Sources Of Muslim Law

PRIMARY SOURCES:-

Muslim law is a personal law which is applied only on Muslims. It is applied by courts in India to
mohamedans not in all, but in some matters only. Muslin law in India means that portion of
Islamic civil law which is applied to Muslims as a personal law. Muslim law is the body of law
which is derived from the Quran and other recorded saying of the Muslims prophet
Muhammad. However Islamic law talked about man's duties rather than his rights. In the
religious sense Islam means submission to the will of god' & in secular sense Islam means
the establishment of peace.

The origin of Muslim law is Arabia where Mohammad enunciated Islam. The object of Islam is
to create a sense of obedience and submission to Allah. His ordinances and thereby to walk on
right path. Those who follow this path are Muslim. According to Amir Ali Muslim is any person
who professes the religion of Islam, in other words accepts the unity of god and prophetic
character of Mohammad. Thus to be a Muslim only two things is required- one is that Allah is
one and the second is the prophet hood of Mohammad. Islamic law is a branch of Muslim
theology, giving practical expression to the faith, which lays down how Muslim should conduct
himself through his religion, both towards god and towards other men*

Muslim law consists of the injunction of Quran, of the traditions introduced by the practice of
the prophet (sunna), of the common opinion of the jurists (ijma), of the analogical deductions of
these three (qiyas). Further , it has been supplemented by the juristic preference (Istihsan),
public policy (Istislah), precedent (Taqlid) and independent interpretation (Iltihad).

Sources
Sources of Muslim law is classify into two categories that is primary sources and secondary
sources.

Primary Sources
Primary sources are those on which Muslim law relied on. These sources are the foundation of
Muslim law. Primary sources of Muslim law are:

 Quran
 Sunnat
 Ijma
 Qiyas
 1. Quran
 Muslim law is founded upon Al-Quran which is believed by the muslamans to have
existed from eternity, subsisting in very essence of god. The word Quran has been
derived from the Arabic word Quarra which means to read. The Quran is, Al-furqan i.e.,
one showing truth from falsehood and right from wrong. The word Quran which is the
‘divine communication' and revelation to the prophet of Islam is the first source of
Muslim law.

Quran is a primary source of Muslim law, in point of time as well as in importance. The
Islamic religion and Islamic society owes its birth to the word of Quran. It is a paramount
source of Muslim law in point of importance because it contains the very word of god
and it is foundation upon which the very structure of Islam rests Quran regulates
individual; social, secular, and spiritual life of Muslims.

It contains the very words of god as communicated to prophet mohammad through

angel Gabriel. It was given to the world in fragmentary forms, extending over a period of
23 years. It originally had for its objects repealing objectionable customs, such as, usury,
unlimited polygamy and gambling, etc., and effecting social reforms, such as raising the
legal status of women and equitable division of the matters of inheritance and
succession.

The Quran can be no way altered or changed, thus, even the courts of law have no
authority to change the apparent meaning of the verses as it does have an earthly
origin. This view was held in Aga Mohammad Jaffer v. koolsom Beebee (1895). But
whenever the Quran was silent on any particular matter, guidance was taken from the
‘sunnat'.

 2. Sunnat
 The word sunna means the trodden path & as this meaning shows it denotes some
kind of practices and precedent. It is belief of Muslim that revelations were two kinds-
manifest (zahir) and internal (batin). Manifest revelation is communication which is
made by angel Gabriel under the direction of god to Mohammad in the very words of
god. Quran is composed of manifest revelations.

Internal revelation is opinions of the prophet which is delivered from time to time on
questions that happened to be raised before him. Sunna means the model behavior of
the prophet. The narrations of what the prophet said, did or tacitly allowed is called
hadis or traditions. The traditions, however, were not reduced to writing during lifetime
of Mohammad. They have been preserved as traditions handed down from generation
 to generation by authorized persons. The importance of hadith as an important source
of Muslim law has been laid down in the Quran itself.


3. Ijma
 It was equally binding on the people to act on a principle (not contrary to the Quran or
hadis ) which had been established by agreement among highly qualified legal scholars
of any generations.

Ijma has been defined by Sir Abdul Rahim as agreement of the jurists among the
followers of Prophet Mohammad in a particular question of law. The validity of ijma, as
containing a binding precedent, is based upon a hadis of the prophet which says that
god will not allow His people to agree on an error. Ijma thus become a source of law.
According to the classical theory, failing Quran and traditions, and consensus of opinion
amongst the companions of the prophet is recognized as the best guide of law. Thus it is
the third source of law, both in point of time and importance.

The authority of ijma as a source of Muslim law is also founded on Quranand Hadith.
The law is something living & changing. The aim of law is to fulfill the needs of the
society. The principle of ijma is based upon the text i.e. god will not allow His people to
agree on an error and whatever Muslims hold to be good is good before god. Muslims
religion does not admit the possibility of further revelation after the death of the
prophet, the principle of ijma is the only authority for legislation in the present Muslims
system.


4) Qiyas
 This is a last primary source of Muslim law. Qiyas means reasoning by analogy from
above 3 sources i.e., Quran, Sunna and Ijma. In Qiyas rules are deduced by the exercise
of reason.
Qiyas may be defined as a process of deduction by which the law of the text is applied
to cases, which though not covered by the languages are governed by reason of text.
Thus, it should be noted that Qiyas does not purport to create a new law, but merely to
apply old established principles to new circumstances.
Secondary Sources
These sources are not basic sources of Muslim law but the supplementary sources of Muslim
law. The secondary sources of Muslim law are:

 Urf or Custom
 Judicial decision
  Legislation
 Equity, Justice, & Good conscience

Urf or Custom
Before the emergence of Islam in Arabia , customs were the basis of entire social life, religion,
morality, trade and commerce. Custom has not been recognized as a source of law in a Muslim
law. However, it cannot be denied that custom has always been given a place under Muslim
law, if it is in conformity with Muslim law. For example, prophet mohammad never repeal the
whole of the pre-Islamic customary law of Arabia. In various matter of Muslim law, custom play
a significant role when the matter is relating to their:

a. agricultural land;
b. testamentary succession among certain communities; and
c. charities other than wakf, because these matters have not been included in the section
2 of Shariat Act,1937. Custom influenced the growth and formation of shariah in several
ways:

a. A number of texts, particularly traditions are based upon usages.

b. A part of the shariah based upon tacit or silent approval of the prophet comprises many
of Arab customs.
c. Imam malik says that the customary conduct of the citizen of medina was a sufficient
ijma to be relied upon in the absence of other texts.

Pre- Condition Of Valid Custom

 Custom must be territorial.

 It must be existing from memorable time i.e. ancient.
 It must be continuous and certain and invariable.
 Custom should not oppose the public policies.
 Custom must not in contravention of Quran and Ijma.

Judicial Decision
These includes the decisions of privy council, the supreme court & high court of India, Judges
explain what law is. These decisions are regarded as precedents for future cases. Judicial
decision is one of the distinguish characteristic of English law. In India, the plan of Warren
Hastings of 1772 made provision that it was only judiciary which introduced new set rules in
personal laws of Hindus and Muslims.
Justice, equity and good conscience
The doctrine of equity, justice & good conscience is regarded as one of the source of Muslim
law. Abu Hanifa, the founder of hanafi sect of Sunni, expounded the principle that rule of law
based on analogy could be set aside at the option of the judge on a liberal construction or
juristic preference to meet the requirements of a particular case. These principles of Muslim
law are known as Istihsan or juristic equity. Istihsan literally means approbation and may be
translated as liberal construction or juristic preference.

This term was used by great jurist Abu Hanifa to express the libert that he assumed of laying
down the law, which in his discretion, the special circumstances required, rather than law which
analogy indicated. Several areas of Muslim were modified so as to meet the changing
conditions in India.

Legislation
In India, Muslims are also governed by the various legislation passed either by the parliament
or by state legislature. The following are the examples of legislation in India.

 The usurious loans act, 1918

 Religious toleration act
 Freedom of religion act, 1850
 The mussalman wakf validating act, 1930
 The shariat act, 1937
 Dissolution of Muslim marriage act, 1939

These acts have considerably affected, supplemented and modified the Muslim law. In 1986 an
act i.e. Muslim Woman (Protection of Rights on Divorce) Act, 1986 to provide separate law in
respect of divorced Muslim women was enacted by Indian parliament. According to the need of
time and circumstances Indian legislature enacted the law to fulfill the need.

Conclusion
These four sources namely Quran, Sunna, Ijma and Qiyas are the primary sources of law.
Muslim law mainly based on verses of Quran and practices of hadith. There is secondary source
of Muslim law which subsequent of it. Sects of shias does not accept the Qiyas as source of
Muslim law. It is due to the contribution of all that an orderly and systematic theory of personal
laws of Islam came into existence which govers the Muslim community.
Laws related to Muslim
Marriage
Marriage under Islam is a matrimonial relation and an institution which legalizes
the sexual activities between a male and female for the object of procreation of
kids, promotion of love, mutual support and creation of families which are
considered an essential unit in a society. Just like Hinduism, Islam is also a strong
advocate of marriage. However, the Muslim conception of marriage differs from
the Hindu conception according to which marriage is not a mere civil contract but
a sacrament. According many philosophers, marriage in Islam is a religious duty.
Everyone must marry in order to fulfil one’s desire of procreation of kids legally.

Muslim law has been derived from various codified and uncodified sources like-
Quran, Ijma, Qiyas, customs, urf, precedents, equity and various legislations.
There are 4 major sunni school of thoughts- hanifa, hamabli, maliki and shafai.
These four schools recognize each other’s validity and they have interacted in
legal debate over the centuries. In India, Hanifa school of Islamic law is dominant.

The general essentials of a Muslim Niqah are:

  Parties must have capacity to marry.
 Proposal (ijab) and acceptance (qubool).
 Free consent of both the parties.
 A consideration (mehr).
 No legal Impediment.
 Sufficient witnesses (different in shia and sunni).

Classification of Marriage

Valid (sahih)
When all the legal requirements are fulfilled and there are no prohibitions
affecting the parties, then the marriage is correct or ‘sahih’. The prohibitions can
be permanent as well as temporary, in case of permanent prohibitions: the
marriage will be void and if the prohibitions are temporary then the marriage is
irregular.

Effects of a valid marriage

 The cohabitation between the husband and the wife becomes lawful.
 The children born out of a valid marriage are legitimate and they have
right to inherit their parent’s properties.
 Mutual rights of inheritance between husband and wife are established.
That is to say, after the death of the husband, the wife is entitled to
inherit the husband’s properties and after the wife’s death, husband may
also inherit her properties.
 Prohibited relationship for purposes of marriage is created between the
husband and wife and each of them is prohibited to marry the relations
of the other within prohibited degrees.
 The wife’s right to claim dower is fully established just after the
completion of marriage.
 The marriage gives to the wife also the right of maintenance from her
husband with immediate effect.
  After the dissolution of the marriage, the widow or the divorced wife is
under an obligation to observe the Iddat, during which she cannot
remarry.

Void (Batil)
The marriage being void ab initio creates no rights or obligations and the children
born out of such marriage are illegitimate. A marriage forbidden by the rules of
blood relationship, affinity or fosterage is void. Similarly, a marriage with the wife
of another or a divorced wife during iddah period is also void.

Irregular (Fasid)
Due to lack of some formality, or the existence of an impediment which can be
rectified, a marriage becomes irregular, However, this irregularity is not
permanent in nature and can be removed. Thus, the marriage itself is not
unlawful. It can be made valid once the prohibitions are rectified. Marriage in such
circumstances or with following prohibitions are called ‘Fasid’.

1. A marriage contracted without required number of witnesses;

2. A marriage with women during her Iddat period;
3. A marriage with women without the consent of her guardian when such
consent is considered necessary;
4. A marriage prohibited on account of difference of religion;
5. A marriage with a woman who is pregnant, when the pregnancy was not
caused by adultery or fornication;
6. A marriage with a fifth wife.

Muta or Nikah mut’ah

The term literally means “pleasure marriage”. Muta marriage is a temporary
agreement for a limited time period, upon which both the parties agreed. There
is no prescribed minimum or maximum time limit, it can be for a day, a month or
year(s). The marriage dissolves itself after the expiration of the decided period,
however if no such time limit was expressed or written, the marriage will be
presumed permanent. This type of marriage is seen as prostitution by the Sunni
Muslims and thus, is not approved by Sunnis.

However, it is considered legitimate by the Twelver Shia sect, which is

predominant in Iran and constitutes 90% of India’s Shia population. In Iran, the
word mut’ah is only from time to time utilized and this practice is called ‘sigah’.
The rules for sigah are fixed for eg- the contract for temporary marriage can be
attracted for one hour to 99 years; it can’t be for an indeterminate period. This
provision distinguishes mut’a from nikah or lasting marriage, which has no time
limit. However, just like in nikah, in sigah too, the bride must get some monetary
benefit.

No witnesses are required for mut’ah. And just like in any other contract, the
woman being a party can lay down conditions for her sexual union throughout
this time limit, this can also include her daily maintenance. Her temporary
husband must respect these conditions. The marriage automatically dissolves at
the end of the stated period. No matter how short the duration was, the woman
has to practice abstinence lasting up to two menstrual cycles.

Interesting part is that, the temporary husband and wife can renew the contract
but the husband must regardless of this pay the amount to the bride. Husband
has a unilateral right to revoke the marriage-mark of his superior position in the
relationship. But the woman can refuse to be intimate with him or even leave
him, but in such case, she must return back the amount she received from him.

India is a country that has partially approved live-in relationships; However, it

will still be quite difficult for the Supreme Court to constitutionally invalidate this
form of marriage. In modern day era, where feminists all across the globe see
this arrangement equivalent to prostitution. There are many advocates of Nikah
mut’ah who believe that being a contract, this arrangement is superior to the live-
in relationships.

Registeration of Marriage under Muslim Law

Registration of marriage in Muslims is compulsory and mandatory, as a Muslim
marriage is treated as a civil contract. According to section 3 of Muslim Marriages
Registration Act 1981- “Every marriage contracted between Muslims after the
commencement of this Act, shall be registered as hereinafter provided, within
thirty days from the conclusion of the Nikah Ceremony”. Nikahnama is a type of
legal document in Muslim marriages which contains the essential
conditions/details of the marriage.
According to this act, a Nikahnama contains:

1. Place of marriage (with sufficient particulars to locate the Place.)

a. Full name of the bridegroom

b. Age
c. Address
d. Full name of bridegroom’s father
e. Whether father is alive or dead
f. Civil condition of the bridegroom at the time of marriage whether –
Unmarried Widower Divorced Married, and if so, how many wives are
alive
g. Signature or thumb impression of the bridegroom/Vakil/ Guardian
according as the Nikah was performed in person by the bridegroom or
through his Vakil or Guardian
h. Full name of Nikah-Khan (that is the person conducting the Nikah
Ceremony.)
i. Signature of the Nikah-Khan (i.e person conducting the Nikah Ceremony
with date.)
j. Amount of dower fixed
k. Manner of payment of dower
l. Name of witnesses with parentage, residence and address

Dissolution of Marriage
There are 2 categories of divorce under Muslim law:

 Judicial
 Extra-Judicial
The Extra-judicial mode of Divorce can further be divided into 3 subdivisions:

1. By husband- talaaq, ila, and zihar.

2. By wife- talaaq-i-tafweez, lian
3. By mutual agreement- khula and mubarat
A divorce falls into 2 categories:

Talaaq-i-sunnat
It can further be divided into two categories:

i) Talaaq-i-ahsan
A single pronouncement of divorce is made during the period of tuhr (the period
of purity between two menstrual cycles), followed by abstinence from sexual
intercourse during the period of iddat. Here, the divorce can be revoked at any
time before the completion of iddat, thus preventing hasty and unreasonable
divorces.

ii) Talaaq-i-hasan
A husband is required to pronounce a formula of Talaaq three times, during three
successive tuhrs. It is important that pronouncements are made when no
intercourse takes place during any period of tuhr. The marriage is dissolved
irrevocably, regardless to the period of iddat.

Talaaq-i-Biddat
It is a form of Islamic divorce which is instant in nature. It allows any Muslim man
to legally divorce his wife by stating the word “Talaaq” three times in oral, written,
or more recently, electronic form. This is prevalent among the Muslims in India,
especially among the adherents Hanafi school of Islam. This is also known as
“Triple Talaaq” and has been a subject to debate and controversy.

In Shayara Bano V. Union of India and Ors. It was submitted that:

“This practice of talaq-e-biddat (unilateral triple-talaq) which practically treats

women like chattel is neither harmonious with modern principles of human rights
and gender equality, nor an integral part of Islamic faith, according to various
noted scholars. Muslim women are subjected to such to such gross practices
which treats them as chattel, thereby violating their fundamental rights enshrined
in Articles 14, 15, 21 and 25 of the Constitution. The practice also wreaks havoc
to the lives of many divorced women and their children, especially those
belonging to the weaker economic sections of the society.”
There have been many cases in High courts and the supreme court, where the
court invalidated the instant triple talaaq. In Shamim Ara V. State of U.P, the
court observed that:

The correct law of Talaaq as ordained in Holy Quran is that:

1. There must be a reasonable cause for the divorce.

2. The declaration of divorce must be preceded by attempts of
reconciliation between husband and wife by 2 arbitrators. If the attempts
fail, then only the divorce will come into effect.
Supreme court in August 2017 declared Triple Talaaq as “unconstitutional”. The
Modi Government introduced a bill called The Muslim Women (Protection of Rights
on Marriage) Bill, 2017 and presented it in the Parliament which was passed on
28 December 2017 by the Lok Sabha. The bill makes moment triple (talaq-e-
biddat) in any structure spoken, recorded as a hard copy or by electronic
methods, for example, email, SMS and WhatsApp unlawful and void, with as long
as three years of imprisonment for the husband.

However, one of the principle conflicts against the proposed enactment has
consistently been its acknowledgment of a common offense as a cognisable and
non-bailable offence.

Conclusion
The notions of Muta marriage can be evidently seen in our country. In India,
temporary marriage is not recognized, although there exists few who contract
Muta marriage but such marriages are not enforceable in court. Hyderabad is
considered to be the epicentre of the practice where marriage can be instituted
for time span as short as one or two days. In a Hyderabad case it was held that
there is no difference between muta for an unspecified period and a muta for life;
a permanent nikah marriage for life can be contracted by the use of word muta
also; specification of the period for which a muta marriage is contracted alone
makes a marriage a temporary marriage for the period specified.

The practice of Temporary “Muta” marriage is widespread in the modern times

and often arranged by Imams and other Islamic leaders in Europe, America (Shia
parts of Dearborn, Michigan), and in the Middle east. It is commonly the destitute
widows and orphaned girls that are within the clutches of temporary marriage
who are often sold to old men. For the women, there is no desire or pleasure that
drives them into such misery; it is the extreme means to pay the rent and feed
themselves and their children. As a result, this arrangement has received
widespread criticism by various countries as it impliedly encouraging legalization
of prostitution.
The conflicts over the rights of minority women are best dealt with by creating
new representative bodies which have special provisions to ensure that women
are sufficiently represented. In the Shah Bano case, this would have meant
creating a new mechanism to administer Muslim personal law instead of simply
recognizing the Muslim Personal Law Board as the legitimate representative of
the Muslim community. Creating a new mechanism is more sensitive to the
political reality of Muslims in India, which is that they consist of widely dispersed
groups characterized by significant differences. It would also make some
provision to ensure that Muslim women have some access to the institutions
which make the rules which govern their lives.

The concept of mahr under

Muslim Law
Origin of Mahr
In the old pre-Islamic Arabia, the institution of marriage was way different than
today it is. At that time, different forms of sexual relationships were prevalent
between men and women. The women were usually the victims of abuse. Men
used to leave their wives after despoiling them. There was no such proper
system of law regarding marriage, thereby men used to refuse to give any
monetary help to the wife after leaving them. Shighar form of marriage was
observed during those times. In this form of marriage, a man would give his
daughter or sister in marriage to another in consideration of the latter giving his
daughter or sister in marriage to the former. In this form of marriage, the wives
would not get any dower.

Another form of marriage was Beena marriage. In this form of marriage, the
husband visited the wife but did not bring her home, the wife was called Sadiqa
and a gift was given to the wife on marriage known as Sadaq. It is believed that
in Islam Sadaq was the very first form of dower.

In the Baal marriage, the concept of mahr was introduced. Mahr was a kind of
gift or compensation which was given to the parents of the wife in the Baal form
of marriage. The mahr usually belonged to the wife’s parents or guardians.
However, over time, the ancient form of marriage was slowly abolished.
Promulgation of Islam gave a new form of nikah to marriage. This form of
marriage stated that if a man separates himself from his wife, then he should
send her away with generosity, and also so the man cannot take back the goods
which were once given to the wife. This custom of marriages in Islam originated
the concept of the husband giving payment to the wife on marriage as a means
of support in her old age. In Islamic law, Mahr solely belongs to the wife.

Meaning of mahr
In the literal sense, the Arabic term ‘mahr’ means dower. It is a sum of money
that becomes payable by the husband to the wife on marriage. The mahr is
executed either by agreement between the parties or by operation of law.
Various jurists have tried to define mahr.

According to Wilson, mahr or dower was a form of consideration for the

surrender of a person by the wife.

According to Mulla, a dower is either a sum of money or property which the wife
is entitled to receive in the consideration of marriage from the husband.

According to Ameer Ali, a dower is a kind of consideration that belongs to the

wife.

Difference between consideration in contract and

consideration in Muslim Law
From the above definitions, we have observed the term ‘consideration’. The
ambiguity which arises is whether the term ‘consideration’ is similar to that in
contract or is different from it. From various cases, and observations in real life,
it has been affirmed that the term ‘consideration’ is different from that used in
the contract. Without consideration, a contract is generally void but if the dower
or the consideration is not mentioned during the time of marriage, the marriage
does not become void. However, the law requires dower to be paid to the wife
on marriage. Under Islamic law, regarding mahr, consideration means an
obligation imposed upon the husband by the law as a mark of respect for the
wife.

The conflict between the terms ‘mahr’ and ‘dowry’

The literal meaning of the term ‘mahr’ is dower, however, the two terms have
some distinct differences. In Muslim law, the concept of mahr is to ensure
women’s financial security. However, dowry is a social evil. Dowry is generally
asked by the kin of the bridegroom from the bride’s family as a gift to the
marriage. Under Indian law, dowry has been defined in Section 2 of the Dowry
Prohibition Act, 1961. It is thus to be noted that mahr and dowry are two
different concepts. One ensures security and the other is a social evil.

Classification of dower
The dower may be classified into:

 Specified dower: In this kind of dower, the amount of dower is stated

in the marriage contract. The dower may be settled between the
parties either before the marriage or at the time of marriage or after
the marriage. If the marriage takes place of a minor or lunatic boy
then the amount of dower can be fixed by the guardian. The husband
can settle any amount of dower. However, he cannot settle the amount
of dower less than ten Dirhams according to Hanafi law and three
Dirhams according to Maliki law. Shia law does not state any minimum
amount of dower. In the case of those husbands who are very poor and
are not in a position to pay ten Dirhams, then according to the
Prophet, they are directed to teach the Quran to the wife instead of the
dower. There is no maximum limit on the amount of dower. The
specified dower can be classified into:

1. Prompt dower: It is payable immediately after marriage on demand.

2. Deferred dower: It is paid after the dissolution of marriage either by
death or divorce.

 Proper or customary dower: If a marriage is completed without the

amount of dower fixed in the marriage contract or marriage is
completed on the condition that the wife should not claim any dower,
then the wife is entitled to proper dower. The amount of proper dower
is decided by taking into consideration the amount of dower settled
upon other female members of the father’s family. The proper dower is
regulated with reference to the following factors:

1. Personal qualifications of the wife. Like her age, beauty, virtue, fortune,
etc.
2. Social position of her father’s family.
3. Dower given to her female paternal relations.
4. Economic conditions of husband.
5. Circumstances of time.
Under Sunni law, there is no maximum limit for a proper dower but under Shia
law, the proper dower should not exceed 500 Dirhams.
What to do if the amount of dower is intentionally
given low and the wife cannot maintain herself
At times, it has been observed that few husbands intentionally give a low
amount of dower, even when their economic condition is well. The amount of
the dower is observed to be so low. that the woman becomes unable to
maintain herself. This problem was eventually making the object of dower futile.
To overcome this problem, legislation was made so that a reasonable dower is
given. Therefore, the legislature was given full power to maintain the amount of
dower providing that the court will not be bound to award the amount of dower
according to the marriage deed.

Rights of wife when dower is not paid to her

Every woman under Muslim law has the right to claim a dower on the
commission of marriage. Like any other law, if such a right is violated, then the
woman has some remedies. Muslim law confers upon a wife or a widow to some
rights to compel to get the payment of dower:

Refusal to cohabit
If the marriage has not been consummated then the wife has a right to refuse
to cohabit with her husband as long as the prompt dower is not paid. If the wife
is minor or insane, then the guardian has a right to refuse to send her to her
husband’s house until the payment of a prompt dower is given. During the
period, the wife stays in her guardian’s house, the husband is bound to maintain
her.

However, if consummation has taken place after marriage, then the wife loses
the absolute right to insist on the payment of prompt dower. This is because the
husband can file a suit for restitution of conjugal rights. If the wife still refuses
to cohabit with her husband, then she is only entitled to a decree conditional
payment on dower. In the case of Rabia Khatoon v. Mukhtar Ahmed, (1966), it
was held 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.

In deferred dower, the payment of dower is a contingent event. Therefore, the

question which arises is whether the wife can refuse to the husband is conjugal
rights or not. There has been a difference of opinion regarding this. Famous
jurist, Abu Yusuf is of the opinion that she can refuse to cohabit if a deferred
dower is not paid. However, famous jurist Imam Mahmood, Shia Law is of the
opinion that the wife cannot refuse to cohabit in cases of deferred dower.

Right to dower as a debt

According to the lordships of Privy Council, it was held that the dower ranks as
a debt and the widow is entitled along with other creditors to have it satisfied
on the death of the husband, out of his estate. If the husband is alive, then the
wife can recover the dower by instituting a suit against him. In cases where the
dower debt is remaining unpaid, the widow can enforce her claim for the dower
debt by filing a suit against the husband’s heirs. However, the heirs are only
liable to the extent to which and in proportion to which they inherit the property
of the deceased husband.

In the case of Syed David Hussain v Farzand Hussain (1937), it was held that a
Shia Muslim stood surety for the 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 made responsible for a portion of the wife’s claim in proportion to his
share in the estate of the deceased.

Right to retain possession in lieu of unpaid dower

Dower ranks as a debt and the wife is entitled along with the other creditors to
have it satisfied on the death of her husband out of his estate. Her right is
however no greater than that of any other unsecured creditor except that if she
lawfully obtains the position of the whole or part of his estate, to satisfy her
claim with the rents and issues accruing therefrom she is entitled to retain such
position until it is satisfied. The right to retention does not give her any title to
the property. Therefore, she cannot alienate the property.

A widow’s right to retain possession of her husband’s estate in lieu of a dower is

a photo special purpose. It is by a way of compulsion to obtain speedy payment
of the dower which is an unsecured debt.

Effect of apostasy on dower

Apostasy has a huge impact on Muslim personal law. It is believed that the
apostasy of man from Islam denotes immediate dissolution of marriage. On the
other hand, apostasy by the wife from Islam does not denote immediate
dissolution of marriage. As per Section 5 of the Dissolution of Muslim Marriage
Act 1939, a married Muslim woman shall have the same rights in the respect of
the dower under the dissolution of marriage under this Act. The dissolution of
marriage under the Act, even though made after the apostasy of the wife does
not take away her right to dower.

Suit for dower and limitation

If the dower is not paid to the wife while she is alive, then after her death, her
heirs can claim it. The period of limitation as per the Limitation Act, 1963, for a
suit to recover prompt dower is three years from the date when the dower is
demanded, or refused. In the case of deferred dower, the period of limitation is
3 years, from the date when the marriage is dissolved by death or divorce.

Conclusion
The concept of mahr in Islamic law is beneficial for the woman. It ensures
financial security so that she is not left helpless after the death of the husband
or after the termination of the marriage. It also places a check on the capricious
use of divorce by the husband. It is also believed that the mahr is a pivotal
custom in the marriages of Muslims.

Right To Maintenance Under Muslim Law

Maintenance of wife under Muslim law
Under Muslim law, It is the obligation of the husband to maintain his wife in all circumstances.
In a Muslim marriage a husband is bound to maintain his wife even if there is no agreement
between them regarding this. A Muslim husband is not bound to maintain his wife only if the
marriage is void or irregular.

However, the obligation of Muslim husband to maintain his wife only applicable if the wife
remains faithful and obeys all his reasonable orders i.e. Discharge her matrimonial duties.
Under Muslim law it does not matter if wife is earning or not or if she is capable of maintaining
herself, husband is bound to maintain her; this is quiet contrary of what other religious laws
and acts state where only dependent women is eligible of Right to Maintenance.

Muslim law, as we already discussed above that it is the liability and duty of a husband to
maintain his wife.
However, a Muslim wife is not entitled to maintenance in following
circumstances:

 If she abandons the conjugal domicile and her husband without any reasonable causes
 If she elopes with some other man.
 If she has been Imprisoned.
 If she is a minor and because of that the marriage cannot be consummated.
 If she disobeys the reasonable commands of her husband.
 If she makes an agreement of dissertation on the second marriage of her husband.

Maintenance under Criminal Procedure Code, 1973

The right of maintenance for a wife under criminal procedure code is an independent statutory
right and this right is not affected by any personal laws. Wife can claim maintenance after the
second marriage of her husband under the provisions of criminal procedure code, 1973.

In the famous Begum Subanu alias Saira Banu v. A.M Abdool Gafoor1 case, the supreme
court held that regardless of a Muslim husband's right to contract a second marriage, his first
wife would be entitled to ask for maintenance. A Muslim wife, whose husband neglects to take
care of her with none lawful justification, is entitled to file a suit for maintenance in a civil court
under her personal law.

She is additionally entitled to enforce her right under the CrPc 1973. Where a Muslim wife is in
urgent need, she may apply for an order of maintenance under section 125 of the Criminal
Procedure Code; 1973. A magistrate of the first class may then order the husband to give a
monthly allowance not exceeding five hundred rupees, for the maintenance of his wife.

Maintenance of Divorced Women

Under Muslim personal law, a divorced wife is entitled to maintenance by her former husband
during the period when she is observing Iddat. According to Muslim personal law, after the
expiration of the Iddat period the wife is not entitled to any maintenance under any
circumstances mentioned Muslim law. Muslim law do not acknowledge any commitment on the
part of the husband to maintain his former wife after he had divorced her.
Under Section 125 of the criminal procedure code, 1973, the term wife includes a wife and a
wife who has obtained divorce from her husband and not remarried. It stated that after divorce
if the wife isn't ready to maintain herself, she is entitled to maintenance from her husband until
she remarries. The act applies this provision to Muslim women also who aren't entitled to the
upkeep after the expiration of Iddat period. This act creates liability over husband to give
maintenance to wife even after the completion of Iddat.

Under Section 127(3) Of Criminal Procedure Code, Maintenance Of A Divorced Wife Gets Cancelled
And She Will Be Not Entitled To Maintenance Under The Following Circumstances

 If she remarries
 If she has received the whole amount due to her under any customary or personal law
 If she voluntarily surrenders her right to maintenance after divorce

Acknowledgement of Child under Muslim Law

Once a child is born, the relationship it shares with his/her mother and father is known
as parentage. The legal relation between the mother and the child is termed as maternity,
which can be easily established through birth. On the other hand, the relationship that a child
shares with his/her father is known as paternity.[1]

Maternity of a child can be easily established by birth iteself, as per Section 388 of the Act[2].
Marriage is not an essential prerequisit to establish Maternity as it can simply be established
through birth. The mere check of maternity is whether the woman who claims to be the mother
of a child actually gave birth to the child or not, and this test is valid even if the child is not born
through marriage but may be born by zina, which is fornication or adultery.[3]

Paternity, as defined in Black's Law Dictionary is the identity of a father, both legally and
biologically[4]. As a matter of fact it has a different process of establishment as compared to
maternity.

A child gains paternity by either of the two ways:

1. Marriage:
It may be valid (sahih), or irregular (fasid), but not void (batil).[5]
 2. Acknowledgement:
If a child is born at a time when the parents are not married or a woman bears in her
womb, the child of a man but before his/her birth, she marries another man then the
paternity needs to be recognised by law and the father should acknowledge the child
legally. Once this acknowledgement is done, he can be recognised as the legal father of
the child and the child gets a legal identity as well as legal rights.

Most of the above mentioned facts and rules have been established in one of the major
landmark cases pertaining to Muslim law, that is Habibur Rehman v. Altaf Ali[6] in which the
majority opinion of the bench was that a child born where a marriage is disproved, that child
cannot be recognised as a legitimate child.

Under Muslim law, a child can be said to be unlawful (zina) or illegitimate if it is not born to a
man and wife or a man and his slave. Legitimacy of a child can purely be established by
marriage. In zina even if the parents of an illegitimate child can validly marry each other in the
future, it cannot be regarded as a legitimate child post that. The rule was established in the
case of Habibur Rehman Chaudhary v. Syed Altaf Ali Chaudhary[7]

Acknowledgement Of Legitimacy
Acknowledgement is the process of recognising a child legally, thereby creating legal rights. One
of the landmark cases that holds immense significance on the study of Acknowledgement of a
child under Muslim law is Muhammad Allahabad v. Muhammad Ismail[8], wherein it was held
that adoption is not recognised in Islam. The case is validated by the Privy Council and relied
upon by Indian Courts.

Adoption is not recognised[9] under the Mahomedan law and acknowledgement is the closest
to the concept of adoption. Paternity, by a common general practice is established by way of
marriage but in cases where the paternity of a child is not feasible to be proven by way of a
wedlock entered into, by the parents, Mahomedan Law recognises acknowledgement as a valid
method to establish the marriage and a legitimate descent for the motive of inheritance[10].

Limits To This Doctrine

Certain conditions that hinder the applicability of this doctrine to a case are:

 If an association validated by the law is not possible between the parents of a child.
 If the marriage between the parents is disproved.
In other words, this rule can be applicable to a case where the marriage between the parents is
not proven, but not if it is explicitly disproved. There is a significant line of distinction between
the two. Basically, the rule can be substantiated to hold relevance in a case of uncertainty.[11]

As established by the certain laws and precedents set by landmark cases, it can be said that the
Muslim Law recognises a child to be legitimate on the legitimacy status of his/her parents'
marriage. If a matrimonial alliance between the parents is not possible naturally, or by way of
law, the child under no circumstances can be acknowledged. Whether implied or express, the
acknowledgement is only valid when it fulfils the prerequisites required.

Who Is Competent To Acknowledge?

Any person who is of sane mind, has reached the age of majority as per the law and is not
prohibited under law to enter into such a contract can acknowledge a child. If the person
acknowledging a child is either dumb or deaf, it can do the same in sign language. In the case of
acknowledgement of twins, the process to acknowledge one will be parallel to acknowledge
both because both the twins have stemmed from the same source. Acknowledgement by its
nature is an irrevocable process.[12]

Conditions Of A Valid Acknowledgement

The conditions that must be fulfilled to validate an acknowledgement are:

 The persons must be capable of contracting.

 The acknowledgement must mean to accept the other not only as his son, but his
legitimate son.[13]
 The ages of the parties must be such as to admit of the acknowledger being the father
and the person acknowledged.[14] The minimum age difference between the two
parties must be twelve and a half years. (Baillie, 411).
 The child being acknowledged should not be born of zina, i.e. adultery, incest or
fornication.[15] The case of a disproved marriage would be the issue of fornication.[16]
 The person acknowledged must not be the child of another man.[17]
 The acknowledgement should be accepted by the person being acknowledged.[18]
 Once acknowledgment is made, it cannot be revoked.[19]
 Acknowledgement may be expressed or implied.

Above mentioned are certain conditions that validate the acknowledgement of a child under
Muslim Law. From the conditions given, it can be established that there must be good faith on
the part of the acknowledger to take the person being acknowledged as his legitimate child and
not merely as an acknowledged entity, the person must not be an outcome of ziha nor should it
be already acknowledged by any other person.

If there is a situation where a Muslim man gives a divorce to his wife but the two keep on living
together and there is a child born in that phase he will not be regarded as a legitimate child
even in a situation where the biological father acknowledges him because at that time there
was no valid marriage that existed. The rule was established in the case Rashid Ahmed v. Anisa
Khatun .[20]

If somebody has habitually given another person, the treatment of a legitimate child, in
complete good faith, it can be held as acknowledgement by conduct[21]. It is not mandatory
that the acknowledgement be expressed only. It can be implied.[22]

In the case of Muhammad Azmat v. Lalli Begum[23] it was said, It has been decided in several
cases that there need not be proof of an express acknowledgement, but an acknowledgement
of children by a Mahomedan as his sons may be inferred from his having openly treated them
as such.[24]

Acknowledgement By A Mother
If a woman acknowledges a child, it does not hold any value if her husband does not validate
the same. In other words, acknowledgement by a mother is subject to the discretion of her
husband. This rule holds value, regardless of the fact that the child is a boy or a girl.

Rights Created By Acknowledgement:

Once a valid acknowledgement is done, there are certain rights that it creates, for the child, the
father, as well as the mother. The rights thus created are discussed herein,

For The Child:

 Identity of both the parents is known on legal records.

 Rights of inheritance.
 Social Security.
For The Father:

 Parental rights get recognition in law.

 Custody of the child.
 Right to address adoption proceedings, if any.

Conditions To Prove A Valid Marriage

If a valid marriage (sahih) takes place between a man and a wife, and a child is born in that
marriage then it is considered to be a legitimate child even if the process of a formal
acknowledgement does not take place.

The conditions that validate a marriage are:

 If a man and a woman have been staying together for a significant amount of time[25]
the condition to validate this kind of marriage is that the woman should not be a
prostitute.
 If a man acknowledged the woman as his wife.[26]
 If a man acknowledges the paternity of a child born to a woman, and the conditions of a
valid acknowledgement as mentioned in �334[27] are abided by.[28]

Rules For Presumption Of Legitimacy

The rules pertaining to presumption of legitimacy are followed by both Shias as well as Sunnis.

The three broad rules[29] relating to presumption of legitimacy are:

 If a child is born during the initial six months of a marriage and the father does not
acknowledge it, it is considered to be an illegitimate child.
 If a child is born after six months of a marriage and the father of that child disclaim it by
the virtue of lian, it cannot be regarded as a legitimate child.
 If the birth of the child takes place after the dissolution of marriage it is considered to be
legitimate if:

Under Shia law, if the birth takes place within ten lunar months.
Under Hannafi law, if the child is born within two lunar years.
Under Maliki law, if the child is born within four lunar years.

Acknowledgement And Burden Of Proof

When a marriage between two persons takes place under the Mahomedan law, it may have
been constituted in the absence of any ceremony and direct proof of marriage is not always
available[30]. In the absence of direct proof, an indirect proof can be considered good to
validate a marriage. Acknowledging a child can be regarded as one of the proofs of a valid
marriage, as mentioned above. Such an acknowledgement should not be impossible to prove
to be true.

In that case, a wife and a son can unjustly avail from that if there is no contradictory proof.
When a good acknowledgement takes place, the marriage will be considered valid and the
acknowledgement of the child legitimate unless the marriage is disproved.[31]

Until claimant establishes his acknowledgement, the burden of proof lies on him to prove a
marriage. Once he establishes an acknowledgement, the onus is on those who deny a marriage
to negative in fact.[32] The rule of burden of proof was further explained in the case
of Mohammad Yusuf v. Mabboobunnissa.[33]

Legal Aspects Of An Acknowledgement

Once a valid acknowledgement of a child takes place and it is proved to be legitimate, there are
certain effects of that acknowledgement in the sphere of law. The outcome of a valid
acknowledgement is valid on the condition that the legitimacy is also valid. If in future the
acknowledgement is declared invalid and the child is rendered illegitimate the legal aspect of
such an acknowledgement does not exist anymore.

The effects[34] being talked about here are:

 The person acknowledging takes the blame of the person acknowledged. The person
can validly avail parental rights.

 The person acknowledged is entitled to inheritance rights and can rightfully inherit the
property of his/her parents by law. He also get maintenance rights.

 Once an acknowledgement is made, it validates the status of the mother of that child as
the wife of the man, i.e the father of the child. This in turn established the validity of
their marriage and the woman can seek the property of the man as per the law.
  Acknowledgement is irrevocable[35] on the part of the person acknowledging. It can be
regarded as a permanent status.

Critical Analysis
A child can only be acknowledged by the husband of his/her mother, the man should according
to the Mahomedan Law, be competent to acknowledge. The flexibility in the doctrine of such
acknowledgement is that it gives attention to the husband of the mother of the child and not
really its biological father.

If a child is born out of zina, no matter who its biological father is, it cannot be legitimised even
if that father wants to acknowledge it. The Mahomedan Law contains no provision as to the
rights of the biological father of a child.

A child cannot be regarded as a sinner if it is born through zina, but by virtue of him/her taking
birth out of a wedlock, by way of zina, its legitimacy stands in question. It is the parents of the
child that commit zina but the child since birth is forced to suffer the consequences like living
without a parental identity. It was stated by the Hon'ble Supreme Court in the judgement
of Gaurav Jain v. Union of India[36] that excluding a required foundation of life for a child is a
crime against humanity and not providing it with the natural rights it is entitled to, is a crime
against humanity. The basic pretext of the entire argument is that a child is not at fault if it is
born out of incest, but it still has to suffer the consequences.

The rule laid down by the National Fatwa Council that a child cannot be considered as a
legitimate child if it is born within the first six months of a marriage prohibits the rights of
maintenance and inheritance rights that a child is entitled to. Furthermore, it hinders the
mental and emotional support that the child can receive from his parents, especially the father.

Neither of the two parents of a child are responsible to maintain an illegitimate child under the
shia law, and the mother but not the father is responsible to maintain an illegitimate child
under Hanafi law. This rule in some aspects goes against Islamic Principals[37] laid down in the
Holy book of Quran.

Conclusion
As per the Mahomedan Law, a child can be considered as a legitimate child if either of the two
conditions are fulfilled. One, when a child is born as an outcome of a valid marriage and the
birth does not take place in the prohibited period defined differently in different schools of
Islamic law. In such a case, a formal acknowledgement is not required and the other is when
the paternity of a child is not established so the father can acknowledge a child in compliance
with the conditions of a valid acknowledgement mentioned above. This doctrine holds validity
for both, daughters as well as sons.