexual intercourse.
5. The Sunnis hold two years as gestation. In Shias hold ten months as the longest period of
Sunnis law child born within two years of gestation. Child will be legitimate only if born
the termination of marriage is presumed to within ten months.
be legitimate.
6. Ten Dirhams is the minimum amount of Under Shia law the proper dower should not
Dower to be paid. Here there is not upper exceed 500 dirhams.
limit.
7. Talaq may be effected orally or written Talaq pronounced orally before two witnesses.
document. Talaq in writing is not valid unless the man is
physically unfit to pronounce it orally.
8. Maternity is fixed in the woman who gave The Shia la distinguishes between child of
birth to the child whether from adulterous fornication and child whose mother was validly
intercourse or of a valid contract of married. In the first case she is not considered
marriage. In Sunni law an illegitimate the mother and no inheritance rights to the
child has right of inheritance from mother. child.
9. The mother under Sunni law is entitled to In Shia law the mother is entitled to the custody
the custody of a boy until he has completed of a boy until he attains the age of two years
the age of seven years and girl till she and a girl until she attains the age of seven
attains puberty. years. In default of her, it belongs to the father.

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 10. Under the Sunni law the liability to In Shia law it is not obligatory to maintain if the
maintain the father rests on his children. father is in a position to earn.
The sons are liable even if the father is
earning.
11. Waqf inter vivos is completed under Sunni Under Shia law a Waqf inter vivos cannot be
law by a mere declaration of endowment created by a declaration. There must be
by the owner delivery of possession.
12. A person under Sunni law cannot bequeath In Shia law no consent is necessary if the
anything in favour of an heir except with bequest does not exceed one-third and where it
the consent of the other heirs signified does exceed the consent of the heirs may be
after the testator’s death. given even during the lifetime of the testator.
13. According to Sunni there are three classes Under Shia law there are only two classes of
of heirs - sharers, residuaries, and distant heirs, sharers and residuaries i.e. heirs be
kindred. consanguinity and heirs by marriage.
14. In Sunni law homicide is a bar to In Shia it is only a bar if it is intentional.
succession.
15. Under Sunni law both husband and wife Under the Shia law only the husband is entitled
can take by return i.e. where there is to return and not the wife.
residue.
16. The doctrine of increase extends to all The doctrine of increase applies only to the
sharers. daughter and sister.

49. The Shia school is sub-divided into three parts - Athna-Asharia, Ismailyas and Zaidyas. The two
sub-schools of Athna-Asharia are Akhbari and Usuli. The Khojas and Bohras of Bombay belong to
Ismaliya School.
50. Motazilas have no school. Motazilas have no separate body of law.

OPERATION, APPLICATION AND INTERPRETATION OF MUSLIM LAW AND

CONVERSION.
51. Muslim law is a personal law.
52. All Muslim laws are not applicable in India. It is applied in certain matters only.
53. The whole Muslim law may be classified under the following heads:
a. Those that have been expressly directed by the legislature to be applied to Muslim, such as, rules
of succession and inheritance.
b. Those that are applied to Muslims as matter of justice, equity ad good conscience, such as rules
of Muslim Law of pre-emption subject of course, now to Article 19(1)(f) of the Constitution of
India.
c. Those that are not applied at all, though the parties are Muslims, such as, Muslim Criminal Law
and Muslim Law of evidence.
54. The authority to enact laws primarily belongs to God, He alone has the supreme legislative power.
There it is outside jurisdiction of Caliph and State.
55. Shariat Act
a. The Shariat shall be applied to Intestate succession, special property of females, marriage,
dissolution of marriage, maintenance, dower, guardianship, gifts, trust and trust properties, waqfs.
b. Section 3 of the Act provides that any person who satisfies the prescribed authority:
That he is Muslim.
That he is competent to contract within the meaning of Section 11 of Indian Contract Act,
1872.
That he is a resident of India.

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 c. Where the Shariat Act does not apply:
Questions relating to agricultural land.
Questions relating to following kinds of waqfs - Charities and Charitable Institutions.
Charitable and Religious institutions.
Matters which are not expressly covered by the Act.
Any matters arising before the Act - Act is not retrospective.
Custom alone superseded.
56. Muslim Law applies to Muslims by birth and Muslims by conversion.
57. Abdul Razak v/s Aga Mohammad - Islam depends upon belief and the thought of man is not
triable. Profession with or without conversion is necessary and sufficient to remove the disability.
58. In case a person claims to be Muslim but his avowed belief and conduct in the past do not conform
to those of any recognized sect of Muslims then the court will apply the law of justice, equity and
good conscience.
59. If a Shia marries a Sunni wife, the law of the defendant will be applied. If there is a suit between a
Muslim and non-Muslim, then if the defendant is Muslim then Muslim law will be applied.
60. The courts cannot put its own construction on the Quran in opposition to the express ruling of the
commentators of great antiquity and high authority.
61. In Aga Mohammed Jaffer Khan v/s Koolsum Beebee it was held that the Court is not open to
construct in a different manner than what is present in Hedaya and Imamia (works on Sunni law and
Shia law).
62. In Sarla Mudgal v/s Union of India it was held that second marriage of a Hindu husband after
conversion to Islam without having his first marriage dissolved under law would be invalid.
63. In Skinner v/s Orde it was held that pretended conversion to Islam for the purpose of bigamy is not
permissible under the law.
64. The conversion of a Hindu wife to Islam does not ipso facto dissolve her marriage with her
husband.
65. In case a Hindu converts to Islam, then succession and inheritance are governed by Mohammedan
Law and not by Hindu law (Vohra bai Khatija Isabhai v/s Vohra Karimbai).
66. The effects of conversion to Islam are:
a. The religion of Islam is substituted for the previous religion and also the personal law.
b. The rights and status of the convert become subject to the Mohammedan law.
c. His apostasy has an immediate and prospective effect, from the moment of the conversion and is
not retrospective.
d. Conversion of both spouses without any intention to commit fraud upon the law will have the
effect to altering the rights incidental to marriage, but this question was left undecided by the
Privy Council in Skinner and Orde.
e. Succession of the estate of a convert is governed by Muslim law.
67. A Muslim after conversion to other religion losses all rights as Muslim. A person who is apostate
will not lose his rights as long as he prepared to accept the fundamental tenets of Islam, he is not
apostate.
68. Marriage of a Muslim husband with Muslim wife is dissolved ipso facto on the renunciation of the
husband of the Islamic religion, but if a couple renounce Islam and embrace other religion then their
marriage remains intact.
MARRIAGE (Nikah)

69. Under Muslim law marriage is considered as civil contract.

70. J. Mahmood says that Marriage is a civil contract.

10 FAMILY LAW (INTERNAL) NOTES BY FR. LAWRENCE MST (FOR PRIVATE CIRCULATION)
71. Hedaya says that Marriage implies a particular contract used for the purpose of legalizing children.
It says that Nikah in its primitive sense, means carnal conjunction.
72. Ashabah says marriage is a contract underlying a permanent relationship based on mutual consent
on the part of man and woman.
73. Nikah means union of sexes and in law, means marriage.
74. In Shoharat Singh v/s Jafri begum’s case Privy Council stated that Nikah (marriage) under the
Muslim law is a religious ceremony.
75. Muslim Jurist agree that marriage is Sunnat Muwakkida, means the person who complies with it,
is rewarded in the next world, and he does not, commits a sin.
76. Ameer Ali says that marriage is an institution for the protection of society so that persons may guard
from foulness and unchastity.
77. Objects of Marriage are (A glossary on Tarmizi)
a. Restraint of sexual passions.
b. Ordering of domestic life.
c. Increase of family.
d. Disciple of same - care and responsibility.
e. Upbringing of virtuous children.
Hedaya speaks of the ends of marriage as 1. Cohabitation. 2. Society. 3. Equal friendship.
78. The nature and concept of Marriage is to:
a. Legalize children.
b. Validate sexual relations.
c. Social and religious institution.
79. Nature of Muslim Marriage - there are divergent views. Some say it is sacrament and others that
it is a civil contract. It has the following characteristics of contract.
a. Marriage requires proposal and acceptance.
b. As in contract the minor can set aside a contract on attaining majority.
c. Parties can enter into ante-nuptial and post-nuptial agreement which is enforceable by law just
like contract.
d. The terms of marriage contract may also be altered within legal limits to suit individual cases.
e. There is also breach of contract in marriage.
In the case of Anis Begum v/s Mohammad Istafa is was held that marriage is both a civil contract
and a religious sacrament.
It is also an ibadat (Devotional Act). There is no monkery in Islam.
80. Essentials of Marriage:
a. Proposal (ijab) and acceptance (qabool). One party makes the offer or proposal and the other
party accepts the offer. It has to be in one meeting.
In Rashida Khatoon v/s S. K. Islam, mere cohabitation without proposal and consent is not
valid marriage.
In Mst. Zainaba v/s Abdul Rahman, there is no particular form in which the proposal and
acceptance should be made.
The document of offer and acceptance in marriage is called Kabin-nama.
b. Presence - Witnesses:
The proposal and acceptance must be uttered in each other’s presence or in the presence of
their agents who are called vakils.
The transaction must be in one meeting.
There must be reciprocity - and not conditional. A offers to marry B on Rs. 2000 as dower
and she accepts the proposal is valid.

11 FAMILY LAW (INTERNAL) NOTES BY FR. LAWRENCE MST (FOR PRIVATE CIRCULATION)
 There has to be two male (or even one male) and two females as witnesses. Three are
compulsory (one male and two females). They must be adult, sane and Muslims.
In Shia, witnesses are not necessary at the time of marriage.
c. Free consent i.e. without fear, force. The parties must contract marriage under free will and
consent. In case of minor, the legal guardian should have consented on their behalf. This is
absolutely necessary, otherwise the marriage is invalid. In Sheikh Abdullah v/s Dr. Husnaara
Parveen, the Nagpur Bench of Bombay HC held that marriage should fulfill all the ingredients
of a valid contract.
In case of Hanafi law, contract of marriage under compulsion is valid. Other Sunni and Shia
schools do not agree to this.
d. Consideration needed. It is also called Mahr or dower.
e. Parties to marriage must be competent.
It consists of capacity to marry and get married, sound mind - not lunatic.
Majority (majority is considered as at puberty i.e. persons acquire sexual capacity) or 15
years. Hedaya says boy must be 12 and girl must be 9. Shia’s speak of majority at
menstruation.
A minor is incompetent to marry. It is null and void. The consent of guardian is required.
Who is guardian (Jabr)? 1. Father is the first guardian; 2. Paternal Grand Father; 3. Brother
and other paternal relations on father’s side; 4. Mother; 5. Maternal uncle or aunty and other
maternal relations; 6. State or Kazi. For the Shias only guardian is Father and Paternal
grandfather. If unauthorized (i.e. no proper guardian) marriage then the minor can confirm at
majority or puberty. He has right to approve or disapprove.
Puberty (Khyar-ul-Bulugh): It is an age at which a person becomes capable of performing
sexual intercourse and procreating children. In Muslim law, puberty and majority ar e the
same. There are three stages:
First - Sagir i.e. below 7 years. Here marriage is void ab initio.
Second - Sariri i.e. above 7 years and below 15 years. Need consent of guardian.
Third - Bulugh i.e. above 15 years. Valid marriage.
Marriage of male below 21 and girl below 18 is regulated under Child Marriage Restraint
Act, 1929. The marriage is not void, but if the provisions are infringed then the persons
violating can be punished.
Jammu and Kashmir HC in Abdul Ahad v/s Shah Begum held that a marriage of a minor
girl even contracted by wali is invalid ab initio.
Marriage contracted by an unauthorized person (Akd Fazuli) is invalid. If the marriage
was contracted by a remoter guardian when a nearer one is present and avaIlable and if the
nearer guardian does not give consent then it is invalid marriage.
In Abdul Karim v/s Amina bai, the Bombay HC held that the option of repudiation given
to the wife is based on principle as in Quran. But the marriage should not be consummated
with her consent.
The girl must exercise her right to reject her marriage when she becomes a major or
immediately on attaining puberty.
A male too has this option on attaining puberty by express declaration, payment of dower or
cohabitation.
f. No legal disability. There are 4 types of disability. They are:
i. Absolute Prohibition.
ii. Relative Prohibition.
iii. Prohibitory Incapacity
iv. Directory Incapacity

12 FAMILY LAW (INTERNAL) NOTES BY FR. LAWRENCE MST (FOR PRIVATE CIRCULATION)
i. Absolute Prohibition. Absolute incapacity to marry arises from:
Consanguinity (Qurabat) - it means blood relations. Those barred from marrying are:
his mother or grand-mother, his daughter or grand-daughter, his sister whether full,
consanguine or uterine, his niece or great niece, his aunty (fathers and mothers sisters)
or great aunty (paternal or maternal). Here marriage is void.
Affinity (Mushaarat) - close relations such as his wife’s mother or grand-mother, his
wife’s daughter or grand-daughter, wife of his father or paternal grand-father, wife of
his son or son’s sons or daughters son. Marriage with wife’s daughter or grand-daughter
is prohibited only if the marriage with the wife is consummated.
Fosterage (Rixa) - when a child under the age of two years has been suckled by a
woman other than its own mother, the woman becomes the foster-mother of the child.
A man may not, for instance, marry his foster-mother or her daughter, or his foster-
sister.
Exceptions: Under Sunni law, there are a few exceptions. A valid marriage can be
contracted with sister’s foster-mother, foster sister’s mother, foster-son’s sister, foster-
brother’s sister.
ii. Relative Prohibition.
It arises from cases which render the marriage invalid only so long as the cause which
creates the bar exists, but once it is removed the incapacity ends and marriage is valid
and binding. The following are the cases of relative incapacity:
a. Unlawful conjunction - It mean marrying two women related to each other by
consanguinity, affinity, or fosterage. A Muslim cannot marry two sisters, or an aunt
and her niece. He cannot marry his wife’s sister till she is alive. The bar can be
removed if he divorces his first wife or on death.
In Azizunnissa v/s Karimunissa it was held that the marriage of a man with his
wife’s sister, his wife being alive, was null and void.
b. Polygamy, or marrying a fifth wife - It is unlawful to marry a fifth wife. He can
marry only four wives. If he marries a fifth woman then it is irregular marriage, but
it can become regular if one of his wife’s dies or divorces. In Shia law it is void
marriage. A Muslim woman cannot marry a second husband.
In India a Muslim marrying under or getting marriage registered under the Special
Marriage Act, 1954 cannot marry a second wife during the life-time of his spouse.
c. Absence of proper witnesses - for the Sunnis it is essential to have two males and
two females as witnesses to marriage. If no then the marriage is invalid but not void.
For the Shias the witnesses are not necessary.
d. Difference of religion - A Sunni male can marry a Muslim female (of any sect) or
a Kitabia (Divine Book -Christian, Islam, and Judaism). But he cannot marry a
idolatress, or fire-worshipper. However a marriage with idolatress and fire-
worshipper is irregular. For the Shias it is void. But a Shia can contract a Muta
marriage with a kitabia including a fire-worshipper.
e. Woman undergoing Iddat - Iddat is the period, when a marriage is dissolved due
to divorce or death, the woman has to remain in seclusion and abstain from marrying
another husband. Marrying during Iddat period is irregular marriage and not void. iii.
Prohibitory Incapacity: It arises in the following cases:
a. Polyandry - it means having more than one husband. It is forbidden. A woman cannot
marry again till the previous marriage exits. If she marries then she is liable under
section 494 IPC and the children of this marriage are illegitimate.

13 FAMILY LAW (INTERNAL) NOTES BY FR. LAWRENCE MST (FOR PRIVATE CIRCULATION)
 b. Muslim woman marring a non-Muslim - a marriage of a Muslim woman with a non-
Muslim male whether he be a Christian, Jew, or idolater or a fire-worshipper is irregular
in Sunni and void under Shia law.
iv. Directory Incapacity - It may arise from:
a. Marrying a woman ‘enceinte’ - unlawful to marry a woman who is already pregnant
by her former husband (Ameer Ali).
b. Prohibition of divorce - when a marriage is dissolved by triple Talaq, then reunion is
prohibited.
c. Marriage during pilgrimage - Shia marriage during pilgrimage is void. The Maliki’s,
Sahfi’s and Hanabali’s hold marriages within the sacred territory on a pilgrimage to
Mecca as irregular.
d. Marriage with a sick man - marrying a sick man who is suffering from fatal disease
is invalid. If he recovers then the marriage is consummated, it is valid.
81. Iddat:
a. Iddat is the period, when a woman is divorced or her husband is dead, and she has to maintain
seclusion and not marry.
b. Marriage during Iddat.
A girl cannot marry during Iddat. The reason is to ascertain Pregnancy. To make sure
whose child it is and to avoid confusion of parentage.
Iddat of Talaq (If divorced) - then Iddat is for three menstrual cycles if she is menstruating
or for three lunar months. If pregnant, then till delivery.
Iddat of Widowhood: If widow then 4 months and 10 days.
Iddat of pregnant woman: Is the husband is dead. Iddat will not terminate till delivery or
miscarriage. If delivery comes before 4 months and 10 days then the remaining period will
have to be observed.
Iddat when marriage is irregular: If separated before consummation then no Iddat. If
consummation has taken place then wife bound to observe Iddat.
If marriage is not consummated, Iddat has to be observed in case of death, but not in the
case of divorce.
Period of Iddat begins from the date of the divorce or death of the husband and not from
the date on which the woman got the information of death or divorce.
Where a husband has divorced his wife and dies before the completion of Iddat then the
woman has to undergo fresh Iddat for 4 months and 10 days.
For Sunnis Marriage during Iddat is irregular. For the Shias marriage during Iddat is void.
c. Rights and duties of Female during Iddat are:
i. Husband should maintain his wife.
ii. Cannot marry.
iii. Husband cannot marry 5th till Iddat. iv.
Pay dower / Mahr.
v. During Iddat period he dies then can get inheritance.
82. Nikah or Marriage on phone/net/video conference is void. But if an Attorney is appointed by both
the sides and who is familiar with them then the marriage over phone/Net/Video conference is valid.
83. Valid retirement and its requirements? (Khilwal-ut-shaiha) - It is not exercising right of marriage
even though he rightfully can. When the husband and wife are alone together under circumstances
which present no legal, moral or physical impediment to marital intercourse, they are said to be in
valid retirement. It has same legal effect as consummation in certain circumstances.
The conditions are:
a. There must be Actual privacy

14 FAMILY LAW (INTERNAL) NOTES BY FR. LAWRENCE MST (FOR PRIVATE CIRCULATION)
 b. No physical relation or bar.
c. No moral bar.
d. No legal bar.
It would be considered as equivalent to consummation of marriage if:
a. Confirmation of Mahr.
b. Establishment of paternity.
c. Observance of Iddat.
d. Wife’s right of Maintenance and Residence during Iddat.
e. The bar of Marriage with wife’s sister.
Under Shia law valid retirement is not recognized.
84. Kinds of Marriage according to validity are
a. Valid (Sahih).
b. Void (Batil).
c. Irregular (Fasid)
85. Marriage is valid or sahih if: (as in point 70)
a. Proposal and Acceptance.
b. Free consent.
c. Proposal and acceptance at one meeting and before two witnesses.
d. Capacity to marry and be married. Major, sound mind, capable of giving free consent.
e. No impediments of consanguinity, Affinity, Fosterage, polyandry.
f. No legal disability.
Consequences of Void or Batil Marriage are:
a. Mutual rights of Husband and Wife
A valid marriage legalizes sexual intercourse and the children are legitimate.
Right of inheritance. Inherit one another.
Right to sexual intercourse. It is legalized.
Prohibited degrees come in force.
Lawful consideration is binding.
b. Rights of Wife and Duties of Husband
Maintenance, within capacity of husband.
Not deprived of maintenance even if she is able to maintain herself. The condition for
maintenance is if she is adult, divorced and obedient.
Equal treatment to all wives.
Separate sleeping room for privacy in case there are more than one wife.
Get dower. If no dower then refuse cohabitation.
Entitled to visit and be visited by relatives once a year and children of previous husband. It
should be reasonable visit.
Refuse to stay if he keeps a concubine and fire worshipper.
Can ask for her own apartment and exclude others except husband.
c. Rights of Husband and Duties of Wife
She is bound to conjugal fidelity
She is bound to allow her husband conjugal union at reasonable time and place, with regard
to her heath and decency.
Right to enjoy marital relationship.
She is bound to obey his legal commands.
Bound to reside in his house and observe ‘pardah’ if necessary.
Iddat on divorce or death.

15 FAMILY LAW (INTERNAL) NOTES BY FR. LAWRENCE MST (FOR PRIVATE CIRCULATION)
86. Marriage is void or Batil if: a marriage which has not legal results is called void marriage. Under
Shia law, the following marriages are void:
a. Not of sound mind.
b. No capacity to marry - absolute incapacity.
c. Marriage with Wife of another person, whose marriage is still subsisting.
d. Remarriage with one’s divorced wife, when there is a legal bar.
e. Marriage prohibited by reason of unlawful conjunction.
f. Marriage during Pilgrimage.
g. Marriage with 5th Wife.
h. Marriage with any Non-Muslim.
i. Marriage with a woman undergoing Iddat.
Consequences of Void or Batil Marriage are: Void marriages have no legal effect either before or
after consummation. It does not create any rights or obligations.
a. If void and consummated, then the sexual intercourse is unlawful and if there is an issue then
the child is illegitimate.
b. There is no legal effect, no right or obligation.
c. No maintenance and no inheritance can be got or demanded.
d. But can get dower, if marriage is consummated.
e. Parties can separate without divorce at any time.
87. Marriage is Irregular or Fasid if: Marriage contracted by parties suffering from relative prohibitory
or directory incapacity is irregular. Shias not consider it as for them it is void. For them marriage is
either valid or void.
For the Sunnis
a. Marriage contracted without witnesses is irregular.
b. Marrying a 5th wife is irregular. Shia it is void.
c. Marriage during Iddat for Sunnis is irregular.
d. Marrying a non-Muslim is irregular.
e. Marriage by an unauthorized person is irregular.
f. Marriage contract to the rules of Unlawful conjunction for Sunnis is irregular, for the Shias it is
void.
Consequences of Irregular or Fasid Marriage are:
a. Generally it takes into consideration where marriage is consummated or not consummated.
b. If before consummation then it marriage is void. It has not legal effect. The wife is entitled to
dower.
c. If after consummation then:
Have to observe Iddat of divorce and death.
She is entitled to get Dower specified and proper, whichever is less.
No maintenance even during Iddat.
Child is legitimate.
No mutual inheritance rights.
Divorce by declaration.
Divorce by mutual consent allowed but follow Iddat of divorce and not death.
Mulla - They must be separated by court.
88. Enforcement of lawful conditions of marriage: Marriage is a civil contract therefore it has legal
and illegal conditions.
a. Legal Conditions are:
Husband shall not remove the wife from the conjugal domicile without her consent.
Parties shall live in a particular place.

16 FAMILY LAW (INTERNAL) NOTES BY FR. LAWRENCE MST (FOR PRIVATE CIRCULATION)
 Amount is fixed as maintenance.
He shall not prevent her from visiting or receiving the visits of her relations.
The marriage shall not be consummated up to a certain period.
The husband would earn his livelihood and maintain his wife, if not then the wife can divorce
him.
Husband will not marry another wife.
Certain portion of dower shall be paid at once or within a certain period while the remainder
shall be paid on dissolution of the marriage.
b. Illegal conditions are: the follwign conditions are void.
A condition that the wife will have liberty to live permanently with her parents or leave her
husband’s residence without any cause.
A stipulation binding the husband that he will live in his wife’s house.
An agreement for future separation between the parties without any cause.
A stipulation negative the husband’s freedom for pronouncing divorce.
A condition limiting the duration of the marriage to specified time under the Sunni Law.
A condition that the wife cannot be prevented by the husband from frequenting immoral
places.
That the husband shall prevent her from visiting or receiving the visits of her relations.
A condition that the woman should forgo her right to maintenance, or not entitled to dower,
or they would have no mutual rights of inheritance.
89. Presumption of Marriage:
a. Marriage is presumed in the following cases:
Prolonged and continuous cohabitation as husband and wife. Cohabitation must be
prolonged, cohabitation should be as husband and wife, not in prohibited degree and not be
prostitute or concubine.
Recognition of relationship of husband and wife by friends, neighbors and relatives.
Acknowledgement by husband and wife as being so.
Acknowledgement by children that they are father and mother.
In Gazanfar Ali v/s Kaniz Fatma it was held that where a woman is a prostitute, cohabitation
however prolonged can never give rise to the presumption of marriage.
b. Where presumption does not apply:
It does not apply if the conduct of the parties is inconsistent with the relation of husband and
wife.
It does not apply to a woman who was admittedly a prostitute before she was brought to the
man’s house.
c. Remedies available to husband against a disobedient wife:
Divorce
Refusal to maintenance.
Civil suit for the restitution of conjugal rights.
d. Remedies avaIlable to wife against her husband:
Suit for maintenance.
Refusal to live with him if there is imminent danger to her person.
Claim to maintenance under section 125, CPC, 1973.
All the remedies civil or criminal against any acts amounting to hurt, criminal force, or
wrongful restraint under IPC.

17 FAMILY LAW (INTERNAL) NOTES BY FR. LAWRENCE MST (FOR PRIVATE CIRCULATION)
90. Restitution of Conjugal Rights (Husband)
Concept of marriage is a civil contract, therefore a suit for restitution of conjugal rights would
be a suit for the specific performance of the terms of the marriage contract.
In Moonshee Buzloor Ruheem v/s Shumsoonissa Begum it was held that where a wife without
a lawful cause ceases to cohabit with her husband, the husband may sue the wife for restitution
of conjugal rights.
When suit is brought by the husband, the wife can contest it on the following grounds:
a. Validity of marriage.
b. Quality of marriage - Legal cruelty.
c. False charge of adultery by husband to wife. But if wife in actual adultery then there is no
defense.
d. Non-payment of prompt dower/Mahr.
e. Excommunication of husband. If he is debarred from caste and community.
f. Agreements both pre-marriage and post-marriage.
g. Lian and Zihar. Lian is oath accusing wife of adultery without legal proof and paternity of
child. Zihar is when husband addresses his wife as mother, sister, etc.
h. Apostasy.
i. Repudiate marriage (husband).
j. Impotent husband.
Payment of dower/Mahr: If the husband has not paid the dower, then he cannot ask for
restitution of conjugal rights.
91. Muta Marriage:
It is a temporary marriage. It was pre-Islamic. The basis of this marriage was enjoyment or
entertainment.
There were no rights created. It was as good as prostitution. This was allowed due to long
travel. It was based on two aspects. They are: time fixed at contract and Dower fixed at
contract.
It is valid form of marriage under Shia but void in Sunni law.
A male Shia Muslim may contract Muta marriage with a Muslim, Christian, Jew, or a fire-
worshipper woman but not with the follower of any other religion. Muta marriage with a Hindu
woman is void.
A female Shia Muslim is not free to contract Muta marriage with a non-Muslim.
Shia woman cannot have Muta Marriage. Shia males can have Muta marriage with non-Muslim.
There is no minimum time for duration of Muta Marriage. It can be one day, 1 year or years.
The essentials of Muta Marriage are:
a. Period for marriage is fixed. If not fixed then it is a permanent marriage. In Shahzada
Qanum v/s Fakher Jahan it was held that where a Muta is contracted for unspecified period,
a Nikah (permanent) marriage will result.
b. Dower is fixed in the contract.
c. If the term is fixed and not dower fixed then the marriage is void.
d. If the term is not fixed and dower is fixed then it is void, but yet considered as permanent
marriage.
e. No four wives policy. One can have any number of such wives.
f. There must be proper contract, declaration and acceptance.
The main Incident of Muta Marriage are:
a. Woman and husband have no mutual rights of inheritance.
b. Children are legitimate and capable of inheritance from both father and mother.
c. Divorce is not recognized in Muta marriage.

18 FAMILY LAW (INTERNAL) NOTES BY FR. LAWRENCE MST (FOR PRIVATE CIRCULATION)
 d. The marriage is dissolved ipso facto on the expiry of the fixed period or by mutual consent
or by death of the either party.
e. Wife can’t get maintenance.
f. If the marriage is not consummated then get only half dower. If it is consummated then get
full dower.
g. Iddat to be observed of death i.e. 4 months and 10 days. If Iddat of pregnancy, then till
delivery.
h. Husband has right to refuse procreation (IZL).
i. The time can be extended.
j. No right of divorce can terminate. It can be terminated by making a ‘gift of the term’ (Hiba-
i-muddat) i.e. get full dower. If wife leaves then cut dower.
k. If no evidence of Muta marriage time then as long as they are together.
l. There is no limit to the number of wives.
m. The husband is not bound to provide residence to the Muta wife.

MAHR (DOWER)
92. Mahr (Dower)
a. Mahr is a sum of money or property. It is payable by groom to the bride at Nikah either by
agreement between parties or by operation of law.
b. Mahr on demand is called ‘prompt dower’ (Muajjal).
c. Mahr on dissolution or divorce or death is called ‘differed dower’ (Muwajjal).
d. According to Ameer Ali, Dower is a consideration which belongs absolutely to the wife.
e. According to Wilson, Dower is consideration for the surrender of person by the wife.
f. In Abdul Kadir v/s Salima dower is sum of money or other property promised by the husband
to be paid in consideration of marriage.
g. Dower is simIlar to Roman ‘donatio propter’.
h. In Nasra Begum v/s Rizwan Ali, Allahabad HC expressed the view that the right to claim
prompt dower proceeds cohabitation. Consideration is not same as in contract. It is an obligation
imposed on the husband as a mark of respect for the wife.
i. In Hassina bibi v/s Zubaida bibi the dower even if not fixed is entitled to be paid with some
dower.
j. There are three types of marriage according to Mahr. They are:
Shighar Marriage: In this marriage daughter or sister is given to the other party in exchange
for daughter or sister. Here no dower is to be paid. False accusation of unchastity used to
deprive the wife of dower.
Beena Marriage: In this marriage the husband only visits his wife, but does not bring her to
his house. The wife is called Sadiqa which means ‘female friend’. And the gift given is
called ‘Sadaq’ which means gift. It is also called Mahr. But they are different. Sadaq is gift
given to wife in Beena Marriage and Mahr is gift to parent of wife in Baal Marriage.
Baal Marriage: It is a marriage of dominion. It is child marriage. Here the wife’s parents
part with her and have to be compensated. The gift or Mahr is given to the parents.
k. The object of Mahr is
To impose an obligation on the husband as a mark of respect of the wife.
To place a check on the unreliable use of divorce on the part of the husband
To provide for her subsistence after the dissolution of marriage, so that she is not helpless.
l. Fixation of Mahr: The Indian Ulema recommended that Mahr should be fixed in terms of gold
and silver so that the rights of women are fully protected in the event of fall in the values of
currencies.

19 FAMILY LAW (INTERNAL) NOTES BY FR. LAWRENCE MST (FOR PRIVATE CIRCULATION)
m. Increase or decrease of dower: A husband can at any time after marriage increase the dower.
The wife too can remit the dower wholly or partially. It should be after reaching puberty and
freely. It is called Hibe-e-Mahr.
n. Classification of dower:There are two types of dower.
1. Specific Dower (Mahr-e-Musamma): It is divided into Prompt Dower and Deferred Dower. 2.
Customary Dower (Mahr-i-Misl)
1. Specific Dower: If the amount is stated in the marriage contract, then it is called the specific
dower. Dower may be settled before, at the time or after the marriage. A guardian decides
for the minor’s dower. It is divided into two. They are
a. Prompt dower (Muajjal Mahr): It is payable after marriage on demand. It can be
given before or after the marriage. The wife can refuse cohabitation and conjugal rights
if prompt dower is not paid. He has to maintain her. She can demand prompt dower even
after consummation. But after consummation she cannot resist the conjugal rights. The
limitation begins to run on demand and refusal. The period of limitation is three years.
b. Deferred dower (Muwajjal Mahr): It is payable on dissolution of marriage either by
death or divorce. It is payable on dissolution of marriage or death or divorce. If the is
agreed to pay before dissolution then it is valid. The wife is not entitled to demand
deferred dower unless otherwise agreed upon. The widow may relinquish her dower at
the time of her husband’s funeral by the recital of the formula. It is voluntary. Her interest
in differed dower is vested one and not a contingent one.
If the dower is not fixed in the Kabin-nama then the Allahabad and Bombay HCs have
fixed that it should be on the basis of position of wife, custom of locality, total amount of
dower and status of husband.
In Shia law if the dower is not fixed as to what is prompt and differed then the total amount
would be considered as prompt.
In Sunni law half of the amount would be prompt and the other half deferred.
2. Customary Dower or Proper Dower:
When the amount of dower is not fixed in the marriage contract or even if the marriage
has been contracted on the condition that she should not claim any dower, the wife is
entitled to proper dower. It is determined by taking into account the amount of dower
settled upon by other female members of the father’s family such as her father’s sisters.
Determination of Proper Dower:
a. Personal qualifications of wife; her age, beauty, fortune, understanding and virtue.
b. Social position of her father’s family.
c. Dower given to her female paternal relations.
d. Economic condition of her husband.
e. Circumstances of time.
o. Wife’s right and remedies on non-payment of Dower:
1. Refusal to cohabit: If the marriage is not consummated, the wife has right to refuse
cohabitation till the prompt dower is paid. In case of minor or lunatic, her parents have right
to refuse to send her to her husband’s house. In Abdul Kadir v/s Salima, that the effect of
non-payment of prompt dower is that the wife can refuse to cohabit or refuse to live with the
husband. In Rabia Khatoon v/s Mukhtar Ahmed, that if the suit is brought after sexual
intercourse has taken place with her free consent the proper decree to pass is not a decree of
dismissal, but a decree for restitution, conditional on payment of prompt dower.
2. Right to dower as a debt: The Privy Council held that the dower ranks as a debt and widow
is entitled along with other creditors to have it satisfied on the death of the husband out of
his estate. In Syed Sabir Hussain v/s Farzand Hussain a Shia Muslim stood surety for

20 FAMILY LAW (INTERNAL) NOTES BY FR. LAWRENCE MST (FOR PRIVATE CIRCULATION)
 payment of the dower by his minor son. After his death his estate was held liable for the
payment of his son’s Mahr and each heir was responsible for a portion of the wife’s claim in
proportion to his share in the estate of the deceased.
3. Right to retain her deceased husband’s property:
She is entitled to retain such possession until her dower is satisfied.
It arises only after death, divorce and never during the continuance of marriage. It is a
right to continue in the possession of the husband’s property after termination of marriage
(divorce or death).
If she is not in actual possession, then she cannot afterwards acquire possession of the
husband’s property.
The right to retention is not analogous (simIlar) to mortgage. Her right is not by
agreement (as in mortgage) but it is conferred on her by law.
The right does not constitute a charge on the property and as such she is not a secured
creditor.
A possessory lien on property is no title. She cannot alienate the property. In Maina bibi
v/s Chaudhary Vakil Ahmad, it was held that she has the right to retain the land till
dower is paid.
The widow in possession is liable to give account of the rents, etc. received by her out of
her husband’s property.
She has the right to sue the heirs for the recovery of her dower out of his assets on the
ground that she is retaining the property.
The right of retention is transferable and heritable.
p. Amount of Dower and condition of payment:
Where the amount of the Mahr has been fixed by agreement, and the marriage has been
consummated or either party has died - the whole of the Mahr is payable to wife.
Where the Mahr is unspecified, and if the marriage has been consummated or either party
has died, the wife is entitled to proper dower.
Where the marriage is irregular and it has been unconsummated but dissolved by death of
the party, then the wife is entitled to specified or proper dower whichever is less.
Where the wife is divorced by the husband without consummation or valid retirement, the
wife is entitled to receive: Half of the specified dower or present of three articles of dress or
other value. If the divorce is given by the wife then she is not entitled to any dower.
q. Karche-i-pandan is personal allowance to the wife customary among Muslim families of rank
in India. It is also called allowance to eating fruits

21 FAMILY LAW (INTERNAL) NOTES BY FR. LAWRENCE MST (FOR PRIVATE CIRCULATION)