Muslim-Law notes.pdf

Class –LL.B (HONS.) II SEM. Subject – Muslim Law Muslim Law Unit-I Introduction The Muslim Law or Islam Law (or t...

Class –LL.B (HONS.) II SEM. Subject – Muslim Law Muslim Law Unit-I Introduction The Muslim Law or Islam Law (or the Law of Allah) is a part of Family Law. It is a personal law and a branch of civil law that is applied by courts in regard to family matters when the parties are Muslims.  Muslim Law is called Sharia (Shariah or Syariah) in Arabic.  Fiqh = understanding of details and refers to the inferences drawn by scholars  Sharia = Refers to the principles that lie behind the fiqh.  The word 'Muslim' is derived from the word 'Islam' and signifies a person who adopts the faith of Islam.  Muslim Law in general draws no distinction between religious life and secular life Origin of Muslim Law Muslim Law or the Islamic Law is believed to have been originated from the divine. The Divine communicated it to Prophet Muhammad who prescribed them in Quran. In the later days, the disciples of Prophet Muhammad (or Muslim jurists) have refined and polished these principles. The provisions of Quran are vast and dealt with almost all aspects of human life. Scholars describe the word sharia as an archaic Arabic word denoting "pathway to be followed", or "path to the water hole". The latter definition comes from the fact that the path to water is the whole way of life in an arid desert environment. Sharīah, also spelled Sharia, the fundamental religious concept of Islam, namely its law, systematized during the 2nd and 3rd centuries of the Muslim era (8th–9th centuries). Total and unqualified submission to the will of Allah (God) is the fundamental tenet of Islam: Islamic law is therefore the expression of Allah’s command for Muslim society and, in application, constitutes a system of duties that are incumbent upon a Muslim by virtue of his religious belief. Known as the Sharīʿah (literally, “the path leading to the watering place”), the law constitutes a divinely ordained path of conduct that guides Muslims toward a practical expression of religious conviction in this world and the goal of divine favour in the world to come. Who is Muslim? By birth Who is Muslim? By conversion Muslim A Muslim is a person who follows the religion of Islam. From the point of law, the Court is interested if the person. Muslim There are two ways in which a person can be regarded a Muslim. 1. Muslim by Birth – 2. Muslim by Conversion – a. Believes in one God and a. Converts by profession of Islam. b. Prophet-hood of Muhammad b. Converts by formal ceremony. 1 Class –LL.B (HONS.) II SEM. Subject – Muslim Law These two points are the minimum and fundamental rules for a person to be called a Muslim. Sources of Muslim law The Islamic law is referred to as “Sharia”. Islam has given the most comprehensive legal system to mankind. Islam has its own personal, civil, criminal, evidence and international law. There are two types of sources under Muslim law, they are:- 1. Ancient sources 2. Customary sources 3. Modern sources. The Quran The Sunnah Ancient sources Ijma' (consensus) Qiyas (analogy) The Quran Muslims believe the Quran to be the direct words of Allah, as revealed to and transmitted by the Prophet Muhammad. All sources of Islamic law must be in essential agreement with the Quran, the most fundamental source of Islamic knowledge. When the Quran itself does not speak directly or in detail about a certain subject, Muslims only then turn to alternative sources of Islamic law I.) The Quran: Since the text of the Quran is held to be the very word of Almighty God Himself, it almost goes without saying that the Quran is not only a source of Sharia but the primary material source. It is criticised that Quran is not a code of law because of two main reasons. Firstly, it is argued that 2 Class –LL.B (HONS.) II SEM. Subject – Muslim Law Quran is rather a moral code determining ones way of life. Secondly, it is also said that Quran is not a code of law as out of its 6219 verses, no more than about 600 deal with specifically legal matters. However, one must remember that, unlike western legal systems, the Sharia makes no distinction between religious and civil matters; it is the codification of God's Law, and it concerns itself with every aspect of legal, social, political and religious life. Secondly, information is judged by its quality not quantity. It is the Quran that identifies six specific crimes against religion i.e.“hadd punishments”. The Quranic legislation also covers a range of other topics, e.g. homicide, marriage, divorce and inheritance. There is an authentic hadith of the Prophet that “he who knows the law of inheritance is possessed of half the knowledge of the world”. But if we look at the Quran, the complete outline of the law of inheritance is encapsulated within only three verses (11, 12 and 176) of Surah Al- Nisa and Ijma and Qiyas, which give the details of succession, derive their authority from these three verses only. No description, however, can fully capture the great importance of the Quran to Muslims. Objectively, it is the foundation and framework of Islamic law, and its primary material source. The Sunnah Sunnah is the traditions or known practices of the Prophet Muhammad, many of which have been recorded in the volumes of Hadith literature. The resources include many things that he said, did, or agreed to and he lived his life according to the Quran, putting the Quran into practice in his own life. During his lifetime, the Prophet's family and companions observed him and shared with others exactly what they had seen in his words and behaviors i.e. how he performed ablutions, how he prayed, and how he performed many other acts of worship. People also asked the Prophet directly for rulings on various matters, and he would pronounce his judgment. All of these details were passed on and recorded, to be referred to in future legal rulings. Many issues concerning personal conduct, community and family relations, political matters, etc. were addressed during the time of the Prophet, decided by him, and recorded. The Sunnah can thus clarify details of what is stated generally in the Quran. II.) The Sunna: The Sunna is the second most important source of Islamic law. It comprises the practices and precedents set by the Prophet Muhammad himself. The authority of the Sunna is derived from the text of the Quran. Because the circumstances of each revelation were thought necessary to correct interpretation, it was imperative to gather as many traditions as possible about the actions of the Prophet to fully understand the Quran. The Sunna clarifies the ambiguities of the Quran. The Quranic injunction is sometimes implicit; the Sunnah makes it explicit by providing essential ingredients and details. The details of the acts of 3 Class –LL.B (HONS.) II SEM. Subject – Muslim Law prayer, fasting, alms-giving and pilgrimage were all illustrated by the Sunna of the Prophet. Again, it was established by the Sunna that a killer cannot inherit from the property of his victim. Thus, for answers to many problems to which the Quran offers no solution jurists turn to the second source of Islamic Law. For, according to the Quran itself, Prophet Muhammad was not only in possessions of the Book; he was also endowed with Wisdom. But the wide legislative role of the Sunna cannot overcome that of the Quran because it lacks originality in itself; rather it is just the elaborations of the Quran put into the practice by the Prophet. The Words of the “Quran” are of “divine” origin while the words of the “Hadith” are words of the “Prophet” reported by people. And it is obvious that divine words have the utmost precedence. Secondly, after the death of the Prophet, it was not earlier than two and a half centuries that the written hadith compilation from religious scholars came onto the scene and a lot of fabrication took place into that period. But Quran is the only book of Allah which has not been distorted and thus it is the only reliable source of Islamic law. There is an authentic tradition of the Holy Prophet (p.b.u.h) in which he is reported to have said that if you find any tradition of mine contrary to the instructions of Quran, then leave my tradition and follow the Quran. Ijma' (consensus) In situations when Muslims have not been able to find a specific legal ruling in the Quran or Sunnah, the consensus of the community is sought (or at least the consensus of the legal scholars within the community). The Prophet Muhammad once said that his community (i.e. the Muslim community) would never agree on an error. III.) Ijma: Ijma represents the third source of Islamic law which is more like delegated legislation. It is defined as the consensus of the jurists of a certain period over a religious matter. It is considered a sufficient means for action because the Prophet of Islam said, “My community will not agree on an error”. A good illustration for the principle of Ijma occurred right after the death of the Prophet: no guidance was available on who would now be the political leader. The election of Abu Bakr to the post of caliph by the votes of the people was the first manifestation of Ijma. Today there are many schools of law in the Muslim community. For them the doctrine of consensus was a source of harmony. However, the formation of different schools of law also had an adverse effect on the instrument of Ijma. In the course of time, it became impossible to obtain a consensus on a given problem just by asking all those learned in Islamic law. There was no organisation that represented all jurists, and as a result Ijma has come to be determined by looking into the past. Thus, unlike Quran, the authority of Ijma for legal innovation is very limited and that is why it ranks lower than the Holy Quran. 4 Class –LL.B (HONS.) II SEM. Subject – Muslim Law Qiyas (analogy) In cases when something needs a legal ruling, but has not been clearly addressed in the other sources, judges may use analogy, reasoning, and legal precedent to decide new case law. This is often the case when a general principle can be applied to new situations. IV.) Qiyas: Qiyas is essentially a tool of interpretation and is not a mean to alter the existing law but can only be used to find a legal principle in conformity with Quran and Sunna for a new factual situation. Ijtihad means “individual reasoning”. It involves both the knowledge of the rules of Islamic law and the exercise of one’s judgment; even Qiyas would be impossible if jurists were not allowed to apply their own reasoning. An example of this procedure can be found in the prohibition of alcohol. The drinking of wine is one of the Quranic crimes against religion. With the appearances of other alcoholic drinks unknown to early Islam the jurists extended the prohibition of wine to include such drinks by analogical deduction from the Quranic ruling. However, this source of law also has its weaknesses. Firstly, it ranks below because it derives its authority from the Quran. Human reason was not to be exercised independently but rather in accordance with the Divine Will as manifested in the Quran. Secondly, Ijtihad has been a controversial subject in Islamic history. Once the schools of Islamic law had been firmly established, the prevailing opinion was that that the privilege of Ijtihad was restricted to the great scholars of Islamic law, like for instance the founders of the schools of Islamic law. Thus, there is a strong opinion law that by the 10th century all main principles of Islamic law had been settled and therefore “the gates of Ijtihad” had been closed. Thus, it is noticeable that it is subordinate to Quran because Quran is an ever illuminating source of Islamic law but Qiyas/Ijtihad is just a matter of past now. 2. Customary source In its early stage, Islamic jurisprudence was heavily inspired from prevailing customary law e.g. the practices of the Caliphs, the decisions of the judges and the traditions of the people. But even then, Quran acted as a mentor guiding the people. For instance, Caliph Abu Bakr made alms payment compulsory in the light of the Quran; the Qazis i.e. judges did equity by seeking guidance from Quranic verses; and it was under Verse 3 of Surah Al-Nisa that the customary right of unlimited polygamy was curtailed only to a maximum of four wives. Thus, the supremacy of Quran as a primary Islamic source got fully established in that epoch. 3. Modern sources In addition to the above main Sources of Law, we find that the law is occasionally supplemented by other principles also. The following can be summarized. 5 Class –LL.B (HONS.) II SEM. Subject – Muslim Law 1. Isti Hasan - 2. Isti Salah - 3. Ijtehad - Juristic Public interest Exercising one's own preference - reasoning to deduce Equity rule of law (Shariat) 4. Taqlid - Law of 5. Fatwa's - Precedents Decisions of Muslim Judges. (a) Isti Hasan - Juristic preference - Equity Imam Abu Hanifa adopted the principle of Isti Hasan for the relief from absolute dependence on analogical reasoning. Isti Hasan literally means liberal construction or juristic preference or what we call today as law of equity. This term was used to express liberty of laying down such rule as may be necessary and the special circumstances may require. The objection taken against it is that it left an almost uncontrolled discretion in the exposition of the law. (b) Isti Salah- Public interest Imam Malik, who will be presently mentioned as the founder of a school of Sunni law, also felt the necessity of surer test for the development of law on right lines than the use of analogy. He approved the introduction of Isti Salah (public interest) in preference to Isti Hasan. He laid down that ordinarily, analogy was used to expand law but if it appears that a rule indicated by analogy is opposed to general utility then Isti Salah (principles of public interest) should be resorted to. Under this system, rule of law pointed out by analogy could not be set aside either: (i) on the opinion of the individual expert of the law of (ii) with reference merely to the circumstances of particular case: it could be disregarded only if it would be harmful to the public in general. (c) Ijtehad - Exercising one's own reasoning to deduce rule of law (Shariat) When Quran and Hadis did not disclose the precise line to follow, Ijtehad came to be born. Ijtehad means independent judgement or considered opinions of individuals or exercising one's own reasoning to deduce a rule of Shariat. As a method of reasoning in law, Ijtehad of prophet tersely has gained almost equal footing with the first four founders of the law. In deducing Ijtehad, Quran and Hadis cannot be over looked but exigency of time and public interest were also to be borne in mind. Where a legal principle is silent, Ijtehad can be used with advantage. But Ijtehad was the privilege of great scholars or Mujtahids. The authority of the Mujtahids (great scholars) based not on his holding any office in the State but is derived purely from the learning and reputation of the individuals. The qualifications of the Mujtahids consists of a complete knowledge of Quran i.e., he should know the sacred text by heart and should be able to say when and where each verse was revealed and he should also have a perfect knowledge of all the traditions (Sunna-Hadis) and all the branches of the science of law. He should, besides, be a man of austere piety. In short, the qualifications required are such that as far as the Sunni Law is concerned, after the death of Ibne Hanbal (856 after Christ) there have been no recognised Mujtahids. With the end of Mujtahids, the doors of Ijtehad no longer remained open. This is known as the closure of the golden gate of Ijtehad - Bab-al ijtehad. 6 Class –LL.B (HONS.) II SEM. Subject – Muslim Law (d) Taqlid - Law of Precedents After Ijtehad or rather on the closure of the Gates of Ijtehad, a parallel doctrine of Taqlid (Law of precedents) came to be in existence. Under Taqlid (literally, imitation) means following opinions of another person without knowledge o the Authority or the authority for such opinion, a Muslim had to follow the Law; every Muslim in the street could not be learned in the rules of Shariat, being ignorant, he was asked to follow the opinions of those who knew better. Those who knew better (Ulemas) were denied independence of judgement in any vital matter. Hence, the vicious circle of Taqlid (imitation - Law of Precedents). (e) Fatwas - Decisions of Muslim Judges As already aforesaid, the Law sent down by Allah by direct revelations is recorded in Quran and what is sent down by him is recorded in Sunna/Sunnat of Prophet of Islam. Even the King has no authority to make law and therefore, the Muslim Kings called upon the Muslim scholars to guide them in the matter of Law. The opinions tendered by Muslim Jurists to King were accepted by King of enforce the Law in the territory of his kingdom. Therefore, the opinions of Muslim Jurists were always held in high regard. With the advent of time, even the ordinary Muslims would turn to such jurist and ask for his opinion. Such opinion of Muslim Jurist is referred to as Fatwas. In India, during the Seventeenth Century A.D. when Mughal Emperor Aurangazeb came in power, he appointed Shaykh Nizam Burhanpuri and four others to prepare a compilation of Fatwas. Accordingly, they sent questionnaire various juris-consults and Muftis. Their Replies are the collection of Fatwas, popularly known as Fatwa-e-Alamigir. However, Fatwas are not source of law. Schools of Sunni jurisprudence Madhhab Hanafi Maliki Shafii Hanbali Ẓ āhirī Madhhab Madhhab is an Islamic term that refers to a school of thought or religious jurisprudence within Sunni Islam. Several of the Sahaba had a unique school of jurisprudence, but these schools were gradually consolidated or discarded so that there are currently four recognized schools. The differences between these schools of thought manifest in some practical and philosophical differences. Sunnis generally do not identify themselves with a particular school of thought, simply calling themselves "Sunnis", but the populations in certain regions will often - whether intentionally or unintentionally - follow the views of one school while respecting others. Hanafi The Hanafi school was founded by Abu Hanifa an-Nu‘man. It is followed by Muslims in the Levant, Central Asia, Afghanistan, Pakistan,India, Bangladesh, Western Lower Egypt, Iraq, Turkey, the Balkans and by most of Russia's Muslim community. There are movements within this school such as Barelvis, Deobandis, and the Tablighi Jamaat, which are all concentrated in South Asia and in most parts of India. Maliki Maliki school was founded by Malik ibn Anas. It is followed by Muslims in North Africa, West Africa, the United Arab Emirates,Kuwait, in parts of Saudi Arabia and in Upper Egypt. The Murabitun World 7 Class –LL.B (HONS.) II SEM. Subject – Muslim Law Movement follows this school as well. In the past, it was also followed in parts of Europe under Islamic rule, particularly Islamic Spain and the Emirate of Sicily. Shafii The Shafii school was founded by Muhammad ibn Idris ash-Shafiʿi. It is followed by Muslims inEastern LowerEgypt, Somalia, Jordan,Palestine, SaudiArabia, Indonesia, Thailand, Singapore, Philippi nes, Yemen, Kurdistan, Kerala (Mappilas) and is officially followed by the governments of Brunei and Malaysia. Hanbali The Hanbali school was founded by Ahmad ibn Hanbal. It is followed by Muslims in Qatar, most of Saudi Arabia and minority communities in Syria and Iraq. The majority of theSalafist movement claims to follow this school. Lāhirī The Lāhirī school was founded by Dawud al-Zahiri. It is followed by minority communities in Morocco and Pakistan. In the past, it was also followed by the majority of Muslims inMesopotamia, Portugal, the Balearic Islands, North Africa and parts of Spain. Overview of the major schools and branches of Islam Schools of theology, Aqidah and Islamic theology Aqidah is an Islamic term meaning "creed" or "belief". Any religious belief system, or creed, can be considered an example of aqidah. However, this term has taken a significant technical usage in Muslim history and theology, denoting those matters over which Muslims hold conviction. The term is usually translated as "theology". Such traditions are divisions orthogonal to sectarian divisions of Islam, and a Mu'tazili may for example, belong to Jafari, Zaidi or even Hanafi School of jurisprudence. Textualist approach Athari Kalām Ash'ari Maturidi Murji'ah Mu'tazili Athari The Athari school derives its name from the Arabic word Athar, meaning "narrations". The Athari creed is to avoid delving into extensive theological speculation. They use the Qur'an, the Sunnah, and sayings of the Sahaba - seeing this as the middle path where the attributes of Allah are accepted without questioning 'how' they are. Ahmad bin Hanbal is regarded as the leader of the Athari school of creed. Athari is generally synonymous with Salafi. The central aspect of Athari theology is its definition of Tawhid, meaning literally unification or asserting the oneness of Allah. Kalām Kalām is the Islamic philosophy of seeking theological principles through dialectic. In Arabic, the word literally means "speech/words". A scholar of kalām is referred to as amutakallim (Muslim theologian; plural mutakallimūn). There are many schools of Kalam, the main ones being the Ash'ari and Maturidi schools in Sunni Islam. 8 Class –LL.B (HONS.) II SEM. Subject – Muslim Law Ash'ari Ash'ari is a school of early Islamic philosophy founded in the 10th century by Abu al-Hasan al-Ash'ari. It was instrumental in drastically changing the direction of Islam and laid the groundwork to "shut the door of ijtihad" centuries later in the Ottoman Empire.[citation needed] The Asharite view was that comprehension of the unique nature and characteristics of God were beyond human capability. Maturidi A Maturidi is one who follows Abu Mansur Al Maturidi's theology, which is a close variant of the Ash'ari school. Points which differ are the nature of belief and the place of human reason. The Maturidis state that belief (iman) does not increase nor decrease but remains static; it is piety (taqwa) which increases and decreases. The Ash'aris say that belief does in fact increase and decrease. The Maturidis say that the unaided human mind is able to find out that some of the more major sins such as alcohol or murder are evil without the help of revelation. The Ash'aris say that the unaided human mind is unable to know if something is good or evil, lawful or unlawful, without divine revelation. Murji'ah Murji'ah (Arabic: ‎) is an early Islamic school whose followers are known in English as "Mu‫المرجئة‬rjites" or "Murji'ites" (‫)المرجئون‬. During the early centuries of Islam, Muslim thought encountered a multitude of influences from various ethnic and philosophical groups that it absorbed. Murji'ah emerged as a theological school that was opposed to the Kharijiteson questions related to early controversies regarding sin and definitions of what is a true Muslim. They advocated the idea of "delayed judgement". Only God can judge who is a true Muslim and who is not, and no one else can judge another as an infidel (kafir). Therefore, all Muslims should consider all other Muslims as true and faithful believers, and look to Allah to judge everyone during the last judgment. This theology promoted tolerance ofUmayyads and converts to Islam who appeared half- hearted in their obedience. The Murjite opinion would eventually dominate that of the Kharijites. The Murjites exited the way of the Sunnis when they declared that no Muslim would enter the hellfire, no matter what his sins. This contradicts the traditional Sunni belief that some Muslims will enter the hellfire temporarily. Therefore the Murjites are classified as Ahlul Bid'ah or "People of Innovation" by Sunnis, particularly Salafis. Mu'tazili Mu'tazili theology originated in the 8th century in al-Basrah when Wasil ibn Ata left the teaching lessons of Hasan al-Basri after a theological dispute. He and his followers expanded on the logic and rationalism of Greek philosophy, seeking to combine them with Islamic doctrines and show that the two were inherently compatible. The Mu'tazili debated philosophical questions such as whether the Qur'an was created or eternal, whether evil was created by God, the issue of predestination versus free will, whether God's attributes in the Qur'an were to be interpreted allegorically or literally, and whether sinning believers would have eternal punishment in hell. 9  Class –LL.B (HONS.) II SEM. Subject – Muslim Law UNIT-II MARRIAGE Marriage is a civil contract between a man and a woman who is lawfully eligible to be his wife with the objective of joint life and breeding. Requirement of the valid marriage Offer & Presence of Capacity of Free No legal Acceptance Witnesses the Parties consent dissability 1. Offer & Acceptance Marriage in Islamic law is a contract that is concluded by an offer made by one party and an acceptance given by the other. No particular form of words is required so long as the intention to conclude of marriage is clear. Under the Muslim law for the validity of a marriage there must be a proposal and acceptance at the same meeting. The proposal and acceptance must both be expressed at one meeting; a proposal made at one meeting and acceptance made at another meeting does not make a valid Muslim marriage. Neither writing nor any religious ceremony is essential. Under the Sunni law, the proposal and acceptance must be made in the presence of two male Muslims who are of sound mind and have attained puberty or one male and two female witnesses who are sane, adult and Muslim. Absence of witnesses does not render marriage void but make it void able. Under the Shia law witnesses are not necessary at the time of marriage. The proposal and acceptance need not be made in writing. Where the offer and acceptance are reduced into writing, the document is called ‘Nikah nama or Kabin-nama. The proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of female witnesses, who must be sane and adult Muslim. 2. Presence of Witnesses Hanafi, Shafi and Hanbali schools require two adult male witnesses or one male plus two females. However, in Maliki and Ithna Ashari’s law the presence of witnesses is recommended but not mandatory, provided that in Maliki law sufficient publicity is given to the marriage. 10 Class –LL.B (HONS.) II SEM. Subject – Muslim Law 3. Capacity of the Parties Every Muslim of sound mind who has attained puberty, may enter into a contract of marriage. Puberty means the age at which a person becomes adult (capable of performing sexual intercourse and procreation of children). A person is presumed to have attained the age of puberty on the completion of 15 years. So the boy and girl who has attained puberty can validly contract a marriage.A marriage under Muslim law is perfectly valid if the parties have attained puberty and satisfied all other conditions specified by the law. According to the child marriage restraint act 1929, a marriage of male below 21years of age and female below 18 years of age is child marriage. The act prohibits such marriage. The Act prescribes that for a valid marriage the minimum age for male is 21 and female is 18. The parties who are violating the provisions of Child Marriage Restraint Act are liable to be punished. Thus if two Muslims marry before attaining the age prescribed under the child marriage restraint Act they are liable to be punished. However the marriage between two Muslims who have attained puberty is valid though they have violated the provisions of Child Marriage Restraint Act. 4. Free Consent Free consent of the parties is absolutely necessary for a valid marriage.If there is no free consent a Muslim marriage is void. Under the Muslim Law, a marriage of a Mohammedan who is of sound mind and has attained puberty is void; if it is brought about without his consent The marriage of a girl who has attained puberty and is of sound mind would be void if her consent is not obtained. When the consent to the marriage has been obtained by force or fraud, the marriage will be invalid, unless it is ratified. When a marriage was consummated against the will of the women, the marriage is void. The person who has been defrauded can repudiate the marriage. Lunatics and minors who has not attained puberty may be validly contracted by their respective guardians. A minor is incompetent to give valid consent. The right to contract a minor in marriage belongs successively to the following persons: i) Father ii) Paternal Grand Father (h.h.s-How high soever) iii) Brother and other male relations on the fathers side iv) Mother v) The maternal uncle or aunt and other maternal relations. Under the Shia law only the father and the paternal grand father are recognized as guardian for contracting marriage of a minor. If a minor, whether male or female, be contracted in marriage by a remoter guardian, while a nearer guardian is present and available and such nearer guardian does not give consent to the marriage, the marriage is void. But if the parties ratify it after attaining puberty, it will be valid. However if the nearer guardian be absent at such a distance as precludes him from acting, the marriage contracted by the remoter is also lawful. 11  Class –LL.B (HONS.) II SEM. Subject – Muslim Law 5. No Legal disability Under Muslim Law, marriage under certain circumstances is prohibited or not permitted. The prohibitions can be classified into two classes: Absolute prohibition Prohibition Relative prohibition Relative Unlawful conjunction prohibition i) Prohibited degrees of relationship ii) Polyandry Marrying a fifth wife Relative prohibition Absence of proper Consanguinity Affinity Fostera witnesses ge Differences of religion Marriage during Iddat a. Absolute Prohibition 1) Prohibited degrees of relationship Under the Muslim law marriage between persons who come within the blood relationship, or certain other relationship is prohibited. The prohibited relationships are the following: (a) Consanguinity - Consanguinity means blood relationship and a prohibits a man from marrying the following females 1. His mother or grandmother (however high so ever) 2. His daughter or granddaughter (how low so ever) 3. His sister whether full blood half blood or uterine blood 4. His niece or great niece (how low so ever) 5. His aunt (father’s sister or mother’s sister)or great aunt (how high so ever) A marriage with a woman who comes within the relationship of consanguity is absolutely void.Children born out of that wed-lock are illegitimate. (b) Affinity- A man is prohibited from marrying certain female relatives due to nearness of relationship. A man is prohibited from marrying 1. His wife's mother grandmother (however high so ever) 2. His wife's daughter or granddaughter (how low so ever) 3. His father's wife or paternal grandfather's wife (how high so ever) 12 Class –LL.B (HONS.) II SEM. Subject – Muslim Law 4. Wife of one's own son or son's son or daughter's son (how low so ever) A marriage with a woman comes within the relationship by affinity is void. (c) Fosterage- It means the milk relationship. When a child is breast-fed/suckled by a woman other than its own mother, she becomes the foster mother of the child. A man is prohibited from marrying certain persons having foster relationship. According to Shia jurists fosterage includes the same limits of relationship prohibitive to marriage as consanguinity. A man may not marry the following females: 1.His foster-mother or grandmother (however high so ever) 2.His foster-sister (daughter of foster mother) However Sunnis do not follow the same. Under the Sunni law, there are certain exceptions to the general rule of prohibition on the ground of fosterage and a valid marriage may be contracted with: 1.Sister's foster mother, or 2.Foster'-sister’s mother, or 3.Foster-son’s sister, or 4.Foster-brother's sister. The Shia jurists refuse to recognize the exception permitted by the Sunnis. The above mentioned prohibitions on account of 'consanguinity', 'affinity' or 'Fosterage' are absolute and the marriages contracted in contravention of these rules are void. 2) Polyandry Polyandry means marrying more than one husband. Polyandry is a form of polygamy in which a woman is having more than one husband at the same time. Under Muslim law Polyandry is prohibited and a married woman cannot marry second time so long as the first marriage subsists and the husband is alive.If a woman violated this prohibition and contracted a second marriage ,the marriage is void and the woman is liable to be punished for bigamy under section 494 of the Indian Penal Code. B) Relative prohibition Under Muslim Law, there are certain prohibitions, which are not absolute but only relative, and marriage in violation of such relative prohibitions will only be irregular and not void and at the moment when the irregularity is removed the prohibition ends and the marriage becomes valid. The following are the relative prohibitions. 1) Unlawful conjunction A man is prohibited from marrying two wives at the same time if they are related to each other by consanguinity, affinity or fosterage, which they could not have lawfully intermarried with each other if they had been of different sexes. Thus a Muslim cannot marry his wife’s sister while the wife is alive. But he can make the marriage valid by marrying his wife’s sister after the death or divorce of his first wife. Marriage with two such wives is an Unlawful conjunction. Under sunni law a marriage in violation of the rule of unlawful conjunction is not void but only irregular. However under Shia law, a marriage in violation of the rule of unlawful conjunction is void. Under the Shia Law, a Muslim may marry his wife's aunt, but he cannot marry his wife's niece without her permission. 2) Marrying a fifth wife (Polygamy) Muslim law permits polygamy (Marrying more than one wife ) with a restriction of maximum four wives. So a Musalman can have four wives at the same time. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular. But the fifth marriage can be made valid after the death or divorce of any one of the four wives of his earlier marriages. Under the shia law marriage with the fifth wife is void. In India no Muslim marrying under or getting his marriage registered under The Special Marriage Act, 1954,can marry a second wife during the lifetime of his spouse. 13 Class –LL.B (HONS.) II SEM. Subject – Muslim Law 3) Absence of proper witnesses A marriage must be contracted within the presence of proper and competent witnesses. Under the Sunni law at least two male or one male and two female witnesses must be present to testify that the contract was properly entered into between the parties. The witnesses must be of sound mind, adult and Muslim. A marriage without witnesses is irregular. Under the Shia law the presence of witnesses is not necessary. The marriage is contracted by the spouses themselves or their guardians in private are held valid. The absence of witnesses does not render the marriage void but only invalid. 4) Differences of religion (Marriage with non-muslim) The law with regard to marriage with a non-Muslim is different under Sunni law and Shia law. Under Sunni law a male can marry a Muslim female or a Kitabia (a person who believes in a revealed religion possessing a Divine Book viz Christianity and Judaism). A Sunni muslim male can validly marry a jews or christian female. But he cannot marry an idolatress or a fire-worshiper. A marriage, with an idolatress or a fire worshiper is merely irregular and not void. A Muslim woman cannot marry a Kitabia /non-Muslim man. A marriage of a Muslim female with a non-Muslim male, whether he is a Christian, or a Jew or an idolator or a Fire-Worshiper is not void but irregular. According to Mulla, a marriage between a Muslim woman and Non-Muslim male is irregular. But according to Fyzee, such a marriage is totally void. Under Shia Law a marriage with a non-muslim is void. Both the spouses are required to be Muslims. The marriage of Sunni male with a Shia female is void. A marriage of a Muslim female with a non- Muslim male, whether he be a Christian, or a Jew or an idolator or a Fire-Worshiper is void under Shia Law. In India a marriage between a Muslim and a non-Muslim can only take place under The Special Marriage Act, 1954.If a muslim male marries and registers under the Special Marriage Act, 1954, he cannot marry a second wife during the subsistence of the first marriage. A marriage of a Muslim female with a non-Muslim male, whether he be a Christian, or a Jew or an idolator or a Fire-Worshiper is void under Shia Law. 5) Marriage during Iddat Under Muslim law, a woman who is undergoing iddat is prohibited from marrying during that period. Iddat is the period during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or death of her husband to remain in seculasion, and to abstain from marrying another husband. The purpose behind that is to ascertain whether she is pregnant by earlier husband , so as to avoid confusion of the parentage of the child. The period of Iddat is prescribed as under: 1.In case termination marriage by divorce- three lunar months or three menstrual courses. 2.In case of widow- 4 months and 10 days. 3.In case the woman is pregnant - till the delivery. Under Sunni Law a marriage with a woman undergoing Iddat is irregular and not void. Under Shia law a marriage with a woman who is undergoing Iddat is void. 14 Class –LL.B (HONS.) II SEM. Subject – Muslim Law Khair-ul-Balgh (Option of Puberty) In traditional law no minimum age is laid down for marriage. However, in Hanafi law, a girl who is contracted in marriage during her infancy may on attaining puberty repudiate the marriage. This“option of puberty” is found neither in the Quran nor in the Sunna, but is based on juristic opinions in the various schools. A woman retains this right until she becomes aware of the marriage and assents to it. However, the woman does not possess this option if the guardian who contracted her marriage was her father or paternal grandfather. When a minor has been contracted in marriage by the father or father’s father, the contract of marriage is valid and binding and it cannot be annulled by the minor on attaining puberty. But if a marriage is contracted for a minor by any guardian other than the father or father’s father, the minor has the right to repudiate such marriage on majority. This right is called Khair-ul-Balgh which means Option of Puberty. When a minor wife’s right of repudiation should be exercised within a reasonable time after attaining puberty and failing which would result in the loss of such right. The right is lost if she after having attained puberty permits the marriage to be consummated.If the consummation was without her consent the right of repudiation will not be lost. The dissolution of Muslim marriage act 1939 has considerably modified the law of option of puberty. Prior to the Act the marriage is contracted for a minor girl by the father or grandfather, the minor has no right to repudiate such marriage on majority. But according to sec2(7) of the act if the marriage is contracted for a minor girl by the father or grandfather can also obtain a decree for divorce from the court if the following conditions are satisfied.  The marriage took place before the age of fifteen years  She repudiated the marriage before attaining the age of eighteen years.  The marriage has not been consummated The other Sunni schools recognize this option of “Khiyar” in the area of jest and duress. A person who was induced into performing the marriage, for instance through threat, can rescind the contract by this option. According to Hanafi law, guardian has no power when the child reaches the age of puberty. In “Saima Waheed’s case”, a major woman married a man of her own choice. His father filed a suit to secure his daughter’s custody. It was held, in accordance with the Hanafi law, that a marriage, of a major girl, without the guardian’s consent is not invalid. The same decision was reached in the Indian case of “Abdul Ahad v. Shah Begum”. Here, a wife claimed to have repudiated her marriage. The girl’s Wali was her uncle who happened to be the groom’s father. The court held that this is a settled principle of law in Islamic law that once the girl becomes major, she has the absolute right to contract the marriage and this right cannot be exercised by anyone else including the father of the girl. In the Indian subcontinent, Child Marriage Restraint Act 1929 is used to restrain child marriages. This Act is still in operation in all three countries, with a variety of different amendments. In India, the Child Marriage Restraint (Amendment) Act 1978 sets the minimum age to 18 and 21 years for females and males respectively. In Pakistan, the 1929 Act was amended by S.12(1)(a) MFLO 1961 and the minimum age are now 16 years old for the woman and 18 years old for the man. In Bangladesh, the minimum ages stipulated have been 18 years old for the woman and 21 years old for the man since the Child Marriage Restraint (Amendment) Ordinance 1984. 15 Class –LL.B (HONS.) II SEM. Subject – Muslim Law Guardianship in marriage According to Sunni schools, marriage guardian shall be agnates. In the absence of agnates, guardianship shall be vested in relatives according to proximity; otherwise it will be vested in the Head of the State. In the Ithna Ashari, the guardian is indispensable in order for the marriage of minors and majors of defective or no legal capacity to be valid. Guardianship in marriage falls under two categories: Guardianship “With” Guardianship in marriage Guardianship “Without” the right of compulsion the right of compulsion Guardianship “With” the right of compulsion, which is exercised over a person of no or limited legal capacity wherein the guardian may conclude a marriage contract which is valid and takes effect without the consent or acceptance of the ward; Guardianship “Without” the right of compulsion, which is exercised when the woman possess the full legal capacity but delegates the conclusion of her marriage to a guardian. Islamic law also requires the parties to a marriage contract to have the capacity to enter into the contract. According to Hanafi and Ithna Ashari's any sane adult, whether male or female, has the capacity to conclude his or her own contract of marriage. According to traditional Islamic law, majority is attained at the onset of physical puberty. There is an irrefutable presumption of law that no female below the age of nine and no male below the age of 12 has attained majority and an equally irrefutable presumption that by the age of 15, majority has been reached by both sexes. The right of a female to contract her own marriage is, however, not absolute according to Hanafi doctrine. Her guardian may seek dissolution of the marriage if she marries a man who is not her equal according to the law. Equality is determined with regard to piety, lineage, wealth and occupation. However, the right of the guardian to dissolve the marriage lapses if the woman becomes pregnant. In Maliki, Shafi and Hanbali law a virgin woman may never conclude her own marriage contract. In Maliki law the hierarchy of marriage guardians follows strictly the order of succession. Accordingly, the son of the woman ranks before her father. In Hanbali law the guardian having first priority is the father, followed as in Maliki law by the paternal grandfather and the other agnatic kinsman. The woman only becomes capable of contracting herself in marriage when she ceases to be a virgin by reason of a consummated marriage or an illicit sexual relationship. Classification of Marriages Sahih Fasid Batil 16 Class –LL.B (HONS.) II SEM. Subject – Muslim Law There are three types of marriages in Sunni schools:- 1. Sahih - Firstly, there is “Sahih” marriage which is fully valid and effective. Under such a marriage, sexual intercourse is lawful and the woman is entitled to both dower and maintenance. 2. Batil Secondly, there is a “Batil” (void) marriage. Under such a marriage, no rights or obligations exist between the parties. Parties would be guilty of zina, save where the parties were unaware of the fact that the marriage was void. If a marriage is affected by a permanent impediment, then the marriage is declared void. The permanent impediments arise: Under the bar arising from relationship of blood, a man may not marry any ascendant or descendant, any descendant of his father or mother, or the immediate child of any ascendant, nor may a woman marry any corresponding male. Under the bar of fosterage, two persons who were suckled by the same foster-mother are permanently barred from marrying each other. The bar of affinity arises from marriage, so a man may not marry the former wife of any ascendant or descendant, or any ascendant or descendant of a former wife with whom he actually had consummated his marriage. Under the bar of polyandry, i.e. when a woman contracts a second marriage during the subsistence of her first marriage. 3. Fasid - Thirdly, there is a “Fasid” (irregular) marriage, which is middle way out. This is also no marriage, but can be regularized in certain conditions. Under such a marriage, no zina is committed and a dower is payable. An irregular marriage arises from temporary impediments, which occur when: There is an absence of witnesses. A woman who is already married. A woman who is still observing the idda period. A woman whom he has triply repudiated, unless she has married another man and that marriage has been terminated. A man may not marry at the same time two sisters or a mother and her daughter. A man who already has four wives may not validly marry a fifth. A Muslim man may contract marriage with a non-Muslim woman provided she is a khitabiyah.  A Muslim woman, on the other hand, may only validly contract marriage with a Muslim man.  According to the non-Hanafi schools of Sunni law, a marriage concluded by a woman herself without a guardian is also invalid as is a marriage concluded by a person performing haj.  According to Maliki law, a person who is in a state of death sickness is prohibited from marriage. The Effects of Impediments to Marriage The presence of an impediment to marriage may render the marriage either void or irregular. The impediments that have the potential to render a marriage void are those that are permanent and those where the impediment, although of a temporary nature, is one that the parties themselves have no power to remove such as if the woman is married to another man. Where any other impediment exists, the marriage is not void but irregular. If the marriage is irregular certain effects flow from it: The parties may not be found guilty of zina. Any children born out of the union will be held to be legitimate. When the parties separate, and separate they must, the woman must observe an idda period. A marriage, which may be held to be potentially void, will be regarded as irregular if the parties have 17 Class –LL.B (HONS.) II SEM. Subject – Muslim Law acted in good faith, i.e. they were unaware of the existence of the impediment. This is the only instance where Islamic law recognises ignorance of the law as a defence. Incidents of a Muslim Marriage Marriage has its own specific incidents and effects. The law defines the rights and duties of husband and wife, some of which are mutual and some of which are peculiar to one or the other of the parties: Mutual Rights – Legitimacy of children, inheritance, sexual intercourse. Rights of the Wife (Maintenance). Rights of the Husband (Polygamy). Muta marriage The Shia Law recognizes two kinds of marriage, namely (1) permanent, and (2) muta (literally means enjoyment or use) or temporary. The fundamental difference between the two is that in former the term is not specified while in the later it is. Sunnis do not recognize such marriage. ‘Muta Marriage is an ancient Arabian custom. A shia male may contract a muta marriage with kitabia woman (professing Muslim, Christian or Jewish religion) or even with a woman who is fire-worshipper but not with a woman following any other religion. But a shia woman may not contract a muta marriage with a non-Muslim. A Shia male can contract any number of muta marriages. All the requisite formalities of marriage, such as of offer and acceptance, have to be observed in the muta marriage. It is essential to the validity of muta marriage that:- (1) the period of cohabitation should be fixed ( a day, a month, year , years) and that (2) some dower should be specified otherwise marriage will be void. If the period is not specified , though dower is specified, it should be considered as a permanent union, even if the parties call it a muta. That main incidents of muta marriage are: 1. No mutual rights of inheritance created between the spouses, but children considered legitimate and capable of inheriting from both parents. Thus, a muta marriage is different from prostitution and it is not a marriage for pleasure or a marriage of convenience. 2. Wife is not entitled to maintenance (unless specified). However, she is entitled to maintenance as a wife under the Cr. P.C. 3. If marriage is not consummated, the wife is entitled to only half of the dower. If consummated, then full dower. 4. On the expiry of the term of marriage, if the marriage has been consummated, the wife is required to undergo iddat to three courses. 5. Husband has the right to refuse procreation i.e. izl. 6. Marriage come to end ipso facto on the expiry the term, unless extended. Husband and wife do not have a right of divorce, but he can terminate the union earlier by making a “gift of the term”(hiba-i-muddat). In that case, the wife is entitled to full dower. The wife has a right to leave the husband before the expiry of the term of the muta marriage; if she does so, the husband has a right to deduct the proportionate part of the dower for the unexpired period. 18  Class –LL.B (HONS.) II SEM. Subject – Muslim Law 7. If there is evidence of the term for which the muta marriage was fixed and cohabitation continues after that term, muta marriage stands extended for the whole period of cohabitation. And, the children conceived during the extended period shall be legitimate. DOWER Dower & Quantity of Types of Entitlement to Legal Disputes Bride-Price Dower Dower Dower over the Payment of Dower Dower is a sum of money or property which becomes payable by the husband to the wife as an effect of marriage. In Surah Al-Nisa, Verse 4, the Quran says: “And give the women (on marriage) their dower as a free gift”. According to both Sunnis and Shias, the dower may consist of anything that can be valued in money, is useful and ritually clean. Therefore, the dower may be land, building, cattle, crops, chattels etc. The property given as dower must be reasonably specified. A vague dower, e.g. “an animal” or “a house” shall not be valid, without however invalidating the marriage contract itself. i. Dower & Bride- Price Dower is a unique feature of a Muslim marriage. But contrary to a widely held misconception in the West, it is not a bride-price. Although, in the pre-Islamic period a bride price was paid to the bride’s father, but the requirement of dower itself is one of the most significant reforms affected by the Quran. According to the Hanafi Jurist Al Kamal, dower is there to underline the prestige of the marriage, it is not a consideration like a price, and otherwise it would have been set as a prior condition. Dower is not a precondition to marriage. It is mentioned in Surah Baqara, Verse 236, that: “It is no sin for you if ye divorce woman while yet ye have not touched them nor appointed unto them a portion (dower)”. This means that there is no sin if no dower is paid and the woman is divorced, before consummation. Since divorce can only occur after a valid marriage contract, this shows that dower is not a precondition to marriage. It is also different from a bride price because a bride price was paid to the father of the bride, but dower, on the other hand, is an inalienable and imprescriptible right of the wife. It is inalienable in that it is taken for granted even if it is not expressly stated in the contract. If the husband makes a condition in the marriage contract that no dower will be paid, this shall be void but not the remaining contract. It is imprescriptible in that the wife shall not lose her entitlement to it through prescription alone. 19 Class –LL.B (HONS.) II SEM. Subject – Muslim Law ii. Quantity of Dower Classical jurists set no higher limit for the dower. But there is no such unanimity on the minimum dower. The Shafis, Hanbalis and the Shias maintain that there is no such limit. However, the Malikis set a quarter dinar of gold or three dirhams of silver as the minimal dower, by analogy with the Sharia limit for punishable theft. A dirham weighs 2.97 grammes. The Hanafi doctrine maintains that the minimal dower shall be 10 dirhams, citing the authority of a tradition of the Prophet to that effect, a tradition whose authenticity is disputed by other schools. The Shia’s say that what was given to Bibi Ayesha should be the minimum limit. iii. Types of Dower The parties may stipulate an amount to be paid as dower in the marriage itself. This is called specified dower, and it may be reduced or increased by mutual consultation. Provided that the husband is sane and major, the addition shall be binding on him under three conditions: It has to be determinate, i.e. if a husband says to his wife, “I have added to your dower” without further specification, no addition shall be valid. It occurs while they still live together, i.e. no divorce or separation. That it is accepted, at the same sitting where it has been offered. Likewise, a wife possessing full legal capacity may discharge her husband, subsequent to the marriage contract, of all or any part of her specified dower. It shall be valid if the husband accepts it or keeps silent, and void if rejected. However, if waiving off occurred due to pressure, i.e. threat or on husband’s death bed, then it will not be valid. Unlike increase, no guardian of the minor wife has the power to reduce her specified dower. But if no dower is specified or if the contract expressly states that there shall be no dower payable, the wife is nevertheless entitled to receive dower, i.e. the proper dower. The Sunni and Shias agree that the proper dower is to be calculated by taking into account the amount of dower received by comparable members of the wife’s family such as her sisters or cousins. Her personal attributes are also relevant: her virginity, age, education, beauty and so on. The specified dower is further sub-classified into “prompt” or “deferred” dower. The parties may agree between themselves when the dower shall be paid. If it is payable immediately at the conclusion of the marriage contract marriage it is called prompt dower. Dower will be deferred if it is payable some time later, otherwise it shall become payable immediately on the earlier of two events: death or divorce. If the marriage contract is silent on the type of dower it is presumed that it will be prompt. iv. Entitlement to Dower Entitlement to Entitlement to Half Entitlement to Whole Dower Dower & Mutat no Dower 20 Class –LL.B (HONS.) II SEM. Subject – Muslim Law a. Entitlement to Whole Dower: It is unanimously agreed by the Sunnis that the whole dower shall become due to the wife on the occurrence of either of two events: The actual consummation of marriage; The death of either spouse before consummation. If it is the wife who dies, her heirs can claim it from the husband. All the jurists agree that the whole dower shall be due to the wife if the husband dies by natural causes or murder by a third party, or if the husband himself kills the wife. With the exception of Hanafis, all the other schools agree that the wife shall lose her entitlement to any dower if she killed her husband before consummation. The Shias have a different view. According to them, if the husband dies before consummation without having specified a dower then nothing is payable to the wife. b. Entitlement to Half Dower & Mutat: Jurists deduce the following conditions for half the dower to be paid: That marriage is under a valid contract and the dower is specified; That divorce occurs before consummation and due to an act of husband, other than his exercising the option of puberty or recovery from insanity. It should be remembered that only the stipulated dower shall be halved and any additions which were made to it after the marriage contract shall be dropped altogether. However, if no dower has been fixed in the contract, then the wife is entitled to a mut’at, i.e. a gift of consideration. Under Hanafi law, it consists of three articles of dress or of their value provided that the value shall not be less than 5 dirhams. The Sunnis in general hold that the mut'a is regulated by the circumstances of both husband and wife. The Shias stick to the Quranic text and consider the circumstances of the husband only. c. Entitlement to no Dower: No dower, whether specified or proper, shall be due to the wife if: The marriage is dissolved by the husband before consummation through exercising his option of puberty or recovery from insanity, as in such a case, the very contract of marriage is declared null and void. If the marriage is dissolved before actual consummation by a lawful/ unlawful act of the wife. Lawful acts include option of puberty, recovering from insanity, or taking khula. Unlawful acts include apostasy. v. Legal Disputes over the Payment of Dower: There are a number of legal disputes which relate to the payment of dower. The first relates to the amount of dower. Recently, there has been a trend for very large Maher sums to be announced. There are probably three reasons for this trend: 1.) The brides’ family often demand high Mehar sums for status purpose. 2.) In many cases the bridegrooms themselves encourage the insertion of large Maher sums for their own aggrandisement. 3.) A large dower sum can be viewed as insurance for the wife against the possibility of an unjustified divorce by the husband or his early death. However, in certain cases, apart from that publicity agreement, there is also a private agreement for a lesser sum agreed between the parties. The same dispute arose in “Nasir Ahmad v. Asmat Jehan”, and it was held that the real dower payable would be that agreed in private because this is the only agreement really intended to be enforced by both the parties. The second dispute relates to the refusal of conjugal relations. In Pakistan and Bangladesh, under S.10 MFLO 1961, if no details of the mode of payment of dower are specified, then the dower would be presumed prompt and payable on demand. Therefore, can a Muslim wife whose prompt dower has not been paid is entitled to refuse consummation of the marriage?\ 21 Class –LL.B (HONS.) II SEM. Subject – Muslim Law This question was answered in “Abdul Kadir v. Salima”, where a Muslim wife refused conjugal relations on non-payment of dower after consummation had earlier occurred. The court found that the wife has lost her right to refusal once consummation had earlier occurred. The decision was based on the views of Hanafi Disciples rather than on the view of Abu Hanifa. The same issue arose in a recent Indian case of “Rabia Khatoon v. Muhammad Ahmad”. The court did acknowledge that under the classical Hanafi law, the wife may refuse to live with her husband on non- payment of dower even after consummation. However, due to policy and social grounds, the court still stuck to their old position of Hanafi Disciples. Thus, the husband was granted his claim of restitution of conjugal relations in addition to the order of paying his wife the outstanding dower. However, the position in Pakistan changed with the case of “Rahim Jan v. Muhammad”. Here, the High Court had to decide whether, in Hanafi law, the wife is entitled, even after consummation, to refuse to live with her husband when her prompt dower has not been paid. It was said that “Abdul Kadir’s case” comments are obiter. It was, therefore, firmly held that even after consummation the wife retains the right to refuse the performance of marital obligations till the prompt dower is paid. The third dispute relates to the remission of dower by the wife. It is obvious that remission would only be valid if it is made by free consent and not due to coercion. In “Shah Banu Begum v. Iftikhar Muhammad”, the wife had remitted the dower so as to prevent the husband form taking a lover. It was held that the waiver was void and of no effect. The fourth dispute relates to unpaid dower. Generally, an unpaid dower represents an unpaid debt and the wife may sue to enforce payment. The widow has a right to retain possession of the deceased husband’s property until the dower debt is paid to her. In “Maina Bibi v. Chaudhri Vakil”, a widow remained in possession of certain property that was claimed by the deceased’s heirs. The wife defended on the ground of her unpaid dower. The judge found that the wife has the right to possession unless the heirs pay her the unpaid dower. Iddat In Islam, iddah or iddat is the period a woman must observe after the death of her spouse or after adivorce, during which she may not marry another man. Its purpose is to ensure that the male parent of any offspring produced after the cessation of a nikah (marriage) would be known. The length of iddah varies according to a number of circumstances. The iddah of a woman divorced by her husband is three monthly periods, unless she is pregnant in which case the ‘iddah lasts until she gives birth, or unless the marriage was not consummated in which case there is no `iddah, or unless she does not menstruate, in which case "the scholars say that she should observe an ‘iddah of a full year, nine months for pregnancy and three months for ‘iddah." For a woman whose husband has died, the `iddah is four lunar months and ten days after the death of their husbands, whether or not the marriage was consummated. The period, four months and ten days after the death of a spouse, is calculated on the number of menses that a woman has. Islamic scholars consider this directive to be a balance between mourning of husband's death and protecting the widow from criticism that she might be subjected to from remarrying too quickly after her husband’s death. This is also to ascertain whether a woman is pregnant or not, since four and a half months is half the length of a normal pregnancy. Husbands should make a will in favor of their wives for the provision of one year’s residence and maintenance, unless the wives themselves leave the house or take any other similar step. 22 Class –LL.B (HONS.) II SEM. Subject – Muslim Law Divorce The Concept of Divorce under Muslim Law Firm union of the husband and wife is a necessary condition for a happy family life. Islam therefore, insists upon the subsistence of a marriage and prescribes that breach of marriage contract should be avoided. Initially no marriage is contracted to be dissolved but in unfortunate circumstances the matrimonial contract is broken. One of the ways of such dissolution is by way of divorce. Under Muslim law the divorce may take place by the act of the parties themselves or by a decree of the court of law. However in whatever manner the divorce is effected it has not been regarded as a rule of life. In Islam, divorce is considered as an exception to the status of marriage. The Prophet declared that among the things which have been permitted by law, divorce is the worst. Divorce being an evil, it must be avoided as far as possible. But in some occasions this evil becomes a necessity, because when it is impossible for the parties to the marriage to carry on their union with mutual affection and love then it is better to allow them to get separated than compel them to live together in an atmosphere of hatred and disaffection. The basis of divorce in Islamic law is the inability of the spouses to live together rather than any specific cause (or guilt of a party) on account of which the parties cannot live together. A divorce may be either by the act of the husband or by the act of the wife. There are several modes of divorce under the Muslim law, which will be discussed hereafter. 23  Class –LL.B (HONS.) II SEM. Subject – Muslim Law Modes of Divorce Extra Judicial judicial divorce divorce By By wife Mutual husband consent Talaaq Ila Zehar Talaaq- Lian Khula Mubarat e- taweez Dissolution of Muslim Marriages Talaaq-e- Talaaq-e- Act 1939 sunnat biddat Talaaq- Talaaq- e- e- ahsaan hasaan 24 Class –LL.B (HONS.) II SEM. Subject – Muslim Law Modes of Divorce: A husband may divorce his wife by repudiating the marriage without giving any reason. Pronouncement of such words which signify his intention to disown the wife is sufficient. Generally this is done by talaaq. But he may also divorce by Ila, and Zihar which differ from talaaq only in form, not in substance. A wife cannot divorce her husband of her own accord. She can divorce the husband only when the husband has delegated such a right to her or under an agreement. Under an agreement the wife may divorce her husband either by 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. But the Dissolution of Muslim Marriages Act 1939 lays down several other grounds on the basis of which a Muslim wife may get her divorce decree passed by the order of the court. There are two categories of divorce under the Muslim law: 1.) Extra judicial divorce, and 2.) Judicial divorce 1) Extra judicial divorce -The category of extra judicial divorce can be further subdivided into three types, namely:- a. By husband- talaaq, ila, and zihar. b. By wife- talaaq-i-tafweez, lian. c. By mutual agreement- khula and mubarat. The second category is the right of the wife to give divorce under the Dissolution of Muslim Marriages Act 1939. 1. Talaaq: Talaaq in its primitive sense means dismission. In its literal meaning, it means “setting free”, “letting loose”, or taking off any “ties or restraint”. In Muslim Law it means freedom from the bondage of marriage and not from any other bondage. In legal sense it means dissolution of marriage by husband using appropriate words. In other words talaaq is repudiation of marriage by the husband in accordance with the procedure laid down by the law. The following verse is in support of the husband’s authority to pronounce unilateral divorce is often cited: “Men are maintainers of women, because Allah has made some of them to excel others and because they spend out of their property (on their maintenance and dower). When the husband exercises his right to pronounce divorce, technically this is known as talaaq. The most remarkable feature of Muslim law of talaaq is that all the schools of the Sunnis and the Shias recognize it differing only in some details. In Muslim world, so widespread has been the talaaq that even the Imams practiced it. The absolute power of a Muslim husband of divorcing his wife unilaterally, without assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and without recourse to the court, and even in the absence of the wife, is recognized in modern India. All that is necessary is that the husband should pronounce talaaq; how he does it, when he does it, or in what he does it is not very essential. In Hannefa v. Pathummal, Khalid, J., termed this as “monstrosity”. Among the Sunnis, talaaq may be express, implied, contingent constructive or even delegated. The Shias recognize only the express and the delegated forms of talaaq. 25 Class –LL.B (HONS.) II SEM. Subject – Muslim Law Conditions for a valid talaaq Free Formalities Express Capacity Consent words 1.) Capacity: Every Muslim husband of sound mind, who has attained the age of puberty, is competent to pronounce talaaq. It is not necessary for him to give any reason for his pronouncement. A husband who is minor or of unsound mind cannot pronounce it. Talaaq by a minor or of a person of unsound mind is void and ineffective. However, if a husband is lunatic then talaaq pronounced by him during “lucid interval” is valid. The guardian cannot pronounce talaaq on behalf of a minor husband. When insane husband has no guardian, the Qazi or a judge has the right to dissolve the marriage in the interest of such a husband. 2.) Free Consent: Except under Hanafi law, the consent of the husband in pronouncing talaaq must be a free consent. Under Hanafi law, a talaaq, pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication etc., is valid and dissolves the marriage. Involuntary intoxication: Talaaq pronounced under forced or involuntary intoxication is void even under the Hanafi law. Shia law: Under the Shia law (and also under other schools of Sunnis) a talaaq pronounced under compulsion, coercion, undue influence, fraud, or voluntary intoxication is void and ineffective. 3.) Formalities: According to Sunni law, a talaaq, may be oral or in writing. It may be simply uttered by the husband or he may write a Talaaqnama. No specific formula or use of any particular word is required to constitute a valid talaaq. Any expression which clearly indicates the husband’s desire to break the marriage is sufficient. It need not be made in the presence of the witnesses. According to Shias, talaaq, must be pronounced orally, except where the husband is unable to speak. If the husband can speak but gives it in writing, the talaaq, is void under Shia law. Here talaaq must be pronounced in the presence of two witnesses. 4.) Express words: The words of talaaq must clearly indicate the husband’s intention to dissolve the marriage. If the pronouncement is not express and is ambiguous then it is absolutely necessary to prove that the husband clearly intends to dissolve the marriage. Express Talaaq (by husband): When clear and unequivocal words, such as “I have divorced thee” are uttered, the divorce is express. The express talaaq, falls into two categories: a.Talaaq-e-sunnat, b. Talaaq-e-biddat. Talaaq-e-sunnat has two forms: i) Talaaq-e-ahasan (Most approved) ii)Talaaq-e-hasan (Less approved). a.Talaaq-e-sunnat is considered to be in accordance with the dictates of Prophet Mohammad. i)The ahasan talaaq: consists of a single pronouncement of divorce made in the period of tuhr (purity, between two menstruations), or at any time, if the wife is free from menstruation, followed by abstinence from sexual intercourse during the period if iddat. The requirement that the pronouncement be made during a period of tuhr applies only to oral divorce and does not apply to talaaq in writing. Similarly, this requirement is not applicable when the wife has passed the age of menstruation or the parties have been away from each other for a long time, or when the marriage has 26 Class –LL.B (HONS.) II SEM. Subject – Muslim Law not been consummated. The advantage of this form is that divorce can revoked at any time before the completion of the period of iddat, thus hasty, thoughtless divorce can be prevented. The revocation may effected expressly or impliedly. Thus, if before the completion of iddat, the husband resumes cohabitation with his wife or says “I have retained thee” the divorce is revoked. Resumption of sexual intercourse before the completion of period of iddat also results in the revocation of divorce. The Raad-ul-Muhtar puts it thus: “It is proper and right to observe this form, for human nature is apt to be mislead and to lead astray the mind far to perceive faults which may not exist and to commit mistakes of which one is certain to feel ashamed afterwards” ii)The hasan talaaq: In this the husband is required to pronounce the formula of talaaq three time during three successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement of it may be made after the interval of a month or thirty days between the successive pronouncements. When the last pronouncement is made, the talaaq, becomes final and irrevocable. It is necessary that each of the three pronouncements should be made at a time when no intercourse has taken place during the period of tuhr. Example: W, a wife, is having her period of purity and no sexual intercourse has taken place. At this time, her husband, H, pronounces talaaq, on her. This is the first pronouncement by express words. Then again, when she enters the next period of purity, and before he indulges in sexual intercourse, he makes the second pronouncement. He again revokes it. Again when the wife enters her third period of purity and before any intercourse takes place H pronounces the third pronouncement. The moment H makes this third pronouncement, the marriage stands dissolved irrevocably, irrespective of iddat. b. Talaaq-i-Biddat: It came into vogue during the second century of Islam. It has two forms: (i) the triple declaration of talaaq made in a period of purity, either in one sentence or in three, (ii) the other form constitutes a single irrevocable pronouncement of divorce made in a period of tuhr or even otherwise. This type of talaaq is not recognized by the Shias. This form of divorce is condemned. It is considered heretical, because of its irrevocability. 2. Ila: Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila and Zihar. They are called constructive divorce. In Ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of four months. After the expiry of the fourth month, the marriage dissolves irrevocably. But if the husband resumes cohabitation within four months, Ila is cancelled and the marriage does not dissolve. Under Ithna Asharia (Shia) School, Ila, does not operate as divorce without order of the court of law. After the expiry of the fourth month, the wife is simply entitled for a judicial divorce. If there is no cohabitation, even after expiry of four months, the wife may file a suit for restitution of conjugal rights against the husband. 3. Zihar: In this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc. The husband would say that from today the wife is like his mother or sister. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the said period Zihar is complete. After the expiry of fourth month the wife has following rights: (i) She may go to the court to get a decree of judicial divorce (ii) She may ask the court to grant the decree of restitution of conjugal rights. Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek judicial divorce. It can be revoked if: (i) The husband observes fast for a period of two months, or, (ii) He provides food at least sixty people, or, (iii) He frees a slave. According to Shia law Zihar must be performed in the presence of two witnesses. Divorce by mutual agreement: They are two forms of divorce by mutual consent but in either of them, the wife has to part with her dower or a part of some other property. A verse in the Holy Quran runs as: “And it not lawful for you 27 Class –LL.B (HONS.) II SEM. Subject – Muslim Law that ye take from women out of that which ye have given them: except (in the case) when both fear that they may not be able to keep within the limits (imposed by Allah), in that case it is no sin for either of them if the woman ransom herself.” 1. Khula- The word khula, in its original sense means “to draw” or “dig up” or “to take off” such as taking off one’s clothes or garments. It is said that the spouses are like clothes to each other and when they take khula each takes off his or her clothes, i.e., they get rid of each other. In law it is said is said to signify an agreement between the spouses for dissolving a connubial union in lieu of compensation paid by the wife to her husband out of her property. Although consideration for Khula is essential, the actual release of the dower or delivery of property constituting the consideration is not a condition precedent for the validity of the khula. Once the husband gives his consent, it results in an irrevocable divorce. The husband has no power of cancelling the ‘khul’ on the ground that the consideration has not been paid. The consideration can be anything, usually it is mahr, the whole or part of it. But it may be any property though not illusory. In mubarat, the outstanding feature is that both the parties desire divorce. Thus, the proposal may emanate from either side. 2. 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 Shia law is stringent though. It requires that both the parties must bona fide find the marital relationship to be irksome and cumbersome. Among the Sunnis no specific form is laid down, but the Shias insist on a proper form. The Shias insist that the word mubarat should be followed by the word talaaq, otherwise no divorce would result. They also insist that the pronouncement must be in Arabic unless the parties are incapable of pronouncing the Arabic words. Intention to dissolve the marriage should be clearly expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other requirements are the same as in khula and the wife must undergo the period of iddat and in both the divorce is essentially an act of the parties, and no intervention by the court is required. Divorce by wife: The divorce by wife can be categorized under three categories: (i) Talaaq-i-tafweez (ii) Lian (iii) By Dissolution of Muslim Marriages Act 1939. 1. Talaaq-i-tafweez - Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily or permanently. A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated. The power of talaaq may be delegated to his wife and as Faizee observes, “this form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of any court and is now beginning to be fairly common in India”. This form of delegated divorce is usually stipulated in prenuptial agreements. In Md. Khan v. Shahmai, under a prenuptial agreement, a husband, who was a Khana Damad, undertook to pay certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the house and conferred a power to pronounce divorce on his wife. The husband left his father-in- law’s house without paying the amount. The wife exercised the right and divorced herself. It was held that it was a valid divorce in the exercise of the power delegated to her. Delegation of power may be made even in the post marriage agreements. Thus where under an agreement it is stipulated that in the event of the husband failing to pay her maintenance or taking a second wife, the will have a right of pronouncing divorce on herself, such an agreement is valid, and 28 Class –LL.B (HONS.) II SEM. Subject – Muslim Law such conditions are reasonable and not against public policy. It should be noted that even in the event of contingency, whether or not the power is to be exercised, depend upon the wife she may choose to exercise it or she may not. The happening of the event of contingency does not result in automatic divorce. 2. Lian: If the husband levels false charges of unchastity or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behaviour and the husband hits back an allegation of infidelity against her, then what the husband says in response to the bad behaviour of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian. This was held in the case of Nurjahan v. Kazim Ali by the Calcutta High Court. 3. Dissolution of Muslim Marriages Act 1939: Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the issue on 17th April 1936. It however became law on 17th March 1939 and thus stood the Dissolution of Muslim Marriages Act 1939. Section 2 of the Act runs there under: A woman married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution of her marriage on any one or more of the following grounds, namely:- i) That the whereabouts of the husband have not been known for a period of four years: if the husband is missing for a period of four years the wife may file a petition for the dissolution of her marriage. The husband is deemed to be missing if the wife or any such person, who is expected to have knowledge of the husband, is unable to locate the husband. Section 3 provides that where a wife files petition for divorce under this ground, she is required to give the names and addresses of all such persons who would have been the legal heirs of the husband upon his death. The court issues notices to all such persons appear before it and to state if they have any knowledge about the missing husband. If nobody knows then the court passes a decree to this effect which becomes effective only after the expiry of six months. If before the expiry, the husband reappears, the court shall set aside the decree and the marriage is not dissolved. ii)That the husband has neglected or has failed to provide for her maintenance for a period of two years: it is a legal obligation of every husband to maintain his wife, and if he fails to do so, the wife may seek divorce on this ground. A husband may not maintain his wife either because he neglects her or because he has no means to provide her maintenance. In both the cases the result would be the same. The husband’s obligation to maintain his wife is subject to wife’s own performance of matrimonial obligations. Therefore, if the wife lives separately without any reasonable excuse, she is not entitled to get a judicial divorce on the ground of husband’s failure to maintain her because her own conduct disentitles her from maintenance under Muslim law. iii) That the husband has been sentenced to imprisonment for a period of seven years or upwards: the wife’s right of judicial divorce on this ground begins from the date on which the sentence becomes final. Therefore, the decree can be passed in her favour only after the expiry of the date for appeal by the husband or after the appeal by the husband has been dismissed by the final court. iv) That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years: the Act does define ‘marital obligations of the husband’. There are several marital obligations of the husband under Muslim law. But for the purpose of this clause husband’s failure to perform only those conjugal obligations may be taken into account which are not included in any of the clauses of Section 2 of this Act. v) That the husband was impotent at the time of the marriage and continues to be so: for getting a decree of divorce on this ground, the wife has to prove that the husband was impotent at the time of the marriage and continues to be impotent till the filing of the suit. Before passing a decree of divorce of divorce on this ground, the court is bound to give to the husband one year to improve his potency provided he makes an application for it. If the husband does not give such application, the court shall pass the decree without delay. In Gul Mohd. Khan v. Hasina the wife filed a suit for dissolution of marriage on the ground of 29 Class –LL.B (HONS.) II SEM. Subject – Muslim Law impotency. The husband made an application before the court seeking an order for proving his potency. The court allowed him to prove his potency. vi) If the husband has been insane for a period of two years or is suffering from leprosy or a virulent veneral disease: the husband’s insanity must be for two or more years immediately preceding the presentation of the suit. But this act does not specify that the unsoundness of mind must be curable or incurable. Leprosy may be white or black or cause the skin to wither away. It may be curable or incurable. Veneral disease is a disease of the sex organs. The Act provides that this disease must be of incurable nature. It may be of any duration. Moreover even if this disease has been infected to the husband by the wife herself, she is entitled to get divorce on this ground. vii)That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated; viii)That the husband treats her with cruelty, that is to say,- (a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill treatment, or (b) Associates with women of ill-repute or leads an infamous life, or (c) Attempts to force her to lead an immoral life, or (d) Disposes of her property or prevents her exercising her legal rights over it, or (e) Obstructs her in the observance of her religious profession or practice, or (f) If he has more than one wives, does not treat her equitably in accordance with the injunctions of the Holy Quran. In Syed Ziauddin v. Parvez Sultana, Parvez Sultana was a science graduate and she wanted to take admission in a college for medical studies. She needed money for her studies. Syed Ziaudddin promised to give her money provided she married him. She did. Later she filed for divorce for non-fulfillment of promise on the part of the husband. The court granted her divorce on the ground of cruelty. Thus we see the court’s attitude of attributing a wider meaning to the expression cruelty. In Zubaida Begum v. Sardar Shah, a case from Lahore High Court, the husband sold the ornaments of the wife with her consent. It was submitted that the husband’s conduct does not amount to cruelty. In Aboobacker v. Mamu koya , the husband used to compel his wife to put on a sari and see pictures in cinema. The wife refused to do so because according to her beliefs this was against the Islamic way of life. She sought divorce on the ground of mental cruelty. The Kerela High Court held that the conduct of the husband cannot be regarded as cruelty because mere departure from the standards of suffocating orthodoxy does not constitute un-Islamic behaviour. In Itwari v. Asghari, the Allahabad High Court observed that Indian Law does not recognize various types of cruelty such as ‘Muslim cruelty’, ‘Hindu cruelty’ and so on, and that the test of cruelty is based on universal and humanitarian standards; that is to say, conduct of the husband which would cause such bodily or mental pain as to endanger the wife’s safety or health. Irretrievable Breakdown: Divorce on the basis of irretrievable breakdown of marriage has come into existence in Muslim Law through the judicial interpretation of cer