Family Law Assignment on:

Muslim Marriages
Submitted at the Faculty of Law, University of Lucknow

Batch 2019-24

……………………………………………………………………………………………….

Submitted to:
Mr. Ranvijay Singh, Guest Faculty for Law,
LL.B. (Hons.) Faculty of Law, UoL

Submitted by:
Devaang Dev,
LL.B. (Hons.)
Semester 3, Faculty of Law, UoL
University Roll No.: 1900130150
Class Credentials: Section A/R.N. 39
Introduction to Muslim Law
 Acknowledgement

I, Devaang Dev, LL.B. (Hons.), Semester 3, Faculty of Law, University of Lucknow, would
like to extend my deep sense of gratitude towards our teacher for the subject of Family Law,
Mr. Ranvijay Singh Sir, for pushing us towards the competition of this report and in turn
making us learn a lot about the topic that had been assigned.

I would additionally like to extend my thanks to my fellow hostel-mates who helped me and
kept me going when I was slacking with work and without whose constant support, I would
not have been able to complete the assigned work.

Devaang Dev
 Characteristics of marriage in Muslim Law

Marriages are classified into valid, void and irregular marriages.

1. Valid Marriage: (Sahih) If ail the legal conditions are fulfilled there is a valid
marriage.
2. Void Marriage: (Batil) This is not a marriage at all. Violation of rules of blood
relationship, affinity or fosterage results in making the marriage void. The children are
not legitimate and there is no process to legalise such a union, the marriage with the
wife of another is also void. The void marriage is an unlawful connection which
produces no mutual rights and obligations between the parties. Hence no question of
dower unless there has been consummation. If one dies the other cannot inherit the
property. The marriage is void ab-initio.
3. Irregular Marriage: (Fasid) If the prohibitions of the marriage which are perpetual are
violated the marriage becomes void. But if a temporary prohibition is violated it
becomes irregular. The marriage without witnesses
(a) The marriage with a woman under Idda.
(b) The marriage prohibited on the ground of religion, i.e., nonkitabiyyah.
(c) Marriage with 5th wife
(d) The marriage with two sisters etc. The children of irregular marriage are legitimate.
4. Muta Marriage (Temporary Marriage): Muta literally means 'enjoyment or use'.
Hence, Muta marriage is a marriage for pleasure. It is a marriage for a fixed period, for
a certain-:, award paid to the woman. This was prevalent even during the time of
Prophet, but, now, aii schools of law, except the Ashari Shite, have made this unlawful.
This type of marriage was justified as it was useful in times of war or on travel. It was
condemned later by Omar Khalif. In India this is not common. It is in Persia and Arabia.
Essentials According to Ahari Shite Law a Muta is a marriage, for a fixed period i.e., it
may be for a day, a month, a year or number of years.
The essentials can be understood under the following:
1. The form.
2. The subject
3. The period
4. The dower
1. The Form: There must be a proper contract. Therefore, offer and acceptance are
necessary.
 2. The Subject: A man (Muslim) might contract Muta with a Muslim, Christian, Jewish
or a fire worshipping woman but not with the follower of any other religion. Relations
prohibited by affinity cannot contract in Muta marriage. A man may contract Muta with
any number of women. In Jafri Bibi's case the Privy Council declared that where a co-
habitation commenced with a Muta and there was no evidence as to the term, the
presumption was that the Muta continued during the entire period of co-habitation.
3. The Period: The period may be for one day, one month, and one year or for a number
of years. A Muta terminates by efflux of time or by death. On the expiry of the term he
may make a gift and terminate the contract (with or without wife's consent).
4. Mehar (Dower): Is a necessary condition of Muta. If it is not specified the agreement
is void. If the marriage is consummated she is entitled to the entire amount, if not, only
to half the mehar. In case the wife leaves the husband before the period, he is entitled
to deduct proportionately.
5. Consequences: The children born out of Muta marriage are legitimate and are entitled
to inherit. A Muta wife is not entitled to maintenance because the word wife does not,
in reality, take a Muta wife. The remedy is S. 125 Cr. P.C. Iddat is for two courses. No
inheri tance. No question of divorce arises.

5. Mehar (Kanya Shulka): In Muslim law of marriage, mehar is essential. In a way it

adds to the prestige of wife. It may be money or immovable property. In Abdul Khadir
Vs Salima, the count upheld the right of the wife to mehar if the marriage had been
consummated.
1. Nature. The claim of the wife or widow for the unpaid portion of Mehar is an
unsecured debt. It is an actionable claim. It is due from the husband or his estate. She
may recover or the heirs may recover, If the husband refuses to pay prompt dower the
guardian may refuse to send the minor wife to the husband's place. The wife may refuse
to the husband, his conjugal rights. After consummation the husband cannot refuse to
pay the mehar.
2. Legal Status: Mehar is not only the right of the wife, it adds to her prestige and saves
her in times of distress, or on divorce or death of husband. Further, it acts, as a check
on the power of husband's right to "talak". Mehar may be definite "fixed"' or indefinite
("not fixed"). Definite: Mehar may be fixed oraily or in writing (meharnama); it may
be fixed, before, during or soon after marriage. Indefinite: Generally mehar is fixed as
above, but if not so fixed at the time of marriage, the wife may get the amount fixed
through court. Mehar may be any amount; or immovable property or usufruct of
property like rent etc. Any increase in amount or property is allowed but reduction is
void.
3. Two kinds'. Prompt mehar and deferred mehar. Prompt mehar: Husband agrees to
pay immediately, as per marriage contract. It he so agrees, it becomes payable when
the wife demands. She may claim the amount with interest or refuse consummation.
Deferred Mehar: In the marriage contract, the amount or property is fixed as mehar, but
if it is to be given when marriage is dissolved or on the happening of a contingent event,
it is called deferred mehar. If wife dies, her heirs may claim, the mehar. On husband's
death or divorce, she may sue and recover.
4. Widow's Right to Retention Mehar is a personal right of the widow. As such she has
a right to hold the property until the amount is fully paid. This is called the right to
retention of property. The leading 'case is Mina Bibi Vs. Chowdri Ahmad: H died
leaving his wife W who took possession of H's property. After a few years, some heirs
of H filed a suit for their share in the property. The trial court decreed possession of
property to the heirs, but fixed certain sums to be paid by them to W towards her mehar.
No money was paid. W gifted the property to K. Held gift was bad. But, W had the
right to retain the property until the mehar amount was fully paid. As she had .gifted,
she has no possession, hence, heirs need not pay.
5. Essentials of Right to Retention;
(i) Wife should be in possession of property with consent of husband.
(ii) She may exercise this right against the heirs of the deceased husband,
(iii) She is entitled to the use or benefits of property like rents etc., when she is in
possession.
(iv) She has no title to property; hence she cannot transfer or sell.
The Supreme Court in Kapur Chand Vs Khader Unnissa has held thar the widow has
no right to transfer or sell the property.
 Judicial pronouncements in Muslim Law

• In Abdul Khadir Vs Salima, the court held that the marriage is not a sacrament but
purely a civil contract.
• In Jafri Bibi's case the Privy Council declared that where a co-habitation commenced
with a Muta and there was no evidence as to the term, the presumption was that the
Muta continued during the entire period of co-habitation.
• In Abdul Khadir Vs Salima, the count upheld the right of the wife to mehar if the
marriage had been consummated.
• The leading 'case is Mina Bibi Vs. Chowdri Ahmad: H died leaving his wife W who
took possession of H's property. After a few years, some heirs of H filed a suit for their
share in the property. The trial court decreed possession of property to the heirs, but
fixed certain sums to be paid by them to W towards her mehar. No money was paid. W
gifted the property to K. Held gift was bad. But, W had the right to retain the property
until the mehar amount was fully paid. As she had .gifted, she has no possession, Hence,
heirs need not pay.
• The Supreme Court in Kapur Chand Vs Khader Unnissa has held thar the widow has
no right to transfer or sell the property.
• The leading case: Mohammad Allahabad Vs. Mohammad Ismail. A claiming to be
the eldest son of G brought a suit against Ismail and his 3 sisters for his rights in certain
villages. Ismail and his 3 sisters were born to Mothi Begum after her marriage to G.
But A was born to her at a time when it was unknown, who-the father of A was. G
during his life time had acknowledged A as his legitimate son. It was held:
That there was no proof of paternity of A.
That it was not proved that A was by illicit intercourse.
Therefore, it was held: That A was legitimate and he had a right to inherit. (ii) It must
not be illegitimate: According to Muslim law there is no legitimation. Hence an
illegitimate son cannot be acknowledged to make him legitimate. The principles of
Roman law relating to birth per subsequence matrimania are not applicable.
• The leading case is: Sadiq Hussain Vs. Hashim All. In this case the Privy Council
held that acknowledgement by the
That there was no proof of paternity of A.
That it was not proved that A was by illicit intercourse. Therefore, it was held: That A
was legitimate and he had a right to inherit. (ii) It must not be illegitimate.
 According to Muslim law there is no legitimation. Hence an illegitimate son cannot be
acknowledged to make him legitimate. The principles of Roman law relating to birth
per subsequence matrimania are not applicable.
• The leading case is: Sad Hussan Vs. Hashim All. In this case the Privy Council held
that acknowledgement by the Muslim father of the child as his son is substantive
evidence relating to the legitimacy, and hence, the child was legitimate. There must be
nothing to rebut the presumption of paternity
a. The parties must be such as to be so related as father, wife and child in conformity
with the presumption of paternity.
b. Marriage must be possible between the father and mother of the child.
c. The person acknowledged must not be the child of an illicit intercourse; and
d. There must not be any disclaim or repudiation by the father.
• The leading case is: Habibur Rehman Chowdary Vs. Ataf Chowdary, A was the
daughter's son of the Nawab. N one person H son of Cohen .sued A and claimed that
the Nawab had married Cohen. Hence, he claimed his share as son. Held neither
marriage nor acknowledgement was proved and hence, A failed. Acknowledgement
may be express or implied. Effects: Acknowledgement has the legal effect of making
the child legitimate and has the legal effect of the acknowledgement of the wife also. A
valid acknowledgement gives rights of inheritance to the children and to the wife. An
acknowledgement is not revocable.
• In nawab sadiq ali khan vs. jai kishori, In the case of a shia female, the age of puberty
begins with menstruation, it has been held by the privy council in shia case that the age
of the majority in the case of the girl is attained at the age of nine years.
• In pooja arya vs. state of UP, Where a muslim girl married a hindu boy, which created
a furore in local communities, in cases like this law authorities buy peace at the cost of
constitutional rights and privileges.
• In Shayara Bano V. Union of India and Ors. It was submitted that:
“This practice of talaq-e-biddat (unilateral triple-talaq) which practically treats women
like chattel is neither harmonious with modern principles of human rights and gender
equality, nor an integral part of Islamic faith, according to various noted scholars.
Muslim women are subjected to such to such gross practices which treats them as
chattel, thereby violating their fundamental rights enshrined in Articles 14, 15, 21 and
25 of the Constitution. The practice also wreaks havoc to the lives of many divorced
 women and their children, especially those belonging to the weaker economic sections
of the society.”

Legal consequences of marriage

Marriage under Islam is a matrimonial relation and an institution which legalizes the sexual
activities between a male and female for the object of procreation of kids, promotion of love,
mutual support and creation of families which are considered an essential unit in a society. Just
like Hinduism, Islam is also a strong advocate of marriage. However, the Muslim conception
of marriage differs from the Hindu conception according to which marriage is not a mere civil
contract but a sacrament. According many philosophers, marriage in Islam is a religious duty.
Everyone must marry in order to fulfil one’s desire of procreation of kids legally.

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

Effects of a valid marriage

• The cohabitation between the husband and the wife becomes lawful.

• The children born out of a valid marriage are legitimate and they have right to inherit
their parent’s properties.

• Mutual rights of inheritance between husband and wife are established. That is to say,
after the death of the husband, the wife is entitled to inherit the husband’s properties
and after the wife’s death, husband may also inherit her properties.

• Prohibited relationship for purposes of marriage is created between the husband and
wife and each of them is prohibited to marry the relations of the other within prohibited
degrees.

• The wife’s right to claim dower is fully established just after the completion of
marriage.

• The marriage gives to the wife also the right of maintenance from her husband with
immediate effect.
 • After the dissolution of the marriage, the widow or the divorced wife is under an
obligation to observe the Iddat, during which she cannot remarry.

Void (Batil)

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

Irregular (Fasid)

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

Muta or Nikah mut’ah

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

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

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

After analysing thoroughly the system of Islamic marriage a reasonable and prudent way of
thinking would always conclude that the Islamic personal law with regards to marriage and
divorce need to be changed a lot so to maintain its status in modern society.

Marriage is a religious duty of every Muslim and it is considered to be a moral safeguard and
a social need. The Prophet has also said Marriage is my tradition whosoever keeps away there
from is not from amongst me.

Unlike Hindu where the marriage is a sacrament, marriages in Muslims have a nature of civil
contract. Marriage is necessary for the legitimization of a child. When the marriage is done in
accordance to the prescribed norms it creates various rights and obligations on both the parties.

It appears that Islamic law of marriage and divorce is not identical to the man made laws which
are changed by man himself moment after moment. It is evident that the position of man and
woman in the social set up of the community, is equal in every respect, but keeping in view the
mindset of both the genders, Islam segregates the rights, duties and functions of both the gender
and then declares their status with regard to family matters.

If it is asked that are man and woman equal in Islamic way of life? There would not be simple
positive or negative way of answer rather, one must scrutinize, examine and inspect closely
and thoroughly their respective rights, duties and functions. And then placing a complete
picture in front, it may be possible to answer the above question. In other societies of the world,
the state of affairs is not in concurrence to Islamic way of life. Those other societies always try
to claim that man and woman are equal in every respect which is not a natural phenomenon.
 Bibliography

1. Books:
a. Paras Diwan Family Law
b. Muslim Law by Mulla

2. Online resources:
a. scconline.com
b. indiankanoon.in