UNIT-1

origin and development of Muslim law:

Muslim law, or Sharia, originates from the Quran and the teachings and practices of Prophet Muhammad (Sunnah),
evolving through Islamic jurisprudence (fiqh) and the development of different schools of thought.

​ Divine Origin:​
Muslims believe Sharia is divinely ordained, with its core principles rooted in the Quran, which they consider
the word of God, and the Sunnah, which encompasses the Prophet Muhammad's sayings and actions.
​ Early Development (622-632 AD):​
This period, known as the legislative period, saw the Prophet Muhammad receiving revelations in Mecca and
later establishing Islamic principles in Medina, which were then compiled into the Quran and Sunnah.
​ Post-Prophet Era (632 AD onwards):​
After the Prophet's death, Islamic jurisprudence (fiqh) developed, focusing on interpreting and applying the
Quran and Sunnah to various legal issues.
​ Schools of Thought:​
Different schools of thought emerged, such as Hanafi, Maliki, Shafi'i, and Hanbali, each with its own
interpretations and methodologies for deriving legal principles.
​ Sources of Law:​
Besides the Quran and Sunnah, other sources of Islamic law include:
●​ Ijma: The consensus of the Muslim community on a particular legal issue.
●​ Qiyas: Analogical reasoning, where legal rulings are extended to similar cases not explicitly covered
in the Quran or Sunnah.
​ Modern Era:​
In the modern era, Muslim law has been subject to interpretation and adaptation to new conditions and
challenges, with some countries attempting to codify it.

sources of Muslim law:

Muslim law is a personal law which is applied only on Muslims. It is applied by courts in India to mohamedans not
in all, but in some matters only. Muslin law in India means that portion of Islamic civil law which is applied to
Muslims as a personal law. Muslim law is the body of law which is derived from the Quran and other recorded
saying of the Muslims prophet Muhammad. However Islamic law talked about man's duties rather than his rights. In
the religious sense Islam means submission to the will of god' & in secular sense Islam means the establishment of
peace.​
​
The origin of Muslim law is Arabia where Mohammad enunciated Islam. The object of Islam is to create a sense of
obedience and submission to Allah. His ordinances and thereby to walk on right path. Those who follow this path
are Muslim. According to Amir Ali Muslim is any person who professes the religion of Islam, in other words
accepts the unity of god and prophetic character of Mohammad. Thus to be a Muslim only two things is required-
one is that Allah is one and the second is the prophet hood of Mohammad. Islamic law is a branch of Muslim
theology, giving practical expression to the faith, which lays down how Muslim should conduct himself through his
religion, both towards god and towards other men*​
​
Muslim law consists of the injunction of Quran, of the traditions introduced by the practice of the prophet (sunna),
of the common opinion of the jurists (ijma), of the analogical deductions of these three (qiyas). Further , it has been
supplemented by the juristic preference (Istihsan), public policy (Istislah), precedent (Taqlid) and independent
interpretation (Iltihad).
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Sources
Sources of Muslim law is classify into two categories that is primary sources and secondary sources.

Primary Sources
Primary sources are those on which Muslim law relied on. These sources are the foundation of Muslim law. Primary
sources of Muslim law are:
 ●​ Quran
●​ Sunnat
●​ Ijma
●​ Qiyas

1. Quran
Muslim law is founded upon Al-Quran which is believed by the muslamans to have existed from eternity, subsisting
in very essence of god. The word Quran has been derived from the Arabic word Quarra which means to read. The
Quran is, Al-furqan i.e., one showing truth from falsehood and right from wrong. The word Quran which is the
‘divine communication' and revelation to the prophet of Islam is the first source of Muslim law.​
​
Quran is a primary source of Muslim law, in point of time as well as in importance. The Islamic religion and Islamic
society owes its birth to the word of Quran. It is a paramount source of Muslim law in point of importance because it
contains the very word of god and it is foundation upon which the very structure of Islam rests Quran regulates
individual; social, secular, and spiritual life of Muslims.​
​
It contains the very words of god as communicated to prophet mohammad through angel Gabriel. It was given to the
world in fragmentary forms, extending over a period of 23 years. It originally had for its objects repealing
objectionable customs, such as, usury, unlimited polygamy and gambling, etc., and effecting social reforms, such as
raising the legal status of women and equitable division of the matters of inheritance and succession.
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The Quran can be no way altered or changed, thus, even the courts of law have no authority to change the apparent
meaning of the verses as it does have an earthly origin. This view was held in Aga Mohammad Jaffer v. koolsom
Beebee (1895). But whenever the Quran was silent on any particular matter, guidance was taken from the ‘sunnat'.

2. Sunnat
The word sunna means the trodden path & as this meaning shows it denotes some kind of practices and precedent. It
is belief of Muslim that revelations were two kinds- manifest (zahir) and internal (batin). Manifest revelation is
communication which is made by angel Gabriel under the direction of god to Mohammad in the very words of god.
Quran is composed of manifest revelations.​
​
Internal revelation is opinions of the prophet which is delivered from time to time on questions that happened to be
raised before him. Sunna means the model behavior of the prophet. The narrations of what the prophet said, did or
tacitly allowed is called hadis or traditions. The traditions, however, were not reduced to writing during lifetime of
Mohammad. They have been preserved as traditions handed down from generation to generation by authorized
persons. The importance of hadith as an important source of Muslim law has been laid down in the Quran itself.​

Kinds Of Traditions: The Traditions Are Of Two Kinds:

1. Sunnat​
2. Ahadis​
​
These two have been classified into the following three classes on the basis of mode or manner in which it has
actually originated:
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●​ Sunnat-ul-fail i.e., Traditions about which prophet did himself.
●​ Sunnat-ul-qaul i.e., Traditions about which he enjoined by words.
●​ Sunnat –ul-tuqrir i.e., The things done in his presence without his disapproval.
The three class of Ahadisare:
●​ Alhadis -i-mutwair i.e., Traditions that are of public and universal propriety and are held as absolutely
authentic. In such hadis the chain is complete.
●​ Ahadis -i-mashhoor i.e., Traditions which known to a majority of people, do not possess the character of
universal propriety.
●​ Ahadis-i-wahid i.e., Traditions which depend on isolated individuals.
Thus two sources, namely, the Quran and Sunna may thus be said to form the fundamental roots of Islamic law.​

3. Ijma
It was equally binding on the people to act on a principle (not contrary to the Quran or hadis ) which had been
established by agreement among highly qualified legal scholars of any generations.​
​
Ijma has been defined by Sir Abdul Rahim as agreement of the jurists among the followers of Prophet Mohammad
in a particular question of law. The validity of ijma, as containing a binding precedent, is based upon a hadis of the
prophet which says that god will not allow His people to agree on an error. Ijma thus become a source of law.
According to the classical theory, failing Quran and traditions, and consensus of opinion amongst the companions of
the prophet is recognized as the best guide of law. Thus it is the third source of law, both in point of time and
importance.​
​
The authority of ijma as a source of Muslim law is also founded on Quranand Hadith. The law is something living &
changing. The aim of law is to fulfill the needs of the society. The principle of ijma is based upon the text i.e. god
will not allow His people to agree on an error and whatever Muslims hold to be good is good before god. Muslims
religion does not admit the possibility of further revelation after the death of the prophet, the principle of ijma is the
only authority for legislation in the present Muslims system.
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Kinds Of Ijma
Ijma is of three kinds:
●​ Ijma of the companions of the prophet – is the consensual opinion of companion which is universally
acceptable, throughout the Muslim world and is unrepealable.
●​ Ijma of jurists- is the consensual opinion of jurists which is believed that its best ijma after ijma of
companions. All the jurists should sit together and discussed the reasoning, and majority of the jurists is of
the view that unanimity to form ijma.
●​ Ijma of the people – is the opinion of Muslim population as a whole may have any importance but in
actual practice ijma of Muslim public had no value with regard to legal matters but in matters related to
religion, prayer and other observances have more value attached to it.
Ijma cannot be confined to any particular period or country. It is completed when the jurists, after due deliberation,
come to a finding .it cannot be questioned or challenged by any individual jurist. Ijma of one age may be reversed or
modified by the ijma of the same or subsequent age.​

4) Qiyas
This is a last primary source of Muslim law. Qiyas means reasoning by analogy from above 3 sources i.e., Quran,
Sunna and Ijma. In Qiyas rules are deduced by the exercise of reason.​
Qiyas may be defined as a process of deduction by which the law of the text is applied to cases, which though not
covered by the languages are governed by reason of text. Thus, it should be noted that Qiyas does not purport to
create a new law, but merely to apply old established principles to new circumstances.​
Conditions of Validity of Qiyas:
●​ The original source from which Qiyas is deduced must be capable of being extended, that is it should not be
of any special nature.
●​ The original order of the Quran or hadith to which the process of Qiyas is applied should not have been
abrogated or repealed.
●​ The result of Qiyas should not be inconsistent with any other verse of Quran or any established Sunna.
●​ Qiyas should be applied to ascertain a point of law and not to determine the meanings of words used.
●​ The deduction must not be such as to involve a change in the law embodied in the text.
Thus it can be said that Qiyas is weak source of law and rules analogically deduced do not rank so high as authority,
as those laid down by Quran and Hadith or by consensus of opinion (ijma).the reason is that with respect to
analogical deductions one cannot be certain that they are what the law giver intended. Such deduction always rest
upon the application of human resources which always are liable to err​
​
Secondary Sources​
These sources are not basic sources of Muslim law but the supplementary sources of Muslim law. The secondary
sources of Muslim law are:
●​ Urf or Custom
●​ Judicial decision
●​ Legislation
●​ Equity, Justice, & Good conscience

Urf or Custom
Before the emergence of Islam in Arabia , customs were the basis of entire social life, religion, morality, trade and
commerce. Custom has not been recognized as a source of law in a Muslim law. However, it cannot be denied that
custom has always been given a place under Muslim law, if it is in conformity with Muslim law. For example,
prophet mohammad never repeal the whole of the pre-Islamic customary law of Arabia. In various matter of Muslim
law, custom play a significant role when the matter is relating to their:
1.​ agricultural land;
2.​ testamentary succession among certain communities; and
3.​ Â charities other than wakf, because these matters have not been included in the section 2 of Shariat
Act,1937. Custom influenced the growth and formation of shariah in several ways:
Â
1.​ A number of texts, particularly traditions are based upon usages.
2.​ A part of the shariah based upon tacit or silent approval of the prophet comprises many of Arab customs.
3.​ Imam malik says that the customary conduct of the citizen of medina was a sufficient ijma to be relied upon
in the absence of other texts.

Pre- Condition Of Valid Custom

●​ Custom must be territorial.
●​ It must be existing from memorable time i.e. ancient.
●​ It must be continuous and certain and invariable.
●​ Custom should not oppose the public policies.
●​ Custom must not in contravention of Quran and Ijma.
​
Judicial Decision​
These includes the decisions of privy council, the supreme court & high court of India, Judges explain what law is.
These decisions are regarded as precedents for future cases. Judicial decision is one of the distinguish characteristic
of English law. In India, the plan of Warren Hastings of 1772 made provision that it was only judiciary which
introduced new set rules in personal laws of Hindus and Muslims.​
There are number of judicial decisions which have given new dimension to Muslim law:
●​ In Maini Bibi v. Choudhry Vakil Ahmad, the privy council held that a widow possesses the right to retain
the property of her husband till her dower money was paid
●​ In Bai Tahira v. Ali Hussain, the Supreme Court gave a new line of approach to the law of maintenance.
The Supreme Court held that a woman will be entitled for maintenance under section 125 of criminal
procedure code even though she has received a lump-sum amount under her customary law. A similar view
also taken in Shah Bano's case.
​
It may be concluded therefore, that to some extent, the courts in India have tried to modify the rules of Muslim
personal law as applied in India. Unless overruled or negative by some legislative enactment, these rules through the
decisions, continue to be a source of Muslim law.​

Justice, equity and good conscience

The doctrine of equity, justice & good conscience is regarded as one of the source of Muslim law. Abu Hanifa, the
founder of hanafi sect of Sunni, expounded the principle that rule of law based on analogy could be set aside at the
option of the judge on a liberal construction or juristic preference to meet the requirements of a particular case.
These principles of Muslim law are known as Istihsan or juristic equity. Istihsan literally means approbation and
may be translated as liberal construction or juristic preference.​
​
This term was used by great jurist Abu Hanifa to express the libert that he assumed of laying down the law, which in
his discretion, the special circumstances required, rather than law which analogy indicated. Several areas of Muslim
were modified so as to meet the changing conditions in India.​

Legislation
In India, Muslims are also governed by the various legislation passed either by the parliament or by state legislature.
The following are the examples of legislation in India.
●​ The usurious loans act, 1918
●​ Religious toleration act
●​ Freedom of religion act, 1850
●​ The mussalman wakf validating act, 1930
●​ The shariat act, 1937
●​ Dissolution of Muslim marriage act, 1939
These acts have considerably affected, supplemented and modified the Muslim law. In 1986 an act i.e. Muslim
Woman (Protection of Rights on Divorce) Act, 1986 to provide separate law in respect of divorced Muslim women
was enacted by Indian parliament. According to the need of time and circumstances Indian legislature enacted the
law to fulfill the need.​
​
Conclusion​
These four sources namely Quran, Sunna, Ijma and Qiyas are the primary sources of law. Muslim law mainly based
on verses of Quran and practices of hadith. There is secondary source of Muslim law which subsequent of it. Sects
of shias does not accept the Qiyas as source of Muslim law. It is due to the contribution of all that an orderly and
systematic theory of personal laws of Islam came into existence which govers the Muslim community.
Schools of Muslim Law:

Shia v. Sunni and Schools of Muslim Law:

●​ Prophet Mohammed died at the age of 63 without leaving an heir to the throne.
●​ Two groups were formed, which were on a political basis rather than a religious basis:
○​ Group one wanted 'Ali' to be the successor (Shia).
○​ Group two wanted an election (Sunnis).

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

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.

Maliki School
This school gets its name from Malik-bin-Anas, he was the Mufti of Madeena. During his period the Khoofa was
considered as the capital of Muslim Khaleefa where Imam Abu Haneefa and his disciples flourished with Hanafi
Schools. He discovered about 8000 traditions of Prophet but complied only about 2000 of them. When the disciples
of Imam Abu Haneefa codified their law based on Ijma'a and Isthihsan.

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.

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.
He conclude the idea's and the theories of Hanafi School and Maliki School in a friendly manner. The Imam Shaffie
was considered as one of the greatest jurist of Islam. He created the classical theory of the Shaffie Islamic
Jurisprudence.

According to this school, they considered Ijma'a as the important source of the Muslim law and provide validity to
the customs of the Islamic people and follows more methods of Hanafi School. the main contribution of Shaffie
School is the Quiyas or Analogy.

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.
1.​ 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).​

2.​ 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.
Sources- 4 formal(primary) - 4 informal(secondary)
●​ The Quran (Koran):
○​ Derived form the Arabic word 'Quarra' which means 'to read'.
○​ Collected and arranged by Abu Bakar (1st Khalifa) and revised by Usman (3rd Khalifa).
○​ Communicated to Prophet by Gabriel (Angel of revelation) in form of messages (wahi) over 23
years.
○​ Around 6000 verses out of which 200 deals with legal principles such as marriage, matrimonial
remedies, maintenance, acknowledgement of paternity, transfer of property, gift, wills, inheritance
etc.
○​ Abolished objectionable customs like female infanticide, gambling, usury (practise of lending
money at unreasonable high interest of minors and disabled and for overall increasing the status of
women were also there.​

●​ The Sunnah (Sunnat) - the path:

○​ Second source of Muslim Law
○​ Whatever the prophet said, did or allowed tacitly is called 'hadis' (traditions)
○​ Whatever the prophet said in words- 'Sunnat-ul-qual'
○​ Whatever he did- 'Sunnat-ul-fail'
 ○​ Whatever he allowed to be done without actually saying it (tacitly)- 'Sunnat-ul-tuqrir'
○​ These Sunnats could be manipulated as they were not certain as the 'quran' and used as a political
weapon which happened during the rule of Umayyad dynasty so these sunnats were collected and
compiled by various people and these collection were called 'Musnads'​

●​ Consensus (Ijmaa):
○​ Consensus of the most learned members of the community.
○​ This source has been validated both the Quran and the Prophet (via Sunnat)​

●​ Qiyas (Shia don't recognize it):

○​ Collection of rules and principles deductible by the methods of analogy and interpretation from the
Quran Sunnat and Ijmaa.
○​ Shia believe that if the scope of law has to be widened it should be only done by imam and no one
else.​

●​ Legislation:
○​ Though most of Muslim law is not codified but some of it is codified like Shariat Act, 1937:
○​ Dissolution of Muslim Marriage Act,1939
○​ The Muslim Women (Protection of Rights on Divorce) Act,1985
○​ The Muslim Women (Protection of Rights on Marriage) Act,2019​

●​ Customs and usages having the force of law:

○​ This is the second secondary source of Muslim Law. The customs are now regarded as a legitimate
source of Muslim Law but they are considered inferior in position hierarchically after Quran,
Sunnah, Ijma, and Superior to Qiyas.

This is the second secondary source of Muslim Law. The custom are now regarded as a legitimate source of Muslim
Law but they are considered inferior in position hierarchically after Quran, Sunnah, Ijma and Superior to Qiyas.

Judicial Decision
This is the third secondary source of Muslim law. It may be a decision of the privy council, the Supreme Court and
high court of India are regarded as a precedent for future cases.

Justice, Equity and good conscience

The doctrine of justice, equity and good conscience is the fourth secondary sources of Muslim Law. The rule of law
is based here on the analogy that could be set aside at the option of a judge on a liberal construction or juristic
preference to meet the requirement of a particular case.

Conclusion
Muslim law is an integral element of Indian laws and must be understood and implemented in the similar manner as
any other law in the country. Despite the fact that most of it is uncodified, Muslim personal law has the same legal
significance in India as other religions' codified personal laws, such as the Hindu Marriage Act of 1955 and the
Christian Marriage Act of 1872.

The Hon'ble Supreme Court of India has taken into account that women's rights are not being neglected or
discriminated against on any grounds by delivering progressive judgments. This has developed in contribution to
Muslim law to have a newer perspective with the landmark cases. Adding more to this, the judgments have set up a
platform of a level playing field and thus, leading to the formation of an egalitarian society

sub schools of Sunni law:

The main schools of jurisprudence within Sunni Islam are the Hanafi, Shafi'i, Maliki, and Hanbali schools, each
named after their founders.
 Here's a more detailed look at each of the four main schools:
​ Hanafi School:​
Founded by Abu Hanifa, this is one of the most widely followed schools, particularly in regions like India,
Pakistan, and Turkey.
​ Maliki School:​
Founded by Malik ibn Anas, this school is prominent in North Africa and parts of the Middle East.
​ Shafi'i School:​
Founded by Muhammad al-Shafi'i, this school is prevalent in Southeast Asia, Egypt, and other regions.
​ Hanbali School:​
Founded by Ahmad ibn Hanbal, this school is prominent in Saudi Arabia and other regions.

operation and application of Muslim law:

In India, the Muslim Personal Law (Shariat) Application Act, 1937, governs personal matters of Muslims,
including marriage, divorce, inheritance, and maintenance, ensuring the application of Islamic law (Sharia) in these
areas.

Key Aspects of the Muslim Personal Law (Shariat) Application Act, 1937:
​ Scope:​
The Act applies to all Indian Muslims and covers areas such as marriage, divorce, maintenance, inheritance,
and other personal matters.
​ Application:​
The Act ensures that Muslim personal laws are applied to Muslims in India, allowing them to follow their
religious laws in personal matters.
​ Legal Framework:​
The Act provides a framework for the application of Islamic jurisprudence in legal proceedings involving
marriage, divorce, maintenance, gifts, and inheritance.
​ Section 2:​
This section mandates that in cases where both parties are Muslims, the rule of decision shall be Muslim
Personal Law (Shariat) in matters of intestate succession, special property of females, marriage, dissolution of
marriage, maintenance, dower, guardianship, gifts, trusts, and wakfs.
​ Not applicable in certain states:​
The Act is not applicable in Goa, where the Goa Civil Code applies to all persons irrespective of religion, and
in Uttarakhand.
​ Dissolution of Muslim Marriages Act, 1939:​
This Act deals with the circumstances in which Muslim women can obtain divorce and the rights of Muslim
women who have been divorced by their husbands.
​ Codification:​
Muslim personal laws in India have not been systematically codified, unlike Hindu family laws or Islamic
family laws in many Muslim-majority countries.
​ Controversies:​
The Act has been subject to controversies and debates, with some arguing that it discriminates against
Muslim women and goes against the principles of gender equality

conversion to Islam:
To convert to Islam, one formally declares their belief in the oneness of God (Allah) and that Muhammad is his
messenger, reciting the Shahada, which is the Islamic declaration of faith.

​ The Shahada:​
The core act of becoming a Muslim is reciting the Shahada, which translates to: "La ilaha illa Allah,
Muhammadur rasoolu Allah" (There is no god but God, and Muhammad is the messenger of God).
​ Meaning of "Muslim":​
The word "Muslim" means one who submits to God, regardless of race, nationality, or ethnic background.
​ Seeking Guidance:​
If you are considering converting to Islam, you can visit a mosque and speak with an Imam, who can guide you
through the process and answer any questions you may have.
​ Reverting to One's True Identity:​
Some Islamic teachings suggest that all people are born Muslim, and conversion is a matter of "reverting" to
one's true identity and submitting fully to Allah.
​ Dawah (Missionary Efforts):​
Missionary efforts to promote the faith are referred to as "dawah"

effects of conversion:
Under Muslim law, conversion, particularly apostasy (leaving Islam), can lead to the immediate dissolution of
marriage, with the wife no longer considered a Muslim wife and free to remarry. Conversion can also be a ground
for divorce at the instance of the non-convert, and the convert may have grounds for divorce as well.

Here's a more detailed breakdown:

​ Dissolution of Marriage:
●​ Apostasy of Husband: If a Muslim husband converts to another religion, his marriage is immediately
dissolved, and his wife is no longer considered a Muslim wife.
●​ Apostasy of Wife: If a woman converted to Islam from another faith reembraces her former faith, her
marriage with a Muslim husband is dissolved.
●​ Hanafi School: The Hanafi school of Islamic law considers post-marriage conversion to immediately
dissolve the marriage, viewing it as an "immediate dissolution" rather than a divorce.
​ Grounds for Divorce:
●​ Non-Convert: Conversion can be a ground for divorce or judicial separation at the instance of the
non-convert under various personal law statutes.
●​ Convert: The Converts' Marriage Dissolution Act, 1866, allows for the dissolution of marriages of
converts to Christianity under certain circumstances.
​ Other Effects
●​ Guardianship: Conversion may also impact a parent's right to guardianship if the religion change
negatively impacts the child's welfare.
●​ Inheritance: Mutual rights of inheritance between husband and wife are established in a valid
marriage, meaning after the death of one spouse, the other can inherit their property.

law of marriage:
Under Muslim law, a valid marriage, or Nikah, is a civil contract involving consent, competency, a proposal, and
acceptance, all within a framework of Islamic principles. It's not a sacrament, but a binding agreement with rights
and responsibilities for both partners.
Here's a more detailed explanation:
Essentials of a Valid Nikah:
​ Free Consent:​
Both parties must freely and willingly agree to the marriage, without coercion or undue influence.
​ Competency:​
Both the bride and groom must be of legal age, of sound mind, and capable of entering into a contract.
​ Offer and Acceptance (Ijab & Qubul):​
A proposal (Ijab) from one party and acceptance (Qubul) from the other must occur within the same
meeting.
​ Witnesses:​
Sunni Muslims generally require the presence of two male or one male and two female witnesses, while
Shias may not require witnesses.
​ Mahr (Dower):​
A gift from the groom to the bride, representing her rights and becoming her property.
 ​ No Legal Impediments:​
The marriage must not be prohibited by Islamic law, such as consanguinity (blood relations) or affinity
(marriage to former relatives).
Nikah as a Contract:
●​ Muslim Nikah is considered a civil contract, requiring the fulfillment of conditions for a valid agreement,
such as the requirement of parties to be major and of sound mind.
●​ While the contract itself doesn't necessarily have to be in writing, it's highly recommended to have a written
nikahnama (marriage contract).
●​ Muslim Marriage is not merely a religious ceremony but a legal contract with rights and responsibilities for
both parties.
Note: This information is a general overview. Specific details regarding Muslim marriage laws may vary depending
on the specific school of Islamic law and local legal interpretations

nature of Muslim marriage:

Contractual Nature of Muslim Marriage
The nature of Muslim marriage is considered a contract.
The dimensions related to the contractual nature of Muslim Marriage are:
Consent and Proposal
One of the key resemblances between Muslim marriage and a civil contract lies in the requirement of free and
mutual consent. The marriage contract, initiated by a proposal (Ijab) from one party and acceptance (Qubul) from
the other, mirrors the essential elements of a contractual agreement. This underscores the importance of
voluntariness and the absence of coercion in the establishment of a marital union.
Capacity and Guardianship
Similar to contractual agreements, the capacity of the parties involved is crucial. In the case of minors, a guardian
may enter into a marriage contract on their behalf. However, Islamic jurisprudence allows the minor to annul the
contract upon reaching the age of puberty, adding a layer of legal protection to the vulnerable.
Ante-Nuptial and Post-Nuptial Agreements
The flexibility inherent in Islamic law is reflected in the permissibility of ante-nuptial and post-nuptial agreements.
Parties entering into a Muslim marriage can tailor the contractual terms to their specific circumstances, aligning with
the principle of contractual freedom within legal bounds.
Modification of Terms
The malleability of the marriage contract within legal limits distinguishes it from a rigid sacrament. Islamic
jurisprudence allows for the alteration of terms to accommodate the changing needs and dynamics of the marital
relationship, resembling the adaptability found in contractual agreements.
Breach of Contract
While discouraged, the provision for the breach of a marriage contract adds a contractual nature to Muslim marriage.
This aspect acknowledges the reality that marriages may face challenges and legal mechanisms exist for the
resolution of such issues, akin to contractual dispute resolution.
Legal Foundations on Contractual Nature of Muslim Marriage
The assertion by some scholars, including Justice Mahmood, that nature of Muslim marriage is fundamentally a civil
contract and is based on the observable similarities with contractual agreements. In Abdul Kadir vs Salima (1886),
Justice Mahmood emphasised the civil nature of Muslim marriage, highlighting its dependence on the declaration,
acceptance and the presence of witnesses.
Justice Mahmood cautioned against equating Dower (Mahr) in Muslim marriage with consideration in civil
contracts. Dower, he emphasised, is a commitment by the husband to provide financial support to the wife,
emphasising its distinct nature from the consideration in contractual agreements.
The Hedaya, a classic Islamic legal manual, acknowledges that the payment of dower is a symbolic gesture of
respect for the woman. It clarifies that while the mention of dower is not essential for the validity of a marriage, its
payment reflects the husband’s commitment and responsibility.
Sacramental and Social Dimensions on Nature of Muslim Marriage
Despite the contractual elements, Muslim marriage is deeply imbued with religious significance. The solemnisation
often involves the recitation of Quranic verses and Islamic principles and ethics guide the process. The spiritual
connection between the couple is considered sacred, elevating the marriage beyond a mere legal contract.
Justice Mahmood, while emphasising the civil nature of Muslim marriage, acknowledged its social aspects.
Marriage is a legal contract and a source of solace and companionship in life. This recognition intertwines the legal
and social dimensions, emphasising the holistic nature of Muslim marriage.
Conclusion
The nature of Muslim marriage is considered to be a civil contract. However, some jurists highlight its profound
religious and spiritual significance.
The flexibility of Islamic law allows for the accommodation of diverse perspectives, recognising the evolving
dynamics of marital relationships. Ultimately, Muslim marriage is a comprehensive institution that encompasses
legal obligations, spiritual connections, and societal harmony, reflecting the richness and complexity of Islamic
jurisprudence.

essential requirements of valid marriage:

Marriage under Muslim Law
Marriage holds a significant place in Muslim law. According to Ameer Ali, Muslim marriage is regarded as an
institution designed for the betterment of society and the protection of individuals from moral impurity and
unchastity. In essence, marriage signifies the union of two individuals in wedlock.
In the Islamic context, the marriage contract, known as Nikah, is considered a civil agreement with the primary
purpose of promoting the well-being of the parties involved. Under Sharia law, there is no strict requirement for a
written document to prove the marriage contract’s existence.
However, a valid contract is essential for a Muslim marriage to be recognised. The objectives of marriage under
Islamic law include:
1. Legalisation of Sexual Intercourse: Marriage serves as a means to legalise the physical union between a man
and a woman.
2. Procreation of Children: It enables the couple to bear children and expand their family, contributing to the
continuation of the human race.
3. Preservation of Human Race: By allowing for the procreation of offspring within the bounds of marriage, this
institution plays a vital role in preserving the human race.
4. Regulation of Social Life: Marriage acts as a cornerstone for the regulation of social life within the Muslim
community, fostering stability and societal harmony.
Religious Significance:
In Muslim law, marriage is not merely a social contract; it is also a religious duty. It is considered an act of worship,
known as Sunnat-Muwa-Akidah, as emphasised by Hazrat Muhammad (P.B.U.H). He stated that if a person
possesses the means to support his wife and fulfill the dower obligations, he should undertake the responsibility of
marriage. The essential elements of Muslim marriage closely resemble those of a civil contract.
Essentials of Valid Muslim Marriage (Sahih)
The essentials of valid Muslim marriage include free consent from both parties, competency of individuals (major,
sound mind, and Muslims), an offer (proposal or ‘ijab’) and acceptance (‘qubul’) made during the same meeting,
and the presence of competent witnesses.
Dower (‘mahr’) terms must be agreed upon, and the marriage should not violate any prohibitions, such as those
related to close blood relations, affinity, or fosterage. While registration is not obligatory under Islamic law, it is
encouraged for legal recognition.
These essentials of valid Muslim marriage emphasise consent, capacity, and adherence to Islamic guidelines for a
valid marriage.
1. Proposal and Acceptance (Ijab and Qubul)
In a Muslim marriage, a proposal is known as ‘ijab,’ and the acceptance of that proposal is termed ‘qubul.’ It is
imperative that a proposal be made by one party or on their behalf and subsequently accepted by the other party.
Crucially, for a Muslim marriage to be valid, the proposal and acceptance must occur during the same meeting. If the
proposal is made in one meeting and its acceptance takes place in a different meeting, the marriage is not considered
valid.
2. Competency of Parties
The parties entering into the marriage contract must meet specific criteria, which include being (i) of legal age, (ii)
of sound mind, and (iii) Muslims.
i. Major (Legal Age)
Under Muslim law, the age at which a person reaches puberty is considered the legal age for marriage. According to
Hedaya, the age of puberty for females is typically 9 years, while for males, it is 12 years. However, the Privy
Council, in the case of Muhammad Ibrahim v. Atkia Begum & Anr., established that a girl is considered to have
reached the age of puberty if she is either 15 years old or has reached puberty at an earlier age.
The same rule applies to Muslim boys. Thus, unless there is evidence to the contrary, Muslims are generally
considered to have reached the age of puberty at 15 years. Once they attain this age, they can give their own consent,
and there is no need for the consent of their guardians.
ii. Guardians for Minors
If a person is a minor, meaning they have not reached the age of puberty, the consent of their guardian is required to
make the marriage lawful. The individuals recognised as guardians under Muslim law include: (a) Father, (b)
Paternal Grandfather, (c) Brother or any other male member of the father’s family, (d) Mother, and (e) Members of
the maternal relation.
If one guardian is unavailable, the right to consent passes to the next in line according to a specific order of priority.
In the absence of these guardians, a marriage may be contracted by a Qazi or another government authority.
iii. Soundness of Mind
Both parties must be of sound mind at the time of marriage. Individuals who are not of sound mind lack the capacity
to enter into a contract, and their consent, in the eyes of the law, is considered null and void. Unsoundness of mind
can manifest in two forms:
(a) Idiocy, which signifies a complete abnormal state of mind rendering the person incapable of contracting, and
(b) Lunacy, which denotes a curable mental disease. A person deemed a lunatic can enter into a contract during
periods when they exhibit sane behaviour.
iv. Muslim
It is a fundamental requirement that both parties to the marriage must be Muslims, regardless of their sect or
sub-sect. A marriage remains valid even if the parties belong to different sects within Islam, making inter-sect
marriages valid.
Free Consent
In Muslim law, the cornerstone of a valid marriage is the free consent of both parties. If consent is obtained through
coercion, fraud, or a mistake of fact, the marriage is deemed invalid and void.
For instance, in the case of Mohiuddin v. Khatijabibi, the Court ruled that a marriage is invalid if it occurs without
the genuine and free consent of the parties involved.
Dower (Mahr)
Dower, known as “mahr,” represents the monetary or property consideration that the groom is obligated to provide
to the bride as part of the marriage contract. Its primary purpose is to ensure the financial security of the bride during
and after the marriage.
In the case of Nasra Begum v. Rizwan Ali, the Allahabad High Court established that the right to dower arises
before the commencement of cohabitation. The Court also held that if the wife is a minor, her guardians can refuse
to send her to her husband until the dower is paid.
If she is already in the husband’s custody, she can be brought back until the dower is settled.
Freedom from Legal Disability
Under Muslim law, marriage is prohibited under specific circumstances, categorised as absolute prohibition, relative
prohibition, and miscellaneous prohibition.
Absolute Prohibition
A Muslim marriage is considered void if the parties are closely related by blood or fall within prohibited degrees of
kinship. These absolutely prohibited degrees include:
Consanguinity
Prohibits marriage with females related by blood, such as one’s mother or grandmother (regardless of how many
generations removed), daughter or granddaughter, sister (whether by full, half, or uterine blood), niece or
great-niece, and aunt (both paternal and maternal, regardless of how many generations removed).
Marrying a woman within these prohibited degrees of consanguinity results in an invalid marriage, and children
born from such a union are considered illegitimate.
Affinity
Certain close relatives are also prohibited from marriage due to their relationship with one’s spouse. Prohibited
relationships under affinity include one’s wife’s mother or grandmother (regardless of how many generations
removed), wife’s daughter or granddaughter, father’s wife or paternal grandfather’s wife, and son’s wife or
descendants’ wives. A marriage with a woman falling under the prohibited degrees of affinity is void.
Fosterage
Fosterage pertains to relationships established through breastfeeding or suckling. If a woman, other than the child’s
biological mother, breastfeeds or suckles a child under the age of two, she becomes the child’s foster mother.
A man is prohibited from marrying individuals who fall under foster relationships, which include his foster mother
or foster grandmother and the daughter of his foster mother (foster sister).
Sunni law allows for some exceptions to the prohibition on grounds of fosterage, permitting marriages such as
sister’s foster mother, foster-sister’s mother, foster-son’s sister, or foster-brother’s sister. Shia jurists, however, do not
recognise these exceptions and treat consanguinity and fosterage similarly.
Relative Prohibitions
Under Muslim law, certain prohibitions are relative and not absolute. Violating these prohibitions renders a marriage
irregular, but it cannot be declared void. The marriage becomes valid once the irregularities are rectified. The
relative prohibitions are as follows:
1. Unlawful Conjunction
A Muslim man is prohibited from marrying two women who are closely related to each other through consanguinity,
affinity, or fosterage. If their relationship is such that their marriage would have been void (batil) if they were of
opposite sexes, then the marriage is irregular (fasid).
After the termination of one marriage or the death of a wife, the man can marry the other woman. Under Sunni law,
a marriage in violation of unlawful conjunction is considered irregular, while under Shia law, it is considered void
(batil).
2. Polygamy
Muslim law permits polygamy but restricts it to a maximum of four wives at a time. If a Muslim man marries a fifth
wife while already having four wives, the marriage is irregular, not void. The fifth marriage can become valid after
the death or termination of one of the four wives.
However, Shia law considers marriage with the fifth wife as void. In India, a Muslim man who has registered his
marriage under The Special Marriage Act, 1954, cannot enter into a second marriage.
3. Absence of Proper Witness
The contracting of a Muslim marriage must be done in the presence of proper and competent witnesses. Under Shia
law, the presence of witnesses is not essential, and marriage without witnesses is considered valid. Parties
themselves (if major) or their guardians can contract the marriage.
Under Sunni law, the presence of witnesses is essential, and a marriage without witnesses is irregular. At least two
male witnesses or one male and two female witnesses should be present, and they must be of legal age, of sound
mind, and Muslim.
4. Difference of Religion
Under Sunni law, a Muslim male is allowed to marry a female who respects the same scriptures, such as Christians,
Parsis, and Jews. However, if he marries an idol or fire worshipper, the marriage is considered irregular.
A Muslim woman is not permitted to marry a non-Muslim man, and if it happens, the marriage is irregular. Under
Shia Law, marriage with a non-Muslim is considered void. While Fyzee holds such marriages as void, Mulla
considers them irregular.
5. Marriage During Iddat
Iddat refers to the waiting period after the death of a woman’s husband or after the termination of her marriage.
During this time, she cannot remarry. The purpose of iddat is to determine if the woman is pregnant, which can
affect the paternity of any child born.
A divorced woman observes iddat for three months, while a widow observes it for four lunar months and ten days
after her husband’s death. If the woman is pregnant, the iddat period extends until her delivery. Under Sunni law,
marriage during iddat is considered irregular, while under Shia law, it is considered void.
6. Miscellaneous Prohibitions
●​ In Shia law, marriage during pilgrimage is considered void.
●​ Re-marriage between a divorced couple requires a specific procedure, including the woman marrying
another man, her husband voluntarily divorcing her, and her observing iddat. If this procedure is not
followed, the marriage is considered irregular.
●​ Polyandry, where a woman has more than one husband, is not permitted under Muslim law.
Registration of Muslim Marriages
Under Muslim law, marriage registration is not a mandatory requirement. However, several states in India, including
Assam, Punjab, Bengal, Bihar, and Orissa, have enacted laws that facilitate the registration of Muslim marriages.
While registration is not considered an essential element for a valid Muslim marriage, it serves as compelling and
authentic proof of the marriage contract.
The Indian Supreme Court’s ruling in the case of Seema v. Ashwani Kumar emphasised that the registration of
marriages involving Indian citizens, regardless of their religious affiliation, should be carried out in the states where
the marriage ceremony has taken place. This decision highlights the importance of registering marriages for all
Indian citizens, regardless of their religious background, as a means of establishing legal documentation and
authentication.
Furthermore, in the case of M. Jainoon v. Amanullah Khan, the Madras High Court made a significant
observation. While confirming that registration of marriage is not obligatory, the court emphasised that it cannot be
deemed prohibited under Muslim personal law. This reaffirms the idea that while registration is not a mandatory
requirement, it is a permissible and beneficial practice that offers legal recognition and credibility to Muslim
marriages.
Conclusion
Muslim marriage is a significant institution guided by key essentials of valid Muslim marriage, which include
mutual free consent, competency, an offer and acceptance in the same meeting, and the presence of competent
witnesses. Dower arrangements are also essential, ensuring financial security for the bride.
Prohibitions on consanguinity, affinity, fosterage, and other factors prevent invalid marriages. While registration is
not mandatory according to Islamic law, it serves as important documentation in various regions.
These essentials of valid Muslim marriage uphold the sanctity of marriage within the Muslim community,
emphasising consent, capacity, and adherence to Islamic principles, contributing to the preservation of societal
values and the rights of individuals involved.

Classification of Marriage Under Muslim Law

Introduction
“Nikah, in its primitive sense, means a carnal conjunction. Some have said that it signifies conjunction generally. In
the language of law, it implies a particular contract used for the purpose of legalizing generation.” - Hedaya
(12th-century legal manual, considered as one of the most influential compendium).
■​ Muslim marriage has been considered a contract that legalizes the procreation of children.
■​ Justice Mahmood in Abdul Kadir v. Salima (1886), defines it as a purely civil contract and rejects its nature
as a sacramental institution. However, despite having similarities with a civil contract, Muslim marriage is
not absolutely one.

Classification of Marriage
■​ Muslims are divided into two sects all over the world based on their belief and tradition, viz Sunni Muslims
and Shia Muslims.
■​ Muslim marriages are a social contract and legally binding upon parties hence it is classified accordingly.
The classification of marriages under Muslim laws is:
○​ Sahih Nikah (Valid Marriage)
○​ Batil Nikah (Void Marriage)
○​ Fasid Nikah (Irregular Marriage)
○​ Muta Marriage (Temporary Marriage)

Sahih Nikah (Valid Marriage)

■​ A marriage that is neither void nor invalid is valid. In other words, a marriage that conforms in all respects
to the legal requirements is a valid marriage.
■​ A marriage to be valid must satisfy the following requirements:
○​ There must have been a proposal by one party and its acceptance by the other.
○​ The consent of parties should be free consent.
○​ Proposal and acceptance must have taken place at one meeting and before two male witnesses, one
male and two female witnesses under Sunni Sect. They must be major and of sound mind. Under
Shia Sect witnesses are not necessary.
○​ The parties must have the capacity to contract marriage i.e., they should be:
●​ Of sound mind,
●​ Major,
●​ Capable of giving free consent, if they are minor or lunatic, it should be done through
their guardians.
○​ There should be no impediment to marriage whether absolute or relative on the ground of
consanguinity, affinity, fosterage and polyandry or temporary, viz relative, prohibitive or directory.
Effect of a Valid Marriage
■​ A valid marriage has social and legal implications some of which are as follows:
○​ Marriage provides husband and wife with rights of inheritance.
○​ The wife gets the right of maintenance and alimony for her and the children under Section 125 of
Criminal Procedure Code, 1973 after the decision of the Supreme Court in Mohd. Ahmad Khan v.
Shah Bano Begum (1985).
○​ The ritual of Iddat has to be performed by the divorced wife after the dissolution of marriage or
when she becomes a widow. During this period, she cannot remarry.

Batil Nikah (Void Marriage)

■​ A void marriage is a marriage that does not fulfil the necessary conditions of a valid marriage. In batil
marriage no legal rights and obligations are followed. Following kinds of marriages are considered void:
○​ A marriage falling under prohibited degrees of relationship, i.e., marriage between the parties
having blood relations.
○​ Marriage prohibited by the reason of affinity (E.g., Sister, aunt, niece etc.).
○​ Marriage with foster mother or foster sister. The exception in case of fosterage is observed by
Sunnis, where marriage is valid with sister’s foster mother, or foster sister’s mother, foster son’s
sister, or foster-brother’s sister.
○​ Marrying a woman who is undergoing Iddat is also void under Shia law.
○​ Marriage with someone else’s wife provided her marriage is still subsisting.
■​ The above-mentioned list is not exhaustive hence some other kinds of marriages might be void as
considered by rules of a certain school of Muslim law.
■​ In Munshi v. Mst. Alam Bibii (1912), the court observed that permanent or perpetual prohibition from
marriage due to non-adherence of a condition makes such marriage void.

Effect of a Void Marriage

■​ A void marriage is of no legal effect either before or after consummation.
■​ It does not create any rights or obligations between the parties.
■​ The wife is not entitled to maintenance.
■​ One cannot inherit from the other, but the woman is entitled to dower if the void marriage has been
consummated.
■​ The offspring of a void marriage is illegitimate.
■​ The parties can separate from each other at any time without divorce and may contract another marriage
lawfully.

Fasid Nikah (Irregular Marriage)

■​ A marriage contracted by parties suffering from relative prohibition or directory incapacity is irregular.
■​ Some grounds which make the marriage irregular (fasid) are:
○​ Marriages contracted without witnesses (Sunni Muslims),
○​ Marriage with a fifth wife (Sunni Muslims),
○​ Marriage with a woman undergoing Iddat,
○​ Marriage with non-scriptural woman (i.e., idolatress or fire worshipper),
○​ Marriage contrary to the rules of unlawful conjunction.

Effect of an Irregular Marriage

■​ Before consummation in a marriage, the wife is not entitled to obtain a dower from her husband if he
divorces her.
■​ There is no legal obligation on the wife, she is not bound to follow the rules of Iddat.
■​ The wife has no right to claim maintenance from the husband during the Iddat period.
■​ After consummation of marriage a child born out of irregular marriage is considered legitimate and has all
right of inheritance of property.
Note:
■​ According to Shia Law marriage may only be either:
○​ Valid (Sahih) or
○​ Void (Batil)
■​ There is nothing like invalid or irregular marriage under Shia Law and hence marriages that are not valid
are void. Those marriages which are irregular under Sunni law are void under Shia Law.
○​ However, under Shia Law, marriage contracted without witnesses is valid, it is not void.
■​ In Ata Muhammad Chaudhry v. Musammat Saiqul Bibi and Anr (1910), the Court observed that when a
marriage is temporarily impedimental and not completely restricted it is considered as merely irregular of
fasid and not void marriage.
○​ As this marriage has several aspects involved and various points of view. The social and legal
implication of irregular marriage depends upon the fact whether the marriage is consummated or
not.

Muta Marriage (Temporary Marriage)

■​ The word “muta” literally means “enjoyment or use”. It is a marriage for pleasure for a fixed period of
time, also known as temporary marriage. The institution of muta marriage is not recognized by Ithna
Ashari or Shia School of Muslim Law.

Essentials of Muta Marriage

■​ There are four essentials of muta marriage:
○​ Form – It must be in the form of a proper contract which means offer and acceptance.
○​ Subject – A man may contract a muta marriage with a woman professing the Mohammedan,
Christian or Jewish religion or even with a fire- worshipper.
●​ A Shia woman, however, cannot contract a muta with a non–Muslim.
●​ Relations prohibited by affinity are also unlawful in such marriage.
○​ The Term – It means that the period of cohabitation should be fixed, which may be a day, a month,
a year or a term of years; and
○​ Dower – Dower must be fixed.

Conclusion
Marriage under Muslim Law is considered a civil contract. The main purpose of marriage is to create a family which
is considered a fundamental unit of society.

Definition and Purpose or importance of Dower

In English law, dower is defined as the portion of a deceased husband’s lands that a widow receives for her
sustenance and the upbringing of her children. However, in Islamic law, dower is explained as the payment made by
the husband to the wife at the time of marriage as a consideration for the union. Its primary objective is to secure the
wife’s well-being and provide for her after the termination of the marriage, whether through divorce or the husband’s
death.
Concept or object of Dower in Muslim Law
Muslim law recognises dower as an essential component of a marriage contract. Unlike a civil contract, the
consideration in a Muslim marriage is the dower itself. The husband is obligated to pay the dower to the wife as a
sign of respect and acknowledgement of her rights. It signifies the husband’s commitment to support and provide for
his wife throughout the marriage and in the event of its dissolution.
Legal Perspectives on Dower
In India, where Muslim Personal Laws are recognised, there is no specific definition of the dower amount. Different
High Courts and the Supreme Court have offered varying interpretations and concepts relating to dower. However, it
is universally acknowledged that dower holds great importance in Muslim law, ensuring the wife’s well-being and
preventing her from falling into helplessness.
Types of Dower in Muslim Law
Muta Dower
Muta marriage is one of the kinds of dower in Muslim Law. It refers to a marriage that is contracted for a specific
period of time. In the case where the marriage is not consummated, the woman is entitled to receive only half of the
agreed dower. However, if the marriage is consummated, the wife is entitled to the full dower amount. However, if
the wife decides to leave the marriage before the specified duration, she will not be entitled to the dower or “Mehr”.
Specified Dower
Specified dower is another type of dower in Muslim Law. It refers to a specific amount of money or property that is
mutually agreed upon by the parties involved in the marriage. The amount of dower differs between Sunni Law and
Shia Law. Under Sunni law, the minimum amount entitled to the woman is 12-13 Rupees, which is equivalent to at
least 10 Dirhams, with no upper limit specified.
In contrast, Shia law does not provide a specific lower amount and the maximum amount is also not specified. It is
important to note that the dower payment should be based on the financial capability of the husband and a poor man
should only pay what he can afford in terms of money or property.
If the dower amount has been determined prior to or at the time of the marriage, it is referred to as a specified dower
or Mahr-i-musamma. In the case of Kukkiya Begum vs Radha Kishan, AIR 1944 All 241, the Allahabad High
Court ruled that the amount of dower can be increased by mutual consent after the marriage.
Prompt Dower
The dower payment is further categorised into prompt payment and deferred payment. A prompt dower, as the name
suggests, must be paid promptly upon demand. The husband is obligated to pay the dower as soon as the demand is
made, usually before or immediately after the marriage ceremony and before consummation.
Consequently, the husband’s right to restitution of conjugal rights arises only after the dower payment has been
fulfilled. Therefore, it can be inferred that the dower should be paid before the marital relationship is consummated.
In the case of Rabia Khatoon vs Mukhtar Ahmed, AIR 1966 All 548, the Allahabad High Court ruled that a wife
may refuse to live with her husband or engage in sexual intercourse until the prompt dower has been paid. It was
further stated that the prompt dower is payable upon demand and proof of sexual intercourse is not necessary to
claim payment.
Deferred Dower
Deferred dower, also known as Mahr-i-Muwajjal, refers to a dower that is not immediately payable after the
consummation of the marriage. It becomes due only upon the occurrence of a specific event, the expiration of a
particular period or the dissolution of the marriage through death or divorce. The wife is not entitled to demand the
payment of deferred dower unless it has been mutually agreed upon by the parties.
Proper Dower
Proper dower is one of the types of dower in Muslim Law. It is determined when the husband and wife have not
predetermined the amount of dower to be paid. In such cases, the wife has the right to determine a reasonable and
appropriate dower amount based on her own judgment. It is important to note that the proper dower is not dependent
on the husband’s earnings or financial ability.
Conclusion
There are 4 types of Dower in Muslim law. Muta dower, a temporary marriage arrangement, outlines specific
conditions for the payment of dower based on consummation and duration. Specified dower establishes a fixed
amount or property agreed upon by the parties involved, with variations between Sunni and Shia law. Prompt dower
necessitates immediate payment, ensuring that the husband fulfils his financial obligations before the marriage is
consummated. Deferred dower, on the other hand, becomes payable upon certain events or the dissolution of the
marriage.
Lastly, proper dower offers flexibility for a wife to determine a suitable dower amount when no pre-decision has
been made, irrespective of the husband’s financial status. Each type of dower serves a distinct purpose and is subject
to specific conditions as per legal traditions and agreements between the parties.

The Muslim Women (Protection of Rights on Marriage) Act 2019

The Muslim Women (Protection of Rights on Marriage) Bill 2019 after receiving Presidents nod became an Act.
■​ The Muslim Women (Protection of Rights on Marriage) Act, 2019 has replaced an Ordinance promulgated
on triple talaq.

Key Provisions
■​ Declaration of Talaq: The Act makes all declaration of talaq, including in written or electronic form, to be
void (i.e. not enforceable in law) and illegal.
○​ The Act defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a muslim
man resulting in instant and irrevocable divorce.
■​ Offence and Penalty: The Act makes a declaration of talaq a cognizable offence, attracting up to three years
imprisonment with a fine.​

○​ A cognizable offence is one for which a police officer may arrest an accused person without a
warrant.
■​ Cognizable Offence: The offence will be cognizable only if information relating to the offence is given by a
married woman (against whom talaq has been declared), or any person related to her by blood or marriage.
■​ Bail: The Act provides that the Magistrate may grant bail to the accused.​

○​ The bail may be granted only after hearing the woman (against whom talaq has been pronounced),
and if the Magistrate is satisfied that there are reasonable grounds for granting bail.
■​ Compounding Offence: The offence may be compounded (i.e., the parties may arrive at a compromise) by
the Magistrate upon the request of the woman (against whom talaq has been declared).​

○​ The terms and conditions of the compounding of the offence will be determined by the Magistrate.
■​ Allowance: A Muslim woman against whom talaq has been declared is entitled to seek subsistence
allowance from her husband for herself and for her dependent children.​

○​ The amount of the allowance will be determined by the Magistrate.

■​ Custody: A Muslim woman against whom such talaq has been declared is entitled to seek custody of her
minor children.​

○​ The manner of custody will be determined by the Magistrate.

UNIT-2
Kinds of Divorce under Muslim Law :

Introduction
■​ The term ‘divorce’ comes from the Latin word ‘divortium’ which means to turn aside, to separate.
■​ Under the Muslim Law, a marriage is dissolved either by the death of the husband or wife, or by divorce.
■​ When there is a contract, the option to end the contract also arises by the option of parties.

Dissolution of Marriage under Muslim Law

■​ Under the Muslim Law, only the husband has the ‘Right to divorce’.
○​ He may do so, without providing any reasons and by mere pronouncements of such words that
signify his intent to renounce their marriage.
 ■​ A Muslim wife holds the power to divorce only when the right to divorce is delegated to her by her
husband or by mutual agreement i.e., Khula or Mubarat.
■​ Before 1939, a Muslim wife had no right to seek divorce except on the ground of false charges of adultery,
insanity or impotency of the husband.
■​ Divorce under Muslim law has been divided into the following categories:

By Husband:
■​ Talaaq:
○​ Talaq in its original sense means repudiation or rejection but under Muslim law, it means a release
from the marriage tie, immediately or eventually. It is a generic name for all kinds of divorce; but
is particularly applied to the repudiation by or on behalf of husband.
○​ Under the Shia law, a talaaq must be pronounced orally. No specific words are required to
constitute a valid talaaq. Talaaq under Shia law must be pronounced in front of two witnesses.
○​ According to Sunni Law, every man is capable of pronouncing Talaq who is (i) adult and (ii) sane.

A talaq may be effected by the husband in any of the following modes:

■​ Talaq –ul-Sunnat: - it is Talaq which is effected in accordance with the traditions of Prophet. It has been
further sub-divided into:
○​ Talaaq-i-ahasan: Once the husband pronounces talaaq, there has to be a three-month iddat period
to factor in three menstrual cycles of the woman.
●​ During this period, if the husband resumes cohabitation or sexual intercourse with his
wife, the divorce is revoked.
○​ Talaaq-i-hasan: The husband is expected to utter words of Talaaq three times in successive periods
after menstrual cycles.
●​ The husband has to make a single declaration of talaaq and then await for another
menstrual cycle to pronounce another declaration.
○​ The first and second pronouncements may be revoked by the husband. If he does so, either
expressly or by resuming conjugal relations, the words of talaaq becomes ineffective.
○​ If no revocation is made after the first or second declaration, then the husband gets bound to make
the third pronouncement and the marriage dissolves.
■​ Talaq–al Biddat: Talaq–al Biddat includes irrevocable forms of divorce. It is not considered as a proper
form of divorce. It is a disapproved mode of divorce. A peculiar feature of this Talaq is that it becomes
effective as soon as the words are pronounced and there is no possibility of reconciliation between the
parties.
○​ Triple Talaq: - Triple Talaq is a form of divorce that was practiced in Islam, whereby a Muslim
man could divorce his wife by pronouncing talaq three times. The man need not cite any reason
for the divorce and the wife need not be present at the time of pronouncement of talaq.
●​ Shayara Bano v. Union of India (2017), She challenged this practice before the Supreme
Court on the ground that the said practice is discriminatory and against dignity of women.
●​ The SC, in a majority judgment rendered on 22nd August, 2017, set aside the practice of
divorce by pronouncing instant Triple Talaq as violative of Article 14 of the Indian
Constitution.
 ●​ SC’s judgment vindicated the position taken by the Government that talaq-e-biddat is
against constitutional morality, dignity of women and the principles of gender equality
and also against gender equity guaranteed under the Constitution of India.
■​ Ila:
○​ In Ila, the husband takes an oath not to have sexual intercourse with his wife and there is no
consummation for a period of four months. The marriage dissolves irrevocably after the expiry of
four months.
○​ If the husband resumes cohabitation within four months, Ila is cancelled, and the marriage does
not dissolve.
■​ Zihar:
○​ Zihar is a form of inchoate divorce. If the husband compares his wife to any of his female relations
within such prohibited degrees as renders marriage with such person unlawful, the wife has a right
to withdraw from him until he has performed penance. If the husband does not expiate, the wife
has a right to apply for judicial divorce.
By Wife:
■​ Talaaq-i-tafweez:
○​ Talaaq-i-tafweez is also known as delegated divorce and is recognized by both Shias and Sunnis.
This is the only way through which a woman can give divorce to her husband but this power of
giving divorce needs to be delegated by the husband only. It is a form of agreement which allows
the wife to get separated from her husband via divorce.
■​ Lian:
○​ Lian, in simple terms means wrong charge of ‘Adultery on wife’. When a husband falsely imposes
adultery charges against his wife, the wife has the right to sue her husband and also ask for a
decree of divorce on these grounds.
By Mutual Consent:
■​ Khula:
○​ A divorce with mutual consent and at the instance of a wife in which she agrees to return mahr
(obligation paid by the groom to the bride at the time of Islamic marriage) or give some
consideration to her husband. It allows a woman to initiate a divorce.
■​ Mubarat:
○​ In mubarat, both, the husband and the wife, are happy to get rid of each other. Among the Sunnis,
when the parties to marriage enter into a mubarat, all mutual rights and obligations come to an
end.
○​ The Shias insist that the word mubarat should be followed by the word talaaq pronounced in
Arabic unless the parties are incapable of pronouncing the Arabic words, otherwise no divorce
would result. Among both Shias and Sunnis, mubarat is irrevocable.
Women's Right to Divorce under the Dissolution of Muslim Marriage Act,1939:
A Muslim woman may file for divorce on the following grounds-
■​ That the whereabouts of the husband have not been known for a period of 4 years.
■​ That the husband has neglected or has failed to provide for her maintenance for a period of two
years.
■​ That the husband has been sentenced to imprisonment for a period of seven years or upwards.
■​ That the husband has failed to fulfill his marital obligation for a period of three years.
■​ That the husband has been insane for two years or is suffering from leprosy or a virulent form of
venereal disease.
■​ That the husband was impotent at the time of marriage and continues to be so.
The women, being given in marriage by her father or other guardian before she attained the age of 15 years,
repudiated the marriage before attaining the age of 18.

different modes of talaq:

In Islamic law, "Talaq" (divorce) can be effected in various ways, including the traditional "Talaq-ul-Sunnat"
(revocable divorce) and the controversial "Talaq-ul-Biddat" (irrevocable divorce, also known as triple talaq).
Here's a breakdown of the different modes of Talaq:
1. Talaq-ul-Sunnat (Revocable Divorce):
 ​ Talaq-e-Ahsan (Most Laudable):​
The husband pronounces "Talaq" once during the wife's period of purity (Tuhr) and allows the "iddat"
(waiting period) to pass, during which he can choose to take her back.
​ Talaq-e-Hasan (Laudable):​
The husband pronounces "Talaq" three times, each during a separate period of purity, with the
understanding that he can take her back before the third pronouncement.
2. Talaq-ul-Biddat (Irrevocable Divorce/Triple Talaq):
●​ The husband pronounces "Talaq" three times at once, resulting in an immediate and irrevocable divorce.
●​ This practice is considered highly disapproved by some Islamic scholars and is now illegal in India.
3. Other Forms of Divorce:
●​ Tafweez-e-Talaq (Delegated Talaq): The husband grants the wife the power to pronounce Talaq in the
marriage contract or later.
●​ Khula (Wife-Initiated Divorce): The wife initiates the divorce by offering the husband consideration
(something in return for the marriage).
●​ Mubara'at (Mutual Consent Divorce): Both husband and wife mutually agree to dissolve the marriage.
●​ Ila (Husband's Oath): If a husband swears not to have sexual relations with his wife for a certain period, the
wife may seek divorce after a specific period.
●​ Zihar (Husband's Comparison): If a husband compares his wife to his mother, sister, or other relatives, the
wife can seek divorce.
●​ Lian (Husband's False Accusation): If a husband falsely accuses his wife of adultery, she can seek divorce.
4. Judicial Divorce: Under the Dissolution of Muslim Marriages Act, 1939, a wife can seek divorce from a court on
specific grounds like cruelty, desertion, or failure to maintain.
Important Considerations:
​ Sunni vs. Shia:​
While both Sunni and Shia Muslims recognize Talaq, there are some differences in their interpretations and
practices.
​ Validity and Permissibility:​
The validity and permissibility of Talaq-ul-Biddat are debated among Islamic scholars, with some
considering it invalid and prohibited.
​ Legal Status:​
In India, the practice of triple talaq (Talaq-ul-Biddat) is illegal, and the Supreme Court has ruled it
unconstitutional.
legal consequences of divorce:
In Muslim law, divorce (Talaq) has several legal consequences, including the cessation of marital obligations, the
immediate payment of dower (Mahr), and the right to remarry after a waiting period (Iddat), as well as the cessation
of mutual rights of inheritance.
Here's a more detailed breakdown:
1. Cessation of Marital Obligations:
●​ Husband's Obligations: Once the divorce is pronounced, the husband's obligation to maintain his wife
ceases, except during the Iddat period.
●​ Wife's Obligations: Similarly, the wife's obligations to her husband as a wife also cease.
2. Dower (Mahr) Payment:
●​ Immediate Payment: The dower (Mahr), which is the sum of money or property given to the wife by the
husband in consideration of marriage, becomes immediately payable upon divorce.
3. Iddat (Waiting Period):
​ Purpose:​
The Iddat is a period of time that a divorced woman must observe before she can remarry.
​ Duration:​
The duration of the Iddat depends on whether the woman is pregnant or not, and also on the circumstances
of the divorce.
​ Purpose:​
The Iddat is a period during which the woman is not allowed to remarry, and it is also a period during
which the husband can reconsider his decision to divorce.
4. Right to Remarry:
●​ After Iddat: After the Iddat period is over, the divorced woman has the right to remarry.
5. Cessation of Inheritance Rights:
 ●​ Mutual Rights: The mutual rights of inheritance between the divorced couple cease upon the divorce.
6. Types of Divorce:
​ Talaq (Husband's Pronouncement):​
This is the most common form of divorce in Muslim law, where the husband pronounces the words of
divorce.
​ Khula (Wife's Request):​
A divorce initiated by the wife, where she returns the Mahr (dower) to the husband.
​ Talaq-e-Tafweez (Delegated Divorce):​
A husband can delegate his power to pronounce talaq to his wife or another person.
​ Judicial Divorce (Faskh):​
A divorce obtained through a court of law, which is possible in certain circumstances, such as the husband's
failure to maintain the wife or his imprisonment.

validity of triple Talaq judicial interpretation and legislative response in india:

In India, the Supreme Court declared "triple talaq" (talaq-e-biddat) unconstitutional in 2017, and the Muslim
Women (Protection of Rights on Marriage) Act, 2019 criminalized the practice, with a retrospective effect from
September 19, 2018.

Judicial Interpretation:
●​ Shayara Bano v. Union of India (2017): A Constitution Bench of the Supreme Court, by a 3:2 majority,
declared the practice of instant triple talaq (talaq-e-biddat) as unconstitutional, arbitrary, and violative of
fundamental rights guaranteed under Articles 14 and 21 of the Indian Constitution.
●​ The court ruled that the practice was not an essential part of Islamic law and was discriminatory towards
women, leading to gender inequality.
●​ The judges in the majority concluded that the instant triple talaq was not an essential religious practice
protected under Article 25.

Legislative Response:
​ Muslim Women (Protection of Rights on Marriage) Act, 2019:​
Following the Supreme Court's judgment, the Parliament enacted this law in 2019, making the
pronouncement of triple talaq a criminal offense.
​ Criminalization:​
The Act criminalizes the act of pronouncing triple talaq and provides for the punishment of those who do
so.
​ Retrospective Effect:​
The law came into force with retrospective effect from September 19, 2018, meaning that any incident of
triple talaq occurring on or after that date can be investigated under the Act.

The Dissolution of Muslim Marriage Act, 1939,

The Dissolution of Muslim Marriage Act, 1939, provides grounds for Muslim women to seek a divorce, but the
Act itself has not been amended. It remains in effect, outlining specific circumstances that allow a woman to
dissolve her marriage, though further legislation may exist addressing Muslim women's rights and divorce.

Here's a breakdown of the relevant aspects:

The Dissolution of Muslim Marriage Act, 1939 (DMMA):

​ Purpose:​
The DMMA was enacted to clarify and consolidate the provisions of Muslim law regarding divorce for Muslim
women.
​ Grounds for Dissolution:​
The Act outlines specific grounds on which a Muslim woman can seek a decree for dissolution of marriage,
including:
●​ Husband's absence for four years.
●​ Neglect or failure to provide maintenance for two years.
●​ Husband's imprisonment for seven years or more.
●​ Failure to fulfill marital obligations for three years.
●​ Husband's impotence or insanity for two years.
●​ Husband's cruelty or mistreatment.
●​ Marriage contracted by a guardian before the girl's 15th birthday if she repudiates before her 18th.
​ No Amendments:​
While the Act addresses certain grounds for dissolution, it hasn't undergone amendments to significantly
expand or change the grounds, as it already provides for multiple valid reasons for divorce.
​ Further Protection and Legislation:​
The Muslim Women (Protection of Rights on Divorce) Act, 1986, and the Muslim Women (Protection of
Rights on Marriage) Act, 2019, offer additional protections and address divorce in a broader context.

maintenance persons entitled to maintenance under Muslim law:

Under Muslim law, certain individuals are entitled to maintenance: wives, young children, and necessitous parents
and grandparents, as well as potentially other relatives within prohibited degrees who are in need.

Detailed Explanation:
​ Wives:​
A Muslim husband is obligated to maintain his wife during the marriage and, in some cases, even after the
marriage is dissolved. The obligation is rooted in the very nature of marriage and is a fundamental right of the
wife.
​ Children:​
The father is primarily responsible for maintaining his minor children (until they reach the age of majority).
This includes providing for their food, clothing, shelter, education, and healthcare.
​ Parents and Grandparents:​
If a person's parents or grandparents are unable to maintain themselves, the person has a moral and legal
obligation to provide for their needs.
​ Other Relatives:​
In certain circumstances, a person may also be obligated to maintain other relatives within the prohibited
degrees of marriage, particularly if they are in need and have no other means of support.
​ The Muslim Women (Protection of Rights on Divorce) Act, 1986​
This Act addresses maintenance of divorced Muslim women. While it does not grant them the same right of
maintenance as during a marriage, it does provide for maintenance during the iddat period (the period of
waiting after a divorce) and may also allow for a settlement/financial provision.
​ Section 125 of the Code of Criminal Procedure (CrPC):​
This section provides for maintenance for wives, divorced women, and children who cannot maintain
themselves and their dependents. It is applicable to all religions, not just Muslim law.
​ Conditions for Entitlement:
●​ The individual must have no means of self-support.
●​ The obligation of maintenance is contingent on the person's ability to afford it.
●​ In certain circumstances, a wife may lose her right to maintenance if she is found to have behaved
unfaithfully or has abandoned her husband without valid cause.
●​ The obligation to maintain children ceases once they reach adulthood and are capable of supporting
themselves.
​ Quantum of Maintenance:​
The amount of maintenance payable is determined based on the husband's financial capacity and the needs
of the dependent, taking into account the prevailing social and economic conditions, as well as the status of
the wife and the husband.
Muslim women protection of rights on divorce Act 1986:
PrevNext

Maintenance Rights of Divorced Muslim Women

Why in News?
In the case of Mohd Abdul Samad v. the State of Telangana, 2024, the Supreme Court (SC) of India, dismissed a
petition challenging the applicability of Section 125 of the Criminal Procedure Code (CrPC) to a divorced Muslim
woman.

What was the Petition About?

■​ The petition was filed by a Muslim man challenging a direction to pay interim maintenance to his divorced
wife under Section 125 CrPC.
○​ The petitioner argued that the Muslim Women (Protection of Rights on Divorce) Act, 1986, should
override the secular law of Section 125 CrPC.
■​ The petitioner claimed that the 1986 Act, being a special law, provided more comprehensive maintenance
provisions and should therefore take precedence over the general provisions of Section 125 CrPC.
○​ The petitioner argued that Sections 3 and 4 of the 1986 Act, with a non-obstante clause, empower
First Class Magistrates to decide matters of Maher (mandatory gift that the husband gives to his
wife at the wedding) and subsistence allowances.
○​ He insisted that family courts lack jurisdiction as the Act mandates Magistrates to handle these
issues. The petitioner emphasised the wife's failure to submit an affidavit opting for CrPC
provisions over the 1986 Act, as required by Section 5.
■​ It was argued that the 1986 Act implicitly repealed Section 125 CrPC for Muslim women due to its specific
provisions, thus barring them from seeking relief under Section 125 CrPC.

What is the Muslim Women (Protection of Rights on Divorce) Act, 1986?

■​ Purpose: The Act was enacted to protect the rights of Muslim women who have been divorced by, or have
obtained divorce from, their husbands. It provides for matters connected with or incidental to the protection
of these rights.
○​ This Act was a response to the Mohd. Ahmad Khan vs. Shah Bano Begum, 1985. In which the SC
delivered held that section 125 of the CrPC is a secular provision applicable to all, irrespective of
religion.
○​ The right to maintenance under CrPC is not negated by provisions of personal law.
■​ Provisions:
○​ A divorced Muslim woman is entitled to a reasonable and fair provision and maintenance from her
former husband, to be paid within the iddat period.
●​ Iddat is a period, usually of three months, which a woman must observe after the death of
her husband or a divorce before she can remarry.
○​ The Act also covers the payment of mahr (dower) and the return of properties given to the woman
at the time of marriage.
■​ It allows a divorced woman and her former husband to choose to be governed by the provisions of sections
125 to 128 of the CrPC, 1973. If they make a joint or separate declaration to this effect at the first hearing
of the application.
■​ Evolution:
○​ A Constitution bench of the SC had in its 2001 judgement in the case Danial Latifi & Another vs
Union Of India upheld the constitutional validity of the 1986 Act and said that its provisions do
not offend Articles 14, 15 and 21 of the Constitution of India.
●​ It extended the right of Muslim women to receive maintenance until they remarry beyond
the iddat period.
○​ Shabana Bano v. Imran Khan Case, 2009: The SC reiterated that divorced Muslim women could
claim maintenance under Section 125 of the CrPC, even beyond the iddat period, as long as they
do not remarry. This affirmed the principle that the CrPC provision applies irrespective of religion.
What Does Section 125 of the CrPC Say?
■​ Section 125 of the CrPC mandates that a Magistrate of the first class may order a person with sufficient
means to make a monthly allowance for the maintenance of:
○​ His wife, if she is unable to maintain herself.
○​ His legitimate or illegitimate minor child, whether married or not, is unable to maintain itself.
○​ His legitimate or illegitimate adult child with physical or mental abnormalities or injuries that
render them unable to maintain themselves.
○​ His father or mother, unable to maintain themselves.

What are the Supreme Court Observations?

■​ SC held that Section 125 CrPC applies to all women, not just married women. It emphasised that the
provision would apply universally.
■​ The SC's judgment reaffirms the rights of divorced Muslim women to claim maintenance under Section
125 CrPC, ensuring legal parity and safeguarding constitutional guarantees of equality and
non-discrimination.
■​ The Supreme Court dismissed the appeal, reaffirming that Muslim women can seek maintenance under
Section 125 CrPC despite the existence of the 1986 Act.
■​ The Court noted that Section 3 of the 1986 Act, starting with a non-obstante clause, does not restrict the
application of Section 125 CrPC, but rather provides an additional remedy.
■​ The SC emphasised the need for Indian men to financially empower their wives who lack independent
income. It highlighted the difference between financially independent or employed married women and
those who stay at home without any means to meet their personal expenses.
■​ The Court affirmed that divorced Muslim women, including those divorced through triple talaq (now
deemed illegal), can claim maintenance under Section 125 CrPC irrespective of personal laws.
○​ Triple talaq has been declared as void by the SC and criminalised by the Muslim Women
(Protection of Rights on Marriage) Act 2019.

effect of conversion on maintenance under Muslim law:

What is the effect of conversion under Muslim Law?

Religious conversion under Muslim law affects inheritance, marriage, maintenance, and guardianship. Apostasy
dissolves a husband’s marriage, while a wife must seek divorce. Converts gain inheritance rights under Muslim law
but lose them from non-Muslim relatives, balancing faith and legal status.

Introduction
Religious conversion in India impacts personal identity, family dynamics, inheritance, marriage, maintenance, and
guardianship rights, reflecting the complex interplay between religious freedom and legal frameworks. India's
Constitution, ensuring religious freedom as a secular state, affirms each individual's right to convert. However, the
legal consequences of conversion extend beyond individual choice, shaping social and familial structures. For
instance, under Hindu law, inheritance rights are traditionally lost upon conversion, although this was mitigated by
the Caste Disabilities Removal Act, 1850. Additionally, the Hindu Marriage Act, 1955, and the Dissolution of
Muslim Marriage Act, 1939, stipulate grounds for divorce upon religious conversion, as seen in Vilayat Raj Alias
Vilayat Khan v. Smt. Sunila[1], where courts examined the effects of a spouse’s conversion on marital rights.
Maintenance rights are similarly influenced. Section 24[2] of the Hindu Adoptions and Maintenance Act, 1956,
limits maintenance for converted spouses, with similar restrictions under Muslim law. In guardianship, the Hindu
Minority and Guardianship Act, 1956, prioritizes child welfare, allowing a converted parent to retain custody if it
serves the child's best interests. Thus, religious conversion in India embodies a multi-faceted transformation with
deep legal ramifications across personal and social domains, balancing religious freedoms with obligations to
familial and societal structures.
Effects of Religious Conversion in India
Legal repercussions of conversion across Hindu and Muslim personal laws that impact familial and societal
structures.

1. Effect on Inheritance Rights

In Hindu law, conversion historically led to the loss of inheritance rights, preventing a convert from inheriting
property from Hindu relatives. Similarly, in Muslim law, a convert from Islam traditionally faced inheritance
restrictions. The Caste Disabilities Removal Act, 1850, often termed the Freedom of Religion Act, abolished these
barriers, permitting converts to inherit despite changing religious affiliations. This shift underscores the importance
of religious autonomy, though the provision is subject to other relevant laws.

2. Effect on Marital Rights

Conversion impacts marital rights and serves as a ground for divorce under both Hindu and Muslim personal laws.
For example, if a Muslim husband converts, the marriage is automatically dissolved. The Dissolution of Muslim
Marriage Act, 1939, allows a Muslim wife to seek divorce on grounds of her conversion. Under the Hindu Marriage
Act, 1955, either spouse can seek divorce if the other renounces Hinduism, per Section 13(1)(ii)[3]. In Vilayat v.
Sunila[4], the court ruled that a Hindu spouse who converts can seek divorce provided one party remains non-Hindu
at the time of filing. When both parties convert to Islam, Jessie Grant Khambatta v. Mancherji Cursetji Khambatta[5]
held that a divorce by talak under Muslim law is more appropriate.

3. Effect on Maintenance Rights

Conversion affects a convert’s right to claim maintenance. Under Section 24[6] of the Hindu Adoptions and
Maintenance Act, 1956, a converted spouse loses the right to claim maintenance. However, if a Hindu husband
converts, his wife is entitled to separate residence and maintenance under Section 18(2)(f)[7] of the same Act. In
Muslim law, conversion results in forfeiting pre-existing maintenance rights; for instance, if a husband renounces
Islam, the marriage is dissolved, and the wife can claim maintenance during the iddat period.

4. Effect on Guardianship Rights

In matters of guardianship, the welfare of the child remains the primary focus. Under Section 13[8] of the Hindu
Minority and Guardianship Act, 1956, conversion of a parent is considered in guardianship decisions. A mother’s
right to guardianship remains unaffected by her conversion unless it compromises the child’s welfare.

Meaning of Apostasy in Islam

​ Apostasy, derived from the Greek term apostasies meaning "defection," is the act of abandoning or
renouncing one’s faith.
​ In Islam, apostasy, or ridda, refers to a Muslim choosing to reject Islam after previously identifying with the
faith.
​ This act is regarded as a profound break from religious commitment and is often perceived as a rebellion
against God and Islam. From a sociological standpoint, apostasy can be viewed as a personal struggle
against prior beliefs, symbolizing an effort to seek freedom from religious norms or practices once
embraced.
​ Islamic law traditionally treats apostasy as a serious offense, with legal consequences in some Islamic
jurisdictions. The extent of these consequences varies, with some interpretations of Sharia law prescribing
severe penalties.
​ Apostasy is thus not only a theological matter but also intersects with legal and social dimensions in
Islamic communities, illustrating the broader tensions between personal belief and collective religious
adherence.
What Constitutes Apostasy?
​ An individual becomes an apostate, or murtad, in Islam primarily through conversion from Islam to another
religion or by publicly renouncing Islamic beliefs.
​ Apostasy does not always require a formal declaration; any intentional action or expression indicating
rejection of fundamental Islamic principles can signify apostasy.
​ However, if an individual renounces Islam under duress, such as in situations of threat or war, this is not
considered apostasy, as intent plays a key role in determining genuine disaffiliation.
​ Apostasy is treated as a serious offense in several Islamic-majority countries, where it is sometimes
criminalized and met with legal consequences. Such measures contrast with global human rights standards,
specifically Article 18[9] of the United Nations Universal Declaration of Human Rights (UDHR), which
upholds the right to freedom of thought, conscience, and religion, including the right to change one’s
religion.
​ Although several Muslim-majority nations, such as Afghanistan, Egypt, Iran, Iraq, Pakistan, and Syria,
have expressed support for the UDHR, the topic remains complex and sensitive due to its religious, legal,
and social implications.
​ In contrast, countries like India, which is religiously pluralistic, impose no criminal or civil penalties for
apostasy. This distinction highlights the varied approaches to religious freedom globally and the impact of
apostasy on personal rights, such as marriage, which is not affected in legal terms in India.

Effect of Conversion on Marriage in Muslim Law

​ In Muslim law, apostasy or conversion from Islam has historically had profound effects on marriage,
leading to immediate dissolution under specific conditions.
​ Before the enactment of the Dissolution of Muslim Marriage Act, 1939, a marriage could be dissolved
automatically if either spouse converted away from Islam, without requiring a judicial decree or formal
repudiation, regardless of whether the conversion took place before or after the marriage was
consummated.
​ With the introduction of Section 4[10] of the Dissolution of Muslim Marriage Act, 1939, there was a
distinction made between the effect of apostasy by the husband and the wife.
​ If a Muslim husband converts to another religion, such as Christianity, the marriage is considered dissolved
immediately under the pre-1939 law. This means that the wife is no longer bound by Muslim law and may
remarry immediately without observing the iddat (waiting) period. However, Section 4[11] does not apply
to the husband’s conversion, so the original rule of automatic dissolution still governs cases where the
husband renounces Islam.
​ Conversely, if the wife renounces Islam, this alone does not automatically dissolve the marriage. Instead,
the wife can seek a divorce through the court on any grounds specified in Section 2[12] of the Dissolution
of Muslim Marriage Act, 1939.
​ Notably, Section 4[13] also does not apply if a woman converts to Islam from another faith and
subsequently returns to her former religion.
​ For example, if a Hindu woman converts to Islam, marries under Muslim law, and then reverts to
Hinduism, her marriage will be considered dissolved upon her re-conversion. However, if she converts to
another religion that is not her original faith, such as Christianity, the marriage does not dissolve
automatically.
​ In Munavvar-ul-Islam v. Rishu Arora[14], the court ruled that when a Hindu wife converted to Islam at the
time of marriage and later re-converted to Hinduism, the marriage stood dissolved.
​ Similarly, in Abdul Ghani v. Azizul Huq[15], a Muslim man who converted to Christianity and then
reverted to Islam within his wife’s iddat period faced no legal grounds for a charge of bigamy under Section
494[16] of the Indian Penal Code (Now under Section 82[17] of the Bharatiya Nyaya Sanhita), even though
his wife had remarried during that period. The court held that while the second marriage might conflict with
the iddat doctrine under Islamic law, this was not a basis for a bigamy charge under Indian law.
​ In sum, apostasy has a significant impact on marital status under Muslim law, particularly for the husband,
where conversion leads to immediate dissolution. For the wife, conversion provides a pathway to seek
judicial divorce without automatic dissolution, except under specific conditions related to her original faith.
Effect of Apostasy on Inheritance in Muslim Law
​ Under Muslim Personal Law, apostasy does not automatically strip an individual of their inheritance rights,
especially in the case of a biological son.
​ For example, where a person converts from one religion to another, such as a biological son who converts
to a different faith, the individual still retains the right to inherit his biological father’s property. This right
remains intact despite the change in religion, as inheritance is based on the individual's biological
relationship, not religious affiliation.
​ According to the Caste Disabilities Removal Act, a child's religious conversion does not affect their
inheritance rights. Therefore, even if a child converts to a different religion, they remain entitled to inherit
property from their biological parents.
​ Moreover, Muslim Personal Law (Shariat) Application Act, 1937 applies to families where both partners
are Muslim. However, if the marriage occurred under the Special Marriages Act, inheritance is governed by
the Indian Succession Act, which does not consider the religion of the deceased or their heirs for succession
purposes.
​ If an individual converts from any other religion to Islam, their inheritance rights are governed by Muslim
law rather than their previous personal law. Upon converting to Islam, an individual loses their rights under
their previous religious personal law and gains rights under Muslim inheritance law. They are entitled to
inherit from their Muslim relatives but may be excluded from inheriting from non-Muslim relatives, as their
status as a Muslim supersedes their previous religious identity in the eyes of Muslim law.
​ In conclusion, conversion to Islam or from Islam affects inheritance rights according to Muslim Personal
Law. A convert to Islam gains inheritance rights from Muslim family members but loses rights from their
non-Muslim relatives. Conversely, a Muslim apostate retains their inheritance rights from biological parents
even after conversion to another religion.

Difference between Shia and Sunni law:

Under Sunni law, children are obligated to maintain their parents regardless of the parents' earning capacity, while
Shia law relieves children of this duty if the parents are capable of earning independently.
Here's a more detailed breakdown:
​ Maintenance of Parents:
●​ Sunni Law: Children (male or female) are obligated to maintain their parents (and grandparents)
regardless of their parents' ability to earn.
●​ Shia Law: Children are relieved of their duty to maintain parents if the parents are capable of
earning.
​ Maintenance of Collaterals:
●​ Sunni Law: A person has the obligation to maintain their own family, including their collaterals
(family relatives).
●​ Shia Law: Shia law does not have the obligation to maintain their own collaterals

UNIT-3
parentage Maternity and paternity:

Parentage in Muslims Law

Parentage is the relation of parents to their children. The parentage includes maternity and paternity.
Maternity is the legal relationship between the mother and the child. Paternity is the legal relationship between the
father and the child.

Parentage is generally used for a legal relationship which the child has with the parents. These legal relationships are
associated with certain rights and duties such as rights of inheritance, maintenance, and guardianship.
How Maternity is Established in Muslim Law
Under Sunni Law, the maternity of a child is established in the woman who gives birth to the child irrespective of
whether the birth was the result of a valid marriage or adultery (Zina).
But under Shia Law, only birth is not sufficient to establish maternity. It has to be also proved that the birth was a
result of a lawful marriage.
So we can say under Sunni Law, an illegitimate child has his maternity in the woman who gave birth, and the child
is entitled to inherit from mother alone.
But under Shia Law, an illegitimate child has neither maternity in the woman who gave birth nor paternity in the
father. So in Shia Law, the illegitimate child can inherit neither from father or mother.

How Paternity is Established in Muslim Law

Paternity of a child can only be established by marriage between his or her parents. The marriage may be valid or be
irregular. But it does not become void. Paternity is established in the husband of the mother of a child.
Paternity is established in a person said to be a father by proof or legal presumption that the child was begotten by
him on a woman who was at the time of conception his lawful wife and was in good faith and reasonably believed
by him to be such or whose marriage being valid.
An issue of void marriage has neither paternity nor maternity under Shia Law.

Legitimacy in Muslim Law

A person born in lawful marriage is said to be the legitimate child of the spouses. So the main point in case of the
legitimacy of a child is the marriage between his or her parents.
Special notes regarding the Presumption of Legitimacy
1. A child born within six months after the marriage: the child is illegitimate unless the father acknowledges the
child.
2. A child born after six months from the date of marriage is presumed to be legitimate.
3. A child born after the dissolution of marriage is legitimate-​
a. Under Shia Law, if born within 10 months.​
b. Under Hanafi Law, if born within 2 years.​
c. Under Shefai and Maliki, if born within 4 years.

Legitimacy When Conclusively Presumed

According to section 112 of the (BSS)Indian Evidence Act, if a child is born during the marriage or within 280 days
after the dissolution of marriage, the child shall be presumed to be the legitimate child of the spouses.
The Evidence Act supersedes the rule of Muslim law. The question arises whether the provision of the Indian
Evidence Act supersedes the provisions of Muslim law. Opinions are divided, but the balance of authority remains in
favour of the Indian Evidence Act.

Acknowledgement in Muslim Law

Muslim law does not recognise the institute of adoption, which is recognised by other systems.
Muslim law recognises the institution of ‘IKRAS’ (acknowledgement) where the paternity of a child, which means
his legitimate decent from his father, cannot be proved by establishing a marriage between his parents at the time of
conception of birth.
Muslim law recognises acknowledgement as a method whereby such marriage and legitimate decent can be
established as a matter of substantive law for the purpose of inheritance.
Mohammed Allahdad Khan vs Mohammed Ismail Khan (1887)
Justice Mehmood held that where marriage cannot be proved by direct evidence and no legitimacy be established,
Muslim law prescribes a means whereby the marriage and legitimacy may be established as a matter of substantive
law, and that is acknowledgement of paternity.
Acknowledgement under Muslim law is a rule of Substantive Law and not a rule of evidence. It means it is not a
presumption under the Evidence Act.
It confers the status of sonship and rights to succeed. A child whose illegitimacy is proved by reason of the union
between the parents not being lawful; such a child cannot be proved by acknowledgement.

Necessity of Acknowledgement of Legitimacy

When there is direct proof of marriage and a child born out from such marriage, the question of acknowledgement
does not arise because, in such cases, the legitimacy is ipso facto established.
If there is no such direct proof of legitimacy, then legitimacy may be proved by indirect proof, which is called
acknowledgement.
Note: Acknowledgement is made by the father only not the mother. In other words, the doctrine applies only to cases
of uncertainty about legitimacy. Acknowledgement is made on the assumption of a lawful union of the parents and
the acknowledged child.

Basic Principles of Acknowledgement

1. Express or implied acknowledgement
It is not necessary that an acknowledgement should be express. It may also be implied. The acknowledgement may
be of a son or daughter, but it must be made by the father only. The acknowledgement of the child must not be
casual.
Muhammad Ali Khan vs Muhammad Ibrahim Khan 1929 PC
The father made the acknowledgement of the child in a casual manner. He never intended that his acknowledgement
should have serious effects. It was held by the Privy Council that the act of the father is not sufficient to confer the
status of legitimacy.
2. Age of the Acknowledger
The age of the parties must be such that it is possible that they may be father and son. According to Bailie, the
acknowledger must be at least 12.5 years older than the person acknowledged.
3. The child of others
The child who is acknowledged must not be known as a child of another.
4. Offspring of Zina
An offspring of Zina is one who is born either without marriage or a mother who was the married wife of another or
of void marriage.
When the man has committed Zina with a woman, and she has delivered a son, such a son cannot be acknowledged.
So the acknowledgement must be of the child who is offspring of a legal marriage.
5. Legal marriage possible between parents of the child acknowledged
The acknowledger and the mother of the child must have been lawfully joined in marriage at the time when the child
was begotten. It is essential to show that lawful marriage is possible between the acknowledger and the mother of
child. And the child is not the fruit of an adulterous intercourse.
Similarly, if it is definitely proved that no marriage took place between the parties, the issue will be illegitimate, and
the acknowledgement will be ineffective.
6. Person acknowledged should confirm acknowledgement
The child, if adult, must confirm the acknowledgement.
7. Competency of the Acknowledger
The acknowledger must be competent to make a contract, which means he must be major and of sound mind.

Effects Of Acknowledgement
Acknowledgement produces all the legal effect of a natural paternity and vests in the child the right of inheriting
from the acknowledger.
In the case of wife, which means the mother of an acknowledged son, it has the effect of giving her the status of
legal wife and hence the right of maintenance and inheritance.

guardianship its meaning kinds of guardianship under Muslim law:

Guardianship, in the context of Muslim law, is a legal mechanism to oversee and manage the affairs of a minor or
incapacitated person, encompassing both personal and property matters. It's known as "Wilayat" and, under Muslim
law, is primarily vested in the father or, in his absence, other male relatives.
Here's a more detailed look at the different types of guardianship:
1. Natural Guardianship ("Wilayat")
 ​ Primary Authority:​
In Muslim law, the father holds the primary authority as the natural guardian, responsible for the child's
welfare, including education, residence, and overall well-being.
​ Fathers Father:​
In the absence of the father, the father's father (paternal grandfather) has a similar right.
​ Paternal Grandfather​
: In absence of father, the paternal grandfather is the natural guardian of the minor.
​ Property:​
The natural guardian also manages the minor's property.
​ Supervision:​
The guardian is responsible for the child's supervision, protection, and welfare.
2. Testamentary Guardian:
​ Father's Appointment:​
A father can appoint a testamentary guardian through a will, who would take over guardianship of his
minor children after his death.
​ Assumed Responsibilities:​
The appointed testamentary guardian assumes responsibilities similar to those of the natural guardian,
ensuring continuity in the child's care
removal of Guardian:
Under Muslim Law, a guardian can be removed by the court if it's deemed necessary in the minor's interest, for
reasons like abuse of trust, failure to perform duties, or incapacity to do so, among other grounds.

Here's a more detailed explanation:

Reasons for Removal:

●​ Abuse of Trust: If the guardian is found to have abused the trust placed in them.
●​ Failure to Perform Duties: If the guardian fails to fulfill their duties or responsibilities towards the minor.
●​ Incapacity to Perform Duties: If the guardian is deemed incapable of performing their duties, whether due
to physical or mental reasons.
●​ Ill-treatment or Neglect: If the guardian is found to be ill-treating or neglecting the minor.
●​ Disregard of Court Orders: If the guardian continuously disregards court orders or the provisions of the
Guardianship and Wards Act.
●​ Moral Turpitude: If the guardian is convicted of an offense showing moral turpitude.
●​ Adverse Interests: If the guardian has interests that are adverse to the minor's best interests.
●​ Ceasing to Reside within Court Limits: If the guardian ceases to reside within the jurisdiction of the
court.
●​ Insolvency (for guardian of property): If the guardian of property becomes insolvent.
●​ Ceasing to be under the law to which the minor is subject: If the guardian ceases to be under the law to
which the minor is subject.

Cessation of Authority of Guardianship:

●​ Death, Removal, or Discharge: The guardian's authority ceases upon their death, removal, or discharge.
●​ Court Assuming Superintendence: If the court assumes superintendence of the minor's person or
property.
●​ Minor Reaching Adulthood: The guardianship ceases once the minor reaches adulthood.
●​ Marriage of a Female Ward: In the case of a female ward, her marriage to a husband who is not unfit to
be her guardian also terminates the guardianship.
●​ Father Ceasing to be Unfit: If the father, who was previously deemed unfit, ceases to be so.
What is the difference between Sunni and Shia guardianship?
In Muslim law, guardianship, encompassing both personal and property management, sees some key differences
between Sunni and Shia interpretations, particularly regarding who can act as a guardian and the extent of their
authority.
Here's a breakdown of the key differences:
​ Natural Guardianship:
●​ Sunni: The father is considered the natural guardian of his minor children, and after his death, the
guardianship passes to the executor (appointed by the father or grandfather).
●​ Shia: The father is also the natural guardian, but after his death, the guardianship passes to the
paternal grandfather, if alive, even if the father has appointed an executor.
​ Testamentary Guardians:
●​ Sunni: The father or grandfather can appoint a testamentary guardian (guardian appointed through
a will).
●​ Shia: The father or grandfather can appoint a testamentary guardian, but the paternal grandfather's
appointment takes precedence over the father's executor.
​ Mother's Role:
●​ Sunni: The mother can be a guardian for a son until he reaches 7 years old and for a daughter until
she reaches puberty.
●​ Shia: The mother's right to custody (Hizanat) extends until a son is two years old and until a
daughter attains the age of seven.
​ Guardian for Marriage:
●​ Sunni: Several relatives can act as guardians for marriage, not just the father and grandfather.
●​ Shia: Only the father and the real grandfather can act as guardians for marriage.
​ Non-Muslim Guardians:
●​ Sunni: A non-Muslim can be appointed as a testamentary guardian.
●​ Shia: A non-Muslim cannot be a guardian of the person or property of a minor.
​ Guardianship of property:
●​ Sunni: The guardian of the property of a minor is entitled to sell the immovable property which
belongs to the minor when the sale in required for the maintenance and when the minor has no
other property.
●​ Shia: Similar to Sunni, the guardian can sell property for the minor's maintenance if necessary.

Gift - definition of gift - requisites of valid gift - gift formalities - revocation of gift - kinds of gift under
Muslim law:
In Muslim law, a "Hiba," or gift, is a voluntary, immediate transfer of ownership of an existing property from a
donor to a donee without any consideration, requiring declaration, acceptance, and delivery.
Definition:
●​ Hiba: is a voluntary transfer of ownership of a property (movable or immovable) from one person (donor)
to another (donee) without any consideration or payment in return.
●​ The gift must be immediate, meaning it must occur during the donor's lifetime and not be contingent on a
future event or the donor's death.
●​ In other words, a gift is an unconditional transfer of ownership made without any exchange.
Requisites of a Valid Gift (Hiba):
●​ Declaration: The donor must make a clear and unequivocal declaration of the gift.
●​ Acceptance: The donee must accept the gift, either directly or through a guardian if the donee is a minor or
incapable.
●​ Delivery of Possession: There must be actual or constructive delivery of possession of the property to the
donee to complete the gift. The donor must relinquish ownership, and the donee must take control.
●​ Competency of Donor and Donee: The donor must be a Muslim, of sound mind, and of legal age, capable
of owning and transferring property. The donee can be any person, including a minor or a person of
unsound mind (if their guardian accepts on their behalf), and the transfer should be in the interest of the
donee.
●​ Subject Matter: The gift must involve an existing property, which the donor owns.
Formalities of a Gift:
​ No Specific Formalities:​
A gift (Hiba) can be made orally or in writing, and there is no requirement for registration for it to be valid.
 ​ Written Hiba-Nama:​
A written declaration of a gift is called a "Hiba-Nama", but it is not mandatory.
Revocation of a Gift:
​ General Rule:​
A gift, once completed (declaration, acceptance, and delivery), is generally irrevocable in Islamic law.
​ Exceptions:​
However, if a gift deed contains a condition allowing for revocation under certain circumstances, it may be
revoked according to the conditions specified.
​ Revocation by Agreement:​
A gift may be revoked if all the parties involved (donor and donee) agree to the revocation.
​ Gift made under coercion or without free consent is also revocable:​
If a gift was made under coercion or undue influence, the donor may be able to revoke it.
Kinds of Gifts (Hiba):
​ Hiba-bil-Iwaz:​
This involves a transfer of property (Hiba) in exchange for something else (Iwaz), which is essentially a
sale rather than a pure gift.
​ Hiba:​
A pure, unconditional gift where the donor transfers ownership without expecting any return.
Wills meaning of will requisites of valid will revocation of will distinction between will and gift:
In Muslim law, a will, called Wasiyat, is a legal document expressing an individual's wishes regarding their property
after death, but with limitations on the testator's ability to dispose of their entire estate.
1. Meaning of Will (Wasiyat):
●​ A will, or Wasiyat, is a testament to a Muslim's intentions regarding their property, which takes effect after
their death.
●​ It's a way to specify how property should be distributed after death, but with restrictions.

2. Requisites of a Valid Will:

●​ Legator's Competency: The person making the will (legator) must be a Muslim, of sound mind, and of legal
age.
●​ Free Consent: The will must be made freely, without coercion, undue influence, or fraud.
●​ Formality (No Specific Requirement): A will doesn't need to be written or in any particular form. A verbal
declaration can suffice, as long as the testator's intention is clear.
●​ Clear Intention: The testator must have a clear intention to dispose of their property after death.
●​ Existence of Legatee: The person who is to receive the benefit of the will (legatee) must be in existence.
●​ Quantum Restriction: A Muslim can only bequeath a portion of their property through a will. The
maximum permissible bequest is one-third of their property.
●​ Bequest to Legal Heirs: Bequests to legal heirs require their consent after the testator's death.
3. Revocation of Will:
●​ A will can be revoked (changed or canceled) by the testator at any time before their death, provided they
are competent to do so.
●​ The revocation must be done by the testator themselves, and it can be done through a new will, a written or
verbal declaration, or destruction of the original will.
4. Distinction Between Will (Wasiyat) and Gift (Hiba):
​ Timing of Effect:​
A will takes effect after the testator's death; a gift takes effect immediately after the declaration and delivery
of possession.
​ Complete Ownership:​
With a gift, ownership passes to the recipient during the lifetime of the donor. With a will, the recipient
only gains ownership after the testator's death.
​ Power to Revoke:​
Generally, a gift can be revoked before delivery of possession, but not always afterward. A will can be
revoked by the testator at any time before their death.
5. Validity of Bequest in Favor of an Heir:
●​ A bequest (a gift in a will) in favor of an heir is valid only if the other legal heirs give their consent after the
death of the testator.
What is the difference between Sunni and Shia law relating to Wills?

In Muslim law, wills (Wasiyat) differ between Sunni and Shia schools regarding the lapse of legacies, consent for
exceeding the one-third limit, and the validity of bequests to certain individuals or institutions.
Here's a more detailed breakdown of the key differences:
1. Lapse of Legacy (Death of Legatee Before Testator):
​ Sunni Law:​
If a legatee (beneficiary) dies before the testator (will maker), the bequest lapses, and the property reverts to
the testator's estate.
​ Shia Law:​
The legacy will lapse only if the legatee dies without leaving an heir, or if the testator revokes the will after
the legatee's death. If the testator doesn't revoke the will, the benefit passes to the legatee's heirs.
2. Consent for Bequests Exceeding One-Third:
●​ Sunni Law: Consent from the heirs whose shares are affected by a bequest exceeding the one-third limit
must be obtained after the testator's death.
●​ Shia Law: Consent can be obtained before or after the testator's death.
3. Validity of Bequests to Certain Individuals/Institutions:
​ Both Sunni and Shia Law:​
A will can be made in favor of an insane person, a minor, or a non-Muslim, but the legatee cannot be
hostile towards Islam.
​ Sunni Law:​
A bequest to a religious institution that propagates another religion and degrades Islam is not valid.
​ Shia Law:​
A bequest to a religious institution that propagates another religion and degrades Islam is not valid.
​ Sunni Law:​
A bequest to a life estate is treated as a bequest with a condition attached, and the condition becomes void,
while the bequest takes effect.
​ Shia Law:​
Conditional wills take full effect.

UNIT-4

waqf definition essentials of waqf kinds of waqf, creation of waqf for revocation of waqf salient features of the
waqf act 1995:
Waqf, an Islamic concept, involves dedicating property permanently to charitable or religious purposes. It's a form
of endowment with the property being "detained" or held in trust for public benefit. Creation, essentials, kinds,
revocation, and the Waqf Act are discussed below.
Definition and Essentials:
​ Definition:​
Waqf is the permanent dedication of property (movable or immovable) for religious, pious, or charitable
purposes recognized by Muslim law. It essentially means "detaining" the property for a specific public
purpose.
​ Essentials:​
For a waqf to be valid, it must be:
●​ Permanent dedication: The property must be dedicated perpetually.
●​ Competency of the Waqif: The person dedicating the property (waqif) must be of sound mind and
legally capable of making the dedication.
●​ Validity of ownership: The waqif must have the legal right to own the property being dedicated.
●​ Intent to create a waqf: The waqif must have an intention to create a waqf.
●​ Clear designation: The purpose of the waqf must be clear and identifiable.
Kinds of Waqf:
​ Public Waqf (Waqf al-Khairi):​
Benefits the general public or a specified group (e.g., funding a mosque, school, hospital).
​ Private/Family Waqf (Waqf al-Ahli):​
Benefits the waqif's family or descendants but also may have some public benefit.
 ​ Joint Waqf (Waqf al-Mushtarak):​
Benefits both the public and a specified group (e.g., a mosque with a family trust for its upkeep).
Creation of Waqf:
●​ By Deed or Instrument: A written or oral declaration of the property as waqf.
●​ By Long-term Use: If a property has been used for religious or charitable purposes for an extended period,
it may be considered a waqf by user.
●​ By Endowments: Creating a waqf based on the end of line of succession (e.g. if a family's property
becomes waqf).
Revocation of Waqf:
●​ Generally, once a waqf is established, it cannot be revoked. The Waqf Act in India reflects this, and the
property dedicated for waqf purpose cannot be transferred.
Salient Features of the Waqf Act, 1995 (India):
●​ Definition of Waqf: Clearly defines waqf and its related terms.
●​ Waqf Boards: Establishes State Waqf Boards to oversee the management of waqf properties.
●​ Powers and Functions: The act outlines the powers and functions of the Waqf Boards and the Waqf
Council, as well as the roles of the administrators (mutawallis) and Chief Executive Officer.
●​ Protection of Waqf Property: It ensures the protection and preservation of waqf properties.
●​ Management and Administration: Provides a framework for the management and administration of waqf
properties and assets, and for determining the legitimate expenditures.
Mutawalli, who can be Mutawalli, powers and duties of Mutawalli, removal of Mutawalli and management of
waqf property:
A Mutawalli is a trustee or custodian appointed to manage and administer waqf property, ensuring the waqf's
purpose is fulfilled according to the waqf deed and relevant laws, such as the Waqf Act, 1995 [1, 2, 5, 7, 9, 15].
Who Can Be a Mutawalli?
●​ Generally, a competent adult (of sound mind and majority age) is eligible, unless specific restrictions are
outlined in the waqf deed.
●​ The waqif (founder of the waqf) themselves can be the Mutawalli.
●​ The waqif's children, or even non-Muslims, can also be appointed as mutawallis.
Powers and Duties of a Mutawalli:
​ Management and Administration:​
The Mutawalli's primary responsibility is to manage and administer the waqf property according to the
waqf deed, including any directions from the waqif or competent authority.
​ Fiduciary Responsibility:​
The Mutawalli holds a fiduciary position, meaning they must act in the best interests of the waqf and its
beneficiaries.
​ Compliance with Waqf Deed:​
The Mutawalli must ensure all terms and conditions of the waqf deed are followed.
​ Supervision of Beneficiaries:​
The Mutawalli is responsible for ensuring that the beneficiaries of the waqf are able to enjoy its benefits.
Removal of Mutawalli:
​ Reasons for Removal:​
A Mutawalli can be removed by the Waqf Board (under the Waqf Act, 1995) or the court for reasons
including:
●​ Breach of trust, misconduct, or insolvency.
●​ Failure to perform duties.
●​ Mental or physical incapacity.
●​ Engaging in activities that are detrimental to the waqf.
●​ Conviction of a crime indicating poor moral character.
​ Due Process:​
The Waqf Board must follow a due process, including providing a reasonable opportunity to the Mutawalli
to be heard before taking any action.
​ Appeal:​
The removed Mutawalli has the right to appeal the decision to the Waqf Tribunal.
​ Appointing a Receiver:​
During the removal process or an appeal, the court may appoint a receiver to manage the waqf property.
Management of Waqf Property:
 ​ According to Waqf Deed:​
The Mutawalli must manage the waqf property according to the rules laid down in the waqf deed.
​ Proper Record-Keeping:​
The Mutawalli must keep proper financial records and account for the waqf's income and expenses.
​ Utilizing the Usufructs:​
The Mutawalli must ensure that the income (usufructs) of the waqf property is used as intended by the
waqif.
​ No Personal Benefit:​
The Mutawalli cannot personally benefit from the waqf property or use it for personal gain.
succession , application of the property of a deceased Muslim legal position of heirs as representatives,
administration:
Under Muslim law, after a Muslim's death, their property is governed by inheritance rules, with legal representatives
(executors or heirs) administering the estate and distributing it according to the Islamic principles. These principles
focus on specific categories of heirs and their predetermined shares in the property.
Legal Position of Heirs as Representatives:
​ Legal Representatives:​
An executor or administrator (as appointed by the deceased or the court) acts as a legal representative,
responsible for managing the estate, paying debts, and distributing the remaining assets to the heirs.
​ Inheritance Rights:​
Heirs (including sharers and residuaries) become the legal owners of their respective shares in the property,
which they hold as tenants in common, meaning each heir has a definite share and title to the property.
​ No Birth Right:​
Inheritance rights accrue only upon death, with no birthright to property before the deceased's passing.
​ Specific Heirs:​
Under Muslim law, there are specific categories of heirs, like "sharers" (who receive a fixed share) and
"residuary heirs" (who inherit the remaining portion) and "distant kindred" if none of the other categories
exist,.
Administration of the Estate:
​ Executor's Responsibilities:​
The executor or administrator manages the estate, including paying debts, funeral expenses, and any
bequests (legacies).
​ Property Division:​
The property is divided among the heirs according to their shares, as outlined in the Quran and Islamic
traditions.
​ Court Involvement:​
In some cases, the court may intervene to ensure proper administration, especially when there are disputes
or when a will is involved.
​ Disqualification:​
There are some instances where a heir may be disqualified, such as those who are not Muslim or if they are
not direct blood relatives.
Key Concepts in Muslim Inheritance Law:
​ Sharers:​
These are relatives who are entitled to specific shares in the estate, as outlined in the Quran.
​ Residuaries:​
If any property remains after allocating shares to sharers, it goes to the residuaries (also known as agnatic
heirs) who inherit the residue.
​ Will (Wasiyat):​
While bequests (wasiyat) are possible, a Muslim can only bequest up to one-third of their property; any
bequest exceeding that amount requires the consent of the heirs.

Waqf Tribunals & Jurisdiction:

Waqf Tribunals in India, established under the Waqf Act, 1995, hold exclusive jurisdiction over disputes, questions,
and other matters relating to waqf or waqf property. They are deemed civil courts with the same powers.
Here's a more detailed explanation:
1. Purpose and Function:
 ●​ Waqf Tribunals are designated to resolve disputes, questions, and other matters concerning waqf (property
dedicated for religious or charitable purposes under Islamic law) and waqf property.
●​ They have the power to determine any issue, question, or matter relating to a waqf or waqf property.
●​ The Tribunals are deemed civil courts, meaning they have similar powers and functions as civil courts
under the Code of Civil Procedure, 1908.
2. Jurisdiction:
​ Exclusive Jurisdiction:​
The Tribunals have exclusive jurisdiction over disputes, questions, and matters relating to waqf and waqf
property.
​ Specific Matters:​
The jurisdiction of the Tribunal extends to:
●​ Determining disputes or questions relating to a waqf or waqf property.
●​ Eviction of a tenant or determining the rights and obligations of the lessor and lessee of such
property.
●​ Matters that arise from orders made under the Act or rules made under the Act.
​ Bar of Civil Court Jurisdiction:​
Civil courts are barred from entertaining any suit or legal proceeding in respect of any matter that falls
within the jurisdiction of the Waqf Tribunal.
3. Composition and Constitution:
●​ State Government: The state government constitutes Waqf Tribunals, as needed.
●​ Members: The Tribunals are typically composed of:
●​ A Chairman, often an officer from the State Civil Services with equivalent rank to that of an
Additional District Magistrate.
●​ Members with knowledge of Muslim law and jurisprudence.
●​ Local Limits: The state government defines the local limits and jurisdiction of these Tribunals.
4. Key Considerations:
​ No Jurisdiction on Pre-Act Suits:​
The Tribunal does not have jurisdiction over matters already the subject of a suit or proceeding in a civil
court before the commencement of the Waqf Act, 1995.
​ Binding Decisions:​
Decisions of the Waqf Tribunals are final and binding on the parties involved.
​ Appellate Jurisdiction:​
An aggrieved party can appeal against a Tribunal's decision in the High Court.
​ Supreme Court Ruling:​
Recent Supreme Court rulings have clarified that the Waqf Board has original jurisdiction over
Mutawalliship matters, while the Tribunal is an adjudicatory body.
5. Waqf Tribunal vs. Waqf Board:
​ Waqf Board:​
Deals with administrative matters related to waqf properties, including the appointment of Mutawallis.
​ Waqf Tribunal:​
Acts as an adjudicatory authority, deciding disputes, questions, and other matters relating to waqf or waqf
property.
UNIT-5
Special Marriage Act 1954:
The Special Marriage Act, 1954, is an Indian law that provides a legal framework for marriages, particularly
inter-religious and inter-caste marriages, enabling couples to solemnize their union through a civil contract,
regardless of their religious beliefs.
Here's a more detailed explanation:
Key Aspects of the Special Marriage Act, 1954:
​ Purpose:​
The Act aims to provide a special form of marriage for individuals regardless of their religion or faith,
facilitating inter-religious and inter-caste marriages.
​ Legal Framework:​
It provides a legal framework for marriages, allowing couples to solemnize their marriage through a civil
contract.
 ​ Registration:​
The Act allows for the registration of marriages, which gives legal recognition to the marriage and provides
legal benefits and protections to the couple.
​ Eligibility:
●​ The age of the groom should be 21 years and above, and the bride should be 18 years and above.
●​ Neither party should have a living spouse.
​ Process:
●​ A notice of the intended marriage must be published, and a 30-day waiting period is required
during which objections can be raised.
●​ The marriage can be solemnized at the office of the Marriage Officer or at another place within a
reasonable distance.
●​ The marriage can be solemnized in any form chosen by the parties, but each party must say to the
other, in the presence of the Marriage Officer and three witnesses, "I, (A), take the (B), to be my
lawful wife (or husband)".
​ Benefits:
●​ The Act promotes social harmony, individual autonomy, and equality in Indian marriages.
●​ It provides legal recognition to marriages, which can be crucial for inheritance rights, succession
rights, and social security benefits.
​ Divorce:​
The Act also includes provisions for divorce, including a mutual divorce provision.
​ Amendment Bill:​
There is a Special Marriage (Amendment) Bill, 2022, that seeks to legalize same-sex marriage in India by
amending the Special Marriage Act, 1954.

Salient features of the Indian divorce act:

The Indian Divorce Act, 1869, primarily addresses divorce for Christians in India, outlining grounds for dissolution
of marriage, court procedures, and related issues like custody and alimony.

Here's a more detailed breakdown of its salient features:

1. Scope and Application:

●​ The Act applies specifically to Christians in India, covering matters related to divorce, nullity of marriage,
and related issues.
●​ It is a law that deals with the dissolution of marriage and related matters for Christian couples.

2. Grounds for Divorce:

●​ The Act specifies various grounds upon which a Christian marriage can be dissolved, including adultery,
cruelty, desertion, and unsoundness of mind.
●​ Other grounds include:
●​ Conversion to another religion
●​ Leprosy or venereal disease in a communicable form (Removed this in 2019, bill passed by
loksabha)
●​ Wilful refusal to consummate the marriage
●​ Failure to comply with a decree for restitution of conjugal rights
●​ Desertion for a specified period
●​ Unsoundness of mind for a continuous period
●​ Section 10A: introduced through an amendment in 2001, specifically addresses mutual consent divorces
among Christians, allowing couples to file for divorce by mutual consent.

3. Court Procedures:
●​ Divorce petitions are filed in the District Court, and the decree for dissolution of marriage is subject to
confirmation by the High Court.
 ●​ The High Court has the authority to examine the decree passed and may direct the concerned authority to
collect additional evidence or examine the proofs again.
●​ If the High Court bench consists of three judges, the decision of the majority prevails; if it consists of two
judges, the judgment of the senior judge is taken into consideration.

4. Related Issues:
●​ The Act also addresses issues related to custody of children, alimony, and property distribution in the event
of divorce.
●​ It provides for the rights of the parties after divorce, including custody of children, alimony, distribution of
property, and visitation rights.

Domicile
Under the Special Marriage Act, 1954, domicile plays a role in determining jurisdiction for certain legal actions,
such as petitions for divorce or nullity of marriage, but it's not a strict requirement for all matters. The Act generally
applies to Indian citizens, including those domiciled in India but residing abroad, for certain purposes.
Here's a more detailed breakdown:
​ Jurisdiction:​
The Act outlines how a court's jurisdiction is determined for various legal actions. It considers factors like
where the marriage was solemnized, where the parties last resided, or where the petitioner currently resides.
​ Domicile and Petitions:​
In some cases, like petitions for nullity of a void marriage, the Act specifies that either party must be
domiciled in India at the time of the petition, or the marriage must have been solemnized under the Act in
India, with the petitioner residing in India.
​ Specifically for Section 18
●​ If the parties are domiciled in India, they can file a petition to a district court for divorce or nullity
of marriage.
●​ If the marriage was solemnized under the act and the petitioner is a wife, has been ordinarily
resident in India for a period of three years immediately preceding the presentation of the petition,
the petition may be filed.
●​ General Application: The Special Marriage Act is applicable to the whole of India, except for the
state of Jammu and Kashmir, but it also extends to Indian citizens who are domiciled in the
territories to which the act extends and are residing in the State of Jammu and Kashmir.
maintenance to dependent spouse
Under the Special Marriage Act, 1954, a dependent wife can seek maintenance (including pendente lite and
permanent alimony) from her husband if she lacks independent income and sufficient means for her support and the
necessary expenses of any proceedings.
Here's a more detailed explanation:
Key Provisions:
​ Section 36 (Pendente Lite Maintenance):​
This section allows a wife to seek maintenance during the pendency of a legal proceeding related to the
marriage, such as divorce or judicial separation, if she doesn't have independent income for her support and
the necessary expenses of the proceedings.
​ Section 37 (Permanent Alimony/Maintenance):​
This section provides for the grant of permanent alimony or maintenance to the wife at the time of passing
a decree or subsequent thereto, ensuring her financial support, if needed.
​ Section 35 (Relief for Respondent):​
In proceedings for divorce or judicial separation, the respondent (the spouse against whom the petition is
filed) may seek any relief under the Act.
​ Section 34 (Decree of Nullity):​
The court may declare a marriage null and void if it was not solemnized under the Act.
​ Section 38 (Civil Procedure Code Application):​
The provisions of the Civil Procedure Code apply, as far as may be, in the enforcement of decrees passed
under this Act.
Determining the Quantum of Maintenance:
 ​ Income of the Husband:​
The court considers the husband's income and financial capacity when determining the amount of
maintenance to be awarded.
​ The Needs of the Wife:​
The court also takes into account the wife's needs, the standard of living she enjoyed during the marriage,
and any other relevant circumstances.
​ No Hard and Fast Rule:​
There is no fixed percentage or formula to determine maintenance, and each case is decided based on its
specific facts and circumstances.
Important Considerations:
​ Maintenance is a Legal Right:​
The right to maintenance is a legal right, and not a matter of charity or favor.
​ Applicability:​
The Special Marriage Act applies to all persons, irrespective of their religion, who solemnize their marriage
under it.
​ Limited scope of section 36:​
Section 36 (pendente lite maintenance) only grants maintenance to the wife.
​ Permanent alimony:​
Permanent alimony under Section 37 can be granted at the time of decree or subsequently.
​ Enforcement:​
A decree of maintenance is enforceable under the provisions of the Civil Procedure Code, 1908.

Interstate succession of Christians under the Indian Succession Act 1925:

Under the Indian Succession Act, 1925, intestate succession for Indian Christians, meaning death without a valid
will, follows rules outlined in Chapter II, particularly sections 29 to 49. Property is distributed among legal heirs,
with primary consideration given to immediate family members like spouse and lineal descendants.
Here's a more detailed breakdown:
1. Definition of Intestate Succession:
●​ A person is considered to have died intestate regarding property they haven't effectively disposed of in a
will.
●​ This can be total (no will covering any property) or partial (will covering some but not all property).
2. Order of Priority for Inheritance:
​ Widow or Widower:​
Has a specific share in the property, depending on whether lineal descendants or other kindred (relatives)
are present.
​ Lineal Descendants:​
Children, grandchildren, and so on. They typically receive the remaining share after the widow or
widower's share, if there is one.
​ Lineal Ancestors:​
Parents, grandparents, and so on. They are considered if no lineal descendants exist.
​ Kindred (Other Relatives):​
If there are no lineal descendants or spouse, the property goes to relatives in order of closeness. This
includes parents, siblings, etc.
3. Distribution among Kin:
●​ When relatives (kindred) are involved, the property is divided among them in a specific manner outlined in
sections 43-48 of the act.
●​ The closer the relationship, the higher the priority to inherit.
4. Gender Neutrality:
●​ Both sons and daughters have equal rights to inherit property, and there's no difference in the inheritance
rights of brothers and sisters.
●​ Widows and widowers also have equal rights to inherit from their deceased spouse's estate.
5. Government Inheritance:
●​ If there are no legal heirs, the property devolves to the Government (state).
6. Statutory Recognition of Adoption:
●​ It's important to note that there's no statutory recognition of adoption under the Indian Succession Act. An
adopted child cannot claim rights of succession unless adoption is proved through custom.
Key Considerations:
​ Probate:​
To claim an interest in a deceased person's property under the Indian Succession Act, it's generally
necessary to obtain a probate (a legal document verifying the will) or letters of administration, especially
when a will is involved.
​ Application of Law:​
The rules under the Indian Succession Act apply if the deceased dies without a will (intestate), or where the
will doesn't cover all assets.
​ Consult with an Expert:​
Since inheritance laws can be complex, it's essential to consult with a legal expert for specific advice
regarding a particular case.