ORIGIN OF ISLAM

Islamic history begins in Arabia in the 7th century with the emergence of the Prophet Muhammad.
PRE-ISLAMIC SOCIETY
The birthplace of Islam was a desert with a harsh life for the people. Accordingly, most Arabs were nomads.
There were a few cities like Mecca and Medina with a settled way of life. There was no common religion and
general belief was in the principles of courage, freedom and vengeance. There was no one government or
administrative machinery as such. There were Caliphs (heads) of the tribes who were elected. They represented
and controlled the tribesmen. Customary laws regulated relations within people of the same tribe and the
relations between different tribes. Many of the customs can be called unreasonable with no restriction on
marriage, no rights for the women etc. Women were not free agents and female infanticide was rampant. Still
rights of adoption, to own property and transfer the same etc were recognised. The punishment was very harsh
as it aimed to be deterrent. The Arabs in the pre-Islam Arabia had a rich literature. It was believed that
manliness, bravery and hospitality were the traits of the true Arab.
PROPHET MOHAMMAD
The Prophet was born to Abdullah and Amina. He was born soon after his father’s death and his mother too
passed away when he was only six years old. Then he was brought up by his Grand father and later by his
uncle called Abu Talib. When he was 13 years old, he joined his uncle in business. When he was 25 he was
employed by Khadija, a rich widow to look after her business. Subsequently, they got married. After her death,
the Prophet married other women who were also widows. Ayesha Begum, his fourth wife, was the exception.
She was the wife of his disciple and friend Abu Bakr. They had 2 sons and 4 daughters but only the fourth
daughter, Fatima, survived the Prophet.
The Prophet used to often contemplate about God and needs of the society in the Hira caves, a lonely place in
the mountains. It is believed that during the Ramzan moth of 609 Ad, the Prophet heard the voice of Angel
Gabriel during his meditations in the cave. Angel Gabriel delivered the first revelation or Wahi that God had
sent to the Prophet, “Read in the name of Allah, the creator of all things, who made man from a clot of blood.
Read for thy Lord is most gracious, he who teaches the use of pen, teaches man what he does not know.
After this, the Prophet received many a revelations from God on different occasions. Quran is a collection of
these revelations and the basic principles of the religion can be read as:
a) God (Allah) is one and only one, and Mohamad is His messenger (Rasool);
b) God is the supreme commander of all that exists in the world and all should submit to his will; and
c) All the human beings are equal.
Islam literally means ‘submission to the will of God’. It is a monotheistic religion. Khadija was amongst the
first to believe these revelations and to follow them. Others eventually followed though the majority opposed
the Prophet’s teachings. Then the Prophet left Mecca and went to Medina in 622 AD. This journey is referred
to as Hejarat or the holy mission. Slowly and slowly the followers of the Prophet increased and he united them
under a new faith and organised them into a powerful political group. By 632 AD when the Prophet died, he
was the religious and socio-political head of a large Islamic commonwealth.
HISTORICAL DEVELOPMENT
The present Muslim law has come into existence due to many political and administrative developments that
have taken place in the past 14 centuries.
FIRST PERIOD (622-632 AD)
This period starts with the Hejarat and ends with the death of the Prophet. Its main contribution is legislations.
The Prophet had to spread the word about Islam. In Medina, the
Prophet laid down the principles to govern the behaviour of people on the basis of the revelations already made
to him at Mecca. The divine words were put down as the manifest law (which became the Quran later) and
Zahir or implied laws were taken from the words, conduct and silence of the Prophet (became Sunna). Thus,
the basic legal principles of Islam were defined and set out during this period.
SECOND PERIOD (632-661 AD)
This is the period of the first four Caliphs or Khulfai-I-Rashdih (the rightly guided Caliphs) for they were very
close companions of the Prophet. The word ‘Caliph’ refers to the successor. After the death of the Prophet,
there was a disagreement as to who should be his successor as the spiritual and administrative head of the
Muslim state. Majority of the people agreed on elections as a form and thus, Abu Bakr, the Prophet’s father-in-
law and Ayesha Begum’s father, was elected the first Caliph. After his death, Omar was elected as the second
Caliph who was assassinated after ten years in 644 A.D. Osman succeeded him and was assassinated by
enemies in 656 AD. Then Ali, Fatima’s husband, was elected as the Caliph but he too was killed in 661 AD.
The divine revelations given to the Prophet were scattered and it was during this period that the messages were
collected and arranged subject-wise in the form of Quran. The first Quran was by Zaid, a close companion of
the Prophet, during Abu Bakr’s rule. This collection was discarded after flaws and contradictions were spotted
at many places. Osman, the third Caliph, asked Zaid to redo the compilation. Thus, the Quran and the traditions
became the sources of Muslim law. Omar, the second Caliph, appointed the first Kazi to decide secular
disputes and declared that the law is supreme and above all.
THIRD PERIOD (661-900 AD)
Ali was the last of the ‘rightly guided Caliphs’ and had two sons, Hasan and Hussain. After Ali’s demise,
Hasan was made the Caliph but he voluntarily resigned in favour of Muavia of the Umaiyad family because he
did not wish to get involved in administrative matters. Due to this, the seat of Caliphate shifted to Damscus
from Medina and the office of Caliph became hereditary rather than elected. Muavia’ son Yezid took over as
the next head of the Muslim commonwealth. At Yezid’s instigation, Hasan’ wife poisoned him even though he
was not involved in the administration. Hussain revolted against Uezid but was killed at Karbala. As the
Caliphate translated into a hereditary kingship, the development of law played a second fiddle to expansion of
the empire. In 750 AD, Abbasids, the descendents of the Prophet’s Uncle Abbas, captured the Umaiyads
dynasty. They proclaimed themselves as the spiritual heads of the commonwealth and the Baghdad was the
centre of power.
The development of law came from the efforts of scholars of Mecca, Medina and Kufa. But there were often
contradictory opinions and interpretation. The sub-sects started forming with each scholar claiming to have the
right interpretation. The traditions of the Prophet were collected and the authoritative ones were accepted as
law. Collections by Bukhari and Malik-Ibn Malik are two of the collections. Similarly, where the law was not
to be found in the Quran or the traditions, eminent jurists undertook a theoretical exposition. Ijma and Qiyas
were discovered in this period. Thus, there existed a scientific and logical approach towards legislation and
soon the principles of equity, reasoning and public welfare, etc followed too.
THE FOURTH PERIOD (900-1924 AD)
The Moghuls overthrew the Abbasids in 1258 A.D. after a rule that extended to five centuries. In 1261 A.D.
Abdul Kasim Ahmed was made the Caliph and his dynasty ruled for two centuries. They did not have any
administrative powers. In the beginning of the 16th century, the Caliphate was transferred to the Ottoman ruler
Selim I. Hence, Constantinople replaced Cairo as the Dar-ul-Khilafat.
Subsequently, Mustafa Kamal Ataturk abolished the Sultanate of Turkey in 1922 and the National Assembly of
Ankara abolished The Caliphate in 1924.
In this period, the four Sunni schools were established. Otherwise there was not much progress in the legal
sphere as there was no further exposition of law. No jurist was deemed competent for individual interpretation
and Taqlid (imitation) was the new source. There were numerous exhaustive commentaries of the laws already
laid out. The opinions of these writers were called Fatwas. Fatwai-Alamgiri and Fatwai Qadi Khan are two of
the important fatwas.
THE FIFTH PERIOD (1924-TO PRESENT DAY)
Since the Caliphate was abolished, there was no religious head to administer and execute the traditional Islamic
law. It became essential that the Islamic law be separated from religion (Shariat). The actual laws were framed
and codified in such a manner so that the present society could be governed with the core of the Shariat.
Subject after subject was excluded from the purview of the traditional law like Criminal law and civil law.
The Moghuls made the Muslim law the law of the land in all matters. The British changed all this. Their courts
used Muslim law only in certain personal matters and otherwise the Acts of the Parliament or other enactments
were followed. After independence, this dual system has been followed. For example the Shariat Act says that
in matters of marriage, dower, maintenance, etc, the Muslim personal law shall apply with exceptions for
agricultural lands, etc. But subsequently, the Parliament enacted legislations like Dissolution of Marriage Act,
1939 and Muslim Women (Protection of rights on divorce), 1986. Most of these legislations merely clarify the
provisions of
Muslim law but some do allow for liberalisation of the traditional law. The Indian courts, too, have tried to
apply Muslim law with regard to the present day society. As a result judicial precedents are also a part of
Muslim in India.
SCHOOLS OF ISLAM
SUNNI AND SHIA SECTS
The two largest Muslim subgroups are the Sunni and the Shia. Sunni Muslims make up the largest percentage
of Muslims overall. Until then the Prophet was the universally accepted head of the Islamic commonwealth.
After his death, some thought the position should be given to person who people trust and thus an elected
leader would suffice. Others thought that the spiritual leadership of the Prophet was more important and that
this quality would have passed on through his blood. A gathering of some Muslims at Saqifah gave their
allegiance to Abu Bakr, Muhammad’s father-in-law, as the first Caliph. Shia Muslims believe that the Prophet
had appointed his son-in-law Ali ibn Abi Talib as his successor. Caliph was more of an administrative head
whose job was to enforce the Shariat while the Imam was the religious head of the Shia community. These two
sects differed on the political and legal issues too.
Many Muslims, however, do not like to label themselves as from any of the denominations as they believe that
the Quran bans the formation of sects within Islam, and therefore classify themselves as simply “Muslims”.
THE SUNNI SCHOOLS
The full name of the Sunni branch is Ahl al-Sunna wa al-Jama’ah. Abu Bakr, the Prophet’s close friend and
father-in-law, was the first Caliph. Sunnis initially believed that the
position of Caliph should be democratically chosen, but after the first four Rightly Guided Calliphs, the
position turned into a hereditary dynastic rule. After the fall of the Ottoman Empire in 1923, there has never
been another Caliph.
According to sources, present estimates indicate that approximately 85% of the world’s Muslims are Sunni and
approximately 15% are Shia.
There were various interpretations by the jurists and thus many schools came up. Sunnis recognize four
madhhabs (legal traditions): Maliki, Shafei, Hanafi, and Hanbali as of now. These schools are similar and
differ mostly on the details.
THE HANIFI SCHOOL
Founded by Imam Abu Hanifa, Hanafi is considered to be the most liberal school. Abu Hanifa is often referred
to as the Great Imam. It is predominant among Sunni Muslims in northern Egypt, the Indian subcontinent, Iraq,
Turkey and in many western countries. It is the largest of the four schools; with a following of 45% of the
Muslims world-wide. The most prominent propagators of this school were the Ottoman Empire and the
Mughal Empire.
Abu Hanifa tried to formulate law through the analogical deductions from the texts of the Quran. The school
recognises only those traditions that have been severely tested for originality and passed. It is believed that
Hanifa relied upon 18 traditions only. Qiyas and Ijma were given due importance. The doctrine of Istihsan
(juristic equity) was used by this school for the first time. Some of the famous books of the school include
Fatwai Alamgiri, al-Hidyaya and Radd-Al -Makhtar.
THE MALIKI SCHOOL
The Maliki school derives from the work of Imam Malik-ibn-Anas and practiced in North Africa and West
Africa. It is the second-largest of the four schools, followed by approximately 25% of Muslims. It differs from
the three other schools of law in the sources it uses for derivation of rulings. All four schools use the Quran as
primary source, followed by the Sunna of the Prophet Muhammad, Ijma (consensus of the People) and Qiyas
(analogical deductions). The Maliki school uses the practice of the people of Medina (amal ahl al-medina) as a
source too. This source, as per Malik, sometimes supersedes hadith, because the practice of the people of
Medina was considered “living Sunna,” as the Prophet migrated there, lived there and died there, and so did
most of his companions. They followed more of Ijma than Qiyas.
Their approach to law was even more practical than that of Hanafis. They introduced the principle of Istidlal or
public welfare. A married woman’s property, under this school, remains under her husband’s control. Imam
Malik had a comparatively small collection of ahadith that was well authenticated and highly regarded, known
as Al-Muwatta. Malik is said to have explained the title as follows: “I showed my book to seventy jurists of
Medina, and every single one of them approved me for it , so I named it ‘The Approved’.”
THE SHAFEI SCHOOL
Shafei was founded by Imam Muhammad ibn Idris ash Shafei, a pupil of Malik-ibn-Anas and was related to
the Prophet. It is most prevalent in Egypt, Somalia, Singapore and is the school of thought officially followed
by the government of Brunei Darussalam and Malaysia. It is followed by approximately 15% of Muslims
world-wide.
The Shafei School of thought stipulates authority to four sources of jurisprudence: the Quran, the Sunna of the
Prophet, Ijmah and Qiyas as well as the opinions of the Prophet’s companions. The school widened the scope
of Qiyas. The school emphasizes on the proper istinbaat (derivation of laws) through the rigorous application
of legal principles as opposed to speculation or conjecture. Ash-Shafei argued that Sunna contradicting the
Quran were unacceptable, claiming that Sunna should only be used to explain the Quran. He claimed that if a
practice is widely accepted throughout the Muslim community, it cannot be in contradiction of Sunna. But a
woman can not be a free agent in her marriage even if she is an adult.
Ash Shafei incorporated the principles of law or Usul in his book Kitab-ul-umm. He is also known as the
founder of ‘usul’. His “Risala” contains principles of jurisprudence or legal theory.
THE HANBALI SCHOOL
Hanbal is considered to be the most conservative of the four schools. The school was started by a student of
Imam Ahmad, Ahmad bin Hanbal who had studied under Ash Shafei also. He is often referred to as the
‘Traditionalist’. It is more predominant in the Arabian Peninsula. It is also referred to as the Textualist school.
Hanbali rigidly followed the traditions of the Prophet and thus, ignored the other sources like Qiyas and Ijma.
There was no scope for private judgements and human reasoning. Although the Hanbali school was small, it
did produce many noted scholars. Musnad-ul-Imam Hanbal was a collection of 50 thousand or so traditions by
Ibn Hanbal. The doctrine of Usul was perfected by this school.

THE SHIA SCHOOLS

The Arabic word Shia literally translates into the word ‘supporters’ or ‘followers’. Shia Muslims believe that
Ali was appointed by Muhammad to be the direct successor and leader of the Muslim community and thus
regard him as the first Imam. Intially they were known as Shiat-ul-Ali (the supporters of Ali) The majority of
Shia Muslims believe in a total of twelve Imams. Imam is the final interpretor and he is the leader by divine
right and not by election. The twelfth Imam is believed to have vanished and is awaited to appear at a pre-
determined time. Shia Muslims believe that Mohammad’s family were the best source of knowledge about the
Quran, Islam, and the best-qualified teachers of Islam after Mohammad, and the most trusted carriers and
protectors of Muhammad’s Sunna. Thus, Shias reject the rule of the initial three Sunni Caliphs the same way as
the Sunnis reject the Imamate of the Shia Imams. Shia scholars have a larger authority than Sunni scholars and
have greater room for interpretation.
Shia Islam is the second largest denomination of Islam. There were susequent divisions in the sect due to
difference on doctrinal points rather on issues of interpretation.
THE ITNA ASHARIA SCHOOLS
It is also called Imamia and majority of Shias belong to this school. The followers believe that from Ali
onwards, there have been 12 Imams who possessed spiritual powers. They believe that the 12th Imam who
disappeared as a child will re-appear in the future. They believe in Muta marriage-temporary marriage. They
are further split into Akbari and the Usuli who follow the traditions very rigidly and believe in the
interpretations to work out practical problems respectively. They can be found in Iran, Iraq, Lebnon and India.
Shari-ul-Islam is one of their authoritative texts.
THE ISMAILIA SCHOOL
The Ismailis and Twelvers both accept the same initial Imams from the descendants of Muhammad and share
much of their early history. However, a dispute arose on the succession of the Sixth Imam, Jafar as-Sadiq. The
Ismailis became those who accepted Jafar’s eldest son Ismail as the next Imam, whereas the Twelvers accepted
a younger son, Musa al-Kazim. They believe that there have been only seven Imams with Ismail being the
seventh one. They believe that from Ismail onwards there has been a series of concealed Imams. They can be
found in the Central Asia, Syria. In India they consist of two major groups: a) Khojas who were iinitially
Hindus; and b) Bohras.
Daimul-islam is an authoritative text on th doctrines of this school.
THE ZYADIS SCHOOL
Zaiddiyahs separated from the Twelver and Ismaili sects of Shia Islam over a disagreement as to who the fifth
Imam was. Zayd was the son of the fourth Imam. This school incorporated some Sunni principles in it too.
They can be found in Yemen. They are not present in India

ALAWI
The Alawi are classified under Twelver Shia Islam, but differ in a special regard for Ali as a manifestation of
God. Alawites are considered a secretive group, and do not accept converts or openly publish their texts. They
are prominent in Syria.
THE MOTAZILLA SECT
Wasil ibn Ata developed the Motazilla theology in the 8th century with. He and his followers expanded on the
logic and rationalism of Greek philosophy, seeking to combine them with Islamic doctrines for they believed
that both were inherently compatible. The Motazilla debated philosophical questions such as whether the
Quran was created or eternal, the issue of destiny versus free will, whether God’s attributes in the Quran were
to be interpreted allegorically or literally, and whether sinning believers would have eternal punishment in hell.
It is believed that they were initially in the Shia Sect. They believed only in the Quran as a basis for their
doctrines. They practice strict monogamy and a divorce needs the interference of a judge.
SUFI: This is not precisely a branch of its own since there are Sufis who are primarily Sunni-oriented and
others who are primarily Shia-oriented. All Sufis have the mystic view of faith and God in common.
APPLICATION OF THE LAW OF THE SCHOOL/ CHANGE OF THE SCHOOL OR SECT
If the Muslim personal law has to be applied in a court of law, first the sect of the parties will be looked into as
each sect has its own book of authority that may not be binding on other sects. The second step is to ascertain
the sub-sect of the parties so that specific law will be applied to them.
If the parties belong to different schools, the defendant’s school is applied. In matrimonial matters, if the
parties belong to different school or sects, the laws of that school/sect will be applied under which the marriage
was performed and solemnized. In India, it will generally be presumed that the parties are Hanafis unless they
prove otherwise and the burden of proof lies on the person who claims that they don’t belong to this school.
The reason for this presumption is that the majority of the Muslims in India are Sunnis and in particular,
Hanafis.
Every Muslim who has attained the age of puberty can change his sect or school to one of his liking. From the
instance of adopting another sect or school, the laws of the new sect or school will apply to the person

A source of law refers to the original material(s) where the contents of law are found. It is essential so as to
have the law, its explanation and its right interpretation.

SOURCES OF MUSLIM LAW

PRIMARY
SECONDARY
1) The sources that the Prophet Mohammad directed will be the primary sources.
2) These are to be followed in their respective order of priority
3) They are also called formal sources
4) The whole of Muslim personal law is based on these
1) These sources explain or modify the primary sources.
2) They deal with the needs of the Islamic society in the modern era.
3) These are also called extraneous sources.
4) Some of the personal rules may find places in the sources, e.g., customs.
THE PRIMARY SOURCES
1) QURAN
The term “Quran” has its roots in the Arabic word ‘Qurra’ and refers to ‘the reading’ or ‘what ought to be
read’. The first revelation (Wahi) came to the Prophet in 609 A.D. They continued for about 23 years. These
revelations were the messages of God made by Angel Gabriel. These revelations were given out then to the
people through the preaching of the Prophet.
These delivered messages were remembered and some were reduced to writings on animal skin, palm leaves,
etc. After the Prophet’s death, theses were collected, assembled and then systematically presented under the
authority of the third Caliph, Osman. The first version is said to have been in the custody of the Prophet’s wife
and Osman’ daughter, Umme Hafsa. There were other versions, too, but either they were not accepted or they
were suppressed.
SALIENT FEATURES OF QURAN
1) Divine Origin: The religious book has a divine origin. It is believed that these were the words of God
himself and the Prophet mere uttered these words. Thus, it is unchangeable and its authority is beyond
reproach. The Quran is the Al-furqan, the one that shows the truth from falsehood and the right from the
wrong.
2) First Source: It is the first and fundamental source of Muslim law and Islamic principles. It is ultimate
source of laws.
3) Structure: It is in form of verses, each verse is called an ‘Ayat’. There are 6237 ayats in 114 chapters, each
called ‘Sura’. The holy book is arranged topic wise with respective titles. The first chapter praises the almighty
God. Other chapters include, surat-un-nisa (chapter relating to women), surat-ul-noor (rules relating to home-
life) and surat-ul-talaq (the rules relating to divorce).
4) Mixture of religion, law and morality: It is believed that the verses relating to law were revealed at Medina
while the ones relating to religion and mortality were revealed at Mecca. In some places in the book, all three
can’t be separated at all. Thus, the whole of Quran cannot be source of a law, instead we refer to the 200 odd
law-making ayats scattered all over the book as the basic source of Muslim Law.
5) Different forms of legal rules: It has many categories, the ones that remove social evils like child infanticide,
gambling etc, and the ones that create specifics so as to solve daily life legal problems as well as providing for
the basis of juristic interpretations or inferences.
6) Unchangeable: The Quran can be in 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 not have an earthly origin.
7) Incompleteness: In the 200 odd verses of law in the Quran, only 80 or so deal with the personal law. Hence,
we say that it is not a complete code of Muslim personal law; it only lays down the basic principles.
Further, on many an issue, the Quran is silent.
With the spread of Islam, the necessity arose to explain and supplement the Quran so as to deal with the new
problems of a growing Islamic society.
2) SUNNA OR AHADIS: TRADITIONS OF THE PROPHET
In the pre-Islam Arabia, Sunna meant an ancient and continuous usage that has been established in the society.
Sunna literally means the “ trodden path”. Sunna or Ahadis means the traditions of the Prophet. It means that
whatever the Prophet said or did without the reference to God is his tradition. The Prophets acts and words are
believed to have been inspired by God and thus are treated as internal revelations. Thus, tradition is another
source of law in the language of the Prophet. So wherever the Quran is silent, the Sunna /Ahadis were referred
to.
WHAT CONSTITUTED SUNNA OR AHADIS?
Everything the Prophet did or said as well as his silence was taken to be a rule under authority except when he
used to give the revelations of God.
i) Sunnat-ul-Qaul: refers the words spoken by the Prophet.
ii) Sunnat-ul-Fail: includes the conduct and behaviour of the Prophet.
iii) Sunnat-ul-Taqrir: by his silence, the Prophet gave an implied approval to pre-islamic customs, practices and
questions.
Sunna must be differentiated from Hadith. While the latter is a story or occurrence of an incident, sunna refers
to the law that was derived of such conduct of the Prophet.

NARRATORS OF THE TRADITIONS

The traditions noticed by competent and qualified person were treated as authoritative if they were found to be
reliable. The competence was judged by the mental understanding, power of retention, righteous conduct of a
person and on the basis of whether he was a Muslim or not.
i) Companions of the Prophet: The Muslims who lived with the Prophet during his lifetime and were close to
him are called the Companions. Their testimonies are the most reliable ones.
ii) Successors of the Companions: The Muslims who came in contact with the Companions of the Prophet are
called the Successors. They stand second in reliability.
iii) Successors of successors: The Muslims who were in constant companionship of the Successors come last in
the line.
The further a narrator from the Prophet, the lesser authority is given to his narration.
KINDS OF TRADITION
i) Ahadis-i-Mutwatir are the universally accepted traditions. There is no doubt as to their certainty and have
been narrated by many people. All sects of Islam follow them.
ii) Ahadis-i-Mashoor are the popular traditions which were narrated by the companions of the Prophet and
have found mass acceptance. It is the source of law for a majority and not all.
iii) Ahadis-i-Ahad are the isolated traditions that have not been followed regularly or by many. Generally, the
acceptance and practice is a localised one.
Traditions were passed on from generation to generation and soon became the practice. They were not written
or systematically arranged initially. Muvatta is regarded the first systematic collection even though a few
efforts were made before. The number of traditions is staggering, for example, Masnad has about 80,000
traditions collected and written in it.
DRAWBACKS
Some of the traditions have a doubtful origin and some are even contradictory to each other. There are no
uniform or certain rules on certain issues. Mixture of law and religious or moral principles makes the
extraction of the actual law a rather tedious task. Traditions derive authority from the writers, with the death of
successors and others; this means could no longer be practised. In addition, the Shias followed only those
traditions that came from the Prophet’s family.
The importance and role of traditions is immense but another source of law was needed to deal with the
expanding Islamic Society.

3) IJMA: UNANIMOUS DECISIONS OF THE JURISTS

Ijma means the opinion of the learned. When persons knowledgeable in law would agree upon a point, such
consensual opinion was referred to as Ijma. Thus, Ijma is the unanimous decision of jurists for a particular
question with reference to that age or communal legislation. It is through the tradition of the Prophet that Ijma
derives its validity and authority as a source of law. The Prophet is believed to have said that, ‘God will not
allow his people to agree on an error’. The Hanafi doctrine of law changing along with times found support in
the Maliki view that new facts require new decisions.
FORMATION OF IJMA
Whenever law needed a new principle, the jurists used to give a consensual opinion so as to enable a solution.
To be a jurist or Mujtahid, it was essential that a person was a Muslim with adequate knowledge of law and
was competent to form logical deducements. Ijtihad refers to the process of creating law through consensus on
the basis of ‘exercise of one’s reasoning so as to create a new rule of law’. The Ijma had to be justified with
references to the principles given in the Quran or the tradition as well as public policy, interest of the
community and equity. The Mujtahtids are the recognised interpreters of law.
KINDS OF IJMA
i) Ijma of the Companions: the consensual opinion of the Companions is believed to be most authoritative and
accurate. It cannot be overruled or modified by subsequent Ijmas.
ii) Ijma of the Jurists: the opinion of learned scholars was believed to be the next best Ijma after the Ijma of the
Companions.
iii) Ijma of the People: At times, the mass acceptance of a principle as law was also accepted. Nevertheless, it
is of little consequence with respect to core issues and principles of the Islam.
As can be seen, the authority of Ijma depends upon the capabilities of the people participating in its formation.
IMPORTANCE
A major chunk of the fiqh or actual Muslim law came through Ijma. It explained the Quran and traditions in
terms of actual applicability as well as laid down new principles of law so as to help the society to cope up
with growth and progress. It was through Ijma that the real opportunities for interpretation of the hereto rigid
Quran and Traditions came up. It is even referred to as the ‘living tradition’ at times.
DEFECTS
The Ijma lead to various reading and versions or interpretation of the Quran, Sunna, custom etc. As a result,
different sub-sects were formed. The choice of unanimous opinion or majority opinion is another bone of
contention. The Ijma of the jurists and the people could be overruled at any time; thus, they were not able to
contribute substantially to certainty in law. With the spread of Islam and lack of a well- established
communication network, obtaining consensus of all the jurists was a major problem. Again the stock of learned
and accepted scholars ran short of the requirement and by 10th century, the Ijma had to be abandoned.

4) QIYAS: ANALOGICAL DEDUCTION

Qiyas refers to ‘measurement’ in the Arabic language. It also refers to comparing a thing in relation to a
standard or ‘to establish an analogy’. Some have described it as the analogical deduction from the reason of a
text to a case not actually covered by its language. In simple words, it is a method of comparing a problem in
present times to a similar problem for which the solution is provided in the texts.
It is a weak Ijtihad, one’s own exertions to find a solution through reason. But it is more important and
powerful than a mere rai or opinion of a jurist.
First, a similar problem with a solution is found and the reasoning behind it was taken so as to establish a
common cause. Then solution to the present problem is directly deduced from the texts in form of a law
derived. Here, the spirit or the implied meaning of the text is taken into consideration.
Unanimous consensus between those deducting was not essential. The only requirements are that the person
deducing is a Mujtahid and he deduces the law from a text of Quran, Traditions or Ijma.
QIYAS AND ISIHSAN
Istihsan means juristic equity, thus, it is a conclusion of law based on the jurist’s sense of justice or equity
rather than any text. It is recognised only under Hanafi Law.
QIYAS AND ISTIDLAL
Istidlal refers to inferring one thing from another. Here only an inference is drawn and analogy is not
established. This rule of interpretation is accepted only in Maliki and Shafei schools.
NOTE: There exist differences in all schools and sects regarding the Primary sources. For example the Shia
Sect doesn’t recognise the Qiyas as a source of law but recognising
traditions of the Prophet’s family only along with the conduct of the Imams.
Fatwas are not a source of law but they have contributed a fair bit in the improvement and expansion of law
THE SECONDARY SOURCES
1) URF OR TAAMUL: CUSTOM
Before Islam, customary law governed Arabia. Then the Prophet abolished most of them, as they were un-
Islamic and bad. Some customs, however, were continued due to the Prophet’s silent approval. Some were
even included in his traditions. Otherwise, some customs survived due to their incorporation in the Ijma.
IMPORTANCE
It is not a formal source, yet, in the absence of rule of law in the texts of the primary sources, the customary
practices are regarded as law. The British Courts in India held that a custom would prevail over a written text
provided that the custom was ancient and invariable.
PRESENT POSITION
The Shariat act, 1937 has abolished most of the customs. Section 2 lists ten matters including inheritance,
marriage, divorce, wakf and, maintenance wherein customs and usages cannot be applied anymore. Customs
are still applicable to Muslims with regard to agricultural lands, charities and religious endowments. Even in
matters of wills, adoption
and legacies, the customary law will apply unless a Muslim expressly states that the Shariat should regulate
them.
Additionally, the Shariat Act is not applicable to the state of Jammu and Kashmir. Thus, the rules of Muslim
law there are subjected to customs and usages.
2) JUDICIAL DECISIONS
The Privy Council decided many a case related to Muslim law. These cases continue to have a binding force on
all the High courts and the lower courts of India and a persuasive value in the Supreme Court of India. This
box of precedents will lose its binding force only if the Supreme Court overrules a particular decision.
Elsewhere, an opinion seems to be forming that judges are now making the law the way the early Muslim
jurists did.
Judgements of a superior Court are an authority for the lower courts. Plus the judgements of the higher court
become the law of the land and thus are binding on all the lower courts. This is called the principle of
Precedents. Law of pre-emption, validity of gifts to minor wife, additional grounds of dissolution of marriage
and even interest on unpaid dower are few of the fields where courts have stepped in with new interpretations
or discretion on the basis of justice, equity and good conscience to develop the law further.
Many a times, legislations have overruled or negated the rules; they are still a source of law.
3) LEGISLATIONS
God is the Supreme legislator as per Islam. Thus, sometimes, legislative modifications are also treated as
encroachment. Still, there are a few acts that modify or lay down principles of Muslim law and serve as a
source of law for the courts with respect to the content covered by them.
a) The Mussalman Waqf Validating Act, 1913 – It merely re-established the validity of family-wakfs.
b) The Child Marriage Restraint Act- It makes the marriage of a boy under 21 years of age and a girl under 18
years a ‘child marriage’ and punishable without affecting the validity of it.
c) The Muslim Personal Law (Shariat) Application Act, 1937 – It reiterated the Muslim Stand that custom
couldn’t be an independent source of Muslim law all the time
d) Dissolution of Muslim Marriage Act, 1939 – It provided rights to judicial divorce under the grounds
mentioned in it to women who traditionally had no independent right to seek divorce.
e) Muslim Women (protection of Rights on Divorce) Act, 1986 – The issues of maintenance after divorce,
maintenance during idddat are dealt with comprehensively.
f) Punjab and Haryana’s Muslim in Muslim Shrine’s Act, 1942.
There are other Acts too which deal with Muslim personal Law. Some lay down the procedure rather than
altering substantive rules of Muslim personal Law. Acts like the following replaced or restricted the
application of those personal law principles with reference to the Act’s objectives and aims:
a) The Caste Disabilities Removal Act, 1850 changed the laws of the pre-existing rights of converts;
b) The Indian Evidence Act, 1872 changes the traditional outlook on legitimacy via Section 112;
c) The Indian Majority Act, 1875 differed on its definition of majority; and
d) The Dowries Prohibition Act, 1961
Similarly, alternate legislation available to all religions have made its impact felt on the Muslim personal law.
For example, a couple that marries under the Special Marriage Act, 1954 will be regulated by this Act for
matters concerning the martial life and not by the personal laws of the party. The inheritance and intestate
succession of the spouse or heirs will also be governed under the Indian Succession Act, 1925. It does not
matter whether the persons getting married under this law are from the same religion or sect or not.

Q. Discuss the nature and meaning of will. What are the essentials of a valid muslim will?
Who can make a will? What are the formalities necessary for a valid will? What restrictions
are imposed on a Muslim's testamentary disposition? Explain. Distinguish between shia and
sunni laws regarding will.
Will is the Anglo Mohammedan word for Wasiyat. Generally, Wasiyat means will, but also has other meanings. It may signify a moral
exhortation, a specific legacy, or the capacity of the executor. In general, a will means a document containing the desire, regarding
how a person wants to utilize or divide his property, after he is dead. According to section 2(h) of Indian Succession Act 1925, Will
is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his
death.

For a Muslim, Wasiyat is a divine institution because it is regulated by Quran. It offers to the testator a means to change the course of
inheritance to certain extent and to recognize the value of those relatives who are excluded from inheritance or strangers who might
have helped him in life or in last moments. Prophet Mohammad has declared that this power is not unrestricted and should not be
exercised to the injury of the lawful heirs.

Essentials of a valid Muslim will

1. Competency of the testator (who can make the will)
Any Muslim, including a man or a woman, who is major and is of sound mind can make a will. Regarding wills, the age of
majority is governed by Indian Majority Act. A will made by a minor is invalid but it can be validated by ratification after he
attains majority. A person of unsound mind is not competent to make a will and a will made by such a person is invalid. A will
made by a person while of sound mind, who later becomes of unsound mind, becomes invalid.
In Abdul Manan Khan vs Mirtuza Khan AIR 1991, Patna HC held that any Mohammadan having a sound mind and not a
minor may make a valid will to dispose off the property. So far as a deed is concerned, no formality or a particular form is
required in law for the purpose of creating a valid will. An unequivocal expression by the testator serves the purpose.
Will of a person committing suicide - Under Sunni Law the will of a person committing suicide is valid. Under Shia law, a
will made by the person who has done any act towards committing suicide is invalid but if the will is made before doing of any
act towards committing suicide, it is valid.
 2. Competency of the legatee
Any person capable of holding property may be the legatee under a will. Thus, sex, age, creed, or religion are no bar.
However, no one can be made the beneficial owner of the shares against his will, therefore, to complete the transfer, the
legatee must give his express or implied consent to accepting the legacy.
An institution can be a legatee.
A non-muslim can be a legatee if he is not an enemy of Islam and is not hostile towards Islam.
In Sunni law, a testator's murderer cannot be a legatee. In Shia law, if the act of the murderer was an accident, he can be a
legatee otherwise not.
Unborn person - In Sunni Law, a child born within 6 months of the date of making of the will is considered to be in existence
and is a valid legatee. In Shia law, the period is 10 months, which is the maximum period of gestation.
Bequest for a charitable object is valid.
3. Validity of the subject of will - To be able to will a property, it must be -
1. capable of being transferred.
2. in existence at the time of testator's death even if it is not in existence at the time of making will. Thus, a bequest
cannot be made of any thing that is to be performed or produced in future.
3. in the ownership of the testator.
A bequest that is to take effect only upon any uncertain event happening is a contingent bequest, and is void. However, a
bequest with a condition that derogates from its completeness is valid and will take effect as if the condition did not exist. For
example, a grant is made to X for his life and then it is stipulated to go to Y after death of X. In this case, X will get the grant
completely and Y will get nothing. Thus, a bequest of life estate is not valid either under Shia or Sunni Law.
4. Extent of power of will - The testamentary power of a muslim is limited in two ways -
Limitations as regards to person - The general rule is laid down in Ghulam Mohammad vs Ghulam Hussain 1932 by
Allahbad HC, that a bequest in favour of a heir is not valid unless the other heirs consent to the bequest after the death of
the testator. Whether a person is a heir or not is determined at the time of testator's death.
Under Shia law, a testator may bequest a heir as long as it does not exceed one third of his property and no consent of other
heirs is required. In Hussaini Begam vs Mohammad Mehdi 1927, it was held that if all the property was bequested to one
heir and other were not given anything, the bequest was void in its entirety.
Limitations as regard to the amount - The general principle is that a muslim is not allowed to will more than 1/3rd of his
property after taking out funeral charges and debt. However, under Hanafi law, it may be valid if heirs give the consent after
the death of the testator. In Shia law, such consent can be taken either before or after the death. Another exception is that if
the testator has no heir, he can will any amount. The govt. cannot act as a heir to the heirless person.
Differences between Shia and Sunni Law on Will
Sunni Law Shia Law
quest to an heir without consent of other heirs is invalid. Bequest up to 1/3 of the property is valid even without consent.
quest to unborn child is valid if the child is born within 6 months of making the will. Valid if the child is born within 10 months of making the will.
gatee who causes death even by accident is incapable of receiving. Legatee who causes death by accident is capable.
a bequest of more than 1/3 to a non-heir, the consent of heir must be obtained after the death of testator. Heir's consent may be obtained before or after death.
of a person committing suicide is valid. Valid only if the will is made before the person does any act tow
cognizes rateable distribution. Does not recognize rateable distribution.
he legatee dies before testator, the legacy lapses and goes back to the testator. The legacy lapses only if the legatee dies without heirs otherwis
gatee must accept the legacy after the death of the testator. Legatee can accept the legacy even before the death of the tes

Differences between Will and Gift

Gift Will
s an immediate transfer of right or interest. It is a transfer after death.
livery of possession is necessary. Delivery of possession is not necessary.
bject of gift must exist at the time of making gift. Subject of will must exist at the time of death of the testator.
ght of donor is unrestricted. It is limited up to 1/3rd of the property.
nnot be revoked. Can be revoked by making another will.

Q. Define Wakf and explain the essentials of a valid Wakf. What are different kinds of
Wakf? How is Wakf created? Can a Wakf be created only for the benefit of one's family? What
is the difference between contingent and conditional Wakf? When is Wakf complete? What
are the legal consequences of a valid Wakf? Can a Wakf be revoked? Define Mutawalli. Who
can be a Mutwalli? Who are incompetent to be Mutwalli? By whom can he be appointed? Can
a Mutwalli be removed? How?
Literal meaning of Wakf is detention, stoppage, or tying up as observed in M Kazim vs A Asghar Ali AIR 1932. Technically, it means
a dedication of some specific property for a pious purpose or secession of pious purposes. As defined by Muslim jurists such as Abu
Hanifa, Wakf is the detention of a specific thing that is in the ownership of the waqif or appropriator, and the devotion of its profits or
usufructs to charity, the poor, or other good objects, in the manner of areeat or commodate loan.
Wakf Act 1954 defines Wakf as, "Wakf means the permanent dedication by a person professing the Islam, of any movable or
immovable property for any purpose recognized by Muslim Law as religious, pious, or charitable."

Essentials of a valid Wakf

1. Permanent Dedication of any property - There are actually three aspects in this requirement. There must be a dedication, the
dedication must be permanent, and the dedication can be of the property. There is no prescribed form of dedication. It can be written
or oral but it must be clear to convey the intention of dedication. According to Abu Yusuf, whose word is followed in India, mere
declaration of dedication is sufficient for completion of Wakf. Neither delivery of possession or appointment of Mutawalli is necessary.

The dedication must be permanent . A temporary dedication such as for a period of 10 yrs or until death of someone is invalid.

The subject of Wakf can be any tangible property (mal) which can used without being consumed. In Abdul Sakur vs Abu Bakkar
1930, it was held that there are no restrictions as long as the property can be used without being consumed and thus, a valid Wakf
can be created not only of immovable property but also of movable property such as shares of a company or even money. Some
subjects that Hanafi law recognizes are immovable property, accessories to immovable property, or books.

The subject of the Wakf must be in the ownership of the dedicator, wakif. One cannot dedicate someone else's property.

2. By a Muslim - A Wakf can only be created by a Muslim. Further, the person must have attained the age of majority as per Indian
Majority Act and should be of sound mind.

3. For any purpose recognized by Muslim Law - The purpose is also called the object of Wakf and it can be any purpose
recognized as religious, pious, or charitable, as per Muslim Law. It is not necessary that a person must name a specific purpose. He
can also declare that the property may be used for any welfare works permitted by Shariat.
In Zulfiqar Ali vs Nabi Bux, the settlers of a Wakf provided that the income of certain shops was to be applied firstly to the upkeep of
the mosque and then the residue, if any, to the remuneration of the mutawalli. It was held to be valid however, it was also pointed out
that if a provision of remuneration was created before the upkeep of the mosque, it would have been invalid.
The following are some of the objects that have been held valid in several cases - Mosques and provisions of Imam to conduct
worship, celebrating birth of Ali Murtaza, repairs of Imambaras, maintenance of Khanqahs, burning lamps in mosques, payment of
money to fakirs, grant to an idgah, grant to colleges and professors to teach in colleges, bridges and caravan sarais.

In Kunhamutty vs Ahman Musaliar AIR 1935, Madras HC held that if there are no alms, the performing of ceremonies for the benefit
of the departed soul is not a valid object.

Some other invalid objects are - building or maintaining temple or church, providing for the rich exclusively, objects which are
uncertain.

Shia Law - Besides the above requirements, Shia law imposes some more requirements for a valid Wakf. There are -
1. Delivery of possession to the first person in whose favour the Wakf has been created is essential.
2. Dedication must be absolute and unconditional.
3. The property must be completely taken away from the wakif. It means that the wakif cannot keep or reserve any benefit or
interest, or even the usufructs of the dedicated property.

Creation of Wakf
Muslim law does not prescribe any specific way of creating a Wakf. If the essential elements as described above are fulfilled, a Wakf is
created. Though it can be said that a Wakf is usually created in the following ways -
1. By an act of a living person (inter vivos) - when a person declares his dedication of his property for Wakf. This can also
be done while the person is on death bed (marj ul maut), in which case, he cannot dedicate more than 1/3 of his property for
Wakf.
 2. By will - when a person leaves a will in which he dedicates his property after his death. Earlier it was thought that Shia
cannot create Wakf by will but now it has been approved.
3. By Usage - when a property has been in use for charitable or religious purpose for time immemorial, it is deemed to belong
to Wakf. No declaration is necessary and Wakf is inferred.

Kinds of Wakfs
A Wakf can be classified into two types - Public and Private. As the name suggests, a public Wakf is for the general religious and
charitable purposes while a private Wakf is for the creators own family and descendants and is technically called Wakf alal aulad. It
was earlier considered that to constitute a valid wakf there must be a complete dedication of the property to God and thus private wakf
was not at all possible. However, this view is not tenable now and a private wakf can be created subject to certain limitation after Wakf
Validating Act 1913. This acts allows a private wakf to be created for one's descendants provided that the ultimate benefits are
reserved for charity. Muslim Law treats both public and private wakfs alike. Both types of wakf are created in perpetuity and the
property becomes inalienable.

Wakf alal aulad (can a wakf be created for one's family?)

Wakf on one's children and thereafter on the poor is a valid wakf according to all the Muslim Schools of Jurisprudence. This is
because, under the Mohammedan Law, the word charity has a much wider meaning and includes provisions made for one's own
children and descendants. Charity to one's kith and kin is a high act of merit and a provision for one's family or descendants, to
prevent their falling into indigence, is also an act of charity. The special features of wakf-alal-aulad is that only the members of the
wakif’s family should be supported out of the income and revenue of the wakf property. Like other wakfs, wakf alal-aulad is governed
by Muhammadan Law, which makes no distinction between the wakfs either in point of sanctity or the legal incidents that follow on
their creation. Wakf alal aulad is, in the eye of the law, Divine property and when the rights of the wakif are extinguished, it becomes
the property of God and the advantage accrues to His creatures. Like the public wakf, a wakf-alal-aulad can under no circumstances
fail, and when the line of descendant becomes extinct, the entire corpus goes to charity.

The institution of private wakf is traced to the prophet himself who created a benefaction for the support of his daughter and her
descendants and, in fact, placed it in the same category as a dedication to a mosque.
Thus, it is clear that a wakf can be created for one's own family. However, the ultimate benefit must be for some purpose which is
recognized as pious, religious or charitable by Islam.

Quasi public Wakf

Some times a third kind of wakf is also identified. In a Quasi public wakf, the primary object of which is partly to provide for the benefit
of particular individuals or class of individuals which may be the settler's family, and partly to public, so they are partly public and partly
private.

Contingent Wakf
A wakf, the creation of which depends on some event happening is called a contingent wakf and is invalid. For example, if a person
creates a wakf saying that his property should be dedicated to god if he dies childless is an invalid wakf. Under shia law also, a wakf
depending on certain contingencies is invalid.
In Khaliluddin vs Shri Ram 1934, a muslim executed a deed for creating a wakf, which contained a direction that until payment of
specified debt by him, no proceeding under the wakfnama shall be enforceable. It was held that it does not impose any condition on
the creation of the wakf and so it is valid.

Conditional Wakf
If a condition is imposed that when the property dedicated is mismanaged, it should be divided amongst the heirs of the wakf, or that
the wakif has a right to revoke the wakf in future, such a wakf would be invalid. But a direction to pay debts, or to pay for
improvements, repairs or expansion of the wakf property or conditions relating to the appointment of Mutawalli would not invalidate the
wakf. In case of a conditional wakf, it depends upon the wakif to revoke the illegal condition and to make the wakf valid, otherwise it
would remain invalid.

Completion of wakf
The formation of a wakf is complete when a mutawalli is first appointed for the wakf. The mutalwalli can be a third person or the wakif
himself. When a third person is appointed as mutawalli, mere declaration of the appointment and endowment by the wakif is enough.
If the wakif appoints himself as the first mutawalli, the only requirement is that the transaction should be bona fide. There is no need
for physical possession or transfer of property from his name as owner to his name as mutawalli.

In both the cases, however, mere intention of setting aside the property for wakf is not enough. A declaration to that effect is also
required.

In Garib Das vs M A Hamid AIR 1970, it was held that in cases where founder of the wakf himself is the first mutawalli, it is not
necessary that the property should be transferred from the name of the donor as the owner in his own name as mutawalli.
Shia law -
1. Delivery of possession to the mutawalli is required for completion when the first mutawalli is a third person.
2. Even when the owner himself is the first mutawalli, the character of the ownership must be changed from owner to mutawalli
in public register.
Legal Consequences (Legal Incidents) of Wakf
Once a wakf is complete, the following are the consequences -

1. Dedication to God - The property vests in God in the sense that no body can claim ownership of it. In Md. Ismail vs Thakur
Sabir Ali AIR 1962, SC held that even in wakf alal aulad, the property is dedicated to God and only the usufructs are used by
the descendants.
2. Irrevocable - In India, a wakf once declared and complete, cannot be revoked. The wakif cannot get his property back in his
name or in any other's name.
3. Permanent or Perpetual - Perpetuality is an essential element of wakf. Once the property is given to wakf, it remains for the
wakf for ever. Wakf cannot be of a specified time duration. In Mst Peeran vs Hafiz Mohammad, it was held by Allahbad HC
that the wakf of a house built on a land leased for a fixed term was invalid.
4. Inalienable - Since Wakf property belongs to God, no human being can alienate it for himself or any other person. It cannot
be sold or given away to anybody.
5. Pious or charitable use - The usufructs of the wakf property can only be used for pious and charitable purpose. It can also
be used for descendants in case of a private wakf.
6. Extinction of the right of wakif - The wakif loses all rights, even to the usufructs, of the property. He cannot claim any
benefits from that property.
7. Power of court's inspection - The courts have the power to inspect the functioning or management of the wakf property.
Misuse of the property of usufructs is a criminal offence as per Wakf Act.1995.
Revocation of Wakf
In India, once a valid wakf is created it cannot be revoked because no body has the power to divest God of His ownership of a
property. It can neither be given back to the wakif nor can it be sold to someone else, without court's permission.
A wakf created inter vivos is irrevocable. If the wakif puts a condition of revocability, the wakf is invalid. However, if the wakf has not
yet come into existence, it can be canceled. Thus, a testamentary wakf can be canceled by the owner himself before his death by
making a new will. Further, wakf created on death bed is valid only up till 1/3 of the wakif's property. Beyond that, it is invalid and the
property does not go to wakf but goes to heirs instead.

Mutawalli
Mutawalli is nothing but the manager of a wakf. He is not the owner or even a trustee of the property. He is only a superintendent
whose job is the see that the usufructs of the property are being utilized for valid purpose as desired by the wakif. He has to see that
the intended beneficiaries are indeed getting the benefits. Thus, he only has a limited control over the usufructs.
In Ahmad Arif vs Wealth Tax Commissioner AIR 1971, SC held that a mutawalli has no power to sell, mortgage, or lease wakf
property without prior permission of the court or unless that power is explicitly provided to the mutawalli in wakfnama.

Who can be a mutawalli - A person who is a major, of sound mind, and who is capable of performing the functions of the wakf as
desired by the wakif can be appointed as a mutawalli. A male or female of any religion can be appointed. If religious duties are a part
of the wakf, then a female or a non-muslim cannot be appointed.
In Shahar Bano vs Aga Mohammad 1907, Privy council held that there is no legal restriction on a woman becoming a mutawalli if the
duties of the wakf do not involve religious activities.

Who can appoint a mutawalli - Generally, the wakif appoints a mutawalli. He can also appoint himself as a mutawalli. If a wakf is
created without appointing a mutawalli, in India, the wakf is considered valid and the wakif becomes the first mutawalli in Sunni law but
according to Shia law, even though the wakf remains valid, it has to be administered by the beneficiaries. The wakif also has the
power to lay down the rules to appoint a mutawalli. The following is the order in which the power to nominate the mutawalli transfers if
the earlier one fails -
1. founder
2. executor of founder
3. mutawalli on his death bed
4. the court, which should follow the guidelines -
1. it should not disregard the directions of the settler but public interest must be given more importance.
2. preference should be given to the family member of the wakif instead of utter stranger.
Powers of a mutawalli - Being the manager of the wakf, he is in charge of the usufructs of the property. He has the following rights -
1. He has the power to utilize the usufructs as he may deem fit in the best interest of the purpose of the wakf. He can take all
reasonable actions in good faith to ensure that the intended beneficiaries are benefited by the wakf. Unlike a trustee, he is not
 an owner of the property so he cannot sell the property. However, the wakif may give such rights to the mutawalli by explicitly
mentioning them in wakfnama.
2. He can get a right to sell or borrow money by taking permission from the court upon appropriate grounds or if there is an
urgent necessity.
3. He is competent to file a suit to protect the interests of the wakf.
4. He can lease the property for agricultural purpose for less than three years and for non-agricultural purpose for less than one
year. He can exceed the term by permission of the court.
5. He is entitled to remuneration as provided by the wakif. If the remuneration is too small, he can apply to the court to get an
increase.

Removal of a mutawalli -
Generally, once a mutawalli is duly appointed, he cannot be removed by the wakif. However, a mutawalli can be removed in the
following situations -
1. By court -
1. if he misappropriates wakf property.
2. even after having sufficient funds, does not repair wakf premises and wakf falls into disrepair.
3. knowingly or intentionally causes damage or loss to wakf property. In Bibi Sadique Fatima vs Mahmood Hasan
AIR 1978, SC held that using wakf money to buy property in wife's name is such breach of trust as is sufficient
ground for removal of mutawalli.
4. he becomes insolvent.
2. By wakf board - Under section 64 of Wakf Act 1995, the Wakf board can remove mutawalli from his office under the
conditions mentioned therein.
3. By the wakif - As per Abu Yusuf, whose view is followed in India, even if the wakif has not reserved the right to remove the
mutawalli in wakf deed, he can still remove the mutawalli.

Q. Define Gift/Hiba. What are the three essentials of Gift? Who can give gift? What are the
kinds of Gift? State the circumstances in which delivery of possession of immovable
property is not required in making a gift. What gifts are void?What is Mushaa? Explain with
illustration. What is the difference between Hiba Bil Iwaz and Hiba Ba Shart ul Iwaz?
Gift is a generic term that includes all transfers of property without consideration. In India, Gift is considered equivalent to Hiba but
technically, Gift has a much wider scope than Hiba. The word Hiba literally means, the donation of a thing from which the donee may
derive a benefit. It must be immediate and complete. The most essential element of Hiba is the declaration, "I have given".

As per Hedaya, Hiba is defined technically as, "unconditional transfer of property, made immediately and without any exchange or
consideration, by one person to another and accepted by or on behalf of the latter".

According to Fyzee, Hiba is the immediate and unqualified transfer of the corpus of the property without any return.

The gift of the corpus of a thing is called Hiba and the gift of only the usufructs of a property is called Ariya.

Essential Elements of a Gift

Since muslim law views the law of Gift as a part of law of contract, there must be an offer (izab), an acceptance (qabul), and transfer
(qabza). In Smt Hussenabi vs Husensab Hasan AIR 1989 Kar, a grandfather made an offer of gift to his grandchildren. He also
accepted the offer on behalf of minor grandchildren. However, no express of implied acceptance was made by a major grandson.
Karnataka HC held that since the three elements of the gift were not present in the case of the major grandchild, the gift was not valid.
It was valid in regards to the minor grandchildren.

Thus, the following are the essentials of a valid gift -

1. A declaration by the donor - There must be a clear and unambiguous intention of the donor to make a gift.
2. Acceptance by the donee - A gift is void if the donee has not given his acceptance. Legal guardian may accept on behalf of a
minor.
3. Delivery of possession by the donor and taking of the possession by the donee. In Muslim law the term possession
means only such possession as the nature of the subject is capable of. Thus, the real test of the delivery of possession is to
see who - whether the donor or the donee - reaps the benefits of the property. If the donor is reaping the benefit then the
delivery is not done and the gift is invalid.
The following are the conditions which must be satisfied for a valid gift.

1. Parties - There must be two parties to a gift transaction - the donor and the donee.
Conditions for Donor - (Who can give)
1. Must have attained the age of majority - Governed by Indian Majority Act 1875.
2. Must be of sound mind and have understanding of the transaction.
3. Must be free of any fraudulent or coercive advice as well as undue influence.
4. Must have ownership over the property to be transfered by way of gift.
A gift by a married woman is valid and is subjected to same legal rules and consequences. A gift by a pardanashin woman is also
valid but in case of a dispute the burden of proof that the transaction was not conducted by coercion or undue influence is on the
donee.

Gift by a person in insolvent circumstances is valid provided that it is bona fide and not merely intended to defraud the creditors.

Conditions for Donee (who can receive)

1. Any person capable of holding property, which includes a juristic person, may be the donee of a gift. A muslim may also
make a lawful gift to a non-muslim.
2. Donee must be in existence at the time of giving the gift. In case of a minor or lunatic, the possession must be given to the
legal guardian otherwise the gift is void.
3. Gift to an unborn person is void. However, gift of future usufructs to an unborn person is valid provided that the donee is in
being when the interest opens out for heirs.

2. Conditions for Gift (What can be gifted) -

1. It must be designable under the term mal.
2. It must be in existence at the time when the gift is made. Thus, gift of anything that is to be made in future is void.
3. The donor must possess the gift.
Muslim law recognizes the difference between the corpus and the usufructs of a property. Corpus, or Ayn, means the absolute right of
ownership of the property which is heritable and is unlimited in point of time, while, usufructs, or Manafi, means the right to use and
enjoy the property. It is limited and is not heritable. The gift of the corpus of a thing is called Hiba and the gift of only the usufructs of a
property is called Ariya.

In Nawazish Ali Khan vs Ali Raza Khan AIR 1984, it was held that gift of usufructs is valid in Muslim law and that the gift of corpus is
subject to any such limitations imposed due to usufructs being gifted to someone else. It further held that gift of life interest is valid and
it doesn't automatically enlarge into gift of corpus. This ruling is applicable to both Shia and Sunni.

Subject of Gift - The general principle is that the subject of a gift can be -
1. anything over which dominion or right of property may be exercised.
2. anything which may be reduced to possession.
3. anything which exists either as a specific entity or as an enforceable right.
4. anything which comes within the meaning of the word mal.
In Rahim Bux vs Mohd. Hasen 1883, it was held that gift of services is not valid because it does not exist at the time of making the
gift.

Gift of an indivisible property can be made to more than one persons.

3. Extent of Donors right to gift - General rule is that a donors right to gift is unrestricted. In Ranee Khajoorunissa vs Mst
Roushan Jahan 1876, it was recognized by the privy council that a donor may gift all or any portion of his property even if it adversely
affects the expectant heirs. However, there is one exception that the right of gift of a person on death bed (Marz ul maut) is restricted
in following ways - He cannot gift more than one third of his property and he cannot gift it to any of his heirs.

Kinds of Gift
There are several variations of Hiba. For example, Hiba bil Iwaz, Hiba ba Shart ul Iwaz, Sadkah, and Ariyat.

Hiba Bil Iwaz - Hiba means gift and Iwaz means consideration. Hiba Bil Iwaz means gift for consideration already received. It is thus
a transaction made up of two mutual or reciprocal gifts between two persons. One gift from donor to donee and one from donee to
donor. The gift and return gift are independent transactions which together make up Hiba bil Iwaz.

In India, it was introduced as a device for effecting a gift of Mushaa in a property capable of division. So a Hiba Bil Iwaz is a gift for
 consideration and in reality it is a sale. Thus, registration of the gift is necessary and the delivery of possession is not essential and
prohibition against Mushaa does not exist. The following are requisites of Hiba bil Iwaz -
1. Actual payment of consideration on the part of the donee is necessary. In Khajoorunissa vs Raushan Begam 1876, held
that adequacy of the consideration is not the question. As long is the consideration is bona fide, it is valid no matter even if it
is insufficient.
2. A bona fide intention on the part of the donor to divest himself of the property is essential.
Gift in lieu of dower debt - In Gulam Abbas vs Razia AIR 1951, All HC held that an oral transfer of immovable property worth more
than 100/- cannot be validly made by a muslim husband to his wife by way of gift in lieu of dower debt which is also more than 100/-. It
is neither Hiba nor Hiba bil Iwaz. It is a sale and must done through a registered instrument.

Hiba ba Shartul Iwaz - Shart means stipulation and Hiba ba Shart ul Iwaz means a gift made with a stipulation for return. Unlike in
Hiba bil Iwaz, the payment of consideration is postponed. Since the payment of consideration is not immediate the delivery of
possession is essential. The transaction becomes final immediately upon delivery. When the consideration is paid, it assumes the
character of a sale and is subject to presumption (Shufa). As in sale, either party can return the subject of the sale in case of a defect.
It has the following requisites -
1. Delivery of possession is necessary.
2. It is revocable until the Iwaz is paid.
3. It becomes irrevocable after the payment of Iwaz.
4. Transaction when completed by payment of Iwaz, assumes the character of a sale.

In general, Hiba bil Iwaz and Hiba ba Shart ul Iwaz are similar in the sense that they are both gifts for a return and the gifts must be
made in compliance with all the rules relating to simple gifts.

Differences between Hiba, Hiba bil Iwaz, and Hiba ba Shart ul Iwaz -
Hiba Hiba bil Iwaz Hiba ba Shart
wnership in property is transfered Ownership in property is transferred for consideration called iwaz. But there is Ownership in property is transferred f
hout consideration. no express agreement for a return. Iwaz is voluntary. iwaz, with an express agreement for a
livery of possession is essential. Delivery of possession is NOT essential. Delivery of possession is essential.
t of mushaa where a property is
Gift of mushaa even where a property is divisible is valid. Gift of mushaa where a property is div
isible is invalid.
rring a few exceptions it is
It is irrevocable. It is revocable until the iwaz is paid. Ir
ocable.
In its inception it is a gift but becomes
s a pure gift. It is like a contract of sale.
paid.

Exceptions in delivery of possesssion

The following are the cases where deliver of possession by the donor to the donee is not required -
1. Gift by a father to his minor or lunatic son. In Mohd Hesabuddin vs Mohd. Hesaruddin AIR 1984, the donee was looking
after the donor, his mother while other sons were neglecting her. The donor gifted the land to the donee and the donee
subsequently changed the name on the land records. It was held that it was a valid gift even though there was no delivery of
land.
2. When the donor and the donee reside in the same house which is to be gifted. In such a case, departure of the donor from
the house is not required.
3. Gift by husband to wife or vice versa. The delivery of possession is not required if the donor had a real and bona fide
intention of making the gift.
4. Gift by one co-sharer to other. Bona fide intention to gift is required.
5. Part delivery - Where there is evidence that some of the properties in a gift were delivered, the delivery of the rest may be
inferred.
6. Zamindari villages - Delivery is not required where the gift includes parcels of land in zamindari if the physical possession is
immpossible. Such gift may be completed by mutation of names and transfer of rents and incomes.
7. Subject matter in occupation of tenant - If a tenant is occupying the property the gift may be affected by change in ownership
records and by a request to the tenant to attorn the donee.
8. Incorporeal rights - The gift may be completed by any appropriate method of transfering all the control that the nature of the
gift admits from the donor to the donee. Thus, a gift of govt. promissory note may be affected by endorsement and delivery to
the donee.
 9. Where the donee is in possession - Where the donee is already in possession of the property, delivery is not required.
However, if the property is in adverse possession of the donee, the gift is not valid unless either the donor recovers the
possession and delivers it to donee or does all that is in his power to let the donee take the possession.

Void Gifts
The following gifts are void -
1. Gift to unborn person. But a gift of life interest in favor on a unborn person is valid if he comes into existence when such
interest opens out.
2. Gifts in future - A thing that is to come into existence in future cannot be made. Thus, a gift of a crop that will come up in
future, is void.
3. Contingent gift - A gift that takes affect after the happening of a contingency is void. Thus a gift by A to B if A does not get a
male heir is void.

Gift with a condition

A gift must always be unconditional. When a gift is made with a condition that obstructs its completeness, the gift is valid but the
condition becomes void. Thus, if A gifts B his house on a condition that B will not sell it or B will sell it only to C, the condition is void
and B takes full rights of the house.

Mushaa (Hiba bil mushaa)

Mushaa means undivided share in a property. The gift of undivided share in an indivisible property is valid under all schools but there
is no unanimity of opinion amongst different schools about gift of undivided share in a property that is divisible. In Shafai and Ithna
Asharia laws it is valid if the donor withdraws his control over the property in favor of the donee. But under Hanafi law, such a gift is
invalid unless it is separated and delivered to the donee.

Illustration -
A, B, and C are the co-owners of a house. Since a house cannot be divided, A can give his undivided share of the house to D in gift.
A, B, and C are the co-owners of 3 Tons of Wheat, under Shafai and Ithna Ahsharia law, A can give his undivided share of the wheat
to D if he withdraws control over it but under Hanafi law, A cannot do so unless the wheat is divided and the A delivers the possession
of 1 ton of wheat to D.

In case of Kashim Hussain vs Sharif Unnisa 1883, A gifted his house to B along with the right to use a staircase, which was being
used by C as well. This gift was held valid because staircase is indivisible.

Revocation of a Gift
Under muslim law, all volutary transactions are revocable and so under Hanafi law a gift is also generally revocable, though it is held
to be abominable. In Shia law, a gift can be revoked by mere declaration while in Sunni law, it can be revoked only by the intervention
of the court of law or by the consent of the donee.

The following gifts, however, are absolutely irrevocable -

1. When the donor is dead.
2. When the donee is dead.
3. When the donee is related to the donor in prohibited degrees on consanguinity. However, in Shia law, a gift to any blood
relative is irrevocable.
4. When donor and the donee stand in marital relationship. However, in Shia law, a gift to husband by wife or vice versa is
revocable.
5. when the subject of the gift has been transfered by the donee through a sale or gift.
6. when the subject of the gift is lost or destroyed, or so changed as to lose its identity.
7. when the subject of the gift has increased in value and the increment is inseparable.
8. when the gift is a sadqa.
9. when anything as been accepted in return.

Q. What is Talaq? Who can pronounce Talaq? Identifying differences between shia and sunni,
explain the different modes/types of Talaq. What is Talaq e tafweez? What is the difference
between Talaq ul sunnat and Talaq ul biddat. Can a muslim wife give Talaq to her husband? If
yes, under what circumstances? What are the grounds on which a muslim woman can
demand Talaq? State the consequences that arise from Talaq under muslim law.
The word Talaq originally meant "repudiation" or "rejection". In Muslim law, it means release from a marriage tie, immediately or
eventually. In a restricted sense it means separation effected by the use of certain appropriate words by the husband and in a wide
sense it means all separations for causes originating from the husband. It is also generic name for all kinds of divorce but it is
particularly applied to the repudiation by or on behalf of husband.

In Moonshee Buzloor Rahim vs Lateefutoon Nissa, it was said that Talaq is a mere arbitrary act of a muslim husband, by which he
may repudiate his wife at his own pleasure with or without cause.

Who can pronounce Talaq?

As per Islamic law, only the husband has a right to pronounce Talaq. Under Talaq-e-tafweez, a husband may delegate the authority to
the wife to pronounce talk on his behalf. The husband must posses the following qualifications to be able to pronounce a valid Talaq -

Shia - He must be of sound mind and attained the age of puberty. It must be pronounced orally in the presence of two witnesses
unless he is unable to speak. Further, Talaq must not be pronounced under duress or compulsion otherwise Talaq is void. It must be
spoken in Arabic terms and strictly in accordance to sunnat.

Sunni - Only two requirements - Sound mind, attained majority. A Talaq pronounced under compulsion or intoxication is effective.

It is not necessary that Talaq must be pronounced in the presence of wife. In Fulchand vs Navab Ali Chaudhary 1909, it was laid
that Talaq should be deemed to have come into effect on the date on which the wife came to know of it.

Intention is not necessary for a Talaq to take effect. If unambiguous words denoting irrevocable Talaq are pronounced even by
mistake or in anger, it is a valid Talaq.

Talaq can be effected orally or in writing (Talaqnama). If the words are express and well understood as implying divorce (e.g. "I have
divorced thee"), no proof of the intention is required. If the words are ambiguous (e.g. "Thou art my cousin, the daughter of my uncle, if
you goest"), then intention of the user must be proved.

After the passing of Muslim Marriage Dissolution Act 1949, a muslim wife can also get a divorce on certain grounds. (Explained below)

The following diagram shows various types of divorces - (Note that technically, Talaq is not same as divorce, but in the exam when
these morons ask about types of Talaq, they actually mean types of divorce!)
 Type of Talaq Shia
By Husband
Talaq ul sunnat - It is a Talaq which is effected in accordance with the traditions of Prophet. It
is further divided in two types - Ahasan and hasan.

Ahasan - It is the most approved and considered to be the best kind of Talaq. The word ahasan
means best or very proper. To be of Ahasan form, it must satisfy the following conditions -
1. the husband must pronounce the formula of divorce in a single sentence.
2. the pronouncement of divorce must in done when the wife is in state of tuhr (purity), Written Talaq is not acceptable unless the husba
which means when she is free from her menses. speak. Two male witnesses are required.
3. husband must abstain from intercourse for the period of iddat.
Intention to divorce is required on the part of hus
If the marriage has not been consummated, if the spouses are away from each other, or the wife
is beyond the age of mensuration, Talaq may even be pronounced while the wife is in menses.
Pronouncement in this form is revocable during the period of iddat. Such revocation may
be either express or implied. It becomes irrevocable at the expiry of iddat.

Hasan - Hasan in arabic means "good" and so this form of Talaq is considered to be a good
form of Talaq but not as good as Ahasan. To be in this form, it must satisfy the following
conditions -
1. there must be three successive pronouncements of the formula of divorce.
2. in case of a menstruating wife, the three pronouncements must be made in three
consecutive tuhrs.
3. in case of a non-menstruating wife, the three pronouncements must be made during
the successive intervals of 30 days.
4. no sexual intercourse must take place during these three periods of tuhr.
It can be revoked any time before the third pronouncement. It becomes irrevocable on the
third pronouncement.
Talaq ul biddat - It is a disapproved and sinful form of Talaq. It was introduced by Shias and Malikis do not recognize this form.
Ommeyyads in order to escape the strictness of law. To be of this form, it must satisfy the
following conditions - Shia law does not recognize any form of irrevoca
1. three pronouncements may be made during a single tuhr either in one sentence (e.g. "I
 divorce thee thrice." ) or in three sentences (e.g. I divorce thee, I divorce thee, I divorce
thee).
2. a single pronouncement made during a tuhr clearly indicating an intention to dissolve
marriage irrevocably (e.g. "I divorce thee irrevocably").
It becomes irrevocable immediately when it is pronounced irrespective of iddat. Thus,
once pronounced, it cannot be revoked. One a definite complete separation has taken place,
they cannot remarry without the formality of the woman marrying another man and being
divorced from him.

In Saiyyad Rashid Ahmad vs Anisa Khatoon 1932, one Ghayas Uddin pronounced triple
Talaq in the presence of witnesses though in the absence of the wife. Four days later a
Talaqnama was executed which stated that three divorces were given. However, husband and
wife still lived together and had children. While the husband treated her like a wife, it was held
that since there was no proof of remarriage, the relationship was illicit and the children were
illegitimate.

It has been said that this type of Talaq is theologically improper. In Fazlur Rahman vs Aisha
1929, it was held that Quran verses have been interpreted differently by different schools. Thus,
it is legally valid for Sunnis but not for Shia.
Ila - (Vow of continence) - Where the husband is of sound mind and of the age of majority,
swears by God that he will not have sexual intercourse with his wife and leaves the wife to
observe iddat, he is said to make ila. If the husband after having pronounced ila abstains from
having sexual intercourse with wife for four months, the marriage is dissolved with the same
result as if there had been an irrevocable divorce pronounced by the husband. This requires
following conditions -
1. Husband must be of sound mind and above the age of majority.
2. must swear by God or must take a vow.
3. vow must be that he will not have sexual intercourse with his wife.
4. must abstain from sexual intercourse with his wife for four months or more after taking
the vow.
It can be canceled by - resuming sexual intercourse within the period of four months or by a
verbal retraction.
It is not in practice in India.
Zihar - Injurious Assimilation - If a husband compares the wife with his mother or any other
female relative within prohibited degree, the wife has a right to refuse herself to him until he has
perfomed a penance such as freeing a slave or fasting for a month. In default of expiation by
penance, the wife has the right to apply for judicial divorce. Ingredients -
1. husband must be sane and adult
2. husband compares wife to his mother or any other female relative within prohibited
degrees.
3. then the wife has a right - a) to refuse to have sexual intercourse with him till he has
expiated himself by penance, b) to apply in court for an order directing him for a Comparison must have been done in presence o
penance or to decree her a regular divorce. Muta marriage may be dissolved by Zihar.
Legal Effects - Zihar by itself does not terminate the marriage nor does it cause the wife to lose
her right to maintenance even in case of default of penance. It causes the following -
1. sexual intercourse becomes unlawful
2. husband is liable for penance
3. wife can claim judicial separation if the husband persists in wrong doing.
The comparison must be done intentionally and with disrespect. If the husband makes a
comparison to show respect to his wife, an expiation is not necessary.
This form has become obsolete.
By Wife
Talaq e tafweez - A husband may delegate his power to give Talaq to any third party or even to
his wife. This delegation is called tafweez. An agreement made either before or after the marriage
providing that the wife is at liberty to divorce herself from her husband under certain specified
conditions (e.g. husband taking a second wife), is valid, provided that such power is not absolute
and unconditional and that the conditions are reasonable and are not opposed to public policy.
In Mohd Khan vs Mst Shahmali AIR 1972, there was a pre-nuptial agreement in which the
defendant agreed to live in plaintiff's parental house after marriage and if he left the house, he
would pay a certain sum to the plaintiff, the default of which the condition would act as divorce. It
was held that the condition was not unconscionable or opposed to public policy.

Note that a wife does not divorce her husband but gets herself divorced from the husband.
Ameer Ali gives three kinds of tafweez - (This is given in Aqil Ahmed's book. I have no idea what
is the difference between the three).
Ikhtiar - giving her authority to Talaq herself.
Amr-bayed - leaving the matter in her own hands.
Mashiat - giving her the option to do what she likes.

This does not deprive the husband from his right to give Talaq.
Talaq e taliq - It means contingent divorce. Under the Hanafi law, pronouncement of divorce may
take effect immediately or at some future time or event.
By Agreement
Khula - Divorce at the request of wife - A wife has a right to buy
her release from marriage from her husband. It must satisfy the
following conditions -
1. there must be an offer from the wife.
2. the offer must be accepted with consideration (evaz) for
the release.
3. the offer must be accepted by the husband.
It becomes effective as well as irrevocable (Talaq ul bain) as
soon as it is accepted by the husband and the wife is bound to Husband must be adult, sane,
observe iddat. free agent (mukhtar), and must have intention to divorce her.

As a consideration for release by the husband, everything that Husband has no power of revocation but wife
can be given in dower can be given. If the wife fails to give the can reclaim the consideration during iddat. In this case,
consideration that was agreed upon at the time of Khula, divorce the husband can revoke Khula.
does not become invalid but the husband has the right to claim
the consideration.

In Moonshee Buzloor Rahim vs Lateefutoon Nissa, Khula was

defined as a divorce by consent in which the wife gives or agrees
to give a consideration to the husband for her release from the
marriage tie. Khula is thus the right of divorce purchased by the
wife from her husband.
Mubarat - Divorce by mutual agreement - It is a form of
dissolution of marriage contract, where husband and wife both
are averse to the marriage and want to separate. It requires
following conditions -
1. Either of husband or wife can make the offer.
2. The other one must accept it.
3. As soon as it is accepted, it become irrevocable and
iddat is necessary. Since it is a mutual agreement, there
is no question of consideration.

By Judicial Decree
Lian - False charge of adultery - When the husband charges the
wife with adultery and the charge is false, the wife is entitled to
sue for and obtain divorce. In Zafar Hussain vs Ummat ur
Rahman 1919, the Allahabad HC accepted the doctrine of Lian.
The following conditions must be satisfied -
1. Husband, who is adult and sane, charges his wife with
adultery or denies the paternity of her child.
2. Such charge is false.
 3. The marriage is a Sahih marriage.
Features of Lian -
1. Such false charge does not dissolve the marriage
automatically but only gives a right to the wife to sue for
divorce. The marriage continues till the decree is
passed.
2. Wife must file a regular suit and just an application will
not suffice.
3. Judicial separation due to Lian is irrevocable.
4. Lian is applicable only to Sahih marriage and not to
Fasid ones.
Retraction - A husband may retract the charge. However, the
retraction must be bona fide and unconditional. It must be made
before the closing of evidence.
Fask - Cancellation - Muslim law allows a lady to approach a
qazi for dissolving the marriage under the following conditions -
1. if the marriage is irregular.
2. if the person having an option to avoid a marriage has
exercised his options.
3. if the marriage was within prohibited degrees or
fosterage.
4. if the marriage has been contracted by non-Muslims and
the parties have adopted Islam.
Before the enactment of Muslim Marriage Dissolution act, this
was the only way for a muslim woman to repudiate a marriage.
Judicial Divorce - Section 2 of Muslim Marriage Dissolution Act 1939 gives the following grounds to
wife belonging to Shia as well as Sunni sects, upon which she can ask for divorce -
1. Absence of husband - 4 yrs. Decree passed on this ground will take affect only after 6 months of passing and if the husband shows up du
court to set the decree aside.
2. Failure to maintain - for 2 yrs. Cause is immaterial. Poverty, incapacity is no excuse.
3. There is no agreement among HCs regarding the conduct of wife. In Fazal Mahmood vs Ummatur Rahman AIR 1949, Peshawar HC h
obedient, the husband is under no obligation to maintain her and her suit for divorce was dismissed. However, in Mst Nur Bibi vs Pir Bu
entitled to divorce if the husband has failed to maintain her for two years preceding the suit even though she may not be entitled to maint
4. Imprisonment of husband - for 7 yrs or more.
5. Failure to perform marital obligations - for 3 yrs
6. Impotency of husband - If the husband was impotent at the time of marriage and continues to be so.
7. Insanity, leprosy, or venereal disease - For insanity, 2 yrs are required. For disease, no time period is required.
8. Repudiation of marriage - If the wife was married before she was 15, she can repudiate the marriage before she turns 18.
9. Cruelty of husband - cruelty involves - habitual assault, associates with women of bad repute, attempts to force her to lead immoral life, d
practice of religion, does not treat all his wives equally.
10. Grounds allowed by muslim law - This covers all the grounds such as Ila, Zihar, Khula, and Mubarat, which are provided by muslim law.

Section 4 of this act removes apostasy as a ground for granting divorce automatically. However, if a woman reconverts back to her original faith, t

THE FAMILY COURTS ACT, 1984

(No.66 of 1984)
[14th September, 1984]

An Act to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to
marriage and family affairs and for matters connected therewith.

Be it enacted by Parliament in the Thirty-fifth Year of the Republic of India as follows:

CHAPTER PRELIMINARY
1. Short title, extent and commencement. - 1) This Act may be called the Family Courts Act, 1984.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint,
and different dates may be appointed for different States.
2. Definitions.- In this Act, unless the context otherwise requires,
a. "Judge" means the Judge or, as the case may be, the Principal Judge, Additional Principal Judge or other Judge
of a Family Court;
b. "notification" means a notification published in the Official Gazette;
c. "prescribed" means prescribed by rules made under this Act;
d. "Family Court" means a Family Court established under Sec.3;
e. all other words and expressions used but not defined in this Act and defined in the Code of Civil Procedure,
1908(5 of 1908), shall have the meanings respectively assigned to them in that Code.

CHAPTER II - FAMILY COURTS

(3) Establishment of Family Courts.-(1) For the purpose of exercising the jurisdiction and powers conferred on a
Family Court by this Act, the State Government after consultation with the High Court, and by notification,-
a. shall, as soon as may be after the commencement of this Act, establish for every area in the State comprising a
city or town whose population exceeds one million, a Family Court;
b. may establish Family Courts for such other areas in the State as it may deem necessary.
(2) The State Government shall, after consultation with the High Court specify, by notification, the local limits of the area
to which the jurisdiction of a Family Court shall extend and may, at any time, increase, reduce or alter such limits.
4. Appointment of Judges. (1) The State Government may, with the concurrence of the High Court appoint one or more
persons to be the Judge or Judges, of a Family Court.
(2) When a Family Court consists of more than one Judge-

a. each of the Judges may exercise all or any of the powers conferred on the Court by this Act or any other law for
the time being in force;
b. the State Government may, with the concurrence of the High Court, appoint any of the Judges to be the Principal
Judge and any other Judge to be the Additional Principal Judge;
c. the Principal Judge may, from time to time, make such arrangements as he may deem fit for the distribution of
the business of the Court among the various Judges thereof;
d. the Additional Principal Judge may exercise the powers of the Principal Judge in the event of any vacancy in the
office of the Principal Judge or when the Principal Judge is unable to discharge his functions owing to absence,
illness or any other cause.
(3) A person shall not be qualified for appointment as a Judge unless he-

a. has for at least seven years held a Judicial office in India or the office of a member of a tribunal or any post
under the Union or a State requiring special knowledge of law; or
b. has for at least seven years been an advocate of a High Court or of two or more such Courts in succession; or
c. Possesses such other qualification as the Central Government may. with the concurrence of the Chief Justice of
India, prescribe.
(4) In selecting persons for appointment as Judges-
a. every endeavour shall be made to ensure that persons committed to the need to protect and preserve that
institution of marriage and to promote the welfare of children and qualified by reason of their experience and
expertise to promote the settlement of disputes by conciliation and counseling are selected; and
b. preference shall be given to women.
(5) No person shall be appointed as or hold the office of, a Judge of a Family Court after he has attained the age of sixty-
two years.
(6) No salary or honorarium and other allowances payable to, and the other terms and conditions of service of, a Judge
shall be such as the State Government may, in consultation with the High Court, prescribe.
5. Association of social welfare agencies, etc.-The State Government may, in consultation with the High Court,
provide. by rules, for the association, in such manner and for such purposes and subject to such conditions as may be
specified in the rules, with a Family Court of-
a. institutions or organisations engaged in social welfare or the representatives thereof;
b. persons professionally engaged in promoting the welfare of the family;
c. persons working in the field of social welfare; and
d. any other person whose association with a Family Court would enable it to exercise its jurisdiction more
effectively in accordance with the purposes of this Act.
6. Counsellors, officers and other employees of Family Courts. -(1) The State Government shall, in consultation with
the High Court, determine the number and categories of counsellors, officers and other employees required to assist a
Family Court in the discharge of its functions and provide the Family Court with such counsellors, officers and other
employees as it may think fit.
(2) The terms and conditions of association of the counsellors and the terms and conditions of service of the officers and
other employees. referred to in sub-section (1), shall be such as may be specified by rules made by the State
Government.

CHAPTER III - JURISDICTION

7. Jurisdiction. - (1) Subject to the other provisions of this Act, a Family Court shall-
a. have and exercise all the jurisdiction exercisable by any district Court or any subordinate Civil Court under any
law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation;
and
b. be deemed, for the purposes of exercising such jurisdiction under such law, to be a district Court or, as the case
may be. such subordinate Civil Court for the area to which the jurisdiction of the Family Court extends.
Explanation -The suits and proceedings referred to in this subsection are suits and proceedings of the following nature,
namely:
a. a suit or proceeding between the parties to a marriage for decree of a nullity marriage (declaring the marriage to
be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial
separation or dissolution of marriage;
b. a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any
person;
c. a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of
them;
d. a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
e. a suit or proceeding for a declaration as to the legitimacy of any person;
f. a suit or proceeding for maintenance;
g. a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act a Family Court shall also have and exercise;
a. the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance
of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
b. such other jurisdiction as may be conferred on it by any other enactment
8. Exclusion of jurisdiction and pending proceedings. -Where a Family Court has been established for any area:
 a. no district Court or any subordinate Civil Court referred to in sub-section (1) of Sec. 7 shall, in relation to such
area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the
Explanation to that sub-section;
b. no Magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the
C9de of Criminal Procedure, 1973 (2 of 1974);
c. every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of Sec. 7 and every
proceeding under Chapter IX of the Code of Criminal Procedure, 1973(2 of 1974)-
( i ) which is pending immediately before the establishment or such Family Court before district Court or subordinate
Court referred to in that sub-section or, as the case may be, before any Magistrate under the said Code; and
( ii ) which would have been required to be instituted or taken before or by such Family Court if, before the date on which
such suit or proceeding was instituted or taken, this Act has come into force and such Family Court had been
established,
shall stand transferred to such Family Court on the date on which it is established;
CHAPTER IV - PROCEDURE
9. Duty of Family Court to make efforts for settlement. -(1) In every suit or proceeding, endeavour shall be made by
Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case,
to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and
for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem
fit.
(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a
settlement between the parties. the Family Court may adjourn the proceedings for such period, as it thinks fit to enable
attempts to be made to effect such a settlement.
(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of, any other power of the Family
Court. to adjourn the proceedings.
10. Procedure generally.-(1) Subject to the other provisions of this Act and rules, the provisions of the Code of Civil
Procedure, 1908(5 of 1908), and of any other law for the time being in force shall apply to the suits and proceedings
other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973(2 of 1974), before a Family Court
and for the purpose of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have
all the powers of such Court.
(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of
1974), or the rules made thereunder, shall apply to the proceedings under Chapter IX of the Code before a Family Court.
(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a
view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged
by the one party and denied by the other.
11. Proceedings to be held in camera.-In every suit or proceedings to which the Act applies, the proceedings may be
held in camera if the Family Court so desires and shall be so held if either party so desires.
12. Assistance of medical and welfare experts.-In every suit or proceedings, it shall be open to a Family Court to
secure the services of a medical expert or such person (preferably a woman where available), whether related to the
parties or not, including a person professionally engaged in promoting the welfare of the family as the Court may think fit,
for the purposes of assisting the Family Court in discharging the functions imposed by this Act.
13. Right to legal representation.-Notwithstanding anything contained in any law, no party to a suit or proceeding
before a Family Court shall be entitled, as of right to be represented by a legal practitioner:
Provided that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal
expert as amicus curiae.
14. Application of Indian Evidence Act, 1872.-A Family Court may receive as evidence any report, statement,
documents, information or matter that may, in its opinion. assist it to deal effectually with a dispute, whether or not the
same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872).
15. Record of oral evidence.-In suit or proceedings, before a Family Court, it shall not be necessary to record the
evidence of witnesses at length, but the Judges as the examination of each witness proceeds, shall, record or cause to
be recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by
the witness and the Judge and shall form part of the record.
16. Evidence of formal character on affidavit.-(1) The evidence of any person where such evidence is of a formal
character, may be given by affidavit and may subject to all just exceptions, be read in evidence in any suit or proceeding
before a Family Court.
(2) The Family Court may, if it thinks fit, and shall, on the application of any of the parties to the suit or proceeding
summon and examine any such person as to the facts contained in his affidavit.
17. Judgment. -Judgment of a Family Court shall contain a concise statement of the case, the point for determination,
the decision thereon and the reasons for such decision.
18. Execution of decrees and orders. -(1) A decree or an order (other than an order under Chapter Ix of the Code of
Criminal Procedure, 1973, (2 of 1974), passed by a Family Court shall have the same force and effect as a decree or
order of a Civil Court and shall be executed in the same manner as is prescribed by the Code of Civil Procedure, 1908 (5
of 1908), for the execution of decrees and orders.
(2) An order passed by a Family Court under Chapter IX of the Code of Criminal Procedure 1973, (2 of 1974), shall be
executed in the manner prescribed for the execution of such order by that Code.
(3) A decree or order may be executed either by the Family Court which passed it or by the other Family Court or
ordinary Civil Court to which it is sent for execution.

CHAPTER V - APPEALS AND REVISIONS

19. Appeal. -(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil
Procedure, 1908(5 of 1908), or in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law, an appeal shall
lie from every judgment or order, not being an interlocutory order of a Family Court to the High Court both on facts and
on law.
(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order
passed under Chapter Ix of the Code of Criminal Procedure, 1973 (2 of 1974):
Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed
under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), before the commencement of the Family Courts
(Amendment) Act, 1991.
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order
of a Family Court.
(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the
Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2
of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an
interlocutory order, and as to the regularity of such proceeding.
(5) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family
Court.
(6) An appeal referred under sub-section (1) shall be heard by a Bench consisting of two or more Judges.

CHAPTER VI - MISCELLANEOUS
20. Act to have overriding effect.-The provisions of this Act shall] have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law
other than this Act.
21. Power of High Court to make rules.-(1) The High Court may, by notification in the Official Gazette, make such rules
as it may deem necessary for carrying out the purposes of this Act.
(2) In particular. and without prejudice to the generality of the foregoing power, such rules may provide for all or any of
the following matters namely:
a. normal working hours of Family Courts and holding of sittings of Family Courts on holidays and outside normal
working hours;
b. holding of sittings of Family Courts at places other than the ordinary places of sitting:
c. efforts which may be made by, and the procedure which may be followed by, a Family Court for assisting and
persuading parties to arrive at a settlement.
22. Power of the Central Government to make rules. -(1) The Central Government may, with the concurrence of the
Chief Justice of India, by notification, make rules prescribing the other qualifications for appointment of a Judge referred
to in Cl.(c) of sub-section (3) of Sec.4.
(2) Every rule made under this Act by the Central Government shall be laid, as. Soon as may be after it is made. before
each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session
or in two or more successive sessions and if, before the expiry of the session immediately following the session or the
successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the
rule should not be made, the rule shall thereafter have effect only in such modified form or of no effect, as the case may
be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously
done under that rule.
23. Power of the State Government to make rules. -(1) The State Government may, after consultation with the High
Court, by notification make rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the provisions of sub-section (1), such rules may provide for all
or any of the following matters, namely:
a. the salary or honorarium and other allowances payable to, and the terms and conditions of Judges under sub-
section (6) of Sec. 4;
b. the terms and conditions of association of counsellors and the terms and conditions of service of the officers and
other employees referred to in Sec. 6;
c. payment of fees and expenses (including travelling expenses) of medical and other experts and other persons
referred to in Sec. 12 out of the revenues of the State Government and the scales of such fees and expenses;
d. payment of fees and expenses to legal practitioners appointed under Sec. 13 as amicus curiae out of the
revenues of the State Government and the scales of such fees and expenses;
e. any other matter which is, required to be, or may be, prescribed or provided for by rules.
(3) Every rule made by a State Government under this Act shall be laid, as soon as may be after it is made, before the
State Legislature.

THE INDIAN DIVORCE ACT, 1869

(4 of 1869)(26th February, 1869)

An Act to amend the law relating to Divorce and Matrimonial Causes.

PREAMBLE: WHEREAS it is expedient to amend the law relating to the divorce of persons
professing the Christian religion and to confer upon certain Courts jurisdiction in matters
matrimonial; it is hereby enacted as follows:
I - PRELIMINARY
1) Short title, commencement of the Act :
This Act may be called the Indian Divorce Act and shall come into operation on the first
day of April,1869.
2) Extent of Act :
This Act extends to the whole of India except the State of Jammu and Kashmir.
Extent of power to grant relief generally, and to make decrees of dissolution, or of
nullity :
Nothing hereinafter contained shall authorise any court to grant any relief under this
Act except where the petitioner or respondent professes the Christian religion,
or to make decrees of dissolution of marriage except where the parties to the marriage
are domiciled in India at the time when the petition is presented,
or to make decrees of nullity of marriage except where the marriage has been
solemnized in India and the petitioner is resident in India at the time of presenting the
petition,
or to grant any relief under this Act, other than a decree of dissolution of marriage or of
nullity of marriage, except where the petitioner resides in India at the time of
presenting the petition.
3) Interpretation clause :
In this Act, unless there be something repugnant in the subject or context,
"High Court" - (1) "High Court" means with reference to any area:
a) in a State, the High Court for that State;
b) in Delhi, the High Court of Delhi;
bb) in Himachal Pradesh, the High Court of Punjab and Haryana upto and inclusive of
the 30th April, 1967 and the High Court of Delhi thereafter;
c) in Manipur and Tripura, the High Court of Assam;
d) in the Andaman and Nicobar Islands, the High Court at Calcutta ;
e) in Lakshadweep, the High Court of Kerala.
ee) in Chandigarh, the High Court of Punjab and Haryana ;
and in the case of any petition under this Act, "High Court" means the High Court for
the area where the husband and wife reside or last resided together.
"District Judge" - (2) "District Judge" means a Judge of a principal civil court of
original jurisdiction however designated :
"District Court" - (3) "District Court" means, in the case of any petition under this Act,
the Court of the District Judge within the local limits of whose ordinary jurisdiction, or of
whose jurisdiction under this Act, the husband and wife reside or last resided together :
"Court" - (4) "Court" means the High Court or the District Court as the case may be :
"Minor children" - (5) "minor children" means, in the case of sons of Native fathers,
boys, who have not completed the age of sixteen years, and, in the case of daughters
of Native fathers, girls, who have not completed the age of thirteen years : In other
cases it means unmarried children who have not completed the age of eighteen years :
"Incestuous adultery" - (6) "incestuous adultery" means adultery committed by a
husband with a woman with whom, if his wife were dead, he could not lawfully contract
marriage by reason of her being within the prohibited degrees of consanguinity
(whether natural or legal) or affinity :
"Bigamy with adultery" - (7) "bigamy with adultery" means adultery with the same
woman with whom the bigamy was committed :
"Marriage with another woman" - (8) "marriage with another woman" means
marriage of any person, being married, to any other person, during the life of the
former wife, whether the second marriage shall have taken place within India or
elsewhere :
 "Desertion" - (9) "desertion" implies an abandonment against the wish of the person
charging it: and
"Property" - (10) "property" includes in the case of a wife any property to which she is
entitled for an estate in remainder or reversion or as a trustee, executrix or
administratrix ; and the date of the death of the testator or intestate shall be deemed
to be the time at which any such wife becomes entitled as executrix or administratrix.

II-JURISDICTION
4) Matrimonial jurisdiction of High Courts to be exercised subject to Act Exception :
The jurisdiction now exercised by the High Courts in respect of divorce a mensa et toro,
and in all other causes, suits and matters matrimonial, shall be exercised by such
Courts and by the District Courts subject to the provisions in this Act contained, and not
otherwise : except so far as relates to the granting of marriage-licenses, which may be
granted as if this Act has not been passed.
5) Enforcement of decrees or orders made heretofore by Supreme or High Court :
Any decree or order of the late Supreme Court of Judicature at Calcutta, Madras or
Bombay sitting on the ecclesiastical side, or of any of the said High Courts sitting in the
exercise of their matrimonial jurisdiction, respectively, in any cause or matter
matrimonial, may be enforced and dealt with by the said High Courts, respectively, as
hereinafter mentioned, in like manner as if such decree or order had been originally
made under this Act by the Court so enforcing or dealing with the same.
6) Pending suits :
All suits and proceedings in causes and matters matrimonial, which when this Act
comes into operation are pending in any High Court, shall be dealt with and decided by
such Court, so far as may be, as if they had been originally instituted therein under this
Act.
7) Court to act on principles of English Divorce Court :
Subject to the provisions contained in this Act, the High Courts and District Courts shall,
in all suits and proceedings hereunder, act and give relief on principles and rules which,
in the opinion of the said Courts, are as nearly as may be conformable to the principles
and rules on which the Court for Divorce and Matrimonial Causes in England for the
time being acts and give relief :
Provided that nothing in this section shall deprive the said courts of jurisdiction in a
case where the parties to a marriage professed the Christian religion at the time of the
occurrence of the facts on which the claim of relief is founded.
8) Extraordinary jurisdiction of High Court :
The High Court may, whenever it thinks fit, remove and try and determine as a cour

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986

(25 of 1986)(19th May, 1986)

An Act to protect the rights of Muslim women who have been divorced by, or
have obtained divorce from, their husbands and to provide for matters connected
therewith or incidental thereto.
BE it enacted by Parliament in the Thirty-seventh year of the Republic of
India as follows :
1. Short title and extent :
(1) This Act may be called The Muslim Women (Protection of Rights on Divorce) Act,
1986.
 (2) It extends to the whole of India except the State of Jammu and Kashmir.
2. Definitions. - In this Act, unless context otherwise requires :
(a) "divorced woman" means a Muslim woman who was married according to Muslim
law, and has been divorced by, or has obtained divorce from, her husband in accordance with
Muslim law :
(b) "iddat period" means, in the case of a divorced woman, -
(i) three menstrual courses after the date of divorce, if she is subject to menstruation
;
(ii) three lunar months after her divorce, if she is not subject to menstruation ; and
(iii)if she is enceinte at the time of her divorce, the period between the divorce and the
delivery of her child or the termination of her pregnancy, whichever is earlier.
(c) "Magistrate" means a Magistrate of the First class exercising jurisdiction under the Code of
Criminal Procedure, 1973 (2 of 1974) in the area where the divorced woman resides ;
(d) "prescribed" means prescribed by rules made under the Act.
3. Mahr or other properties of Muslim woman to be
given to her at the time of divorce. -
(1) Notwithstanding anything contained in any other law for the time being in
force, a divorced woman shall be entitled to -
(a) a reasonable and fair provision and maintenance to be made and paid to her
within the iddat period by her former husband ;
(b) where she herself maintains the children born
to her before or after her divorce, a reasonable and fair provision and maintenance to be made
and paid by her former husband for a period of two years from the respective dates of birth of
such children ;
(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time
of her marriage or at any time thereafter according to Muslim law ; and
(d) all the properties given to her before or at the time of marriage or after her marriage
by her relatives or friends or the husband or any relatives of the husband or his friends.
2) Where a reasonable and fair provision and maintenance or the amount of mahr
or dower due has not been made or paid or the properties referred to in clause (d) of sub-
section (1) have not been delivered to a divorced woman or her divorce, she or any one duly
authorised by her may, on her behalf, make an application to the
Magistrate for an order for payment of such provision and maintenance, mahr or dower or the
delivery of properties, as the case may be.
3) Where an application has been made under sub-section (2) by a divorced woman,
the Magistrate may, if he is satisfied that -
(a) her husband having sufficient means, has failed or neglected to make or pay her
within the iddat period a reasonable and fair provision and maintenance for her and the
children ; or
(b) the amount equal to the sum of mahr or dower has not been paid
or that the properties referred to in clause (d) of sub-section (1) have not been delivered to her,
make an order, within one month of the date of filing of the application, directing her
former husband to pay such reasonable and fair provision and maintenance to
the divorced woman as he may determine as fit and proper having regard to the
needs of the divorced woman, the standard of life enjoyed by her during her
marriage and the means of her former husband or, as the case may be for the
payment of such mahr or dower or the delivery of such properties referred to in
clause (d) of sub-section (1) to the divorced woman :
Provided that if the Magistrate finds it impracticable to dispose of the
application within the said period, he may, for reasons to be recorded by him, dispose
 of the application after the said period.
4) If any person against whom an order has been made under sub-section (3)
fails without sufficient cause to comply with the order, the Magistrate may
issue a warrant for levying the amount of maintenance or mahr or dower due in the manner
provided for levying fines under the Code of Criminal Procedure, 1973 (2 of 1974), and may
sentence such person, for the whole or part of any amount remaining unpaid after the execution of
the warrant, to imprisonment for a term which may extend to one year or
until payment if sooner made, subject to such person being heard in
defence and the said sentence being imposed according to the provisions of the said Code.
4. Order for payment of maintenance.-
1) Notwithstanding anything contained in the foregoing provisions of this Act or in
any other law for the time being in force, where a Magistrate is satisfied that a divorced
woman has not re-married and is not able to maintain herself after the iddat period, he
may make an order directing such of her relatives as would be entitled to inherit her
property on her death according to Muslim law to pay such reasonable and fair maintenance to her
as he may determine fit and proper, having regard to the needs of the divorced woman, the
standard of life enjoyed by her during her marriage and the means of such relatives and such
maintenance shall be payable by such relatives in the proportions in which they would inherit her
property and at such period as he may specify in his order :
Provided that where such divorced woman has children, the Magistrate shall
order only such children to pay maintenance to her, and in the event of any such children being
unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to
pay maintenance to her :
Provided further that if any of the parents
is unable to pay his or her share of the maintenance ordered by the Magistrate on the
ground of his or her not having the means to pay the same, the Magistrate may, on proof of such
inability being furnished to him, order that the share of such relatives in the maintenance ordered
by him be paid by such of the other relatives as may appear to the magistrate to have the means of
paying the same in such proportions as the Magistrate may think fit to order :
2) Where a divorced woman is unable to maintain herself and she has no relatives, as
mentioned in sub-section (1) or such relatives or any one of them have not enough means to pay
the maintenance ordered by the Magistrate or the other relatives, have not the means to pay
the share of those relatives whose shares have been ordered by the Magistrate to be paid by
such, other relatives under the second proviso to sub-section (1), the Magistrate may, by order,
direct the State Wakf Board established under section 9 of the Wakf Act, 1954 (29 of 1954) or under
any other law for the time being in force in a State, functioning in the area in which the woman
resides, to pay such maintenance as, determined by him under sub-section (1) or, as the case
may be, to pay the shares of such of the relatives who are unable to pay, at such periods as he
may specify in his order.
5. Option to be governed by the provisions of section 125 to 128 of Act (2 of
1974). -
If on the date of the first hearing of the application under sub-section (2) of section 3,
a divorced woman and her former husband declare, by affidavit or any
other declaration in writing in such form as may be prescribed, either jointly or
separately, that they would prefer to be governed by the provisions of sections
125 to 128 of the Code of Criminal Procedure,
1973 (2 of 1974), and file such affidavit or declaration in the court hearing the
application, the Magistrate shall dispose of such application accordingly.
Explanation - For the purposes of this section, "date of the first hearing of
the application" means the date fixed in the summons for the attendance of the
respondent to the application.
6. Power to make rules. -1) The Central Government may, by notification in the Official Gazette,
 make rules for carrying out the purposes of this Act.
2) In particular and without prejudice to the foregoing power such rules may provide for -
(a) the form of the affidavit or other declaration in writing
to be filed under section 5 ;
(b) the procedure to be followed by the Magistrate in
disposing of applications under this Act, including the serving of notices to the parties
to such applications, dates of hearing of such applications and other matters ;
(c) any other matter which is required to be or may be prescribed.
3) Every rule made under the Act shall be laid, as soon as may be after it is
made, before each House of Parliament, while it is in session, for a total period of thirty
days which may be comprised in one session or in two or more successive sessions,
and if, before the expiry of the session
immediately following the session or the modification in the rule or both Houses
agree that the rule should not be made, the rule shall thereafter have effect only in
such modified form or be of no effect, as the case may be; so, however, that any
such modification or annulment shall be without prejudice to the validity of
anything previously done under that rule.
7. Transitional provisions. -
Every application by a divorced woman under
section 125 or under section 127 of the Code of Criminal Procedure, 1973 (2 of
1984) pending before a Magistrate on the commencement of this Act, shall,
notwithstanding anything contained in that Code and subject to the provisions of
section 5 of this Act, be disposed of by such Magistrate in accordance with the
provisions of this Act.

Introduction
Obligation of a husband to maintain his wife arises out of the status of the marriage. Right to
maintenance forms a part of the personal law. Under the Code of Criminal Procedure, 1973 (2 of 1974),
right of maintenance extends not only to the wife and dependent children, but also to indigent parents
and divorced wives. Claim of the wife, etc., however, depends on the husband having sufficient means.
Claim of maintenance for all dependent persons is limited to Rs 500 per month. Inclusion of the right of
maintenance under the Code of Criminal Procedure has the great advantage of making the remedy both
speedy and cheap. However, divorced wives who have received money payable under the customary
personal law are not entitled to maintenance claims under the Code of Criminal Procedure.
Under Hindu Law, the wife has an absolute right to claim maintenance from her husband. But she loses
her right if she deviates from the path of chastity. Her right to maintenance is codified in the Hindu
Adoptions and Maintenance Act, 1956 (78 of 1956). In assessing the amount of maintenance, the court
takes into account various factors like position and liabilities of the husband. It also judges whether the
wife is justified in living apart from husband. justifiable reasons are spelt out in the Act. Maintenance
pendente lite (pending the suit) and even expenses of a matrimonial suit will be borne by either, husband
or wife, if the either spouse has no independent income for his or her support. The same principle will
govern payment of permanent maintenance. Under the Muslim Law, the Muslim Women (Protection of
Rights on Divorce) Act, 1986 protects rights of Muslim women who have been divorced by or have
obtained divorce from their husbands and provides for matters connected therewith or incidental thereto.
This Act inter alia provides that a divorced Muslim woman shall be entitled to
(a) reasonable and fair provision and maintenance to be made and paid to her within the iddat period by
her former husband; (b) where she herself maintains children born to her before or after her divorce, a
reasonable and fair provision and maintenance to be made and paid by her former husband for a period
of two years from the respective dates of birth of such children;
(c) an amount equal to the sum of mehr or dower agreed to be paid to her at the time of her marriage or
at any time thereafter according to the Muslim Law and
(d) all property given to her before or at the time of marriage or after her marriage by her relatives or
friends or by husband or any relatives of the husband or his friends. In addition, the Act also provides that
where a divorced Muslim woman is unable to maintain herself after the period of iddat the magistrate
shall order directing such of her relatives as would be entitled to inherit her property on her death
according to the Muslim Law, and to pay such reasonable and fair maintenance to her as he may
determine fit and proper, having regard to the needs of the divorced woman, standard of life enjoyed by
her during her marriage and means of such relatives, and such maintenance shall be payable by such
relatives in proportion to the size of their inheritance of her property and at such periods as he may
specify in his order.
Where such divorced woman has children, the Magistrate shall order only such children to pay
maintenance to her, and in the event of any such children being unable to pay such maintenance, the
magistrate shall order parents of such divorced woman to pay maintenance to her. In the absence of such
relatives or where such relatives are not in a position to maintain her, the magistrate may direct State
Wakf Board established under Section 13 of the Wakf Act, 1995 functioning in the area in which the
woman resides, to pay such maintenance as determined by him.
The Parsi Marriage and Divorce Act, 1936 recognizes the right of wife to maintenance-both alimony
pendente lite and permanent alimony. The maximum amount that can be decreed by court as alimony
during the time a matrimonial suit is pending in court, is one-fifth of the husband's net income. In fixing
the quantum as permanent maintenance, the court will determine what is just, bearing in mind the ability
of husband to pay, wife's own assets and conduct of the parties. The order will remain in force as long as
wife remains chaste and unmarried.
The Indian Divorce Act, 1869 inter alia governs maintenance rights of a Christian wife. The provisions are
the same as those under the Parsi law and the same considerations are applied in granting maintenance,
both alimony pendente lite and permanent maintenance.
Maintenance under Hindu law:
Maintenance is a right to get necessities which are reasonable from another. it has been held in various
cases that maintenance includes not only food, clothes and residence, but also the things necessary for
the comfort and status in which the person entitled is reasonably expected to live. Right to maintenance
is not a transferable right.
Maintenance without divorce
The Hindu Adoptions and Maintenance Act, 1956.Maintenance, in other words, is right to livelihood when
one is incapable of sustaining oneself. Hindu law, one of the most ancient systems of law, recognises right
of any dependent person including wife, children, aged parents and widowed daughter or daughter in law
to maintenance. The Hindu Adoptions and Maintenance Act, 1956, provides for this right.

Maintenance as main relief: for wife

The relief of maintenance is considered an ancillary relief and is available only upon filing for the main
relief like divorce, restitution of conjugal rights or judicial separation etc. Further, under matrimonial laws
if the husband is ready to cohabit with the wife, generally, the claim of wife is defeated. However, the
right of a married woman to reside separately and claim maintenance, even if she is not seeking divorce
or any other major matrimonial relief has been recognised in Hindu law alone. A Hindu wife is entitled to
reside separately from her husband without forfeiting her right of maintenance under the Hindu Adoptions
and Maintenance Act, 1956. The Act envisages certain situations in which it may become impossible for a
wife to continue to reside and cohabit with the husband but she may not want to break the matrimonial
tie for various reasons ranging from growing children to social stigma. Thus, in order to realise her claim,
the Hindu wife must prove that one of the situations (in legal parlance 'grounds') as stated in the Act,
exists.
Grounds for award of maintenance
Only upon proving that at least one of the grounds mentioned under the Act, exists in the favor of the
wife, maintenance is granted. These grounds are as follows:
a. The husband has deserted her or has willfully neglected her;
b. The husband has treated her with cruelty;
c. The husband is suffering from virulent form of leprosy/venereal diseases or any other infectious
disease;
d. The husband has any other wife living;
e. The husband keeps the concubine in the same house as the wife resides or he habitually resides with
the concubine elsewhere;
f. The husband has ceased to a Hindu by conversion to any other religion;
g. Any other cause justifying her separate living;
Bar to relief
Even if one of these grounds exists in favour of the wife, she will not be entitled to relief if she has
indulged in adulterous relationship or has converted herself into any other religion thereby ceasing to be
a Hindu. It is also important to note here that in order to be entitled for the relief, the marriage must be a
valid marriage. In other words, if the marriage is illegal then the matrimonial relationship between the
husband and wife is non-existent and therefore no right of maintenance accrues to wife. However, thanks
to judicial activism, in particular cases the presumption of marriage is given more weightage and the bars
to maintenance are removed.
Other dependents who can claim maintenance
Apart from the relationship of husband and wife other relations in which there is economic dependency
are also considered to be entitled to maintenance by the Hindu Adoptions and Maintenance Act, 1956.
Accordingly a widowed daughter-in-law is entitled maintenance from her father-in-law to the extent of the
share of her diseased husband in the said property. The minor children of a Hindu, whether legitimate or
illegitimate, are entitled to claim maintenance from their parents. Similarly, the aged and infirm parents
of a Hindu are entitled to claim maintenance from their children. The term parent here also includes an
issueless stepmother.
Maintenance Under Muslim Law
Under the "Women (Protection Of- Rights On Divorce) Act, 1986" spells out objective of the Act as "the
protection of the rights of Muslim women who have been divorced by, or have obtained divorce from,
their husbands." The Act makes provision for matters connected therewith or incidental thereto. It is
apparent that the Act nowhere stipulates that any of the rights available to the Muslim women at the time
of the enactment of the Act, has been abrogated, taken away or abridged. The Act lays down under
various sections that distinctively lay out the criterion for women to be granted maintenance. Section (a)
of the said Act says that divorced woman is entitled to have a reasonable and fair provision and
maintenance from her former husband, and the husband must do so within the period of idda and his
obligation is not confined to the period of idda.

it further provides that a woman , if not granted maintenance can approach the Wakf board for grant as
under section (b)which states that If she fails to get maintenance from her husband, she can claim it from
relatives failing which, from the Waqf Board.
An application of divorced wife under Section 3(2) can be disposed of under the provisions of Sections 125
to 128, Cr. P.c. if the parties so desire. There is no provision in the Act which nullifies orders passed under
section 125, Cr. P.c. The Act also does not take away any vested right of the Muslim woman.
All obligations of maintenance however end with her remarriage and no claims for maintenance can be
entertained afterwards. The Act thus secures to a divorced Muslim woman sufficient means of livelihood
so that she is not thrown on the street without a roof over her head and without any means of sustaining
herself.
Protection to Divorced WomenSub-section (1) of Section 3 lays down that a divorced Muslim woman is
entitled to:
(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period
by her former husband;
(b) where she herself maintains the children born to her before or after the divorce.
Maintenance Under Christian Law
A Christian woman can claim maintenance from her spouse through criminal proceeding or/and civil
proceeding. Interested parties may pursue both criminal and civil proceedings, simultaneously, as there is
no legal bar to it. In criminal proceedings, the religion of the parties does not matter at all, unlike in civil
proceedings.

If a divorced Christian wife cannot support her in the post divorce period she need not worry as a remedy
is in store for her in law. Under S.37 of the Indian Divorce Act, 1869, she can apply for alimony/
maintenance in a civil court or High Court and, husband will be liable to pay her alimony such sum, as the
court may order, till her lifetime. The Indian Divorce Act, 1869 which is only applicable to those persons
who practice the Christianity religion inter alia governs maintenance rights of a Christian wife. The
provisions are the same as those under the Parsi law and the same considerations are applied in granting
maintenance, both alimony pendente lite and permanent maintenance. The provisions of THE INDIAN
DIVORCE ACT, 1869 are produced herein covered under part IX -s.36-s.38
IX-Alimony
S.36. Alimony pendente lite. -In any suit under this Act, whether it be instituted by a husband or a wife,
and whether or not she has obtained an order of protection the wife may present a petition for alimony
pending the suit.
Such petition shall be served on the husband; and the Court, on being satisfied of the truth of the
statements therein contained, may make such order on the husband for payment to the wife of alimony
pending the suit as it may deem just:
Provided that alimony pending the suit shall in no case exceed one fifth of the husband's average net
income for the three years next preceding the date of the order, and shall continue, in case of a decree
for dissolution of marriage or of nullity of marriage, until the decree is made absolute or is confirmed, as
the case may be.
37. Power to order permanent alimony -The High Court may, if it thinks fit, on any decree absolute
declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife, and the
District judge may, if he thinks fit, on the confirmation of any decree of his declaring a marriage to be
dissolved, or on any decree of judicial separation obtained by the wife,
Order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of money,
or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if
any), to the ability of the husband, and to the conduct of the parties, it thinks reasonable; and for that
purpose may cause a proper instrument to be executed by all necessary parties.
Power to order monthly or weekly payments. -In every such case, the Court may make an order on the
husband for payment to the wife of such monthly or weekly sums for her maintenance and support as the
Court may think reasonable:
Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall
be lawful for the Court to discharge or modify the order, or temporarily to suspend the same as to the
whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in
part as to the Court seems fit.
38. Court may direct payment of alimony to wife or to her trustee. -In all cases in which the Court makes
any decree or order for alimony, it may direct the same to be paid either to the wife herself, or to any
trustee on her behalf to be approved by the Court, and may impose any terms or restrictions which to the
Court seem expedient, and may from time to time appoint a new trustee, if it appears to the Court
expedient so to do.
Alternatively, as previously mentioned S.125 of Cr.P.C., 1973 is always there in the secular realm
Under the Code of Criminal Procedure, 1973 (2 of 1974), right of maintenance extends not only to the
wife and dependent children, but also to indigent parents and divorced wives. Claim of the wife, etc.,
however, depends on the husband having sufficient means. Claim of maintenance for all dependent
persons was limited to Rs 500 per month but now it has been increased and the magistrate can exercise
his discretion in adjudging a reasonable amount. Inclusion of the right of maintenance under the Code of
Criminal Procedure has the great advantage of making the remedy both speedy and cheap
Order For Maintenance Of Wives, Children And Parents
S.125.Order for maintenance of wives, children and parents.- (1) If any person having sufficient means
neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where
such child is by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself,
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate
not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to
such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to
make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such
minor female child, if married, is not possessed of sufficient means.
Explanation. - For the purposes of this Chapter, -
(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875(9 of 1875) is
deemed not to have attained his majority;
(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and
has not remarried.
(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the
application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate
may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for
levying fines, and may sentence such person, for the whole or any part of each month's allowance
remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one
month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless
application be made to the Court to levy such amount within a period of one year from the date on which
it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she
refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may
make an order under this section notwithstanding such offer, if he is satisfied that there is a just ground
for so doing.
Explanation .- If a husband has contracted marriage with another woman or keeps a mistress, it shall be
considered to be just ground for his wife's refusal to live with him.

(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in
adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living
separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery,
or that without sufficient reason she refuses to live with her husband, or that they are living separately by
mutual consent, the Magistrate shall cancel the order. The objective of this section as expressed by
Krishna Iyer, J. is ?to ameliorate the economic condition of neglected wives and discarded divorcees?
Proceedings under S.125 are not civil, but criminal proceedings of a summary nature. But these criminal
proceedings are of a civil nature. Thus, clause (3) of S.126 which empowers that Court to make such
orders may be just.
It should be kept in view that the provision relating to maintenance under any personal law is distinct and
separate. There is no conflict between the two provisions. A person may sue for maintenance under s.125
of Cr.P.C. If a person has already obtained maintenance order under his or her personal law, the
magistrate while fixing the amount of maintenance may take that into consideration while fixing the
quantum of maintenance under the Code. But he cannot be ousted of his jurisdiction. The basis of the
relief, under the concerned section is the refusal or neglect to maintain his wife, children, father or
mother by a person who has sufficient means to maintain them. The criterion is not whether a person is
actually having means, but if he is capable of earning he will be considered to have sufficient means. The
burden of proof is on him to show that he has no sufficient means to maintain and to provide
maintenance.

Maintenance Under Parsi Law:

Parsi can claim maintenance from the spouse through criminal proceedings or/ and civil proceedings.
Interested parties may pursue both criminal and civil proceedings, simultaneously as there is no legal bar
to it. In the criminal proceedings the religion of the parties doesn't matter at all unlike the civil
proceedings.
If the Husband refuses to pay maintenance ,wife can inform the court that the Husband is refusing to pay
maintenance even after the order of the court. The court can then sentence the Husband to imprisonment
unless he agrees to pay. The Husband can be detained in the jail so long as he does not pay. The Parsi
Marriage and Divorce Act, 1936 recognizes the right of wife to maintenance-both alimony pendente lite
and permanent alimony. The maximum amount that can be decreed by court as alimony during the time
a matrimonial suit is pending in court, is one-fifth of the husband's net income. In fixing the quantum as
permanent maintenance, the court will determine what is just, bearing in mind the ability of husband to
pay, wife's own assets and conduct of the parties. The order will remain in force as long as wife remains
chaste
and unmarried.
S.40. Permanent alimony and maintenance
(1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time
subsequent thereto, on an application made to it for the purpose by either the wife or the husband, order
that the defendant shall pay to the plaintiff for her or his maintenance and support, such gross sum or
such monthly or periodical sum, for a term not exceeding the life of the plaintiff as having regard to the
defendant?s own income and other property, if any, the income and other property of the plaintiff, the
conduct of the parties and other circumstances of the case, it may seem to the Court to be just, and any
such payment may be secured, if necessary, by a charge on the movable or immovable property of the
defendant.
(2) The Court if it is satisfied that there is change in the circumstances of either party at any time after it
has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind
any such order in such manner as the Court may deem just.
(3) The Court if it is satisfied that the partly in whose favour, an order has been made under this section
has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the
husband, that he had sexual intercourse with any woman outside wedlock, it may, at the instance of the
other party, vary, modify or rescind any such order in such manner as the Court may deem just.
 Sunni Law Shia Law
Bequest to an heir without consent of Bequest up to 1/3 of the property is valid even
other heirs is invalid. without consent.
Bequest to unborn child is valid if the
Valid if the child is born within 10 months of Differences
child is born within 6 months of making between Shia and
making the will.
the will. Sunni Law on Will

Legatee who causes death even by

Legatee who causes death by accident is capable.
accident is incapable of receiving.
For a bequest of more than 1/3 to a non-
Heir's consent may be obtained before or after
heir, the consent of heir must be obtained
death.
after the death of testator.
Will of a person committing suicide is Valid only if the will is made before the person
valid. does any act towards committing suicide.
Recognizes rateable distribution. Does not recognize rateable distribution.
If the legatee dies before testator, the
The legacy lapses only if the legatee dies without
legacy lapses and goes back to the
heirs otherwise, it goes to legatee's heirs.
testator.
Legatee must accept the legacy after the Legatee can accept the legacy even before the
death of the testator. death of the testator.

Differences between Will and Gift

Gift Will
It is an immediate transfer of right or interest. It is a transfer after death.
Delivery of possession is necessary. Delivery of possession is not necessary.
Subject of will must exist at the time of death of the
Subject of gift must exist at the time of making gift.
testator.
Right of donor is unrestricted. It is limited up to 1/3rd of the property.
Cannot be revoked. Can be revoked by making another will.
Differences between Hiba, Hiba bil Iwaz, and Hiba ba Shart ul Iwaz –

Hiba Hiba bil Iwaz Hiba ba Shart ul Iwaz

Ownership in property is transferred for consideration Ownership in property is transferred for
Ownership in property is transfered
called iwaz. But there is no express agreement for a consideration called iwaz, with an
without consideration.
return. Iwaz is voluntary. express agreement for a return.
Delivery of possession is essential. Delivery of possession is NOT essential. Delivery of possession is essential.
Gift of mushaa where a property is Gift of mushaa where a property is
Gift of mushaa even where a property is divisible is valid.
divisible is invalid. divisible is invalid.
Barring a few exceptions it is It is revocable until the iwaz is paid.
It is irrevocable.
revocable. Irrevocable after that.
In its inception it is a gift but becomes a
It is a pure gift. It is like a contract of sale.
sale after the iwaz is paid.

Type of Talaq Shia Sunni

By Husband
Talaq ul sunnat - It is a Talaq which is effected in accordance
with the traditions of Prophet. It is further divided in two types -
Ahasan and hasan.
Ahasan - It is the most approved and considered to be the best
kind of Talaq. The word ahasan means best or very proper. To be
of Ahasan form, it must satisfy the following conditions -
4. the husband must pronounce the formula of divorce in a
single sentence.  Written Talaq is not
5. the pronouncement of divorce must in done when the acceptable unless the
 Written Talaq is
wife is in state of tuhr (purity), which means when she is husband is unable to
acceptable.
free from her menses. speak.
 No witnesses are
6. husband must abstain from intercourse for the period of  Two male witnesses are
required.
iddat. required.
 Talaq pronounced even
If the marriage has not been consummated, if the spouses are  Intention to divorce is
by mistake is binding.
away from each other, or the wife is beyond the age of required on the part of
mensuration, Talaq may even be pronounced while the wife is in husband.
menses.
Pronouncement in this form is revocable during the period of
iddat. Such revocation may be either express or implied. It
becomes irrevocable at the expiry of iddat.
Hasan - Hasan in arabic means "good" and so this form of Talaq
is considered to be a good form of Talaq but not as good as
Ahasan. To be in this form, it must satisfy the following conditions
-
5. there must be three successive pronouncements of the
formula of divorce.
 6. in case of a menstruating wife, the three
pronouncements must be made in three consecutive
tuhrs.
7. in case of a non-menstruating wife, the three
pronouncements must be made during the successive
intervals of 30 days.
8. no sexual intercourse must take place during these three
periods of tuhr.
It can be revoked any time before the third pronouncement. It
becomes irrevocable on the third pronouncement.
Talaq ul biddat - It is a disapproved and sinful form of Talaq. It
was introduced by Ommeyyads in order to escape the strictness
of law. To be of this form, it must satisfy the following conditions -
3. three pronouncements may be made during a single tuhr
either in one sentence (e.g. "I divorce thee thrice." ) or in
three sentences (e.g. I divorce thee, I divorce thee, I
divorce thee).
4. a single pronouncement made during a tuhr clearly
indicating an intention to dissolve marriage irrevocably
(e.g. "I divorce thee irrevocably").
It becomes irrevocable immediately when it is pronounced
irrespective of iddat. Thus, once pronounced, it cannot be
revoked. One a definite complete separation has taken place, Shias and Malikis do not
they cannot remarry without the formality of the woman marrying recognize this form.
another man and being divorced from him. Recognized but considered sinful.
Shia law does not recognize any
In Saiyyad Rashid Ahmad vs Anisa Khatoon 1932, one form of irrevocable Talaq.
Ghayas Uddin pronounced triple Talaq in the presence of
witnesses though in the absence of the wife. Four days later a
Talaqnama was executed which stated that three divorces were
given. However, husband and wife still lived together and had
children. While the husband treated her like a wife, it was held
that since there was no proof of remarriage, the relationship was
illicit and the children were illegitimate.

It has been said that this type of Talaq is theologically improper.

In Fazlur Rahman vs Aisha 1929, it was held that Quran verses
have been interpreted differently by different schools. Thus, it is
legally valid for Sunnis but not for Shia.
Ila - (Vow of continence) - Where the husband is of sound mind
and of the age of majority, swears by God that he will not have
sexual intercourse with his wife and leaves the wife to observe
iddat, he is said to make ila. If the husband after having
pronounced ila abstains from having sexual intercourse with wife
for four months, the marriage is dissolved with the same result as
if there had been an irrevocable divorce pronounced by the
husband. This requires following conditions -
5. Husband must be of sound mind and above the age of
majority.
6. must swear by God or must take a vow.
7. vow must be that he will not have sexual intercourse with
his wife.
8. must abstain from sexual intercourse with his wife for
four months or more after taking the vow.
It can be canceled by - resuming sexual intercourse within the
period of four months or by a verbal retraction.
It is not in practice in India.
Zihar - Injurious Assimilation - If a husband compares the wife Comparison must have been No such requirement.
done in presence of two witness.
with his mother or any other female relative within prohibited
degree, the wife has a right to refuse herself to him until he has
perfomed a penance such as freeing a slave or fasting for a
month. In default of expiation by penance, the wife has the right to
apply for judicial divorce. Ingredients -
4. husband must be sane and adult
5. husband compares wife to his mother or any other
female relative within prohibited degrees.
6. then the wife has a right - a) to refuse to have sexual
intercourse with him till he has expiated himself by
penance, b) to apply in court for an order directing him
for a penance or to decree her a regular divorce. Muta marriage may be dissolved
by Zihar.
Legal Effects - Zihar by itself does not terminate the marriage
nor does it cause the wife to lose her right to maintenance even in
case of default of penance. It causes the following -
4. sexual intercourse becomes unlawful
5. husband is liable for penance
6. wife can claim judicial separation if the husband persists
in wrong doing.
The comparison must be done intentionally and with disrespect.
If the husband makes a comparison to show respect to his wife,
an expiation is not necessary.
This form has become obsolete.
By Wife
Talaq e tafweez - A husband may delegate his power to give
Talaq to any third party or even to his wife. This delegation is
called tafweez. An agreement made either before or after the
marriage providing that the wife is at liberty to divorce herself from
her husband under certain specified conditions (e.g. husband
taking a second wife), is valid, provided that such power is not
absolute and unconditional and that the conditions are reasonable
and are not opposed to public policy.

In Mohd Khan vs Mst Shahmali AIR 1972, there was a pre-

nuptial agreement in which the defendant agreed to live in
plaintiff's parental house after marriage and if he left the house,
he would pay a certain sum to the plaintiff, the default of which
the condition would act as divorce. It was held that the condition
was not unconscionable or opposed to public policy.

Note that a wife does not divorce her husband but gets herself
divorced from the husband.
Ameer Ali gives three kinds of tafweez - (This is given in Aqil
Ahmed's book. I have no idea what is the difference between the
three).
Ikhtiar - giving her authority to Talaq herself.
Amr-bayed - leaving the matter in her own hands.
Mashiat - giving her the option to do what she likes.

This does not deprive the husband from his right to give Talaq.
Talaq e taliq - It means contingent divorce. Under the Hanafi law,
pronouncement of divorce may take effect immediately or at
some future time or event.
By Agreement
Khula - Divorce at the request of wife - A wife has a right to buy Husband must be adult, sane, Only two conditions - Husband
her release from marriage from her husband. It must satisfy the free agent (mukhtar), and must must be adult and sane.
following conditions - have intention to divorce her.
4. there must be an offer from the wife. It is irrevocable and partners
 5. the offer must be accepted with consideration (evaz) for
the release.
6. the offer must be accepted by the husband.
It becomes effective as well as irrevocable (Talaq ul bain) as soon
as it is accepted by the husband and the wife is bound to observe
iddat.
Husband has no power of
As a consideration for release by the husband, everything that revocation but wife can reclaim
can be given in dower can be given. If the wife fails to give the cannot resume sexual intercourse
the consideration during iddat. In
consideration that was agreed upon at the time of Khula, divorce until a fresh marriage is arranged.
this case, the husband can revoke
does not become invalid but the husband has the right to claim Khula.
the consideration.

In Moonshee Buzloor Rahim vs Lateefutoon Nissa, Khula was

defined as a divorce by consent in which the wife gives or agrees
to give a consideration to the husband for her release from the
marriage tie. Khula is thus the right of divorce purchased by the
wife from her husband.
Mubarat - Divorce by mutual agreement - It is a form of
dissolution of marriage contract, where husband and wife both
are averse to the marriage and want to separate. It requires
following conditions -
4. Either of husband or wife can make the offer.
5. The other one must accept it.
6. As soon as it is accepted, it become irrevocable and
iddat is necessary. Since it is a mutual agreement, there
is no question of consideration.

By Judicial Decree
Lian - False charge of adultery - When the husband charges the
wife with adultery and the charge is false, the wife is entitled to
sue for and obtain divorce. In Zafar Hussain vs Ummat ur
Rahman 1919, the Allahabad HC accepted the doctrine of Lian.
The following conditions must be satisfied -
4. Husband, who is adult and sane, charges his wife with
adultery or denies the paternity of her child.
5. Such charge is false.
6. The marriage is a Sahih marriage.
Features of Lian -
5. Such false charge does not dissolve the marriage
automatically but only gives a right to the wife to sue for
divorce. The marriage continues till the decree is
passed.
6. Wife must file a regular suit and just an application will
not suffice.
7. Judicial separation due to Lian is irrevocable.
8. Lian is applicable only to Sahih marriage and not to
Fasid ones.
Retraction - A husband may retract the charge. However, the
retraction must be bona fide and unconditional. It must be made
before the closing of evidence.
Fask - Cancellation - Muslim law allows a lady to approach a
qazi for dissolving the marriage under the following conditions -
5. if the marriage is irregular.
6. if the person having an option to avoid a marriage has
exercised his options.
7. if the marriage was within prohibited degrees or
fosterage.
 8. if the marriage has been contracted by non-Muslims and
the parties have adopted Islam.
Before the enactment of Muslim Marriage Dissolution act, this
was the only way for a muslim woman to repudiate a marriage.
Judicial Divorce - Section 2 of Muslim Marriage Dissolution Act 1939 gives the following grounds to wife belonging to Shia as well
as Sunni sects, upon which she can ask for divorce -
11. Absence of husband - 4 yrs. Decree passed on this ground will take affect only after 6 months of passing and if the husband
shows up during the 6 months he can request the court to set the decree aside.
12. Failure to maintain - for 2 yrs. Cause is immaterial. Poverty, incapacity is no excuse. There is no agreement among HCs
regarding the conduct of wife. In Fazal Mahmood vs Ummatur Rahman AIR 1949, Peshawar HC held that if a wife is not
faithful or obedient, the husband is under no obligation to maintain her and her suit for divorce was dismissed. However, in Mst
Nur Bibi vs Pir Bux AIR 1950, Sind HC held that a wife is entitled to divorce if the husband has failed to maintain her for two
years preceding the suit even though she may not be entitled to maintenance owing to her bad conduct.
13. Imprisonment of husband - for 7 yrs or more.
14. Failure to perform marital obligations - for 3 yrs
15. Impotency of husband - If the husband was impotent at the time of marriage and continues to be so.
16. Insanity, leprosy, or venereal disease - For insanity, 2 yrs are required. For disease, no time period is required.
17. Repudiation of marriage - If the wife was married before she was 15, she can repudiate the marriage before she turns 18.
18. Cruelty of husband - cruelty involves - habitual assault, associates with women of bad repute, attempts to force her to lead
immoral life, disposes off her property, obstructs her practice of religion, does not treat all his wives equally.
19. Grounds allowed by muslim law - This covers all the grounds such as Ila, Zihar, Khula, and Mubarat, which are provided by
muslim law.

Section 4 of this act removes apostasy as a ground for granting divorce automatically. However, if a woman reconverts back to her
original faith, the marriage will stand dissolved.

GIFT

The conception of the term "gift" as used In the Transfer of Property Act is somewhat different from the use in
Mohammedan law. In the Mohammedan law a gift is a transfer of property or right by one person to another in
accordance with the provisions given in the Mohammedan law and includes-
a) A hiba, an immediate and unconditional transfer of the ownership of some property or of some right,
without any consideration or with some return (ewaz); and
b) An ariat, the grant of some limited interest in respect of the use or usufruct of some property or right.
Where a gift of any property or right is made without consideration with the object of acquiring religious merit,
it is called sadaqah.
The terms "hiba" and "gift" are often indiscriminately used but the terms "hiba" is only one of the kinds of
transactions which are covered by the general term "gift". A hiba is a transfer without consideration. A gift by
a Muslim in favour of his co-religionist must be under the Mohammedan Law. A gift is not a contract (though
in Muslim law it is called a contract) but the principle may be applicable even to gift.
In ordinary legal effect, there cannot be a `gift' without a giving or taking. The giving or taking are two
contemporaneous, reciprocal acts, which constitute a gift. Section 122 of the Act postulates that a gift is a
transfer of certain existing movable or immovable property made voluntary and without consideration by one
person called the donor, to another, called a donee and accepted by or on behalf of the donee. The essential
elements of a gift are
(a) The absence of consideration;
(b) the donor;
(c) The donee;
(d) The subject-matter;
(e) the transfer; and the acceptance.
The concept of gift is diametrically opposed to any presence of consideration or compensation.
In order to constitute a valid gift, the pivotal requirement is acceptance thereof. No particular mode of
acceptance is required and the circumstances throw light on that aspect. A transaction of gift in order to be
complete must be accepted by the donee during the lifetime of the donor. Factum of acceptance can be
established by different circumstances such as donee taking a property or being in possession of deed of gift
alone. If a document of gift after its execution or registration in favour of donee is handed over to him by the
donor whom he accepts, it amounts to a valid acceptance of gift in law. The specific recital in the deed that
possession is given raises a presumption of acceptance.
Conception Of Property
English Law.-In order to appreciate the questions of conditions in gifts (and also in bequests) it is
necessary to first note the different conceptions of property in English and Mohammedan laws.
The English law as to rights in property is classified by a division on the basis of immoveable
and moveable (real and personal) property. Rights in land described as "estate in land" do not
always imply only absolute ownership but also rights which fall short of it and are limited to the
life of the grantee or otherwise limited in respect of time and duration or use property in all
these various forms are described as "estate". Ownership of land is thus split up into estates
distinguished in point of quality (e.g., into legal and equitable estates) and in point of duration
(e.g., estates in fee simple, in tail, for life or in remainder.'
Mohammedan Law.-In general, Muslim law draws no distinction between real and personal
property, and there is no authoritative work on Muslim law, which affirms that Muslim law
recognises the splitting up of ownership of land into estates. What Muslim law does recognize
and insist upon, is the distinction between the corpus of the property itself (ayn) and the
usufruct in the property (manqft). Over the corpus of property the law recognises only absolute
dominion, heritable and unrestricted in point of time; and where a gift of the corpus seeks to
impose a condition inconsistent with such absolute dominion the condition is rejected as
repugnant; but interests limited in point of time can be created in the usufruct of the property
and the dominion over the corpus takes effect subject to any such limited interests. Limited
interests in respect of property are not identical with the incidents of estates under the English
law. Under the Mohammedan law they are only usufructuary interest (and not rights of
ownership of any kind).
Thus, in English law a person having interest in immoveable property for limited periods of time
is said to be the "owner" of the property during those periods. The usufruct is also a part of the
corpus. On the other hand, in Muslim law, a person can be said to be an "owner" only if he has
full and absolute ownership. Ownership for a limited period is not contemplated at all. If the use
or enjoyment of property is granted to a person for life or other limited period such person
cannot be said to be an "owner" during that period. The English law thus recognises ownership
of the land limited in duration while Muslim law admits only ownership unlimited in duration but
recognises interests of limited duration in the use of property.
There is no difference between the several schools of Muslim law in their fundamental
conception of property and ownership. A limited interest takes effect out of the usufruct under
any of the schools.
The Donor
Doner's Qualification
The donor is the person who gives. Any person who is sui juris can make a gift of his property. A
minor, being incompetent to contract is incompetent to transfer, and a gift by the minor would
therefore be void trustees cannot make a gift out of trust property unless authorized by the
terms of the contract.

On behalf of a minor, a natural guardian can accept a gift containing a condition that the person
nominated in the gift deed shall act as a manager of the gifted property. Such acceptance would
amount to recognition by the natural guardian of the nominated person as the manager or the
agent of minor for the purpose of such property.

In Mohammedan law majority is to be determined according to Sec. 3 of the Majority Act, and
not by Mohammedan law
The age of majority as regards matters other than marriage, dower, divorce and adoption, is
now regulated by the Indian Majority Act IX of 1875. Section 3 of the Act declares that a person
shall be deemed to have attained majority when he shall have completed the age of eighteen
years. In the case, however if a minor of whose person or property a guardian has been
appointed, or of whose property the superintendence has been assumed by a Court of Wards,
the Act provides that the age of majority shall be deemed to have been attained on the minor
completing the age of twenty-one years.
Soundness of mind and majority are the only qualifications required for making a gift. A gift to
be valid must be made by a person with his free consent and not under compulsion. The donor
must not be insane but a mere weakness of the intellect would not be sufficient to invalidate the
gift if the donor was able to apprehend the transaction.

Donor's powers are unrestricted in Mohammedan law-

A man may lawfully make a gift of his property to another during his lifetime, or he may give it
away to some one after his death by will. The first is called a disposition inter vivos and the
second a testamentary disposition. Mohammedan law permits both kinds of dispositions, but
while a disposition inter vivos is unfettered as to quantum and testamentary disposition is
limited to one-third of the net estate. Mohammedan law allows a man to give away the whole of
his property during his lifetime, but only one-third of it can be bequeathed by will from that of a
will a gift may be made to a stranger wholly excluding the heirs. Pardanashin Lady Free consent
means, the consent should not have been obtained by fraud, misrepresentation or undue
influence. An insolvent donor is not competent to make a gift.
The Donee
The donee is the person who accepts the gift, by or on behalf of a person who is not competent
to contract. A minor therefore may be a donee; but if the gift is onerous, the obligation cannot
bee enforced against him while he is a minor. But when he attains majority he must either
accept the burden or return the gift.

The words 'accepted by or on behalf of the donee show that the donee may be a person unable
to express acceptance. A gift can be made to a child en ventre sa mere and could be accepted
on its behalf.
The donee must be an ascertainable person and be a donee under this section; nor can a gift be
made to an unregistered society.
A gift to two or more persons may be a gift to them as joint tenants or as tenants in common.
The presumption of English law in favour of joint tenancy does not apply to a Hindu gift, and in a
Hindu gift the donees are presumed to take as tenants in common It is necessary in
Mohammedan law that the donee should accept a hiba and possession must be delivered in the
case of hiba. As hiba is immediate and absolute transfer of ownership a hiba in favour of a
person who was not in existence is invalid. It is necessary that the donee should accept a hiba
and possession must be delivered in the case of hiba. As hiba is immediate and absolute
transfer of ownership a hiba in favour of a person who was not in existence is invalid.
Gifts of Usufruct(Ariat) to unborn persons -a hiba stands on a different footing from a gift
of a limited interest in usufruct a gift of future usufruct to unborn persons is valid provided that
the donee is in being at the time when interest opens out for heirs
Child in the womb - a hiba in favour of a child in the womb is valid if the child is born within
six months from the date of the hiba because in that case it is presumed that the child actually
existed as a distinct entity in the womb of his mother.
Juristic persons - a gift to juristic persons or any other institution is valid. So a gift to corporate
units, e.g. a tauazhi (consisting of a mother and of all her children and not descendants in the
female line governed by Marumakkathayam law) are valid. Such a gift will be valid as being one
for the whole body.
It has been held that a mosque is recognized by the Mohammedan jurist as a juristic person,
and that a valid gift can be made in favour of a mosque.
Gifts to Non-Muslims - a gift may be made to a non-Muslim but in such a case the property will,
after the completion of the gift, be subject to the personal law of the donee and not that of
donor.
Subject Of Gift
The subject matter of the gift must be certain existing movable or immovable property. It may
be land, goods, or actionable claims. It must be transferable under s 6. But it cannot be future
property. A gift of a right of management is valid; but a gift of future revenue of a village is
invalid. These cases were decided under Hindu and Mohammedan law respectively but they
illustrate the principle. In a Calcutta case, it was said that the release of a debt is not a gift, as a
gift must be of tangible property. It is submitted that the release of a debt is not a gift as it does
not involve a transfer of property but is merely a renunciation of a right of action. It is quite
clear that an actionable claim such as a policy of insurance may be the subject of a gift It is
submitted that in a deed of gift the meaning of the word 'money' should not be restricted by any
hard and fast rule but should be interpreted having regard to the context properly construed in
the light of all the relevant facts. Therefore in order to constitute a valid gift, there must be an
existing property. In Mohammedan law any property or right which has some legal value may be
the subject of a gift.

Marriage under Muslim Law

Posted November 25, 2010 by K in Muslim Law. Tagged: Absolute and Relative Prohibitions, Batil Fasid,
Essentials of Marriage, KHYAR-UL-BULUGH, Kinds of Marriage, Marriage during Iddat, Marriage of a
minor, Marriage under Muslim Law, Nikah, Offer and Acceptance (Ijab and Qubul), Option of Puberty, or
Muta Marriage, Restitution of conjugal rights, Sahih. 5 Comments
INTRODUCTION
In the pre-Islam Arabia, the laws were favourable towards males and discriminatory against the women.
Polygamy had to be accounted for in a very few blood relationships like in marriage with one’s real mother or
sister. Marriages were of different kinds and divorce was simple and easy for the man. With absolute rights
vested in men and no checks led to men denying the women their basic rights.
Islam brought with it a due status for women and regarded them as dignified members of the society. ‘Nikah’
literally means ‘to tie up together’ and referred to the Islamic marriage. It is a matrimonial contract as well as
an institution that gives the women a particular and high status in the society. Nikah was to ensure stability in a
married life as it bound both the partners together for an indefinite period and also required the woman to be
honoured with the mahr.

Islam allows limited polygamy, i.e. four wives at a time. This was allowed as during the numerous wars during
the Prophet’s time in Arabia, many Muslim men lost their lives. Thus, the women outnumbered the men. The
war-widows and orphans became destitute as they had no standing in the society and lead miserable lives. In
order to prevent injustice, Quran allows limited polygamy through the following Ayat: “marry of the women,
who seem good to you, two or three or four, if you fear that you cannot do justice to so many, then one.”

Justice refers to equal love and affection as well as boarding and lodging. The Quran has another Ayat that
“you will not be able to deal equally between your wives however much you wish to do so”. Thus, it can be
safely inferred that though Islam permits four wives at a time it is actually in favour of monogamy. The
Motazila Muslims follow monogamy strictly. But Muslims all over the globe follow the traditions of the
Prophet and practise polygamy.

As per the statistics, Indian Muslims seem to prefer monogamy. Though they are allowed to have four wives as
per the law, the Muslim government servants require the government’s permission before contracting the
second marriage. Muslim countries like Turkey and Tunisia have laws for monogamy. Pakistan has
discouraged polygamy by implementing laws that makes it difficult to marry two or more times.
DEFINITION

Hedaya says that “Marriage implies a particular contract used for the purpose of legalising children.

Justice Mahmood has defined the Muslim marriage as “a purely civil contract”.
NATURE AND CONCEPT OF MARRIAGE
The object of a Muslim marriage is to legalise children and to a large extent to regulate and validate the sexual
relations. Apart from being a civil contract, it is also a social and religious institution.

LEGAL ASPECT
Legally speaking a Muslim marriage is a contract for it has a few elements of a contract. The parties have to be
competent and offer, acceptance and free consent form an important part. Within a limit, the parties can decide
the terms of the marriage and in case of breach; there are provisions for the rights and obligations of the
parties. It can be safely said that marriage is very similar to a contract.
SOCIAL ASPECT

Marriage is a social institution and a social method to give an equal status to women. The dower, which is
essential for a Muslim marriage, provides a security net for the woman in case of need. Limited polygamy
helps raise the woman’s standing and dignity in the society. By placing prohibitions on the marriage, the
relationships of families can be regulated and the ill effects of in breeding are avoided.
RELIGIOUS ASPECT

Marriage is the tradition of the prophet as well as present in the words of Quran. Thus, a person who marries
gets religious benefits and the abstainer would have committed a sin. In ANIS BEGAM v MOHD. ISTAFA
(1933)55 All, 743, it has been held to be a religious sacrament.
ESSENTIAL OF A VALID MARRIAGE

A marriage is a valid marriage or Sahih only if it is recognised by the courts to be lawful.

I) COMPETENCE OF THE PARTIES

a) Age of Puberty
For marriage, dower and divorce, the age of majority under the Muslim law is the age of puberty and not 18
years of age. Though Hedaya says the minimum age of puberty for a boy is 12 years and for a girl it is 9 years;
it has been fixed at 15 years of age by the Privy Council in the year 1916. Thus, a boy or a girl of 15 years of
age will be presumed to have attained the age of puberty unless the contrary is proved.
Minor’s Marriage

Under Muslim law, a person under 15 years of age is presumed to be a minor and has no capacity to give
consent for marriage. Unless and until the guardian’s consent is not obtained the marriage will be void.
Guardians for marriage are different from guardians appointed by the court. The order of the priority is as
follows:
i) Father;
ii) Paternal Grandfather, how ever high;
iii) Brother or other male members of the father’s family;
iv) Mother; and
v) Maternal uncle, aunt or other maternal relatives.
A remoter guardian for marriage can not get the minor married off with out actually following the prescribed
order and such a marriage will be void.
Shia Law says that only the father or the paternal grand-father how ever high can be the guardians for
marriage.
The Child Marriage Restraint Act, 1929 provides that a child marriage exists and will be valid but the
guardians and others who conduct it can be punished. A child marriage can be prevented by an injunction.
Option of Puberty (Khyar-ul-Bulugh)
Under Muslim marriage, a minor on attaining the age of puberty can exercise the option of puberty wherein the
minor can approve or disapprove the marriage contracted by the guardian who is not the father or the grand
father. If he disapproves, the marriage will dissolve with immediate effect. If the minor says nothing, it will be
presumed that he has approved the marriage. As per the Shia law, a minor has to approve his marriage upon
attaining the age of puberty.
If the father or the grandfather has contracted marriage fraudulently or negligently, the minor can repudiate the
marriage on attaining the age of puberty. A wife can exercise the right even if the marriage was contracted by
her father or her grandfather. There can be no unreasonable delay in the exercise of the option of puberty. The
husband will lose his right to the option of puberty if the marriage has been consummated. The wife will also
lose her right unless the consummation has taken place when the wife was still a minor and against her
consent.

b) Soundness of Mind
Lunatics can get married during the lucid intervals for they can understand the consequences. Idiots on the
other hand can not do so. Idiocy refers to an abnormal state of the mind wherein the person can not understand
the consequences of their actions.
Marriage of insane persons
A person can contract a lawful marriage through a guardian. On recovering reason the said person can
repudiate the marriage.
c) Religion of the parties
The parties can marry any Muslim irrespective of sects or sub sects.
Inter-Religion Marriage

Under Sunni law, a male can marry a Muslim girl of any sect/ sub sect or even a Kitabia girl. A Kitabia female
is one who belongs to a community that originated in a book revealed by the heavens. Thus, the Jews and the
Christians can be wed to a Sunni male. A marriage with a non-Muslim or non-Kitabia female, the marriage is
merely irregular. Under Shia law, a marriage with a non-Muslim or a Kitabia woman is not permitted.
However, a Muta marriage may be contracted with a Kitabia or Parsi female.
Marriage of a Muslim Female with a non-Muslim male

A Muslim female has no right to contract a marriage with a non-Muslim even if he is a Kitabia or Parsi. Such a
marriage will be void.
The Special Marriage Act, 1954 allows any man or woman to get married to each other whether a Muslim or
a non-Muslim. The succession will be governed under the Indian Succession Act, 1925.
II) FREE CONSENT OF THE PARTIES
If the parties are sane and adults, they can give consent on their own and the marriage will be a valid one. If the
parties or one of them is either a minor or insane, the consent has to be obtained by the guardian. The consent
will be deemed free when it is made at will and given voluntarily and not under any coercion or fraud.
Coercion is when the party is made to consent under the threat of harm to self or a loved one. All sects and
schools render a marriage under coercion to be void. The Hanafi School is the only exception. It is believed in
the school that three things can not be undone ever even if committed as a joke. The three things are marriage,
divorce and taking back.
Fraud refers to a dishonest concealment of facts or presentation of false facts or statements to obtain consent.
The moment the party whose consent was obtained by fraud comes to know of such fraud, he or she may
accept the marriage as a legal one or altogether reject it.
Mistake of Fact is when the parties agree but not on the same thing. Consent refers to the meeting of the
minds on the same issue. Where the identity of the bride to be, for example, is mistaken, the marriage will be
void.
III) FORMALITIES IN THE MARRIAGE
Under Muslim law, religious ceremonies are not essential for validating a marriage. The only essential
formalities are that of offer and acceptance.
Offer and Acceptance

Offer or Ijab signifies the willingness of a party to contract marriage with another. The offer comes in form of
a declaration from the boy or his guardian. This offer has to be accepted by the girl or her guardian. This is
referred to as acceptance or Qubool. Though no specific form exists, the words must show the unequivocal
intention of the parties orthe guardians to marry the parties. It may be oral or written. When written down, it
is referred to ass the Kabinnamah.
It is essential that the offer and acceptance occur at the same sitting. Thus, simultaneous actions must become a
joint whole. For example, the groom to be has to send the offer through another. The bride must accept it in
presence of others and then the marriage will be a valid one.
Reciprocity is another important aspect. The acceptance has to be for the proposal word to word, as it is and
without any variations.
Conditional or Contingent Marriage is void even if the event that they are made dependent upon does in fact
occur.
Presence of Witnesses is not essential under the Shia law. Under the Sunni law, the offer and acceptance
needs to two competent witnesses. A Muslim male who is of sound mind and has attained the age of puberty is
a competent single witness. Two sane Muslim females who have reached the age of puberty can also be treated
as competent witnesses. Thus, two Muslim women along with a competent Muslim male witness will be
regarded as competent witnesses for the marriage. Four females will not be regarded as competent witness. The
term ‘witnesses’ does not refer to any one specifically asked or invited for this purpose only.
Registration under Muslim law is not essential for the validity of the marriage. But certain enactments provide
for registration in the matters of marriage as well as divorces. The acts do so because then there exists a proof
of the marriage. But even then the registration is optional only and not mandatory. It has also been held in a
few cases that if the community custom requires registration, even if it is in a different format, the marriage has
to be registered then. Under the Indian Christian Marriages Act, 1872, the registration of marriage will be
essential if the marriage is between a Muslim and a Christian.
IV) ABSENCE OF PROHIBITION
Prohibition refers to the impediments or restrictions placed on a person with respect to another person or an
action. The Muslim law provides that the marriage should not be a marriage against Islam or have any other
impediments to it. Absence of prohibition refers to the freedom to marry a person for they do not stand in a
particular relationship to each other. For example, a father cannot marry his own daughter.
Absolute Prohibitions

They are mandatory and have to be followed or else the marriage will be void. If a person is within the
prohibited relationship of the other party, the marriage cannot take place.

Whether a person is within the prohibited relationship or not can be decided on the following basis:

a) Consanguinity is relationship by Blood.A Muslim cannot marry one’s own descendant, however high or
descendents of one’ father or mother no matter how low. Similarly brothers and sisters of one’s ascendants
howsoever high can not be married to. However, there is no prohibition in the marriage of cousin brothers or
sisters.

b) Affinity refers to relation by marriage. A Muslim can not marry the ascendant or descendant of one’s
spouse or the spouse of one’s ascendant or descendant.
c) Fosterage refers to the relationship of nurture and feeding. A child is breast fed during its infancy. If the
person providing the feeds is someone other than the biological mother, the infant or child will still stand in a
prohibited relationship with her.
Relative Prohibitions

Where the compliance is not mandatory but non-compliance will be frowned upon. Any marriage in violation
will be only irregular and not void. As per Shia law, the marriage will be either perfectly valid or void and not
irregular.

a) Unlawful Conjunctions
A Muslim can not have two wives at the same time if the wives are related to each other in a way that would
have made their marriage void if they had been of opposite sex. As per the Sunni law, a marriage against this
condition is irregular. The Shia law will treat violation as a void marriage. The only exception will be if the
marriage is with the wife’s consent.

b) Marriage with the fifth wife

If a Muslim man has more than five wives, it is merely irregular with respect to the fifth wife. If he divorces a
wife or a wife dies, the irregularity will be removed with respect to the fifth wife.
c) Marriage with a non-Muslim has been discussed early on in the chapter.
d) Marriage without witnesses is irregular as per Sunni law.
e) Marriage during Iddat is irregular as per the Sunni law and void as per the Shia law.
Iddat refers to the period that a woman undergoes after divorce or the death of her husband. It literally means
counting. This period is essential to ascertain whether the wife/widow is pregnant or not. During this time, the
woman leads a simple and chaste life. The circumstances where she has to observe Iddat and how are as
follows.
1) Dissolution of Marriage by divorce
If the marriage was a valid one and consummated, the duration of Iddat is three monthly courses. The marriage
could have been dissolved through Talaq, Ila, Zihar or under the Dissolution of Muslim Marriage Act, 1939. If
the woman is pregnant, the period of Iddat extends till the delivery or abortion of the foetus. If the marriage has
not been consummated, the woman is not required to observe Iddat.

2) Divorce of marriage by the death of the husband

If the marriage was a valid one, the period of Iddat extends up to 4 months and 10 days irrespective of the fact
whether the marriage was consummated or not. If the woman was pregnant at the time, the period of Iddat is
on till the delivery or the abortion or the earlier specified period, which ever is longer.

3) Death if husband during divorce Iddat

If the husband dies during the divorce Iddat, the wife has to start a fresh Iddat of 4 months and 10 days from
the date of death of the husband.

4) Commencement of Iddat
The period of Iddat starts from the date of divorce or death and not from the date of the wife receiving a notice
of the same. Thus, if the wife gets the notice of such an even after the specified period of Iddat has expired, she
does not have to observe Iddat.

Under Shia law, Iddat need not be observed if the wife is past the childbearing age or if she has not even
attained puberty.

Valid Retirement refers to when a couple spends time together in private and there is no moral, social or legal
restriction in their intercourse. As per Sunni law, a valid retirement raises the presumption of consummation of
the marriage. Thus, Iddat will have to be observed even if there was no actual consummation but a valid
retirement has been proved. Shia law does not recognise the concept of valid retirement.
Husband is prohibited from remarrying during iddat if and only if he already has four wives. Thus, he can
not marry another woman till the iddat period is over. In case, such a marriage does take place, it will be
merely irregular and not void.

Miscellaneous Prohibitions
a) Marriage during pilgrimage is void as per Shia law only.
b) Rule of Equality refers to the society’s prohibition on marriage wherein the husband and wife must be of
the same standing and equal therefore. The marriage in violation of this rule can be invalidated by the Qazi.
The Shia law does not recognise this rule.
c) Re-marriage between the divorced couple is allowed provided a procedure if followed. The divorced
wife has to marry another man fulfilling all the requisites of a valid marriage. The marriage has to be
consummated. Then the present husband has to divorce her voluntarily and the wife has to observe Iddat. Then
she may marry her first or former husband. If the procedure is not followed, the marriage will be merely
irregular.

d) Polyandry is not permitted and the second marriage will be void under Shia and Sunni law.
KINDS OF MARRIAGE
Valid Marriage or the Sahih Marriage

Under all schools of Muslim law, the basic requirements have to be fulfilled, i.e. the parties are competent, the
consent of the parties is free consent and the offer and acceptance has been duly made.
Legal Effect of a Valid Marriage

i) The co habitation of the parties becomes lawful and not immoral;

ii) The children born to a lawfully wedded couple are legitimate and can inherit accordingly;

iii) For the couple itself, mutual rights of inheritance arise;

iv) The wife can claim dower and has a right to maintenance and simultaneously the obligation to
observe Iddat is bestowed upon her;
v) Prohibited relations are created due to the marriage;
vi) The legal identity or status of a Muslim woman does not blend in with her husband’s identity after
marriage; and
vii) The parties have rights to regulate the movements of each other but they can not refrain each other
from maintaining a relationship with their respective families or visits to then.
Void Marriage or the Batil Marriage

It is an illegal union that exists not in law. Thus, a marriage in violation of absolute prohibitions or polyandry
is a void marriage. Shia law provides a few additional grounds like marriage during a pilgrimage or marriage
with a non-Muslim or a woman observing Iddat.
Legal Effects of a Void Marriage
No mutual rights or obligations are created for the parties in this union. The children born to such a couple are
deemed illegitimate and the wife has no rights to dower or maintenance. The parties can actually marry any
one they wish for this marriage does not exist in law or in fact.

Irregular Marriage or Fasid Marriage

An incomplete marriage where the deviation from procedure or a flaw can be removed, it is called an irregular
marriage. For example, the marriage with the fifth wife or with a woman observing Iddat will be treated as an
irregular marriage.

Legal Effects of an irregular Marriage

The cohabitation is lawful and the children are legitimate and can inherit the properties of their parents. Mutual
rights of inheritance do not arise. After consummation only, can the wife claim dower. The wife does not have
to observe Iddat if the marriage is not consummated.

Temporary marriage or Muta Marriage

It is a unique form of marriage recognised only under the Ithna Asharia School. It is a union for a particular
time only with consideration as a pre-requisite. The roots can be

traced back to the early Arabia, where men had to travel long and far. To confer legitimacy on the offspring
produced during the travels, the Prophet allowed this Muta or enjoyment marriage for some time. Later, he
prohibited it absolutely.

It is essential that the parties must be competent to contract marriage because the guardians cannot contract for
a Muta marriage. The Muslim male can contract Muta marriage with a Muslim,
Kitabia or Parsi woman but the Muslim woman can contract the same only with Muslim men. Any number of
Muta wives can be contracted with.

The formalities of free consent, offer and acceptance as well as absence of prohibition have to be followed.
The dower must be specified at the time of marriage otherwise the marriage will be deemed void. The duration
of the Muta marriage must be specified or else it will be deemed as a permanent marriage.
Legal Effects of Temporary Marriage
The cohabitation between parties becomes lawful and consequently even the children are legitimate children.
There will be no mutual rights of inheritance between the husband and wife. The husband has to pay the whole
dower amount if he leaves without finishing the duration of the marriage. If the wife were to leave before the
expiry of the specified time, the husband can deduct a proportionate amount from her dower.

Maintenance is not available to the wife as a right. There is no divorce in Muta marriages. It ends on the
prescribed time or departure of one of the parties. Iddat has to be observed for two months if the marriage has
been consummated, else it is not needed. If the marriage dissolved due to death, 4 months and 10 days is the
iddat period.

Marriage Agreements are allowed under Muslim law. Even subsequent to the marriage, a couple can enter
into an agreement for regulation of their relationship. If the guardians have made such agreements when the
parties are not competent to do so, the agreement will be binding on them. Any agreement working against
Islam is void. For example a marriage agreement wherein the wife is not allowed to claim her dower or the
couple can stay separately without any reasonable cause would be illegal.

Marriage agreements are binding on the parties as long as they are legal. For example an agreement wherein
the husband can not contract another marriage during the subsistence of the first is a valid agreement.
Similarly, an agreement stating that the husband shall not stop the wife from receiving her relatives at his
house at any time is also valid.

Breach of a Marriage Agreement if the agreement was a valid one gives rise to rights of refusal for
restitution, dower related rights and in extreme scenarios, dissolution of the marriage.
RESTITUTION OF CONJUGAL RIGHTS

Restitution of conjugal rights refers to giving back the right to one party to stay with the spouse. As a couple is
entitled to stay together and enjoy each other’s company, if one spouse stays away without reason, the other
can file a suit to move back with the aggrieved party. The courts have to look into the circumstances of each
case and then decide. A wife can claim defences against her husband’s claim as given below:
a) He falsely accused her of adultery;
b) Her prompt dower was not paid on demand;
c) The husband has been expelled from the caste;
d) Cruelty, physical or emotional, by the husband; and
e) Husband converted from Islam to another religion or used objectionable words against the Prophet, etc.

The Dissolution of Muslim Marriages Act, 1939 has widened the defences even more.
Dower (Part 1 of 2)
Posted April 18, 2012 by K in Muslim Law. Tagged: Dower, Mahr, Specified Dower or Mahr-i-Musamma,
Unspecified Mahr ot Mahr-i-Misl. Leave a Comment
INTRODUCTION
Initially, a marriage in Arabia was similar to a contract for purchasing a girl from her guardian. The property or
cash received by the guardian as compensation for the girl was called Mahr. Otherwise, the husband paid the
money/ gave the property to the wife directly.
After the advent of Islam, the Prophet retained this payment; but the payment was to be made to the wife and
not to her guardian. He also clarified that the payment was not the price, consideration or a mere gift for
marrying him; it was a mark of respect. It was to acknowledge her dignity and her high status as awarded by
the Muslim law.
DEFINITION
It is that money/property which a Muslim wife is entitled to from her husband on marriage as a token or
symbol of respect for her.
Though some define it as a sum of money or other property promised by the husband to be paid or delivered to
the wife in consideration for marriage, it is submitted that Dower is not a consideration. Hedaya says that it is
merely a token of respect for its object, the woman.
Though Dower fulfils the requirement of being the consideration as the Muslim marriage is considered to be a
contract, it is merely an obligation that law has fixed upon the husband. Non-specification of Dower at the time
of marriage does not render it illegal but consideration forms an essential part of a contract and would render it
void. It is only under the Ithna Asharia School, that the woman can give away this right before itself as it
presumes that the parties are adults and mature enough to understand the consequences.
Muslim jurists claim Dower to be a way through which a husband can admit and acknowledge his wife’s
dignity and honour. The practical reasons, however, are two. Firstly, the wife has the Dower money/property
for her exclusive use. Thus, she will not be helpless if the marriage is terminated. Secondly, it serves as a check
on the husband’s unrestricted right of pronouncing talaq because generally the amount of Dower is fixed at
exorbitant heights.
CLASSIFICATION
The basis of classification is whether the parties or operation of law has fixed the Dower and whether it is
payable upon dissolution only or the wife can demand it at any time.
It can be studied in the following manner:
a)Unspecified Dower (Mahr-i-Misl)
b) Specified Dower (Mahr-i-Musamma)

Unspecified Dower or Prompt Dower.

If the amount of Dower is not specified at the time of marriage, it is called Prompt Dower. Then the wife is
entitled to get a proper Dower that is fixed by the courts based on definite and specific principles. The non-
specification should be due to mala fide intentions or negligence. Even if there were a contract that the wife
would not claim any Dower, the wife would still be entitled to proper Dower.
The amount of proper Dower varies as per the application of the following principles:
a) Qualifications of the wife, personal and otherwise;
b) Social position of the wife’s father; and
c) Custom in the wife’s family with respect to Dower.
Hedaya is of the view that age, beauty, fortune and understanding as well as virtue of the wife are also of
significance. Basic principle here is that there should be a comparison between equals.
Shias call it Mahr-I-Mithl or the dower of the like or the equal. It is also called the Customary Dower.
Shia Law sets the upper limit of Dower as 500 dirhams. A dirham is said to be a 2.9 odd grams silver coin.
This was the amount of Dower in the marriage of Fatima, the Prophet’s daughter. Thus it is also called Mahr-i-
Sunnat, as per the traditions of the prophet.
Specified Dower
Usually the Dower is fixed before or at the time of the marriage. The sum or property fixed is called the Mahr-
i-Musamma. It can be settled orally or through a written agreement called the Mahr Nama or may be
incorporated in the nikah nama itself.
Where the parties have attained puberty and are sane, they can fix their own Dower. For minors or insane
parties, their guardians will fix the Dower for them. This amount will be binding on the boy/husband and not
on the guardian. But if the guardian becomes a surety and guarantees payment, he will be personally liable to
pay on the husband’s default.
Shia law makes the guardian liable to pay the Dower if the minor husband has no means of his own.