FAMILY (MUSLIM) LAW

PART – A

Answer any Five Questions (5 X 6 =30 Marks)

1. Sources of Muslim Law

Ans: The Muslim law has been derived from various primary sources. These are classified as:
i. Quran; ii. Sunna or Ahadis; iii. Ijma; and iv. Qiyas

i. Quran: It is the original or primary source of Muslim Law. It is the name of the holy
book of the Muslims containing the direct revelations from God through Prophet. The
direct express or manifest revelations consist of the communications which were
made by the angel, Gabriel, under directions from God, to Mohammed, either in the
very words of God or by hints and of such knowledge which the Prophet has acquired
through the inspiration (Ilham) of God.
ii. Sunna or Ahadis: The literal meaning of the term ‘Sunna’ is ‘the trodden path.’ It
denotes some practice and precedents of the Prophet, whatever the Prophet said or
did without reference to God, and is treated as his traditions. It is the second
source of Muslim law. Traditions are injunctions of Allah in the words of the prophet.
Where the words of Allah could not supply an authority for a given rule of law,
Prophet’s words were treated as an authority because it is believed that even his
sayings derived inspiration from Allah.

iii. Ijma: With the death of the prophet, the original law-making process ended, so the
questions, which could not be solved either by the principles of the Quran or the
Sunna, were decided by the Jurists with the introduction of the institution of Ijma.
Ijma means agreement of the Muslim Jurists of a particular age on a particular
question of law, in other words, it is the consensus of Jurist’s opinion.

iv. Qiyas: The word Qiyas was derived from term ‘Hiaqish’ which means ‘beat together.’
In Arabic Qiyas means ‘measurement, accord, and equality.’ In other words, it means
measuring or comparing a thing to a certain standard, or to ‘establish an analogy.’ If
the matters which have not been covered by Quran, Sunna or Ijma, the law may be
deducted from what has been already laid down by these three authorities by the
process of analogy (Qiyas). The Qiyas is a process of deduction, which helps in
discovering law and not to establish a new law. Its main function is to extend the law
of the text, to cases which do not fall within the purview of the text.

2. Schools of Muslim Law

Ans: In Islam, the people have been divided into two sects having different views regarding
certain aspects of Islam. Thus, the schools of Muslim law can be broadly classified into two
categories viz i. Sunni Schools; and ii. Shia Schools
Sunni Schools

In Sunni sect, there are four major schools of Muslim law which are as follows;

A. Hanafi School

Hanafi School is the first and the most popular schools in Muslim law. Before being named
Hanafi, this school was known as Koofa School which was based on the name of the city of
Koofa in Iraq. Later, this school was renamed as Hanafi School based on the name of its
founder Abu Hanafee. The Prophet had not allowed his words and traditions from being
written, the Hanafi School relied on the customs and decisions of the Muslim community.
Thus, Hanafi School codified the precedent which in prevalence during that time among the
Muslim community.

The founder of this school Abu Hanafee had not written any book for laying down the rules
of this school and therefore this school had grown through his two disciples- Imam
Muhammed and Imam Abu Yousuf. Both of them gave to the Juristic preference (Isthi
Hasan) and codified the Ijma’s of that period. This school became widely spread in various
territories, as a result, the majority of Muslims in countries such as India, Pakistan, Syria,
and Turkey belong to Hanafi School. In India, since the majority of Muslims are from Hanafi
School, the Courts decide the case of a Sunni Muslim as per the Hanafi School unless it is
specified that they belong to other schools.

In Hanafi School, Hedaya is the most important and authoritative book which was created
over a period of 13 years by Ali bin Abu Baker al Marghinani. This book provides laws on
various aspects except for the law of inheritance. But the Sirajiyya is considered as the
authoritative book of the Hanafi Law of Inheritance written by the Sheikh Sirajddin.

B. Maliki School

This school gets its name from Malik-bin-Anas, he was the Mufti of Madeena. The Maliki
school gives the importance to the Sunna and Hadis whereas the Hanafi school gives the
importance to the people and Isthihsan. As per Maliki School and Law, they rarely accept
the Ijma’a. As per the Law, the person gave Fatwa challenging the sovereign authority of
Khaleefa, he faced enmity and of lack of support from Muslim governments. Thus, this
Maliki school did not get much popularity.

It is followed by Muslims in North Africa, West Africa, the United Arab Emirates, Kuwait,
in parts of Saudi Arabia and in Upper Egypt. The Murabitun World Movement follows this
school as well. In the past, it was also followed in parts of Europe under Islamic rule,
particularly Islamic Spain and the Emirate of Sicily.

C. Shaffie School

The Shaffie School gets its name on the name of Muhammad bin Idris Shaffie, his period
was between 767 AD to 820 AD. He was the student of Imam Malik of Madeena. Then he
started working with the disciples of Imam Abu Haneefa and went to Khoofa.
The Shafii school was founded by Muhammad ibn Idris ash-Shafii. It is followed by Muslims
in Eastern Lower Egypt, Somalia, Jordan, Palestine, Saudi Arabia, Indonesia, Thailand,
Singapore, Philippines, Yemen, Kurdistan, Kerala (Mappilas) and is officially followed by the
governments of Brunei and Malaysia.

D. Hanbali School

The Ahmad bin Hanbal is the founder of the Hanbali School. He found the Hanbali school in
241 (AD 855). He is the disciple of Imam Shaffie and supports Hadis. He strongly opposed
the Ijthihad methods. He introduced the theory of tracing the root of Sunna and Hadis and
try to get the answer all his question. His theory was to return to the Sunna of the Prophet.
When the Imam Shafie left for Baghdad, he declared that the Ahmad bin Hanbal was the
only one after him who is the better jurist after him. The followers of Hanbali school found
in Syria, Phalastine and Saudi Arabia.

Shia Schools

As per Shia Sect, there are three schools of law. Shia Sect is considered as the minority in
the Muslim world. They enjoy the political power only in Iran though they don’t have the
majority in that state also.

A. Ithna-Asharis

These schools are based on the following of Ithna-Ashari laws. The followers of these
schools are mostly found in Iraq and Iran. In India also there is the majority of the shia
Muslim who follows the principles of the Ithna-Asharis School. They are considered political
quietists. This school is considered as the most dominant school of the shia Muslims. the
ja’fari fiqh of the shias in most cases indistinguishable from one or more of the four sunni
madhahib, except mutah is considered as the lawful marriage. The people who follow the
Ithna Asharis school believe that the last of the Imams disappeared and to be returning as
Mehdi (Messiah).

B. The Ismailis

According to Ismailis school, in India there are two groups, the Khojas or Western Ismailis
represents the followers of the present Aga Khan, who they considered as the 49th Imam in
this line of Prophet, and the Bohoras i.e., the Western Ismailis are divided into Daudis and
Sulaymanis.

The Bohoras and Khojas of Mumbai are considered as the followers of this school. It is
considered that the follower of these schools has special knowledge of religious doctrine.

C. Zaidy

The followers of this school are not found in India but are maximum in number in South
Arabia. This sect. of the shia school is the most dominant among all in Yemen. The followers
of these schools are considered as political activism. They often reject the twelver shia
school philosophies.
 3. Muta Marriage

Ans: The Shia Law recognizes two kinds of marriage, namely (1) permanent, and (2) Muta
(literally means enjoyment or use) or temporary. The fundamental difference between the
two is that informer the term is not specified while in the later it is. Sunnis do not
recognize such marriage.

‘Muta Marriage is an ancient Arabian custom.

A shia male may contract a muta marriage with kitabia woman (professing Muslim, Christian
or Jewish religion) or even with a woman who is fire-worshipper but not with a woman
following any other religion. But a shia woman may not contract a muta marriage with a non-
Muslim.

A Shia male can contract any number of muta marriages. All the requisite formalities of
marriage, such as of offer and acceptance, have to be observed in the muta marriage. It is
essential to the validity of muta marriage that: -

a. the period of cohabitation should be fixed (a day, a month, year, years) and that
b. some dower should be specified otherwise marriage will be void. If the period is not
specified, though dower is specified, it should be considered as a permanent union,
even if the parties call it a muta.

4. Batil Marriage

Ans: 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.

When a marriage is performed in violation of absolute impediments or perpetual

impediments, the marriage is batil, null and void void ab initio. A void marriage is no marriage
and no legal consequences flow from it.

5. Irregular marriage

Ans: Due to lack of some formality, or the existence of an impediment which can be
rectified, a marriage becomes irregular (Fasid), 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’.

a. A marriage contracted without required number of witnesses;

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

6. Khula

Ans: The word khula, in its original sense means “to draw” or “dig up” or “to take off” such as
taking off one’s clothes or garments. It is said that the spouses are like clothes to each
other and when they take khula each takes off his or her clothes, i.e., they get rid of each
other. In law it is said to signify an agreement between the spouses for dissolving a
connubial union in lieu of compensation paid by the wife to her husband out of her property.
Although consideration for Khula is essential, the actual release of the dower or delivery of
property constituting the consideration is not a condition precedent for the validity of the
khula. Once the husband gives his consent, it results in an irrevocable divorce. The husband
has no power of cancelling the ‘khula’ on the ground that the consideration has not been paid.
The consideration can be anything, usually it is mahr, the whole or part of it. But it may be
any property though not illusory. In mubarat, the outstanding feature is that both the
party’s desire divorce. Thus, the proposal may emanate from either side.

7. Will (Wasiyat)

Ans: In Islamic law, a Will executed by a Muslim is known as ‘Wasiyat’. The person who
executes the Will is called ‘legator’ or ‘testator’ and the person in whose favour the Will is
made is known as ‘legatee’ or ‘testatrix’. A very famous Muslim scholar ‘Ameer Ali’ defined a
Will from the point of view of Mussalman as a divine institution because its exercise is
regulated by the Holy Quran. At the same time, Prophet had proclaimed that such
testamentary powers must not exert any damage to the lawful heirs.

There is a strict rule in Islamic law that governs the validity of a Will. According to this
rule, a Muslim can make a Will in favour of anyone, only to the extent of one-third of his
total property. If the Will is made beyond one-third of the property, the consent of the
legal heirs is mandatory no matter in whose favour the Will is made.

It can be hypothesized that a Will is a kind of gratuitous transfer of ownership made

through a testamentary document which comes into play after the death of the legator. As
far as the legal concept of Will is concerned, basically it is a gift testamentary.

8. Waqf

Ans: The concept of Waqf has been developed under Islamic Law. There was no concept of
Waqfs in Arabia before the advent of Islam. Although there is no mention of Waqf as such
in Quran such Quranic injunctions which deal with the charity are at the root of the
development and extension of Waqfs. Ameer Ali describes the law of Waqf as, “the most
important branch of Muslim Law, for it is interwoven with the entire religious life and
social economy of Muslims Waqf in its literal sense means detention or stoppage.”

The definition of Waqf according to the accepted doctrine of the Hanafi school is the
extinction of the proprietor’s ownership in the thing dedicated and its detention in the
implied ownership of God in such a manner that the profits may revert to and be applied for
the benefit of mankind.
Waqf under the Muslim Law owes its origin to a rule laid down by the Prophet and means
“the tying up of property in the ownership of the God, the Almighty and the devotion
of the profits for the benefit of human beings.

9. Iddat Period

Ans: In Islam, iddah or iddat is the period a woman must observe after the death of her
spouse or after adivorce, during which she may not marry another man. Its purpose is to
ensure that the male parent of any offspring produced after the cessation of a nikah
(marriage) would be known. The length of iddah varies according to a number of
circumstances.

The iddah of a woman divorced by her husband is three monthly periods, unless she is
pregnant in which case the ‘iddah lasts until she gives birth, or unless the marriage was not
consummated in which case there is no `iddah, or unless she does not menstruate, in which
case "the scholars say that she should observe an ‘iddah of a full year, nine months for
pregnancy and three months for ‘iddah."

For a woman whose husband has died, the `iddah is four lunar months and ten days after the
death of their husbands, whether or not the marriage was consummated. The period, four
months and ten days after the death of a spouse, is calculated on the number of menses
that a woman has.

10. Deferred Dower (Muwajjal)

Ans: Deferred dower- the dower which is payable on dissolution of marriage is known as
deferred dower either by divorce or by the death of the husband.

Deferred dower becomes payable only on dissolution of marriage either by death or divorce.
If it is not so paid, the wife (and after her death, her heirs) may sue for it within three
years from the dissolution of the marriage.

11. Puberty (Khair-Ul-Balgh)

Ans: Under Muslim law, a minor on attaining the age of puberty, has a right to approve or
disapprove the marriage contracted by a guardian who was neither father nor paternal
grandfather. This is called the ‘option of puberty’. In other words, marriage of a minor
contracted by any person other than minor’s father or grand-father is voidable at the
option of such minor.

If a person, on attaining puberty, chooses to repudiate the marriage by exercising his right
of ’option of puberty’ the marriage is dissolved with immediate effect. On the other hand, if
the minor, on attaining puberty, opts to approve the marriage, it is considered to be a valid
marriage since its very beginning.

However, the exercise of this right is not compulsory; the minor, on attaining puberty, may
or may not exercise this right. Where a person has not exercised the right of option of
puberty after becoming adult, it is presumed that he or she has approved the marriage
contracted during minority.
But, under Shia law a minor’s marriage must be approved by the minor on attaining puberty.
According to Shia law, therefore, unless the minor on attaining majority, expressly ratifies
the marriage, it is no marriage at all in the eyes of law’

The age of majority in Muslim law is the age of puberty in spite of 18 years of age. Hedaya
says the minimum age of puberty for a boy is 12 years and for a girl it is 9 years but it has
been fixed at 15 years of age by the Privy Council in the year 1916.

12. Dower (Mahr)

Ans: Dower is a unique feature of a Muslim marriage. But contrary to a widely held
misconception in the West, it is not a bride-price. Although, in the pre-Islamic period a
bride price was paid to the bride’s father, but the requirement of dower itself is one of the
most significant reforms affected by the Quran. According to the Hanafi Jurist Al Kamal,
dower is there to underline the prestige of the marriage, it is not a consideration like a
price, and otherwise it would have been set as a prior condition.

Dower is not a precondition to marriage. It is mentioned in Surah Baqara, Verse 236, that:
“It is no sin for you if ye divorce woman while yet ye have not touched them nor appointed
unto them a portion (dower)”. This means that there is no sin if no dower is paid and the
woman is divorced, before consummation. Since divorce can only occur after a valid marriage
contract, this shows that dower is not a precondition to marriage.

13. Hiba

Ans: A gift or Hiba is a transfer of property, made Immediately, and without any exchange,
by one person to another, and accepted by or on behalf of the latter (Mutfa), Gift is a wide
term, but Hiba is much narrower. As the object of Hiba is to earn love and affection. The
Prophet had recognised it.

Essentials of gift: There are three essentials:

(i) Declaration of the gift by the donor (ijab) (ii) Acceptance by the donee (qabul) (iii)
Delivery of possession of the gift property (qabda). All these must be complied with.

Formalities: Writing is not essential under Muslim law, to make a gift of movable or
immovable property. Sections 123-129 of the transfer of property Act state that a gift of
immovable property must be in writing and must be registered. But gift by the Muslims is
exempted (Section 129). It may not be in writing; if in writing it may not have been
attested; if attested is may not have been registered. Even then the gift is valid.

14. Paternity Acknowledgment

Ans: If a child is born at a time when the parents are not married or a woman bears in her
womb, the child of a man but before his/her birth, she marries another man then the
paternity needs to be recognized by law and the father should acknowledge the child legally.
Once this acknowledgment is done, he can be recognized as the legal father of the child and
the child gets a legal identity as well as legal rights.
 15. Mohammad Ahmed Khan Vs. Shahbano Begum AIR 1985 SC 945

Ans: If a child is born at a time when the parents are not married or a woman bears in her
womb, the child of a man but before his/her birth, she marries another man then the
paternity needs to be recognized by law and the father should acknowledge the child legally.
Once this acknowledgment is done, he can be recognized as the legal father of the child and
the child gets a legal identity as well as legal rights.

16. Hiba-bil-iwaz

Ans: In Islamic law, Hiba is the absolute gift of the corpus (Ayn)of the property without any
return. Hiba-bil-iwaz is a transaction consisting of two separate and distinct parts.

 Hiba—Original gift by the donor to the donee and

 Iwaz—Return gift by the donee to the donor. Therefore Hiba bil iwaz.means
gift with return.

Eg,: A makes a gift of his horse to B, B makes a gift of his camel to A. All the formalities of
the law of Hiba are followed. The transaction becomes Hiba bil iwaz.

Two conditions must be fulfilled:

(i) There must be the actual consideration (iwaz) paid by the donee,

(ii) The donor must have acted with bonafide intention to divest himself of
the property and to vest that in the donee.

The consideration may be adeqaute or not. A copy of Koran, a prayer carpet are good
considerations.This transaction is in reality a sale. Hence, in Hiba bil iwaz giving of
possession is not essential. Even an undivided share (mushaa) may be transferred under this.

M executed a deed in favour in his wife W giving her some immovable property in lieu of her
dower. Held, this was Hiba bil iwaz and hence valid, even though possession had not been
given to the wife (Mohamad Yousoff Vs Ammal).

17. Doctrine ALU

Ans: Though the law of inheritance is admirable and any question can be answered-correctly
and rapidly, there are two circumstances called Awl and Radd, where, there are some
difficulties.

The classes of heirs in Muslim law (Sunni) are class I: Koranic heirs; class II: Agnatic heirs
and class III: Uterine heirs. Then, there are four subsidiary classes.

In the Koranic heirs, and Agnatic heirs in so far as the sharers are concerned, fractions are
allowed. This poses three circumstances;

(i) Equal to Unity

Example: If A dies leaving father, mother, and two daughters, the shares will be: father
1/6, mother 1/6, two daughters: 2/3 Hence 1/6+1/6+2/3=1. Here no difficulty arises.
(ii) More than Unity (Awl)

Example: Husband 1/2, two sisters 2/3. The total of this would be 1/2 + 2/3=7/6. This is
more than one and hence, the difficulty is resolved as follows:

increase the denominator (this is awt) to make it equal to the sum of the numerators,"
Keeping the numerators as they are, the shares are to be reduced proportionately. '
Husband 1/2 = 3/6

(Multiplying by 3)

2 daughters 2/3=4/6 (Multiplying by 2) The total of the numerators is 3+4=7. In this 3+4-7,
divide both sides by seven 3/7+5/7=7/7-1. Hence, the shares are husband 3/7, 2 daughters
4/7.

(iii) Less than Unity: (Radd) .

When the total of shares is less than one, and there are no heirs in class II, the residue
returns to the Koranic heirs (Radd = returns).

E.g., mother 1/6, daughter 1/2.

The total 1/6 + 1/2 is 2/3 which means there is still 1/3 which returns. Hence, M = 1/6

D = 1 /2 =3/6 (Multiplying by 3) Total of numerators 1 +3=4. Dividing both sides by 4

1/4+3/4=4/4=1. Hence mother 1/4 and daughter 3/4

18. Domicile

Ans: Domicile vested with birth of an individual is said to be domicile by origin. There are
three cases of domicile acquired by the origin. When a child takes birth, he is either
legitimate, or illegitimate, or posthumous. Birth is the first medium through which a person
gets in contact with law and environment. Domicile by origin is also called as domicile by
birth.

According to Section 7 of the Succession Act of India, 1925, a legitimate child acquires the
domicile of his father and a posthumous child acquires the domicile of the deceased father.
And according to section 8 of the same act, an illegitimate child acquires the domicile of the
mother at the time of his birth.

19. Legitimacy of Children

Ans: In Muslim law, a son is legitimate only if the offspring is begot by a man and his wife or
a man and his respective slave; any other offspring is known as ‘Zina,’ which means a
clandestine connection, and hence is not legitimate. The term ‘wife’ essentially means
marriage but marriage may be entered into without any ceremony; the presence of marriage
therefore in any particular case may be an open question. Direct proof is needed to prove a
marriage valid, but if there be no such proof, indirect proof shall suffice. Now, one of the
ways for indirect proof is by the acknowledgment of legitimacy in favor of a son. This
acknowledgment must not be merely of sonship, but must be made in such a manner that it
shows that the acknowledger’s intention is to accept the child as his legitimate son.

20. Triple Talaq (The hasan talaaq)

Ans: In this the husband is required to pronounce the formula of talaaq three time during
three successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement
of it may be made after the interval of a month or thirty days between the successive
pronouncements. When the last pronouncement is made, the talaaq, becomes final and
irrevocable. It is necessary that each of the three pronouncements should be made at a
time when no intercourse has taken place during the period of tuhr. Example: W, a wife, is
having her period of purity and no sexual intercourse has taken place. At this time, her
husband, H, pronounces talaaq, on her. This is the first pronouncement by express words.
Then again, when she enters the next period of purity, and before he indulges in sexual
intercourse, he makes the second pronouncement. He again revokes it. Again, when the wife
enters her third period of purity and before any intercourse takes place H pronounces the
third pronouncement. The moment H makes this third pronouncement, the marriage stands
dissolved irrevocably, irrespective of iddat.

21. Mutawalli

Ans: According to the Waqf Act 1954, a Mutawalii is a person appointed either verbally or
under any Waqf deed or instrument or by the State Waqf Board. Any person or committee
managing or administering any Waqf property is also a Mutawalii as per the Act. Mutawalii is
a manager. The Waqf property will not vest in him. It vests in Allah.

All matters relating to the appointment, powers, functions etc. of the Mutawalii are
governed by the Waqf Act 1954.

Scheme: The Central Govt. has constituted a Central Waqf Council to advise the State
Waqf Boards on the working and administration of the Waqfs. The State Waqf Board is
formed in each State in India. Its composition powers and functions are defined. The
Mutawalii, exercises his powers as per the directions of the Board, which controls him.

22. Kinds of Guardianship

Ans: Under Muslim law, it is called HIZANAT. They are sometimes taken to mean the same
thing. But underneath Muslim law, these two aspects of the guardianship are different and
are governed by the different laws.

The guardianship of a child means that overall oversight of the kid throughout its minority.
Father or his executor or in his absence, the paternal grandfather, being the natural
guardian, is in charge of the minor’s person. On the opposite hand, ‘custody of the child’
simply means a physical possession (custody) of the child upon a certain age.

Although the mother is not the natural guardian of the child under Muslim law, she has a
right to the custody of the child, until the child attains a specific age. But the father or the
paternal grandfather encompasses control over the minor throughout the complete interval
of the minority.

Muslim law recognizes the following kind of guardianship:

a. A natural or legal guardian

b. Testamentary guardian
c. Guardian appointed by courts or statutory guardian
d. De-facto guardian

23. Indian Succession Act, 1925

Ans: The Act is known as Indian Succession Act, 1925. Act was enacted on 30th September,
1925. Basic purpose of enacting this act was to make different rules which will be applicable
to person who make will deed before his demise and to those who do not prepare will before
their demise and thereon. For the purpose of this act, “administration means, a person who
is appointed by capable authority who can manage property of departed person when there
is no officer who execute it”, “addition is, such instrument which is made with respect to
will, for adding, altering, of explaining any term or any portion of will”, “executor is a person
who execute will of a deceased person”, “will is legal declaration of intention of testator in
relation to his property which he desire to be carried with effect after his death”, “probate
means an another copy of will which is certified with seal of court of having jurisdiction of
doing so with grant of administration to estate of testator”.

PART – B

Answer any Two Questions (2 X 15 =30 Marks)

1. Explain the source of Muslim law. (May 2011) (Sept 2012) (Aug 2018)
Discuss various kinds of Mohasmmadian Law (May 2017) (Dec 2020)

Ans: Islamic jurisprudence draws on a variety of source materials of Islamic law to explain
Sharia, meaning the framework of Islamic law. The Quran and Sunnah are the fundamental
sources, both of which are uniformly recognized by all Muslims. The Quran is Islam’s holy
scripture, which Muslims consider to be Allah’s direct message. The Sunnah is a collection of
the Islamic Prophet Muhammad’s religious activities and quotes as recorded by his Followers
and Shia Imams. Some schools of law, on the other hand, adopt alternative approaches to
determine the validity of a source. The main sources do not address every possible scenario,
jurisprudence must rely on sources and genuine texts to determine the appropriate course
of action. Secondary sources of Muslim law as per Sunni schools of law are Muslim jurists’
customs, judicial decisions, legislation, equity, justice and conscience. The Hanafi school
typically employs representational reasoning and logical reasoning, whereas Maliki and
Hanbali tend to rely on Hadith. The Quran, Sunnah, consensus, and aql are the four sources
used by the Usuli school of Ja’fari jurisprudence among Shia. They focus on aql (intellect) to
find broad concepts founded on the Quran and Sunnah and employ usul al-fiqh as a method
to understand the Quran and Sunnah in various contexts, while Akhbari Jafaris depend more
on Hadith and not follow ijtihad. According to Muslim law, there are fewer differences in
the actual application of jurisprudence to ceremonial traditions and social interactions
between Shia and the four Sunni schools of law, despite crucial differences in jurisprudence
foundations.

The personal law of Muslims is based on Islam. Islam had its origin in Arabia and from
whence it was transplanted into India. In Arabia, Prophet Hazrat Mohammed, himself an
Arab, promulgated Islam and laid down the foundation of Islamic law. The main groundwork
of Islamic Legal System was nourished and developed by Arab-jurists, and the real
fountainhead of Islamic Jurisprudence is to be found in the pre-Islamic Arabian customs
and usages of the 7th century of the Christian era.

Primary sources of Muslim Law

The Muslim law has been derived from various primary sources. These are classified as:
1. Sunna or Ahadis
2. Quran
3. Ijma
4. Qiyas

Quran
It is the original or primary source of Muslim Law. It is the name of the holy book of the
Muslims containing the direct revelations from God through Prophet. The direct express or
manifest revelations consist of the communications which were made by the angel, Gabriel,
under directions from God, to Mohammed, either in the very words of God or by hints and
of such knowledge which the Prophet has acquired through the inspiration (Ilham) of God.
All the principles, ordinances, teachings and the practices of Islam are drawn from Quran.
The contents of Quran were not written during the lifetime of the Prophet, but these were
presented during the lifetime of Prophet, in the memories of the companions.

There is no systematic arrangement of the verses in the Quran but they are scattered
throughout the text. It contains the fundamental principles which regulate the human life.
The major portion of the Quran deals with theological and moral reflections. The Quran
consists of communications of God; it is believed to be of divine origin having no earthly
source. It is the first and the original legislative code of Islam. It is the final and supreme
authority.
Sunna (Traditions or Ahadis)
The literal meaning of the term ‘Sunna’ is ‘the trodden path.’ It denotes some practice and
precedents of the Prophet, whatever the Prophet said or did without reference to God, and
is treated as his traditions. It is the second source of Muslim law. Traditions are injunctions
of Allah in the words of the prophet. Where the words of Allah could not supply an
authority for a given rule of law, Prophet’s words were treated as an authority because it is
believed that even his sayings derived inspiration from Allah.

According to Muslim law, there are two types of revelations i.e. manifest (Zahir) and
internal (Batin). Manifest or express revelations were the very words of Allah and came to
the Prophet through the angel Gabriel. Such revelations became part of the Quran. On the
other hand, the internal revelations were those which were the ‘Prophet’s words’ & did not
come through Gabriel, but Allah inspired the ideas in his sayings. Such internal revelations
formed part of Sunna. Traditions, therefore, differ from Quran in the sense that Quran
consists of the very words of God whereas a Sunna is in Sunna or traditions consists of:
  Sunnat-ul-Qual (word spoken)
 Sunnat-ul-Fail (conduct)
 Sunnat-ul-Tahrir (silence)
 Ijma (Consensus)

With the death of the prophet, the original law-making process ended, so the questions,
which could not be solved either by the principles of the Quran or the Sunna, were decided
by the Jurists with the introduction of the institution of Ijma. Ijma means agreement of
the Muslim Jurists of a particular age on a particular question of law, in other words, it is
the consensus of Jurist’s opinion.

Those persons who had knowledge of law were called Mujtahids (Jurists). When Quran and
traditions could not supply any rule of law for a fresh problem, the jurists unanimously gave
their common opinion or a unanimous decision and it was termed as Ijma. Not each and every
Muslim was competent to participate in the formation of Ijma, but only Mujtahids could
take part in it.

There are three kinds of Ijma:

 Ijma of Companions: The concurrent opinion of the companions of Prophet was
considered most authoritative and could not be overruled or modified.
 Ijma of the Jurists: This was the unanimous decision of the jurists (other than
companion).
 Ijma of the people or masses: It is the opinion of the majority of the Muslims
which was accepted as law. But this kind of Ijma has little value.

Once a valid Ijma is constituted, it is regarded equal to Quranic verse i.e. it is equally
binding on people. Without Ijma, these rules of Islamic law would have been diffused and
incomplete. Its principles cover the vast subject. Ijma authenticated the right
interpretation of the Quran and the Sunna.
Qiyas (Analogical deductions)
The word Qiyas was derived from term ‘Hiaqish’ which means ‘beat together.’ In Arabic
Qiyas means ‘measurement, accord, and equality.’ In other words, it means measuring or
comparing a thing to a certain standard, or to ‘establish an analogy.’ If the matters which
have not been covered by Quran, Sunna or Ijma, the law may be deducted from what has
been already laid down by these three authorities by the process of analogy (Qiyas).

The Qiyas is a process of deduction, which helps in discovering law and not to establish a
new law. Its main function is to extend the law of the text, to cases which do not fall within
the purview of the text. For valid Qiyas, the following conditions must be fulfilled:

 The process of the Qiyas can be applied only to those texts which are capable of
being extended. The texts should not be confined to a particular state of facts or
rules having a specific reference.
 The analogy deduced should not be inconsistent with the dictates of the Quran and
authority of Sunna.
 The Qiyas should be applied to discover a point of law and not to determine the
meanings of the words used in the text.
 It must not bring a change in the law embodied.
If there is a conflict between two deductions, a jurist is free to accept any one of the
deductions from a text. Hence one analogy cannot abrogate the other.

Compared with other sources, Qiyas is of much lesser significance. The reason is that on the
analogical deductions, resting as they do, upon the application of human reasons, which is
always liable to error.

It may be concluded that the superstructure of Islamic Jurisprudence is founded on

Quranic verses and traditional utterance of Prophet, yet other sources have also helped a
lot in developing the sacred law in its present form. It is due to the contribution of all the
sources of Islamic law that an orderly and systematic theory of the personal laws of Islam
came into existence, which governs the Muslim community.

Secondary sources of Muslim Law

Judicial decision – (Precedent)
Judicial precedent refers to the procedure by which judges follow earlier decisions in cases
with relatively similar facts. The idea of judicial precedent is based on the principle of stare
decisis, or conforming to what has already been declared. In reality, this implies that lower
courts must follow the procedural rules established by higher courts in previous decisions.
This ensures that the law is satisfactory to both parties. However, it is to be considered
that the concept of “precedent” is not covered under Muslim law. Kazis’ judgments were
never regarded as precedents under English law. ‘Fatwas,’ which have both moral and legal
authority, are the closest approach to this theory in Muslim law. But while a Mufti would
declare Fatwa on a scholar, the Kazi was not obligated by it. Several Fatwa compilations
exist, the most notable of which is Fatwa-al-alam-giriyya. Many gift and Waqf practices
have been altered to safeguard women, and there is a cluster of precedent under Muslim
law. Today, the doctrine of stare decisis is incorporated into Muslim law.

Custom
Hindus recognized that a custom, if otherwise legitimate, supersedes a provision of sacred
law as early as 1868. In the instance of Muslim law, the Privy Council conveyed the same
sentiment concerning conversions who prefer to adopt Islam but keep their rules, but the
Orthodox refused this viewpoint, and the Shariat Act of 1937 was enacted. Despite the
fact that all schools trust in the Four Ancient Sources, they do not reject the concept of
Customs. The Prophet also kept existing Arabian customs, as long as they did not contradict
Muslim law. Customs are recognised as an addition to Muslim law. Since there was no Islamic
law code at the time, the Prophet and his followers had to rely on conventions to resolve
some issues. For example, foster mother remuneration, civil wrongs recompense, and so on.
According to Muslim jurists, a legitimate Custom must meet four characteristics which are
mentioned below:
1. A custom must be repeated regularly, i.e. it must be continuous and noticeable.
2. It should be applicable to everyone and should be rational.
3. It must not contradict any implied text of the Quran or the Sunnah.
4. It does not have to be very old.

Legislation
Legislation as per Cambridge Dictionary has been defined as “a law or set of laws suggested
by a government and made official by a parliament.”The importance of legislation may be
seen in the fact that, on the one hand, it establishes rules and procedures through the
parliament, while on the other hand, it has state-level authority. Some parts of the
legislation were approved by the Hanbali school under the names Nizam (Ordinance/Decree),
Farmans, and dastarul amals, but they were not connected to personal laws. The British were
never allowed to interfere with personal laws, Muslim law suffered greatly as a result of the
lack of effective regulatory frameworks. There were just a few laws in this area, including
the Shariat Act of 1937 and the Mussalman Waqf Validating Act of 1913. The Dissolution of
Muslim Marriage Act of 1939 was a breakthrough in Muslim law since it granted a Muslim
wife the right to a judicial divorce on particular conditions. Following independence, in 1963,
a motion to change Muslim personal law was introduced in Parliament, sponsored by
progressive Muslims but opposed by the orthodox, resulting in few modifications in this
area.

2. Discuss Origin and Development of Muslim Law (Sept 2014) (May 2016)
Ans: very religion which has ever prospered on the earth, promulgated to its followers a
sacrosanct course of action to live their lives. ‘ISLAM’ is the work of God, where ‘QURAN’ is
at the center of the lives of the all the people attached to it and acting as a centripetal
force towards the holy center. Founders of Islam believed in one God, which via revelation
have guided and regulated the human conduct of its followers. Islam is a monotheistic
religion, which means it believes in existence of only one God that is ‘ALLAH’, which is the
creator of the world, which is omnipresent, omniscient and intervenes in the world. The
meaning of the word ‘Islam” is ‘submission to the will of the god’. The followers of Islam are
called Muslims. Islam have survived the sands of time, to test itself to the belief of other
religion. Islam is the direction of God to man through the holy book of Quran and its
messenger Muhammad.
Development of Islamic law
Islam is an Arabic word which means “submission”. It is developed from the
word “sa’lm” which literally translates to “peace”. Prophet Muhammad is a pioneering figure
in Islam. He is believed to be last in the long line of messengers such as Abraham, Moses,
Noah and Jesus. A much of the emphasis is based or we can say the founding stones to the
pyramid of Islam were laid by Prophet Muhammad. The life of Prophet Muhammad is
imperative to the understanding of Islam. Prophet Muhammad was born in the city of Mecca,
which was the home of a powerful tribe of Quraish around 570 A.D. Prophet was regarded
as Al-Ameen – the Trustworthy because of the fact of his loyalty as a merchant in early
days of his life. He was a spiritually intrigued person and frequently meditated in a cave at
Mount Hira, near Mecca. On one such particular juncture, he was instructed to cantillate “in
the name of [your] lord.” by the Archangel Jibril.

The revelations were the first of a plethora which formed the very edifice of the Quran.
These vouchsafes contradicted the pre-Islamic polytheistic beliefs and propelled for the
existence of a monotheistic belief. The metamorphosis stated with her wife Khadijah, as
she was the first transmute to the Islam. Her advice was of great importance to the
prophet as she always prompted prophet that Allah will not let him glum. After her demise in
620, prophet married again eight times, of which all were instrumental in spreading the
teachings of Allah. Muhammad received numerous revelations from Gabriel for next 23
years, which were recorded by his scribes.
This verse imparts that prophet was not at liberty to innovate or legislate, he was subject
to the divine edicts and express consent of Almighty. The only hope for the survival for the
Muhammad and his followers was – The Hijra (Emigration). The emancipation led Muhammad
to Medina, another oasis town. The operation of being poignant from mecca to medina is
known as Hijra. It also denoted the first month in the Islamic calendar. Almost all the
Arabia was under the emblem of Islam, when Muhammad made his last pilgrimage to mecca,
with 120000 men and women. At the age of 62, Muhammad quietus shunned the world.

Quran – principal source of Islam

Quran is the genesis of Islam and also the primary source. Its significance is spiritual and
sacred in Muslim principle. Every word of Quran is that of God, communicated to the
Prophet Muhammad through Gabriel. Quran exercises its influence in shaping Islamic
principles though not pragmatically but theologically ‘a code of rules’ for Muslims. In the
tradition of the Muslim faith, the Holy Quran is the last Book of God revealed to the
Prophet Muhammad who was the last Prophet of God on earth figuratively the “Khatam-a-
Nabiyin“ (Seal of the Prophets) – after which no other Prophet was, or will ever be, sent by
God. The Quran gave the idea that the law is God’s direct commandment. His law must be
a ‘single whole’.

Around 6000 ‘Ayats’ are there in Quran. Legal importance of the verses as they have around
200 verses related to law and enforcement, with only 80 verses related to family law and
policy state policy. Its importance is political, social, emotional, religious etc., all of
the revelation were to Muhammad in medina.
As Islam flew in pace with the sands of time, Muslim Law encompasses a marvelous system
of jurisprudence culminating into all branches of law including both public and private, and
covering all legal subject including Criminal law (Jinayat), Governance, administration of
justice, transactions (Muamalat), Personal status and Human Rights (Huqooq-ul-Ibad). Having
its genesis in divine, it is widely believed that Muslims cannot be changed and attempts to
change or alter must be condemned thus the actions of legislature which are in consonance
of uniform civil code are greatly criticized.

Quran a as primary source of Islamic law flourished in the hearts of Muslims and still is a
touch stone to the customs and practices followed by Muslims worldwide.

Other paramount sources of Islam

1. Sunna – The literal meaning of the Sunnah is “a form, a procedure, a course of
action.” The purpose of the Sunnah is the exposition, explanation and
supplementation of the Quran. Its literal interpretation in Islamic law is that it
practices of prophet which involves his tacit approvals, deeds and sayings. In other
words, it is a prism to understand the spectrum of teachings of the Quran. Sunnah
laws encouraged in the introduction of Waqfs, gifts etc. though they had mention in
Quran but were widely accepted through the traditions of prophet. The combined
sources of Quran and sunnah is called as Naas (binding ordinance).

2. Ijma – the validity of ijma as a source of law is approved by various jurist based on
the consensus reached among them on a particular issue.
 There can be no consensus on error, or misguided behaviour amongst my people”.
[Hadith] The validity of ijma can be expressed or through actions. Muslims who
have knowledge of law and is self-sufficient in taking their own opinion are
considered as Jurist (Mujtahids). but like the modern-day judges they were also
bestowed with duty to reason their opinion from a settled principle of the
Constitution in their case the holy Quran. Ijma as a source is of great importance
as they have allow the space for changes to breath with the evolving time. The
validation of ijma is based on the reason. “O ye who believe; obey God and obey
the Prophet, and those of you who are in authority, and if ye have a dispute
concerning any matter, refer it to God and the prophet” (Quran 4:5a)

3. Qiyas – the meaning of the word is derived from Aramaic descent which means
‘measurement’. They are the last lowest in the sources of law. Qiyas are often
ascertained with the ‘analogical deductions’ i.e., they are decisions for consistency
and were based on already existing principles. They are in corollary to the existing
law. All four schools of Sunni agreed to the assertion of qiyas as source of law but
varied on the scope of Qiyas. Shias don’t give cognizance to qiyas as a source of
law.
Secondary sources of Islam
 Customs – customs as a source of law were in prevalence before the Islam occupied
Arab. Prophet abolished customs which were found to bad or evil by the prophet and
some were given sanction by prophet through is assent and conduct. Jurist also
formed their unanimous decision on the basis of customs. Today, Customs are force
of law in Islam excluding matters related to inheritance, special property of females,
marriage, dower, divorce, maintenance, guardianship, gift, Waqf and trust which are
governed under the purview of Sharait Act, 1937.

 Judicial precedent – British regime made judicial precedents a part of Muslim law.
They were originally never a part of Islam. Fatwah’s were part of Islamic law, there
also the Kazi’s were not bound to follow the same. After the independence the
Doctrine of Judicial Precedent was supported and implemented by the courts and the
Constitution of India. Courts provided interpretation on the question of law where
the provision were unclear in providing solution. The decision given by Supreme court
and High Courts acted as binding precedents for the time being in force. Court gave
interpretation in various cases to draconian provisions conflicting with fundamental
rights especially of women in relation to divorce, maintenance etc. case laws of Shah
Bano, Shayara Bano and Begum Subanu etc. are few of the landmark cases which
holds the grounds of ‘Reasonable Nexus’ and ‘Intelligible Differentia’ in the courts.
 Legislation – legislations are another postulate which are a product of the British
regime. In Islam, there is a rejection of every other source other than God vis-à-vis
Quran, but legislation is being enacted to deal with particular matters of debate, the
Islamic community are reluctant to accept the changes done or new legislation given,
this has sometimes led to a loggerhead between the community and the government.
The Shariat Act, 1937 is one such legislation which legislates on Muslims. Waqf
Validating Act of 1913 is another example of such legislation.
  Equity and absolute good – it is based on the principles of justice and equity, as used
in English common law. we find it in Islam that the purpose of Islam is to guide human
in fundamental principles of religion, morality, economically, which have derived its
origin from the natural source.

Istihasan (Preferences) – it interprets into preference of stronger base or evidence

compared to analogy. It is considered by jurist as a source of preference where something
appeals more to juristic preference or equity. When a stronger analogical base is present in
Quran, Sunna and Ijma, the Qiyas will be overridden. Abu Hanifa developed the said source.

Istisalah (Public Interest) – the meaning to the source is set to be in the domain of public
interest and benefit of public at large. Here the wisdom of the jurist plays a role to
pronounce rulings with the underlying original text, in interest of Muslim community. The
source was validated by Imam Malik.

Istidlal (textual indication) – it provided flexibility in interpreting the sources and gave a
chance to jurist to avoid strict interpretation when no precedent could be found. It refers
to the inferring of one thing from another to reach out same rule using different basis using
reason and logic.

Schools of Islamic law- After the death of Prophet Muhammad, there was split in the
Islam as to who will be the next leader. The majority supported the father of fourth wife
(Ayesha Begum) of Muhammad, Abu Bakar, this sect later came to be known as Sunni
Sect and Abu Bakar as the first Caliph. Th dissenting sects chose husband of daughter
(Fatima) of Muhammad, Ali, as their leader, this sect later came to be known as Shia
Sect and Ali as the first Imam. Both of the sects further divide on the basis of
interpretation of Supreme source. Islam is tolerable to other religion and give people
freedom of opinion, but that comes with caveat of it must coincide with commands of Allah.
First, we’ll be discussing the Sunni sect and its various schools:

1. The Hanafi school – Abu Hanifa was the founder of the school. It is based on less
reliance to the unsighted customs and emphasized on the analogical deductions
verified through the text of Quran. The use of local customs and usages as guiding
principles in law. He established the Istihasan as development of legal principle to
the needs of changing times and also advocated for the Ijma. This schools became
extremely popular among Muslims for their liberal thinking within the ambits of
sources of Islam.

2. The Maliki school – the school was founded by Malik Ibn Anas. The school believed
highly of traditions and gave due importance to them even if they were of one
character. The school was prominent in foundation of Istisahah as source of law,
though it must be resorted onlywhen there was ambiguity in decision based on other
sources. The traditions of the companions of prophet and of Medina are considered
of high regard. The rights of the women in property were not effectively
represented in the schools as the properties of her must always remain under her
husband, for she cannot take care of her property alone. The followers of the school
are mostly situated in north Africa and Spain.
 3. The Shaefi’s school – Abu Abd Allah Muhammad ibn Idris Ash Shaefi founded the
school. His most valuable contribution is foundation of Istidlal, he believed that the
problem of every solution is there in Quran. He rejected the application of Istihasan
and Istisalah as a source of law. the emphasis was laid on Qiyas as source only after
Quran, customs and Sunna. The major drawback to the school was to the women’s
rights to marry which was subjected to the consent of her guardian even after she’s
major.

4. The Hanbali school – Imam Abu Abdullah Ahmed ibn Muhamad Hanbal was the
founder of the school. Hanbal was regarded as a traditionalist and gave much
emphasis to traditions, with unbending approach to hadiths. In the school very less
emphasis is laid down to the human logical reasoning and the ijmas and qiyas were also
subdued in the school. The ijmas of the companions of the prophet were admitted
only when it had no contradiction to the Quran and Sunna. The followers of the
school are present in Saudi Arabia and Qatar.

After discussing the Sunni schools in detail, now we are heading towards the Shia schools:
1. The Imamiyah School – the meaning of the term ‘Imamiyah’ in Arabic is Twelve’rs. It
had 12 Imams to its credit. The school is the only one to allow ‘muta’ marriage
or ‘temporary marriage’. The school of thought is further divided
into Akhbaris and Usulis. The Akhbaris are ardent followers of religion and the Usulis
apply the principles of Quran in the realistic chaos of life. The Shia’s are majorly of
this school. The school is found in Iran, Iraq, Lebanon, Pakistan and India.

2. The Ismailiyah School – the demise of Imam Jafar lead to the foundation of the
school when the minority refused to acknowledge Musa-al-Kazim and started
following Ismail. The name ‘Sabiyya’ or Sevener’s for accepting only seven Imams.
They are further sub divided into Khojas and Bhoras. The Ismailiyah’s of Bombay are
either Khojas or Bhoras. The khojas are the ones who believed Aga Khan to be the
49th Imam and Bhoras are mainly merchants. Egypt saw prevalence of school in the
Fatimid regime and is prevalent in south Arabia, Syria, Pakistan, central Asia and
East Africa.

3. The Zaidiyah school – one of the fourth Imam’s sons, Zaydi founded the school. The
peculiar feature of the school is that it has some of the tenets of the Sunni sect.
The sects believed in the basis of election on the concept of election and imam was
regarded as a “right guide”

4. The Motazila Sect – the followers of the sect disregarded both the popular sect and
were originally the deserter of Shai sect. Ata-al-Ghazzal was the founder of the
school. Quran is the only threshold of the followers of this group and they only
believe in that.

Role of Shariat in Islamic law

Shariat – In Islam, the “law” is of divine origin. The law is what is recognized by a
declaration of God related to human actions, that expresses a request or indifference on
your part, or that is simply declarative. In Islam, therefore, “law” means God’s instruction to
regulate all human, spiritual, moral or worldly behavior. These instructions from God to the
people include Shariat. For humans, the meaning of Shariat is “the way forward”. Therefore,
Sharia in the symbols of Islamic behavior can be seen as a heavenly origin in all its aspects.

Development of Islam in pre and post-Constitutional era

Pre-Constitutional era – during the time of Mughals, Islam flourished with their personal
laws being propagated to wider section of society. But, to our despair, religious persecution
of non-Muslims in the name of Islam was also a reality of the adversity faced by the people
during the reign of Mughals. The East India Company was not as such, was in a role of
administration of people upon their personal laws.

The Charter in 1661 during the reign of Charles II, authorized the company to administer
the few places under the control of company in administration of justice according to laws
of the British kingdom. The hegemonic claims influenced various aspects of Indian life –
Social, Political and Legal. A new class of educated People were created during the regime,
which undermined Islamic principles on rationale and observation, this proved to have a
downhill impact on the Islam on theocratic front. The Indian legal system under gone a
change during the British regime, with it the personal laws also changed. These changes
were largely instrumental in transforming India to develop a system on Principles of Justice,
Equity and Good Conscience. The British for a variety of reasons did not indulge into
transforming Islamic laws directly.

Post Constitutional era – after independence, the attempts were made to make all personal
laws of different religions to be unified under the banner of Uniform Civil Code. The
attempts were made to align personal laws in consonance with the secular nature of the
Constitution, to end centuries old laws outdated by the common need of the society – article
25 was inserted in the Constitution of India. The Centre and state governments ‘dared’ to
change personal laws but was faced by stirred agitation from different parts of the
country. “Muslim Personal Law (Shariat) (Kerala Amendment) Act, 1963, Meghalaya Muslim
Marriages and Divorces Registration Act, 1974, Jammu Kashmir Muslim Personal Law
(Shariat) Application Act, 2007” are few of such legislations which were a move in such
directions. The legislation though implemented in ‘Letter’ but, failed in ‘Spirit’ to provide
any substantial change. The Muslim Women (Protection of Rights on Divorce), 1986 failed to
provide any relief to destitution of women for maintenance after divorce.

3. Discuss the essential requirements of Muslim marriage. Distinguish between void,

irregular and valid marriages. (May 2011) (July 2012) (Aug 2012) (Aug (2014)
(Aug 2015) (Sept 2014) (Sept 2018) (Sept 2019)
Distinguish between void, irregular and valid marriages and pointing out the
circumstances under which a marriage is considered irregular. (Sept 2016)
Who is Mohammedan? Examine the Mohammedan theory of marriage and the
essential conditions of valid marriage. (May 2017)

Ans: Essential of a valid marriage:

 There should be a valid proposal by one party saying “Izab” and acceptance by
another by saying “Qubul”.
 The proposal and acceptance must be given at the same meeting.
  Every Muslim who is of a sound mind and has reached puberty (i.e., 15 years of age) is
considered competent to enter in a contract of marriage. Thus, those parties are
competent to marry.
 There must be free consent to marry without any duress, coercion, fraud, or undue
influence.
 A Muslim marriage cannot take place if the parties are within the within blood
relationship or prohibited degree of relationship of each other and the Marriage
turns to be void.
 There should be no legal obstruction to the marriage of the parties.
 The proposal and acceptance must be made in the presence of two males or one male
and two female witnesses who are adults and Muslims, under the Sunni law.
 Witnesses are not required at the time of marriage in Shia law.

Case Laws
Adam v. Mammad (1990) (1) KLT 172
In this case, the girl’s father had given his consent, and the daughter had withheld hers.
Thus, no valid marriage had taken place. So, the judge upheld that consent is a must for the
validity of a marriage.

Yusuf v. Sowramma AIR (1971) Ker. 261

In this case, the learned Judge J. V. R Krishna Iyer stated that there is a common
misconception that no religious consequences or social solemnity are attached to Muslim
marriage and that it is merely a civil contract. However, there is no definite argument put
forward by the judge and neither has he gone deep into the principles of Shariah.
Following are the reasons to state that Muslim marriage is not only a contract:
 It cannot be made contingent on a future event.
 It cannot be for a limited time except a muta marriage.
 The wife is not authorized to divorce her husband or to live with a third person if a
part of the dower remains unpaid.

Classification of marriages
Muslims are divided into two denominations – Shia and Sunni. Sunni law is based on the
validity of a marriage classified into the following kinds:
1. Sahih (valid marriage),
2. Batil (void marriage) and
3. Fasid (irregular or invalid marriage).
Shia law does not acknowledge or recognise an irregular marriage and treats marriages to be
either void or valid.

Sahih (valid marriage)

A marriage which fulfils all the conditions of a valid marriage as prescribed is considered to
be valid. A valid marriage gives rise to the following legal consequences:
 The parties obtain the status of husband and wife due to which sexual intercourse
between them becomes legal.
 Both parties have the right to legacy.
 The wife gets the right to maintenance and the right to live with her husband.
 The wife also has the right of getting mahr or dower from her husband.
 The wife is under the responsibility to be loyal and duteous.
  The marriage institute injunction of marriage due to analogy on both sides., for
example, the husband cannot marry the wife’s sister.
 The husband has the power of reasonable punishment and rectification against the
wife if she is not faithful or duteous.
 The children born out of that marriage are considered to be legitimate.
 The husband has the right to confine the movement of the wife for a valid reason.

Void marriage (Batil)

A marriage in violation of prescribed legal conditions is called a batil or a void marriage. It is
void-ab-initio i.e., it is void from its establishment and does not create any legal rights and
duties on the parties. İn this, the wife is not permitted to claim maintenance but can claim
mahr if the marriage has been consummated. The children born out of that marriage are
considered to be illegitimate. In such a marriage, the parties can move out of the
relationship at any time.

Irregular marriage (Fasid)

A marriage in violation of partial or qualified legal obstruction is considered to be an
irregular marriage. Marriages under Sunni law are considered to be irregular under Shia law.
An irregular marriage has no legal effect before completion. After completion, it gives rise
to some obligations such as; the wife has to perform Iddat on the dissolution of marriage
due to divorce or death of the husband. The children of an irregular marriage are legitimate
and have the right to inherit the property.

4. Explain the salient features of the Waqf Act, 1995. (May 2011)
Define Waqf. Explain essentials and kinds of Waqf. (Sept 2014)
Explain the essentials of Waqf. How is created and revoked. (Sept 2017)

Ans: The Essentials Of Waqf:

 A permanent dedication to any property.
 The dedicator (waqif) should be a person professing the Mussalman faith and of
sound mind and not a minor or lunatic.
 The dedication should be for a purpose recognised by the Mussalman law as religious,
pious or charitable.

Who started Waqf?

The earliest known Waqf, founded by financial official Abū Bakr Muḥammad bin Ali al-
Madhara’i in 919 (during the Abbasid period), is a pond called Birkat Ḥabash together with
its surrounding orchards, whose revenue was to be used to operate a hydraulic complex and
feed the poor.

Functioning of Waqf
The Waqf provided a legal way to circumvent the Shariʿah’s requirement that an
individual’s estate be divided among many heirs. Through a Waqf, an individual could endow
an institution or group with all or part of his estate, in perpetuity, before his death.
Public Waqfs are created to serve charitable ends, while private Waqfs are often willed
down to a property owner’s direct descendants.
The owner of Waqf property
Waqf Board or persons/officers serving under the BOARD has no right to sale or transfer
Waqf property. Property once dedicated as Waqf it always remains Waqf. It always remains
inalienable. it cannot be sold. The Waqf Board has only power to manage control and deal it
according to the Waqf deed .

The Waqf is managed by a mutawali, who acts as a supervisor. It is similar to a trust

established under the Indian Trusts Act, 1882, but trusts can be set up for a broader
purpose than religious and charitable uses. A trust established can also be dissolved by the
Board unlike a Waqf.

Can a Waqf be revoked?

Once a Waqf has lawfully been constituted, it cannot be revoked. In the creation of
Waqf it is implied that since the ownership of the property is presumed to vest immediately
in God, the settlement is irrevocable.
Appointment of Mutawalli
Primarily, the right to appoint a Mutawalli is given to the Waqif himself. Failing him,
Mutawalli may be appointed by the executor of the Waqif if the Waqif has no executor, the
existing Mutawalli may appoint his successor provided he is on his deathbed.

Types of Waqf
Waqfs are of three types: Waqf fi lillah or Public Waqf, Waqf alal aulad or Private Waqf,
and Mixed Waqf. A Waqf created solely for the public purpose of religious or charitable
nature is called Waqf fi lillah.

Difference between Waqf and Trust

1. A Waqf may be constituted only for those purposes which are recognized as
religious, pious or charitable in Islam whereas, a trust may be constituted for any
lawful object.
2. A Waqf is generally perpetual and irrevocable, whereas, a trust need not be
perpetual and may also be revoked under certain conditions.

Waqf tajweed
Definition: – Linguistically: Refrain and completely stop. – Terminologically: Ending the
recitation on the word for a period of time during which the reciter takes a breath with the.

Powers of a Mutawalli
A Mutawalli has the power of management and administration of Waqf properties. Since
the properties vest in him, in those cases where they are not in his possession, he can sue
for possession. He has the full power of utilizing the Waqf property for the purpose which
the Waqf has been created.

Waqf Alal Aulad

‘Waqf’ means transferring the ownership of the property in the name of GOD for
religious or charitable purposes. Deed of Waqf-alal-aulad is a type of deed where a person
donates any kind of property for Muslim charitable purposes. The donated property/asset is
held under the Charitable Trust.
Full form of Waqf
Waqf means a property dedicated to the society. It’s a religious endowment in Islam,
typically devoting a building or plot of land for Muslim religious or charitable purposes. The
Sunni Waqf means a Waqf governed by the Sunni law. There is a separate Waqf Board for
Shia Muslims.

Role of Waqf Board

The Board has the power to inspect, or cause inspection of, Waqf properties, accounts,
records or deeds and documents . The Board is empowered to investigate and determine
the nature and extent of Waqf and Waqf Property, and to cause, whenever necessary, a
survey of such Waqf Properties .

Registration of Waqf Property

Registration of lease. (1) A lease of Waqf property for any period exceeding one year and up
to thirty years shall be registered at the office of Registrar or Sub-registrar
under whose jurisdiction the property is situated. (2) The expenses towards registration of
lease under sub-rule (1) shall be borne by the lessee.

Waqf property
“Waqf” means the permanent dedication by a person professing Islam, of any movable or
immovable property for any purpose recognised by the Muslim law as pious, religious or
charitable purposes

Is registration of Waqf compulsory?

Registration. According to Section 36, it is mandatory to register all Waqf at the office
of the Board.

Can Waqf property be transferred?

As per Section 57A. Waqf Act, Notwithstanding anything contained to the contrary in the
Registration Act, 1908 (Act No. XVI of 1908), no Sub-registrar shall register any deed
of transfer of any immovable property belonging to a Waqf, without the previous sanction
of the Administrator or the Government, as the case may be.

What is Wasiyyah and Waqf?

Waqf, is an act of giving to charity and is a mean for Muslims to devote their faith to
Allah to gain rewards in the hereafter. Therefore, Wasiyyah (bequest), Hibah (gift) and
Waqf (charity) are estate planning tools which Muslim can use to accommodate the laws of
inheritance.

5. Explain Different modes of Talaq. (July 2012) (Aug 2012)

Explain Divorce among Muslims. Discuss the classification and different modes of
Divorce in case of Muslim Marriage>

Ans: Divorce under Muslim Law

The only essential condition for divorce under Muslim Law is marriage between two
parties. There are different forms and ways through which marriage can be dissolved under
Muslim Law, which are following:
Divorce by husband
There are four ways a husband can give divorce.

Talaq-ul-Sunnat
This form of divorce is based on Muslim Personal Laws. It is further sub-divided into the
following categories:
Ahsan
 Husband has to make an announcement of divorce in a single sentence when the wife
is free from the menstrual cycle.
 After divorce women have to observe Iddat for a certain period of time, during
which the husband cannot indulge in any form of sexual intercourse, if he indulges
then revocation of talaq becomes impliedly revocable, otherwise, it becomes
irrevocable.
 This type of talaq can be pronounced even when the wife is undergoing menstruation,
but for that marriage must not be consummated between the parties.
 It is the most approved form of talaq.

Hasan
 It is a less approved form of Talaq Ahasan.
 There is a provision for revocation of divorce.
 The word talaq is to be pronounced three times simultaneously.
 Three announcements should be made in the three states of purity if the wife has
not crossed the age of menstruation.
 If the wife has crossed the age of menstruation, pronouncement must be made at
the 30 days interval between the successive pronouncements.
 During the period of three pronouncements, no sexual intercourse should take place,
if it happens divorce is revoked.
 After completion of the iddat period, this type of divorce becomes irrevocable.

Talaq-ul-Biddat
 it is this disapproved/sinful form of divorce.
 It is also known as triple talaq, after pronouncing talaq three times it becomes
irrevocable immediately.
 This form of divorce is only recognised under Sunni Law and not by Shias and Malikis.
 Parties can remarry only after performing nikah halala by the female partner, under
which she has to marry another man and then get divorced from him.
 This type of divorce is unconstitutional in India, through the judgement of the
Supreme Court in the case of Shayara Bano vs Union of India and Others.

Ila
 It is a form of divorce under which the husband has the power to pronounce that he
would not indulge in sexual intercourse with his wife.
 Subsequent to this pronouncement, the wife is required to observe iddat.
 If the husband cohabits with the wife during this period, then the Ila is revoked.
 Once the period of iddat is over, divorce becomes irrevocable.
 This type of divorce is not practised in India.
Zihar
 It is also constructive divorce like Ila.
 In this form of divorce, the husband compares his wife with a woman who comes
under a degree of prohibited relationship, such as his mother, sister etc, and
pronounces that she is like his mother or sister.
 For doing this the husband must be of sound mind and above the age of eighteen
years.
 The wife has the right to seek judicial remedies such as restitution of conjugal
rights, cohabitation etc., but cannot seek judicial divorce.
 Husband can revoke such divorce by observing two months fast, feeding sixty people
and freeing a slave.
 This type of divorce is no longer in practice.
 Divorce by wife

Talaq-e-Tafweez
 It is also known as delegated divorce.
 The husband has the power to delegate such power to the wife, he must be of sound
mind and above 18 years of age.
 This type of talaq is also called an agreement, which may be entered between the
parties before or after marriage.
 If the terms of an agreement are not fulfilled, the wife can ask for a divorce.
 It is the only way through which a woman can ask for a divorce.
 The right of the husband to divorce his wife remains intact, it does not deprive the
husband of his right to pronounce the divorce.
 Divorce by mutual consent

Khula
 It means ‘laying down’, where the husband lays down the authority over his wife.
 This is done through mutual consent between husband and wife, where the wife pays
the consideration from her property to the husband, for her release.
 Wife releases Mehr and other rights for the benefit of her husband.
 Thus, divorce is purchased from husband by wife.
 There is an offer from the wife, which is accepted by the husband.
 Women are required to observe iddat after Khula.

Mubarat
 It means ‘release’, it releases/discharges parties from marital rights.
 Divorce is with mutual consent among parties to become free from one another.
 Its formalities are the same as Khula, where there is an offer from one party and
acceptance from another.
 Women are required to observe Iddat.
 Divorce by judicial decree under Muslim Dissolution of Marriage Act, 1939

Lian
 This type of divorce occurs when a wife is falsely charged with adultery by her
husband.
  She can move to court to file a regular suit for dissolution of marriage, under the
Muslim Dissolution of Marriage Act, 1939.
 The ground of divorce must be a false charge of adultery on the wife, his husband.
 The husband imposing charge must be sane and above 18 years of age.
 Marriage is not dissolved until dissolution degrees are passed by the court, once it is
passed divorce becomes irrevocable.
 The husband can prevent divorce by the withdrawal of false assertion of adultery on
the wife, before passing of the decree by the court.

Faskh
 If husband and wife feel that they are not compatible together, they can file for
divorce.
 Section 2 of The Dissolution of Marriage Act, 1939, states grounds on the basis of
which the wife may sue for divorce.
 Whereabouts of husband not known for 4 years.
 Husband has failed to maintain wife for two years.
 Husband is sentenced for imprisonment of 7 years or more.
 Husband has failed to perform marital obligations for three years, without any
reasonable cause.
 The husband is impotent.
 Husband is suffering from insanity (for two years), leprosy or virulent venereal
disease.
 Wife being married before 15 years, rejects the validity of marriage after attaining
the age of 18 years, provided marriage must not be consummated.
 Husband treats her with cruelty, such as imposing physical assault. making
defamatory statements that affect her reputation etc.

Rights conferred by personal laws based on religion is not absolute. For instance, the two
most popular and important judgments of the Supreme Court in this regard are discussed
hereinafter, in the case of Mohd. Ahmed Khan vs Shah Bano, Shah Bano at the age of 62
was divorced by her husband Mohammed Ahmed Shah, and she along with her five children
were disowned and tossed out from her marital home. When she approached Madhya
Pradesh High Court to restore her maintenance amount of rupees 200 which was halted by
her husband, and to increase its amount to rupees 500, she was divorced by her husband
through instant triple talaq or Talaq-ul-Biddat, who used it as a defence not to pay
maintenance as she no longer was his wife. But the court granted maintenance to Shah Bano
under Section 125 of CrPC on the grounds that she is unable to earn and maintain herself.
Though it was against the provisions of Islamic law, Section 125 of CrPC override the
personal law and gave effect to the judgement.

Similarly, in the case of Shayara Bano vs Union of India, Shayara Bano married to Rizwan
Ahmed, was a victim of domestic violence, while she was visiting her parents, Rizwan Ahmed
sent her a divorce letter of Talaq-ul-Biddat declaring instant divorce. She filed a petition
before the Supreme Court to declare triple talaq, nikah halala, and polygamy to be
unconstitutional. Although the court took into account only the plea of triple talaq declaring
it to be unconstitutional and it also held that until the government formulates a law
 regarding instant triple talaq, there would be an injunction against the pronouncement of
triple talaq by husbands on their wives.

Talaq-ul-Biddat or triple talaq is unconstitutional as it violates Article 14 of the

Constitution in two ways; firstly, it discriminates Muslim women from Muslim men on the
basis of gender, as only Muslim men have the right to declare triple talaq, and secondly, it is
discrimination on the basis of religion, women of no other religion are subject to cruelty and
unjust behaviour of triple talaq except Muslim women. Talaq-ul-Biddat also violates Article
21 of the Constitution on the grounds of the right to live with human dignity, Muslim women
are subject to derogatory and cruel behaviour of the Talaq-ul-Biddat, which reduces their
presence to mere unwanted beings in the eyes of their husband and society. A divorce that
is arbitrary, without justified reasoning and a reconciliatory process is never allowed by the
Koran. Thus, personal laws of Muslims are given prominence unless and until they are against
the right of women to live a dignified life or are unconstitutional.
Changes brought by the Muslim Women (Protection Of Rights On Marriage) Act, 2019
The Muslim Women (Protection Of Rights On Marriage) Act, 2019 brought the following
changes:

 Section 3- Pronunciation of triple talaq on wife by husband in any manner (including

electronic), by words either spoken or written, is void or illegal.
 Section 4- Any person who pronounces talaq to his wife in a manner prescribed in section 3,
shall be subject to imprisonment extendable to 3 years or shall be liable to a fine.
 Section 5- Muslim women who are being divorced can seek allowance from their husband to
maintain themselves and children dependent on them.
 Section 6- Muslim women divorced by husband are entitled to seek custody of their minor
child.
 Section 7- Magistrate can grant bail to the accused after hearing both the parties, if he
feels that reasonable ground exists for granting bail. The offence is compoundable and
there is also an option of compromise at the instance of a married Muslim wife, which will
drop the charges on the basis of fulfilment of certain terms and conditions.

6. How can a marriage under Muslim Law be dissolved? Examine the Rights of a
Divorced Muslim wife to seek maintenance from the Husband. (Aug 2014)
Discuss the law relating to maintenance of divorced Muslim Wife with help of
decided cases (Aug 2015) (May 2016) (Aug 2018)

Ans: Section 125 of the Code of Criminal Procedure is a uniformly applicable provision which
provides civil remedies to enforce the fundamental obligation of a person to maintain his
wife, children or parents so long as they are unable to do so. Ordinarily, the rights and
duties under this section have an overriding effect over personal laws. However, earlier this
was subject to the exception of the Muslim Women (Protection of Rights on Divorce) Act,
1986 which is a self- contained statute that codifies the obligations of a Muslim husband
and other relatives towards a Muslim woman and provides remedies for enforcing the rights
of the woman. This Act enshrines the Muslim law principle that a husband’s liability to pay
maintenance to his divorced wife extends only till the Iddat period. Further, Section 125
can have no application to a Muslim woman unless both the husband and wife consent to be
subject to it under Section 5 of the Act. The law has developed through judicial opinion, and
it is now believed that there is no inconsistency between the Act and the Code.

But now the judicial position has been cleared by the case of Shamim Bano v Ashraf
Khan. The case is one such milestone as it interprets Section 125 of the Code of Criminal
Procedure to be universally applicable to women regardless of personal laws’ dicta on the
matter. Taking the lead from the popular Shah Bano case, the Supreme Court of India held
that Section 125 would apply to Muslim women, and they would be entitled to maintenance
irrespective of Mahomedan law’s views on the matter.

It has been held that Muslim women are entitled to maintenance through Section 125 of the
Code before the divorce and after divorce; they can claim maintenance through the
provisions of the Act.
The Shah Bano judgment and aftermath
The first case where this conflict of opinion first came to light was the historic judgment
of Mohd. Ahmed Khan v. Shah Bano Begum and Ors. In this judgment, a sixty-two-year-old
Muslim woman was divorced by her husband by exercising his right to incontestable ‘talaq’. A
constitutional bench of the Supreme Court held that a divorced Muslim woman is entitled to
maintenance under Section 125 of the Code. The court relied on religious texts of
Mahomedan law and Quranic interpretations to reach this conclusion and also stated that
the husband cannot escape his liability to pay maintenance by payment of mahr or
maintenance during Iddat period.

The orthodox Muslim community launched protests and agitations against this judgment as
they saw it as interference in their personal law. The Government, thus, caved in under
pressure and unanimously passed the Muslim Women (Protection of Rights on Divorce) Act,
1986 which took precedence over the uniformly applicable Criminal Procedure. According to
this Act, Muslim women had the right to maintenance from their husbands only for the
Iddat period after which the burden of maintenance was transferred to her relatives or the
District Waqf Board. Thus, the right to appeal under Section 125 was largely restricted to
Muslim women and the law, which should have championed for women’s rights, became anti-
secular and anti- feminist due to the influence of politics and orthodoxy.

This is the law on maintenance for divorced Muslim women at present. However, courts have
tried to interpret widely the provisions of the Code and the Act to provide relief to Muslim
women. Previously, the Supreme Court has relied on such harmonious construction, and it is
pertinent to analyze these judgments to get a holistic understanding of the status quo on
maintenance.

Need for harmonious interpretation of statutes

One of the most notable cases after the Shah Bano judgment is Danial Latifi and Anr. v.
Union of India where Shah Bano’s lawyer herself challenged the constitutional validity of
the Act. In this judgment, the Supreme Court attempted to dispel the confusion of
conflicting judgments that had arisen in the aftermath of Shah Bano. The Constitution
Bench came to a compromise where it upheld the validity of the Act but decided that the
provision for maintenance would be applicable equally to the Muslim community. The Bench
liberally interpreted Sections 3 and 4 of the Act and stated that a divorced Muslim woman
is entitled to reasonable and sufficient provision for livelihood along with maintenance, and
thus, the husband is duty bound to provide this within the Iddat period (as stated by the
Act). However, it held that this maintenance is not limited to the Iddat period, and a Muslim
woman is also entitled to maintenance for her entire life or until she remarries. The court
interpreted the Act to mean that the limitation in the Act was not on the nature or duration
of maintenance but rather on the period within which such maintenance or provision had to
be made. Thus, the Supreme Court tried to capture the spirit of Section 125 of the Code
and secularly apply it to Muslim women. It iterated the need for uniformly applicable laws to
prevent such instances of discrimination and unjust deprivation in the future.

However, one shortcoming in Daniel Latifi was that the court failed to realize the
inaccessibility of Section 125 for Muslim women. While Section 125 proclaims to be
uniformly applicable, the consent of both the wife as well as the husband is required to
invoke it. Pragmatically speaking, the husband would not consent to be subjected to Section
125 of the Code when he can enjoy lesser liability under the Act. If a divorced Muslim
woman is unable to maintain herself once the Iddat period is over, she cannot claim
maintenance from her former husband and has to depend on her relatives or the State
Waqf Board. Thus, in most cases, women are unable to invoke Section 125 of the Code, and
this provision remains secular only in name.

Position settled after Shamim Bano case

In the Shamim Bano case, the Supreme Court has combined the interpretations espoused
in Shah Bano and Danial Latifi and correctly held that Shamim Bano is entitled not only to
Mahr, ornaments, and maintenance under Section 3 of the Act but also to maintenance for
the post- Iddat period as the same has not been provided in the order granting mahr. Thus,
the Supreme Court made a commendable effort to bring Muslim women on par with other
communities. Additionally, the Bench sustained her application under Section 125 of the
Code despite the fact that her husband, Ashraf Khan had not consented to the same. The
court realized that if the application under Section 125 were dismissed, Shamim Bano would
be remediless as the Magistrate’s order only ensured Mahr and did not give her any
maintenance. Thus, foreseeing this situation as a travesty of justice, the court reasoned
that Section 125’s parameters should be applied.

Thus the verdicts like Shamim Ara has improvised on Shah Bano and given legitimacy to the
secular character of Section 125; this secular character has been helpful in protecting
Muslim women from oppression at the hands of Male orthodoxy. However, the Muslim
Women (Protection of Rights on Divorce) Act continues to be an obstruction to these
efforts. Thus, it is necessary to clearly demarcate the extent of this Act by reserving it
only for providing fair and reasonable Mahr and maintenance during the Iddat period. The
cases like these have helped in reducing the monopoly of female discriminatory laws in
matters of Marriage and much more.

For maintenance during the post-Iddat period, the legislature shall assume this duty to give
Muslim women the uncompromising, secular right to file an application under Section 125 of
the Code. Therefore, the legislature must amend the Act to restrict its application only for
obtaining Mahr and to delete Section 5 which makes it mandatory to obtain the husband’s
consent for obtaining maintenance under Section 125 of the Code. Such a result would work
harmoniously as it takes into account religious differences but also gives primary importance
to the welfare of divorced women.
 7. Explain the salient features of the Special Marriage Act, 1954. (July 2012)
(May 2016) (Aug 2021)
Explain the salient features of the Special Marriage Act, 1954. Can two Hindus
marry under the Special Marriage Act? If so, what are the advantages by such
marriage. (May 2017)

Ans: The Special Marriage Act deals with inter-caste and inter-religion marriages. Inter
caste marriage is a marriage between people of two different castes. The days had gone by
when people used to marry wherever their parents decided to blindly. The youth now have
their own saying and choice and prefer to marry someone who is more compatible with them
than marrying someone who belongs to their caste or religion. It is them who have to live for
the whole of their life with their partner and therefore, caste or religion is not a matter of
utmost consideration now at all. Love is a beautiful emotion, and something like caste or
religion should not weigh it up. All religions are equal, and marriage shouldn’t be a big deal
among them. We are conferred on caste or religion by birth and not by choice, so why are
people of the lower castes seen with shame and disdain? India is a diverse country, and it is
a pity to see things like this happening here. The Special Marriage Act is, therefore, a
special law enacted to provide for a unique form of marriage by registration wherein the
parties to the marriage do not have to renounce their religion.

Applicability
This information is the most important for every Indian to know how they can use it. This
Act includes Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists marriages. This act
applies to all Indian s. This Act applies not only to Indian citizens who belong to different
castes and religions but also to Indian nationals who live abroad.

Requirements
Since Indians believe in marriages with proper rituals, customs, and ceremonies that include
pomp and show & extravagant celebrations, none of them is required ates the Special
Marriage Act. The fundamental requirement under this Act for a valid marriage is the
consent of both parties to the marriage. If both parties to the marriage are willing to marry
each other, that’s enough; caste, religion, race, etc. can’t act as a barrier to their union
here. For marriage under this Act, the parties must file with the district’s Marriage
Registrar a notice stating their intention to marry each other in which at least one of the
parties to the marriage has lived for at least 30 days prior to the date on which such notice
is filed. After the expiry of 30 days from the date that such notice was published, the
marriage is then said to be solemnized. But if any person related to the parties objects to
this marriage and the registrar finds that it is a reasonable cause of objection, on such
grounds he can cancel the marriage. For a valid marriage, the parties must also give their
consent to the marriage before the marriage officer and three witnesses. These are the
basic requirements for a valid marriage under the Special Marriage Act that every Indian
must know about.

Conditions for Marriage

For this special form of marriage, the conditions that must be followed are not very
different from the requirements of other normal marriages that happen within the caste.
These are the conditions to qualify for a marriage under this Act:
1. The bridegroom must be at least 21, and at the time of the marriage, the bride must
be at least 18 years of age. This is the minimum age limit respectively for a boy/girl
to marry.
2. At the time of their marriage, both parties must be monogamous; i.e., they must be
unmarried and at that time should not have any living spouse.
3. In order to be able to decide for themselves, the parties should be mentally fit, i.e.,
they must be sane at the time of marriage.
4. They should not be related to themselves through blood relationships; i.e. they
should not be subjected to prohibited relationships that otherwise act as a ground
for dissolving their marriage.

Changes with the Emergence of Special Marriage Act in India

Succession to the Property
Another important point that why every Indian should have knowledge of SMA (Special
Marriage Act) is that the succession to the property of persons married under this act or
any marriage registered under this act and that their children will be governed under the
Indian Succession Act. But if the parties to the marriage belong to Hindu, Buddhist, Sikh, or
Jain religions, then the Hindu Succession Act will govern the succession to their property.

In 2006, India’s Supreme Court made it necessary to enrol all relational unions. A marriage
can be registered in India either under the Hindu Marriage Act, 1955 or under the Special
Marriage Act, 1954. The Hindu Marriage Act is relevant to Hindus, although the Special
Marriage Act is suitable for all Indian residents regardless of their religion applicable to
the Court marriage.

Registration of Marriage under the Special Marriage Act in India

In India, all marriages can be registered either under their respective personal laws (Hindu
Marriage Act, 1955/Muslim Marriage Act, 1954) or under the Special Marriage Act,1954. A
marriage under the Special Marriage Act, 1954 enables people from two distinct religious
backgrounds to unite in the marriage bond. Unlike personal laws, the Special Marriage Act’s
applicability extends to all Indian citizens regardless of their religion. Although marriage
laws allow only the registration of an already solemnized marriage under personal laws, the
Special Marriage Act provides for both solemnizations and legal registration. The Special
Marriage Act has designed a simple means of legally registering a marriage between two
people of different religions, but even if both the concerned parties belong to the same
religion, they may choose to register the marriage under this Act. This is a step-by-step
procedure to apply in India for a Special Marriage Act.
What is the Special Marriage Act(SMA)?
8. Define Guardian. What are the kinds of Guardian? When a Guardian can be
removed. (July 2012)
Explain the meaning of Guardian. What are the different kinds of Guardian
under Muslim Law? (Sept 2012) (Aug 2021)

Ans: A guardian is an individual having the consideration of the person of a minor or of his
property, or of the both. The Quran is the premise of the law related to guardianship and,
subsequently, there is next to no space for contrasts among Sunni and Shia schools. The
guardianship of a kid implies that general oversight of the child all through its minority.
The term ‘Guardianship’ (wilayat) indicates the guardianship of a minor. A minor is one who
has not accomplished the majority age. Majority and puberty are in the Muslim law indeed
the very same. Puberty is attained at the age of fifteen years. In any case, presently the
Muslims are controlled by the Indian Majority Act, 1875, accordingly the minority will end
on the consummation of 18 years. Until then the court has the capacity to select a Guardian
of his person or of property or both under the Guardians and wards act in which case the
period of minority is drawn out until the minor has finished the age of 21 years.

I-Appointment of guardians
The court appoints a guardian when it is content that an order for appointment of a guardian
is needed for the well- being of the minor. Section 15(1) of the Guardians and Wards Act,
1890 makes for the provision for joint guardian so that in case the demise of one of them
happens, the other person should carry on to act as guardian of the minor.

Section 19 of the Act discusses the cases when a guardian cannot be appointed. It says that
on the off chance that the administration of the property of a minor has been accepted by
a court of wards under any local law in power:
(ii) in case the court has been engaged to designate a guardian of the person for the minor,
the same is impossible by a court under the Guardians and Wards Act.

Section 6, 19 and 21 of the Guardian and Wards Act gives that the courts ought not to
meddle with the topic of guardianship of a minor in the case where the minor has been
named under a will. In the event that a guardian isn’t performing his obligation appropriately,
the court has the authority to terminate him as guardian of a minor.

Section 20 of the Act deals with the duty of the guardian to protect the wards property
and handle it cautiously and fairly. Section 24, 25, and 26 of the Act give the custody of the
minor to the person appointed by the court as guardian. The duty of the guardian is to
protect minor’s health and education. Section 27 gives duties and constraints on functions
of guardian. As per Section 31 of the Act lays down the process of getting permission for
transfer the minor’s property by the guardian. Section 41 talks about the conditions in
which the testamentary guardian or the guardian appointed by the court is terminated like
death, majority of minor.

The court should appoint guardian keeping into consideration various aspects. If the minor is
old enough to form an intelligent preference, the court may consider that preference. The
court will have to consider the minor’s age, sex and religion, the character and the limit of
the proposed guardian, the desires, assuming any, of an expired parent, and any current or
past relations of the proposed Guardian with the minor or his property.

II-Types of Guardianship
1. Guardianship in Marriage-The competency of the parties is one of the requirements of
Muslim marriage and for the party must have attained the age of puberty. But an exception
to it is when the marriage is dealt with by the guardian on behalf of the minor. The
imposition of marriage on the minor is called jabr, the guardian appointed to minor is
called wali and the right of guardianship is called wilayat. Therefore the authority of the
father under Muslim law to give consent for marriage on behalf of his minor children is
known as bulugh.
Persons who have the authority of acting as a guardian in the case of minor’s marriage in the
sequence of enumeration are-
1. The father.
2. The father’s father
3. Full brother and other paternal male relations
4. Mother
5. Relations from mother’s side within restricted degree
6. The court or the Qazi

The Shia law only acknowledges father or if not him then father’s father as guardian of the
minor for the purpose of marriage. The rule of Muslim law is that when a remote guardian
allowed a boy or a girl to marry when the nearer one is present, the validity of the marriage
is dependent upon the latter’s ratification and consent. Therefore, the latter is considered
as a proper guardian to the minor.

2. Guardianship of body of the minor-This type of guardianship (Hizanat) is examined with

regards to the minor’s age and the relationship status with the guardian
i) Mother– Under Hanafi school, the hizanat or the guardianship of the body of the minor to
the custody is with mother till the minor male has attained 7 years of age and in case of
female, till she has attained the puberty. But in the case of Shia school, the mother holds
the guardianship of the son till he gains the age of 2 years and daughter till she reaches 7
years of age.

In the cases of an illegitimate child, the mother holds the guardianship until the child
attains 7 years of age although the child is not legally entitled by both the parents. Even in
common law it is contended, “an illegitimate child belongs Legally speaking to neither of its
parents and it is in every sense of the word filius nullius (son of nobody) but for the purpose
of securing its due nourishment and support, it should, until It has attained the age of 7
years, be left in charge of the mother. After that, it may make his own election with which
of the parents it will reside, or it may live apart from them altogether.” Under Hanafi
school, in the guardianship or custody is held by the following people in the absence of
mother-
a. Father’s mother
b. Mother’s mother
c. Full sister
d. Full sister’s daughter
e. Consanguine sister
f. Consanguine sister’s daughter
g. Uterine sister
h. Uterine sister’s daughter
i. Paternal aunt
j. Maternal aunt

This right of hizanat is lost by the mother if she lives an unethical and dishonourable life.
She does not properly supervise the child in custody or after taking the custody lives at her
father’s place away from the minor. In Rahima Khatoon v. Saburjanessa, the court held that
“The mother loses the guardianship of the minor daughter in case she remarries with
another person not related to the child within prohibited degrees of relationship. In the
present case, the court granted the certificate of guardianship to the parental
grandmother with regard to the minor’s persons and property.”

Hizanat in the absence of these maternal relations goes to-

a. Father
b. Paternal grandfather
c. Full brother
d. Full brother’s son
e. Consanguine brother
f. Consanguine brother’s son
g. Full brother of the father
h. Son of father’s full brother
i. Consanguine brother of the father
j. Son of father’s consanguine brother

ii) Father-Under the Hanafi School of law, a father holds the custody or guardianship of
the minor male who is above 7 years of age and an unmarried girl who has reached the age of
puberty. He is the de facto guardian. In the case of Shia law, the girl who has reached the
age of 7 years or more and a minor male who is above the age of 2 years. The Court in the
case of Farzanabi v. S.K. Ayub Dadamiya held that “there is no doubt that under Muslim law
the father is entitled to the custody of a son over 7 years of age. The court observed that
as far as possible the ordinary rule of Muslim law should be adhered to.”

In case the father is unable to hold the guardianship, it passes on to the other paternal
relations as mentioned above. When there is an absence of both mother and father and
other paternal or maternal relations, then the court has to appoint the guardian for the
person of the minor child.

Cessation of Hizanat- There are different types of disqualifications for the cessation of
Hizanat:-

General Disqualification-Aperson fails to act as a guardian if he is:

1. Minor
2. If the person is non-mulsim. In such a case the other parent will get the custody or
guardianship of the child.

Disqualifications concerning males- It is a general rule of Muslim law that no male qualifies
for the care or guardianship of a female minor who isn’t identified with him inside the
restricted degree of relationship. There is no such notice of this preclusions either in the
Shia Books or in the Guardians and Wards Act. The Court is required by section 25 of the
Guardians and Wards Act to be guided in selecting or announcing guardian by what seems, by
all accounts, to be for the well-being of minor.

Disqualifications concerning females- A female is disqualified as guardian of a minor child

if she is unchaste or unethical, has married an unfamiliar person, lives at a place far away
from the father, dismisses or do not take proper care the kid.
Disqualifications concerning parents-In case of guardianship of person of minor, the court
cannot appoint a guardian when the minor’s father is alive as he is the natural guardian of
the child. His guardianship can only be interfered by the court in the cases when he is
immoral in character or actions or if he enters into a contract to the contrary or is outside
the ambit of the court or expects to travel to another country. On the other hand, mother
does not lose her guardianship in case of divorce by the father.

Disqualification concerning the husband- The husband under the Muslim law isn’t qualified
for the custody or guardianship of his minor wife in inclination to her mother except if she
achieves puberty or to such age as would grants the culmination of marriage. The mother is
entitled to the custody of the minor married girl as against her husband.

3. Guardianship of Minor’s property- In case a minor under Muslim law owns a movable or
immovable property, then there is a requirement of guardian to minor’s property to take
care of it. The guardianship of minor’s property is also known as Wilayat-e-mal. It is
classified into following types-

i) De jure guardianship- It is also known guardianship under as legal or natural guardian.

Father is perceived as the natural guardian of his child. His entitlement to go about as
guardian of a minor is an autonomous right and is given to him underneath the meaningful law
of Islam. The following people in the order given can act as legal or natural guardian of
minor’s property-
a. Father
b. Paternal grandfather
c. Executor appointed by father’s will
d. Executor appointed by the will of paternal grandfather

A natural guardian of the property of a minor can sell the minor’s immovable property, when
the deal is fundamental for the maintenance of the property and when the minor has no
other property. With respect to movable property, the Legal guardian of the property of a
minor has the capacity to sell or promise the products and assets of the minor for the basic
necessities of the child, for example, food, shelter, and clothing. The supreme court of
India in the case of Ghulam Husani Kutubuddin Maner v. Abdul Rashid Abdul Rajak Maner
has held that a mother of the minor cannot be appointed as his guardian to accept the gift
on his behalf during the lifetime of minor’s father.

ii) Certified guardianship- Certified guardianship refers to the guardians appointed by the
court. In case there is no natural or legal guardianship, the responsibility of appointing a
guardian lies in the hands of the court. While appointing a guardian the court takes into
consideration the welfare of the minor and, as such, may appoint mother instead of paternal
uncle, as the guardian of the property of the minor. Without the past consent and
authorization of the court a guardian of the property designated by the court can’t
mortgage, transfer by sale or gift, lease, or charge the immovable property. The guardian
appointed by the court is governed by the Guardianship and Wards Act, 1890 which is
relevant to all the Indians regardless of their religion. Such guardians are additionally called
Statutory guardians.
iii) De facto guardian-A De facto guardian is a person who is neither a legitimate guardian
nor a guardian designated by the court however has deliberately positioned himself
responsible for the body and property of the minor. He is a mere custodian of the minor’s
person and property but has no right over either. Usually, de facto guardians are relatives
of the minor but without the right to be the guardian under Islamic law unless appointed by
will or by the court. He is thus an officious intermeddler (fazooli) with the minor’s property
and has no status or position to alienate it without the court’s permission.

III-Withdrawal or removal of Guardian by the court

The court has the authority to remove both de jure as well as de facto guardian keeping in
mind welfare of the minor in the following cases-
1. Abuse of his trust;
2. Failure to perform the duties appointed to him;
3. Not in capacity to perform the duties;
4. Neglecting the minor;
5. Inconsistence with any of provision of the Guardians and Wards Act, or any
other command by the court;
6. Guilty of committing an offence involving immoral character of the guardian;
7. Interest contrary to the performance of his duties;
8. Not within the jurisdiction or ambit of the court;
9. Bankruptcy or insolvency of the guardian;
10. Ceasing or being liable to cease, under the law to which minor is subject.

Thus, a guardian to the person and property of the minor can removed on these grounds by
the court and the court will further appoint a guardian for the minor.

9. What is Mutawalli? Discuss the powers and duties of Mutawalli. (May 2016)
Who may be appointed as Mutawalli? State the powers of Mutawalli over the
Waqf property. (Aug 2016)

Ans: Mutawalli, is defined as the person appointed by a competent authority for managing
and administering Waqf. Thus, a Mutawalli is more like a manager than a trustee and so far
as the Waqf property is concerned, he has to see that the beneficiaries get an advantage of
the usufruct. Unlike a trustee, he is not an owner of the property therefore he cannot sell
the property. So, technically the position of Mutawalli under Muslim law is different from
that of a trustee. In Syed Mustafa Peeran Sahib vs State Waqf board High court held
that the definition of Mutawalli includes a person who for the time being manages Waqf
property. Hence he is merely a manager or a supervisor.
Any person who is of sound mind, attained the age of majority age and is capable of
performing the functions to be discharged under a particular Waqf can be appointed as
Mutawalli. Any person whether male or female, Muslim or a non-Muslim may be appointed as
a Mutawallii.

Powers and duties of Mutawalli

Being the manager and superintendent of the property he has the following powers
A Mutawalli cannot, without the permission of the Court, alienate Waqf property. He cannot
grant a lease of the Waqf land for more than three years (or one year, if the land is non-
agricultural). He is entitled to the remuneration fixed by the Waqf. He cannot transfer his
office, even on his death-bed. His office is not hereditary.

As a general rule, Waqf property is inalienable. Unless expressly authorised so to do by the

terms of the deed of Waqf, a Mutawalli has no power, without the sanction of the Court,

1. To sell, mortgage or exchange Waqf property; or

2. To grant a lease
i. for more than three years, where the Waqf property is agricultural, and
ii. for more than one year, where the Waqf property is non-agricultural.

Where a Mutawalli has leased Waqf property for a longer term without the sanction of the
Court, the Court has power to sanction the lease retrospectively, if it is satisfied that the
transaction is for the benefit of the Waqf. (Zafarbhai Guljarbhai v. Chhaganlal Aditram,
43 Bom. L.R. 854)

Abdul Rahim v. Narayan Das Aurora, (1923) 50 I.A. 84:

The Court removed a Mutawalli for unauthorisedly managing a Waqf property, and appointed
a new Mutawalli. The new Mutawalli thereafter sued to recover possession of the Waqf
property from the mortgagee.

The mortgagee claimed that the mortgage was, in any event, valid, as a portion of the
property was settled under the deed of Waqf for the benefit of the settlor’s family, as
distinct from the remaining portion, which was settled for the benefit of charity. The trial
Court decreed the mortgagee’s claim.

The Mutawalli appealed from this decision. The Appeal Court held that the new Mutawalli
was entitled to recover possession of the whole Waqf property from the mortgagee.

Where an attempt is made to grant a mortgage for a purpose foreign to the necessary
purposes of the Waqf, the whole mortgage fails. It cannot, for purposes of enforcement, be
severed into two distinct charges, one declared for pious uses on one part of the property,
and another and separate charge declared on other part for the use of the mortgagor only.

Thus, in one case, land attached to the Durgah of a Pir was granted by the Mutawalli on
lease for a term of 50 years to X. No order of the Court was obtained sanctioning the said
lease. X improved the property and put a building on it at cost of Rs. 5,000. The Mutawalli
received the whole rent in advance from X and built a Mosque with the funds.
After 10 years, R, who was appointed Mutawalli of the Durgah, filed a suit against X and the
original Mutawalli to recover possession of the land, contending that the lease in favour of X
was invalid.
The Court held that the trial Court can retrospectively validate such a long-term lease by a
subsequent sanction given even after the institution of the suit for setting aside the lease,
provided that the lease was for necessity or beneficial to the Waqf.

Waqf property cannot be attached and sold in execution of a personal decree against a
Mutawalli. A Mutawalli is deemed to be a trustee. However, no suit against a Mutawalli or
manager of Waqf property, or against his legal representative or assigns, for the purpose of
following in his or their hands such property or the proceeds thereof, or for an account of
such property or the proceeds, is barred by any length of time.

10. What are the salient features of the Indian Divorce Act, 1869? (July
2012) (Sept 2012) (Sept 2014) (Aug 2015)
State the grounds of divorce provided to the husband and wife under Indian
Divorce Act, 1869 (Aug 2016)
What are the grounds of divorce under Indian Divorce Act, 1869 (Aug 2019)

Ans: Salient features of the Indian Divorce Act 1869

According to the preamble of this Act, it aims the law relating to the divorce of people
professing Christianity. It even confers upon certain courts the jurisdiction to settle
these matters.

This is the only codified law regulating divorces amongst Christians. The British had first
enacted this law before Independence and it continues to be force today.

The Act came into existence on 1 April 1869. It applies to the whole country except the state
of Jammu & Kashmir. Furthermore, it applies only to those people who profess the Christian
religion. The parties must also reside in India to apply for any remedy under the Act.

Grounds for Dissolution of Marriage

Section 10 of the Indian Divorce Act contains grounds on which a court may dissolve a
marriage. In order to avail a divorce, the husband or wife must file a petition before the
District Court. This is basically the court under whose jurisdiction the parties solemnized their
marriage or they reside or last resided together.

The court may grant a divorce under any of the following grounds:
a. When one of the parties commits adultery;
b. If a party ceases to be a Christian;
c. In case of a party being of unsound mind for two years;
d. If a party has been suffering from leprosy or a venereal disease for two years;
e. In case of a party wilfully refusing to consummate the marriage;
f. When a party has deserted the spouse for two years or more;
g. In case of a party treating the spouse with cruelty.

Apart from these grounds, the wife can present a petition of divorce on additional grounds. For
example, she can file for divorce if her husband has, after marriage, been guilty of rape,
bestiality, etc.
Divorce by Mutual Consent
According to Section 10, the grounds we saw above must exist for a party to file for divorce.
However, it may so happen that both parties wish to seek divorce mutually. For this purpose,
the Parliament amended this Act to insert Section 10-A.

According to Section 10-A, parties may together mutually file a petition for divorce in the
District Court. In order to do this, they must have lived separately for two years and must be
unable to live together. In case parties do not withdraw this petition between 6 to 18 months,
the court may dissolve their marriage.
Nullity of Marriage
Apart from the dissolution of marriage, the Act also contains provisions for nullity. Either the
husband or the wife may file a petition for this before the District Court. There are a few
grounds for which a party may file such a petition.

For example, the impotency or lunacy of a party at the time of marriage can be ground. One
can also file this petition if the other party was still married to his/her former spouse during
the marriage.

Restitution of Conjugal Rights

The Act also contains a provision for restitution of conjugal rights under Section 32. Under
this provision, a party may seek restitution if his/her spouse withdraws from their company.
Under restitution, the marriage remains but both parties do not possess all marital rights
temporarily.

Custody of Children
The Divorce Act contains some provisions governing custody of children in cases of dissolution
or nullity of marriage. Section 41 empowers courts to make interim orders with respect to
custody. Even after passing a final decree of separation, the court may award custody to any
specific party.

11. State the concept of Dower under Muslim Law with relevant case laws.
(Aug 2016)
What is Dower? Explain its objects and classification. (Sept 2017)
Ans: “Mahr also known as dower is a sum that becomes payable by the husband to the wife
on marriage either by agreement between the parties or by operation of law.” - By Tyabji

In other words, a dower is an amount that the wife is privileged to receive from her
husband in consideration of the marriage.
Some of the Muslim schools say that dower is not a consideration of the marriage, but it is
an obligation imposed upon the husband as a mark of respect to the wife. It is clear that
dower is a fixed sum payable by the husband to his wife as financial security on her part.
The quantum of the amount in respect of dower may be fixed by the parties themselves. It
may be paid in the form of a sum or paid in kind or property. There is no limit to the amount
of dower, however, according to Shia and Sunni schools, excessive dower is considered
improper, but not illegal.

FACTS: It is said that back in the year 1906, the Nizam of Hyderabad Mir Osman Ali Khan
at the time of marriage to his 1st wife Azamunnisa Begum gave her 1 lakh in cash, 7000 Gold
coins and approximately 128 Kg of Gold as dower.

TYPES OF DOWER
Mahr/Dower
1. According to the Determination of Amount
A. Specified Dower (Mahr-i-Mussama/ Mahr-e-Tafweez)
B. Unspecified/ Proper/ Customary Dower (Mahr-i-Misl)

2. According to the Time it is payable

 A. Prompt Dower (Mu-Ajjal)
B. Deferred Dower (Mu-Wajjal)

Specified Dower: Specific Dower is also known as Mahr-i-Massuma. It is that amount that
is agreed by the parties either at the time of marriage or before/ after the marriage. Both
the parties agree to any quantum of the dower settled. The husband is bound to pay, that
much dower which is a specified one. In the case of a lunatic or a minor, the guardian can fix
the amount of dower. Dower fixed by the guardian is binding upon the boy and attaining
puberty or majority.

Unspecified Dower: Unspecified Dower also known as customary or proper dower. In Islam,
such kind of dower is called as Mahr-i-Misl. The wife is entitled to customary dower even if
the amount of dower is not fixed in the contract or even if the marriage contract states
that the bride will not claim any dower. In such cases, the amount of dower shall be fixed by
taking into consideration, the amount of dower settled for other female members of the
father's family. The dower amount can also be regulated in terms of :- Age, fortune, beauty,
understanding and virtue of wife. (i.e. personal qualifications) Economic/ Financial of the
husband. Local Customs. Social Position of the father.

Prompt Dower: It is also known as Mu-Ajjal. Prompt dower means that the dower is payable
immediately upon the marriage. Until the wife is not paid the dower amount she has a right
to refuse cohabitation with her husband. If the wife is a minor, until the dower is not paid
the father of the minor can refuse to send his daughter to the husband. Prompt dower does
not become suspended after consummation, in fact, the wife still has the right to demand
dower and sue him for the same. The husband can enforce the conjugal rights only after the
payment of dower. However, the wife cannot refuse cohabitation if the marriage was
consummated.

Deferred Dower: Deferred dower is known as Mu-wajjal in Islam. Deferred dower depends
on the happening of some event. It means the payment is postponed. An agreement to pay
before the marriage is valid and binding, even though it is deferred. The husband is not
exempted from the liability to pay, but he gets time to pay dower. He can pay the dower
during the continuance of the wedlock. However, the husband is liable to pay after the
dissolution of the marriage.

DOWER AMOUNT FIXED FOR DIFFERENT SCHOOL OF THOUGHTS

Hanafi School–10
Dirhams Maliki School – 3
Dirhams Shafi School –No Fixed Amount
Shariya School – No Fixed Amount

 For those Muslims who are poor and cannot pay even 10 Dirhams, they can teach their
wife Quran instead of paying Mahr.

CASE LAWS ON DOWER

1. Maina Bibi v. Chaudhary Vakil Ahmed (1924)
Facts: In this case, a man named Moinuddin died leaving behind his wife and some property.
The respondents filed a case against the widow to acquire possession of the property.
However, the widow claimed that until her dower amount is not paid to her, she had the
right to claim possession of the property. She continued possession of the property as the
respondents did not pay her the dower. The widow sold the property and the documents
showed she implied an absolute right over the property. Thus, the respondents filed a case
against her because they claimed that the widow had the right to retain not the right to
have a title for herself. Judgement: The Privy Council held that the widow has the right to
acquire lawfully and peacefully the possession of the property until the widow is her mahr.
The court also held that the widow has no right to alienate the property by way of sale, gift,
mortgage, lease or otherwise.

2. Mohammed Ahmed Khan v. Shah Bano Begum

Facts: Shah Bano Begum was thrown out of the house and was divorced by her husband in
1978. She approached the court by filing a petition for maintenance under section 125 of
Cr.PC. Her husband contended that he has no obligation to maintain her as he had already
paid Rupees 3000 by way of dower. Judgement: The Supreme Court observed that dower is
paid by the husband as a mark of respect to his wife. Also, mahr is an amount that is payable
either at the time of marriage and if not paid then at the time of dissolution of marriage.
The court further said that such women are even entitled to maintenance under section 125
of Cr.PC.

3. Hakim Masihuddin v. Abdul Wahid (2010)

Facts: Ishrat Bano married to the defendant in Delhi as per the Muslim customs. Ishrat had
a daughter named Rifatfrom her earlier marriage who was accepted by the defendant as his
daughter. This was the 2nd marriage for both the defendant and Ishrat Bano and a dower
of amount Rupees 20,000 was fixed at the time of nikkah. Ishrat Bano repeatedly requested
the dower amount which she never received from her husband during her lifetime. On 17th
January 2004,Ishrat Bano died. The plaintiffs i.e. the father of the deceased and minor
daughter of the deceased filed a suit for recovery of dower amount and dowry articles.
Judgement: The issue was decided in favour of the plaintiffs and the court ordered a
decree for recovery of the dower amount of Rupees 20,000 + future interest at the rate of
6% per annum.

4. Beena v. B. Mohammed (2015)

Facts: The petitioner was a Christian before marriage and converted to Islam to marrythe
defendant. The petitioner was an employeewho used to work under the defendant for a
monthly salary of Rupees 6,000. It was the petitioner's 2nd marriage and at the time of
marriage, the respondent agreed to pay 10 sovereigns of gold ornaments as dower. The
petitioner was divorced by her husband and the dower was not paid to her at the time of
dissolution of marriage.

12. Explain how the property of Christian male devolved. (Aug 2018)
Explain the interstate succession rules for distribution of property of Christian.
(Aug 2021)

Ans: Intestate Succession under Indian Succession Act, 1925 for Christians and Jews
Before the enactment of the Indian Succession Act, 1865 which was later replaced by the
Indian Succession Act, 1925, the Jews were regulated by their customary practices in
matters of inheritance and succession. They were governed by the ‘Pentateuch’ (religious
text of Jews) and by the conciliation committees formed by the Jews in their settlements.

Similarly, Christians living in mofussil areas (rural districts) were governed by their
customary laws while those living in the provincial area were governed by British Laws.
The rules of succession among the Christians have been codified under the Indian
Succession Act,1925. Cochin Christian Succession Act, 1921 and the Travancore Christian
Succession Act, 1916 were revoked and now the Christians follow the provisions of
inheritance under the Indian Succession Act, 1925.

Portuguese Civil Court 1867 governs the Christians in the State of Goa and the Union
Territories of Daman and Diu, whereas the governing laws for Christians in Pondicherry are
French Civil Court 1804, Customary Hindu Law, or Indian Succession Act. On the other
hand, customary practices are also influencing the principles of succession. Customary laws
of inheritance govern the inheritance for Protestant and Tamil Christians (residing in
certain talukas) to date. Further, the Garos of Meghalaya still follow their customary
matrilineal system of inheritance and not the provisions of the Succession Act.

Who is an ‘Indian Christian’?

Section 2(d) of the Indian Succession Act defines an ‘Indian Christian’ as a native of India
who claims to be of unmixed Asiatic descent and who practices any form of Christianity.

The definition of ‘Indian Christian’ was clarified in the case of Abraham v.

Abraham wherein a Tamil liquor vendor died without any will and the judiciary had to decide
whether his brother or his Anglo-Indian wife would inherit the property of the deceased.
This case highlighted that a Hindu who has converted to Christianity shall not be governed
by Hindu laws of Succession anymore and any forceful exercise of Hindu laws on him shall
stand void. However, he was given an option to permit the old law to be exercised on him,
despite the religious conversion.

In the case of testamentary succession for Christians and Jews, where there is a will
executed by the deceased, the general provisions under Sections 57 to 391 of the Indian
Succession Act, 1925 apply.
However, intestate succession for Christians and Jews is governed by the provisions laid
down in Chapter II, Part V under Sections 31 to 49 of the Indian Succession Act, 1925.
This Act recognizes three types of heirs:
1. Spouse (widow/widower)
2. Lineal Descendants (Section 25 of the Act defines lineal descendants as a
descendant born out of a lawful marriage, in a direct line e.g. children, grandchildren)
3. Kindred or consanguinity (Section 24 of the Act defines kindred as blood relations
through a lawful marriage, in a direct line.)

Kindred of an intestate can be divided into three categories as; a) descendants- children,
grandchildren; b) ascendants- his father, mother, grandfather, grandmother; c) collaterals-
firstly includes his brothers and sisters and their descendants and secondly, his uncles,
cousins and other relations of either sex, who are not the descendants of the siblings of the
deceased.

Note: The husband or wife of the deceased is not his or her kindred.
A. Basic principles regarding intestate succession among the Christians and Jews

 No differentiation between paternal and maternal relations. If the paternal and

maternal relations are equally related to the intestate, they are entitled to an equal
share of the property.
 No distinction between half-blood/full blood/uterine relations.
 A posthumous child is treated as a lawful successor, as long as he is born alive and
was in the womb of the mother when the intestate died.
 No recognition is given to illegitimate children who are born out of wedlock.
 Recognizes adoption and the rights of a natural born child are given to the adopted
child.
 No recognition is given to polygamous marriages.

Succession in Christians and Jews can be done in two ways

1. ‘Per capita’: Each heir of the same degree of relationship is given one share each.
2. ‘Per stirpes’: When the degrees of relationship are discrete, the division is done
according to the branches.

B. Intestate Succession laws in Christianity and Jews

Section 32 of the Indian Succession Act, 1925 states that the property of the intestate
shall devolve upon the widow/widower or the kindred (lineal descendants, collaterals, and
ascendants) of the intestate in the following manner:

Rights of the widow and the widower

Sections 33,33A and 34 codifies the rules of succession to the widow of the intestate,
which are summarized in the table below:
S.No. Particulars Rules of succession Section
Widow (1/3rd) and the
If the intestate has left the widow remaining (2/3rd) will be
1(a) 33
as well as lineal descendants. shared equally by the lineal
descendants.
If the intestate has left the
Widow (1/2) and the
widow, no lineal descendants but
(b) remaining (1/2) to be shared 33
some people who are kindred to
by the kindred.
him.
If the intestate has left the The entire property will
(c) widow, no lineal descendants and no devolve to the 33
kindred widow/widower
If the intestate leaves behind a
widow but has no lineal descendant The entire property will
(d) or kindred and if the net value of devolve to the 33A
his property does not exceed Rs. widow/widower
5000/-
S.No. Particulars Rules of succession Section
If the intestate is not survived by
the widow, then the property shall
The property shall devolve
devolve to his lineal descendants
(as the case may be) as per
2(a) and in absence of lineal 34
the provisions of Sections
descendants, to those who are
42 to 48.
kindred to him, (either ascendants
or collaterals).
If the intestate has left no
The entire property shall go
(b) kindred (lineal descendants, 34
to the government.
ascendants, collaterals)

Rights of children and other lineal descendants

Section 36 of the Act specifies that the rules for the distribution of the intestate’s
property (which will be 2/3rd, after deducting 1/3rd share of the survived widow and one
whole if the intestate has left no widow) amongst his lineal descendants are codified in
Sections 37 to 40, which are summarized in the table below:

S.
Particulars Rules of succession Section
No.
If the intestate has left only a The property belongs to the surviving child
1. child or children and no more or equally divided amongst the surviving 37
lineal descendants. children.
If the intestate has left no
child, but only a grandchild or The property belongs to the surviving
2. grandchildren and no more grandchild or is equally divided amongst the 38
remote descendant through surviving grandchildren.
deceased grandchild.
If the intestate has left only The property belongs to the surviving great-
great-grandchildren or other grandchildren or other remote lineal
3. 39
remote lineal descendants to descendants, equally for both males and
the same degree only. females.
The property is shared equally by all the
lineal descendants of the intestate who
qualifies in the nearest degree of the
kindred to him at the time of his death or
of the like degree of the kindred to him,
If the intestate is survived by who died before him leaving lineal
lineal descendants not all in descendants.
the same degree of kindred to For Example, A has three children, X, Y, and
4. 40
him, and those through whom Z; X died leaving four children; Y died
the more remote are leaving one child; Z alone is the surviving
descended are dead. child of his father. On the death of A, the
intestate, 1/3rd of the property’s share of
A will devolve to Z; 1/3 rd to Y’s only child;
and the remaining 1/3rd will be equally
distributed amongst X’s four children in the
ratio 1/12 each.