1. Describe the sources of Muslim Law in detail.

INTRODUCTION:-Muslim Law in India means, “that portion of Islamic Civil Law which is
applied to Muslims as a Personal Law. It consists of the injunctions of Quran of the
traditions introduced by practice of the Prophet of the common opinion of the jurists of
the analogical deductions of these three Qiyas. Muslim mean who believes in Islam and
Islam means, “submission to the will of God.” A person born as Muslim continues to be a
Muslim until he renounces Islam after attaining majority. Any person who professes the
Mohemadan religion is Muslim that he acknowledges that, there is one God and the
Mohamed is his prophet.
“Queen Empress v/s Ramzan and Abraham v/s Abraham: It was held that a person may
be a Muslim by birth or by conversion. If one the parents of child are Muslim the child is
deemed as Muslim. If Parents turned to some other religion the child is Mohemadan.
The following are the sources of Muslim Law:-
Primary Sources
1. QURAN: The Quran is the primary source of Muslim Law in point of time as well as
in importance. Quran is the first source of Muslim Law. The Islamic religion and Islamic
society owes its birth to the word of Quran. It is the paramount source of Muslim Law in
point of Important because it contains the very words of God and it is the 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. The Quran has now been codified. Quran is
devided into 114 chapter and 6666 Ayats.
2. Sunnat or Ahadis: Sunnat has three classes:
I. Sunnat-ul-fail: This is being done by Prophet himself.
II. Sunnat-ul-qual: Which Prophet enjoyed by words.
III. Sunnat-ul-tuqrir: Things done in his presence without his disapproval.
Ahadis has also three classes:
I. Ahadis-i-muturatir: Traditions are of public & Universal property & held as
absolutely authentic.
II. Ahadis-i-mashorora: Though known to a majority of people do not possess
the character of universal propriety.
III. Ahadis-e wahid: which depend on isolated individuals?
When Quran is silent on any one of the subject and then that problem is solved by
Ahadis and Sunnat. But while giving the solution to a problem it must be kept in mind
that solution is not adverse to the basics of Quran. Thus such type of acts which the
Prophet himself did or supported it, they came to be known as Adades and Sunnat.
3. IJMAA:- It is third important source of Muslim Law. The origin of IJMAA although
Quran, Sunnat and Ahades had developed as the source of Muslim Law. It takes place
when new problem stated arising with the development of society which were not
possible to be solved by Quran. The principle of IJMAA based upon the text, “That God
will not allow His people to agree on an error and whatever Muslims hold to be good is
good before God.”
Kinds of IJMAA: -i) IJMAA of Jurists. ii) IJMAA of companions of the Prophet:- It is
universally accepted. iii) IJMAA of People: - This kind of IJMAA has not much
importance.
4. The Qiyas (Analogical deduction):- It is originated source of Muslim Law, when any
problem or question could not be solved by Quran, Sunnat, Ahades and Ijmaa. Qiyas in
the light of Holy Quran which says that spend out of your good things because as you
dislike taking back bad things others also may dislike.” In such situations the problem are
being solved by comparative study of the above three sources.
i) It is the last primary source.
ii) Qiyas means reasoning by analogy.
iii) Qiyas does not purport to create new law but merely to apply old established
principles to the new circumstances.
iv) Hanbals shias & shafis do not accept Qiyas.
While solving problem through Qiyas it has to be considered that such things shall
not be adverse to basics of Quran, sunnat, ahades and Ijmma.
Secondary Sources
1. Urf or Custom: Custom never recognised as source of Muslim Law but sometimes
referred as supplementing the law. Muslim Law includes many rules of pre-Islamic
customary law, which have been embodied in it by express or implied recognition.
Requirements of a valid custom:- i) Custom must be territorial. ii) it must be existing
from memorable time i.e. ancient. iii) It must be continuous and certain and
invariable. iv) Custom should not oppose the public policies. V) Custom must not in
contravention of Quran & IJMAA.
Smt. Bibi v/s Smt. Ramkali-1982: It was held that the customs of case and sub case
acquire it to be proved for their validity that they are ancient, definite and earnable.
2. Judicial Decisions:- These includes the decisions of Privy Council, the Supreme Court &
High Courts of India, Judges explain what law is. These decisions are regarded as
precedents for future cases. It becomes a source of Law. Hammeera Bibee v/s Zubaida
Bibi: In India interest on loan is not allowed, but in this case the Privy Council allowed
interest on the amount unpaid dower.
3. Legislation: - In India Muslims are also governed by various legislation passed either
by Parliament or by state legislature e.g.:- i) Guardian & Wards Act, 1890. ii) The Shariat
Act, 1937. iii) Muslim Woman Protection of Right & Divorce Act, 1986. iv) The Mussalman
Waqf Act, 1923. V) The Dissolution of Muslim Marriage Act, 1939.
Justice, Equity & Good Conscience: It is also regarded as one of source.
a) Abu Hanifa: Expounded principle that rule of law based on analogy. These principles
are “Isihsan” or Jruistic equity. b) Maliki:- Ibn-Anas proposes the use of Istiah i.e.
seeking peace or amending & he followed it up by distinct method of juristic
interpretation known as Istidal. However the main sources are Quran, Ahadis and Ijmaa.
Discuss the various Schools of Muslim Law and point out their differences.
INTRODUCTION:-There are two main schools of Muslim Law the Sunni and the Shia. In
India the majority of the Muslims are of Sunnis and hence it is presumed that the parties
to a suit are Sunnis unless proved otherwise.
Shia law has been applied to Shia since the decision of the Privy Council in Rajah Deedar
Hossein v/s Ranee Zuhor-oon-Nissa-1841. The division between the Sunnis and the Shias
originated in the dispute concerning the question of Imamat or the spiritual Leadership
of Islam.
Schools of Muslim Law:- After the death of Prophet the question arose who would be his
successor. On this point the Muslim community was divided into two factions.
The Shias advocatd that the office should go by the right of succession and
thus Imamat i.e. headship should be confined to Prophet’s own family as his prophet.
Whereas on the other hand the Sunnis advocated the principle of election by
the Jamat and chose out their Imam by means of votes.
The majority of Muslims suggested that there should be election to choose
successor of the Prophet. This group was led by the youngest wife of the Prophet. Thus
the difference between the two lies in political events.
Mohammadans
1 Sunni 2 Shia 3 Motazila

1.1 Hanafis 2.1 Ithna-Asharia or Imamia (2.1.1) Akhbari (2.1.2) Usuli

1.2 Malikis 2.2 Ismailiyas—(2.2.1) Khoja (2.2.2) Bohra
1.3 Shafeis 2.3 Zaidais
1.4 Hanbalis
Sunni Sub-Schools:
(i) Hanafi: This school is the most famous school of Sunni Law. Abu Hanifa was the
founder of this school, he recognised Qiyas, urf, Ijma.
(ii) Maliki: It was founded by Malik, leaned more upon traditions. He was not
different from Hanifa’s.
(iii) Shafei: Imam Shafie was the founder of this school. He was the founder of
doctrine of Qiyas based upon Quran, Ahadis or Ijma.
(iv) Hanbali:- It was founded by Ibn Hanbal who stressed on traditions and allowed
very narrow margin to the doctrine of analogy.
SHIA SUB SCHOOLS: -
I) Athana Asharia School:- This school is very orthodox. The supporter of this
school is the followers of twelve Imams and regards them.
II) Ismailia School: - The sixth Imam Jafar-us-Sadiq had two sons 1. Ismail and
2.Musa-ul-kazim. The followers of this school called Ismailas.
III) Zaidia School:-Zaid who was the son of fourth Imam, Imam Ali ashgar was the
founder of this school.
CONCLUSION:- Where it is not alleged not shown that the parties are shias, there is a
presumption that they are sunnies, to which sect the great majority of mohammedans of
this country belong. Shia law is also the law of the land. In india shia law has been
applied to shia since the decision of the privy council.
DIFFERENCE BETWEEN SHIA & SUNNI SCHOOL
Shia School Sunni School
Muta or temporary Marriage is recognised. Muta marriage is not recognised.
Father and grand- father are recognised as Father and father’s father how high-so-
legal guardians for marriage. ever, brothers other paternal relations,
mother are also recognised legal guardians
for marriage.
The minimum amount for dower is not 10 dirhams is the minimum amount of
fixed. dower is fixed.
Talaq must be pronounced orally in Arabic Talaq may be oral or in writing.
language.
Divorce under compulsion or threat or Divorce under compulsion or threat or
intoxication is void. intoxication or jest is not void.
The mother is entitled to the custody of She is entitled to the custody of the boy
boy up-to two years and of a girl up-to up-to seven years and of a girl until she
seven years. attains puberty.
It is not obligatory to maintain the father if It is obligatory to maintain even if he is
he is able to earn. able to earn himself.
Without delivery of possession of the Mere declaration is enough for a valid
property the waqf is invalid. waqf.
A gift of undivided share in the property is A gift of undivided share in the property is
valid provided it is capable of partition. invalid if it is undivided and incapables of
portion.
A person can be queath one third of his The consent of the heirs is essential in
estate without the consent of the other case of legacy in favour of an heir.
heirs.
There are only two classes of heirs namely There are three classes of heirs:-
sharers and residuary. a. sharers b. Residuary.
c. Distant kindred.
A Muslim marriage is a civil contract. Discuss the nature of the Muslim marriage.
INTRODUCTION: - Marriage i.e. nikah meant different forms of sex relationship between
man and a woman established on certain terms. In ancient age women were treated as
chattels and were not given any right of inheritance and were absolutely dependent. It
was Prophet Mohammad who brought about a complete change in the position of women.
The improvement was vast and striking and their position is now unique as regards their
legal status. After marriage woman does not lose her individuality and she remains a
distinct member of the community. Under the Muslim Law marriage is considered as Civil
Contract. The contract of marriage gives no power to anyone over her person or property
beyond what the law defines. Woman remains the absolute owner of individual rights
even after marriage.
DEFINITION OF MARRIAGE (NIKAH):-Marriage (nikah) literally means the union of sexes
and in law this term means, ‘marriage’. Marriage has been defined to be a contract for
the purpose of legalising sexual intercourse and procreation of children.”
In Hedaya, it is defined as, “Nikah in its primitive sense means carnal conjunction.” Some
have said that, “it signifies conjunction generally and finally in the language of law it
implies a particular contract used for the purpose of legalising generation.” The Prophet
of Islam is reported to have said, “That Marriage is my sunna and those who do not
follow this way of life are not my followers.”
Thus marriage according to Muslim Law is a contract for the purpose of legalising sexual
intercourse and the procreation of legitimating of children and the regulation of social life
in the interest of the society.
NATURE OF MUSLIM MARRIAGE:- There are divergence of opinion with regard to the
nature of Muslim marriage. Some jurists are of the opinion that Muslim marriage is
purely a civil contract while others say that it is a religious sacrament in nature. In order
to better appreciate the nature of Muslim marriage it would be proper to consider it in its
different notions.
Muslim marriage by some writers and jurists is treated as a mere civil
contract and not a sacrament. This observation seems to be based on the fact that
marriage under Muslim Law has similar characteristics as a contract. For example:-
i) A marriage requires proposal (Ijab) from one party ad acceptance (Qubul)
from the other so it is the contract. Moreover there can be no marriage without free
consent and such consent should not be obtained by means of coercion, fraud or undue
influence.
ii) Similar as in the case of contract, entered into by a guardian on attaining
majority so can a marriage contract in Muslim Law, be set aside by a minor on attaining
the age of puberty.
iii) The parties of the Muslim marriage may enter into any ante-nuptial or post-
nuptial agreement which is enforceable by law, provided that it is reasonable and not
opposed to the policy of Islam. Same is in the case of a Contract.
iv) The terms of a marriage contract may also be altered within legal limits to suit
individual cases.
v) Although discouraged both by the holy Quran and Hadith, yet like any other
contract, there is also provision for the breach of marriage contract.
vi) In the leading case of Abdul Qadir v/s Salima-1886, it emphasise the
contractual aspect and analogy of Muslim Marriage contract with contract of sale.
CONCLUSION:- Thus marriage according to Muslim Law is a contract for the purpose of
legalising sexual intercourse and the procreation of legitimating of children and the
regulation of social life in the interest of the society. However it is further viewed that
marriage is not purely a civil contract but a religious sacrament too. Though sacramental
nature of marriage is considered as an orthodox view but it is also supported by the
judiciary in the leading case of Anis Begum v/s Mohammad Istafa-1933, in the case
Sulaiman has tried to put a more balanced view of the Muslim marriage by holding it
both civil contract and a religious sacrament.
What are the grounds of dissolution of Marriage under Dissolution of Muslim Marriage Act
- 1939?
INTRODUCTION: An Act to consolidate and clarify the provisions of Muslim Law relating
to suits for dissolution of marriage by women married under Muslim Law and to remove
doubts as to the effect of the renunciation of Islam by a married woman on her marriage
tie. These are as under:-
i. By stipulation in the marriage contract that she shall have such rights as to effect a
divorce. ii By an option to divorce from the husband. iii By judicial divorce on ground of
impotency false charge of adultery. iv By Lian. v By Khula vi By Mubarat.
Whereas it is expedient to consolidate and clarify the provisions of Muslim Law relating to
suits for dissolution of marriage by women married under Muslim Law and to remove
doubts as to the effect of the renunciation of Islam by a married Muslim woman on her
marriage; it is hereby enacted as follows:
2. Grounds for decree for dissolution of marriage:- A woman married under Muslim Law
shall be entitled to obtain a decree for the dissolution of her marriage on any one or
more of the following grounds provided under Dissolution of marriage Act-VIII of l939:-
(i) that the whereabouts of the husband have not been known for a period of four
years;
(ii) that the husband has neglected or has filed to provide for her maintenance for a
period of two years;
(ii-A) that the husband has taken an additional wife in contravention of the provisions of
the Muslim Family Laws Ordinance, 1961; but wife is not entitled to maintenance in the
following situations and it is the reason that she cannot present a litigation of divorce
against her husband on the following grounds :
a) When she lives separately without any reasonable cause. A case of Yusuf Saramma -
1971.
b) When she is unchaste to her husband case: Mu. Khadiza v/s Abdula-1942.
(iii) that the husband has been sentenced to imprisonment for a period of seven years or
upwards;
(iv) That the husband has failed to perform, without reasonable cause, his marital
obligations for a period of three years;
(v) That the husband was impotent at the time of the marriage and continues to be so.
(vi) That the husband has been insane for a period of two years or is suffering from
leprosy or venereal disease. Mulla the wife may obtain a decree for the dissolution of her
marriage if the husband has been insane for a period of two years and suffering from
leprosy or a verneral diseases.
(vii) That she, having been given in marriage by her father or other guardian before she
attained the age of sixteen 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,
I. habitually assaults her or makes her life miserable by cruelty of conduct
even if such conduct does not amount to physical ill-treatment, or
II. associates with women of evil repute of leads an infamous life, or
III. attempts to force her to lead an immoral life, or
IV. disposes of her property or prevents her exercising her legal rights over it, or
V. obstructs her in the observance of her religious profession or practice, or
VI. if he has more wives than one, does not treat her equitably in accordance with
the injunctions of the Quran. Noorjahan Bibi v/s Kazim Ali-1977: a false charge of
adultery by husband over wife was considered to be cruelty.Begum Zohar v/s
Mohammad Isfaq ut Majid-1955: The use of abusive language by husband and use of
defamatory words by husband was held to be cruelty.
VII. on any other ground which is recognized as valid for the dissolution of
marriages under Muslim Law. They are known as Traditional Grounds: such as : IIa,
Zihar, Khula, Mubarat and Tafweez.
 (a) no decree passed on ground (i) shall take effect for a period of six months from
the date of such decree, and if the husband appears either in person or through an
authorised agent within that period and satisfies the Court he is prepared to perform his
conjugal duties the Court shall set aside the said decree; and
(b) before passing a decree on ground (v) the Court shall, on application by the
husband, make an order requiring the husband to satisfy the Court within a period of one
year from the date of such order that he has ceased to be impotent, and if the husband
so satisfied the Court within such period, no decree shall be passed on the said ground.
(c) If husband converts to another religion the marriage is dissolved at the instance, so if
husband changes religion wife has ground for divorce under section 4 of the Act-1939.
3. Notice to be served on heirs of the husband when the husband’s where abouts are not
known. In a suit to which clause (i) of section 2 applies:
(a) the names and addresses of the persons who would have been heirs of the husband
under Muslim Law if he had died on the date of the filing of the plaint shall be stated in
the plaint. (b) notice of the suit shall be served on such persons, and
(c) such persons shall have the right to be heard in the suit:
Provided that paternal-uncle and brother of the husband, if any, shall be cited as party
even if he or they are not heirs.
4. Effect of conversion to another faith:- The renunciation of Islam by a married Muslim
woman or her conversion to a faith other than Islam shall not by itself operate to dissolve
her marriage: Provided that after such renunciation, or conversion, the woman shall be
entitled to obtain a decree for the dissolution of her marriage on any of the grounds
mentioned in section 2; Provided further that the provisions of this section shall not apply
to a woman converted to Islam from some other faith who re-embraces her former faith.
5. Right to dower not be affected:- Nothing contained in this Act shall affect any right
which a married woman may have under Muslim law to her dower or any part thereof on
the dissolution of her marriage
6. (Repeal of section 5 of Act, XXVI of 1937)
Rep. by the Repealing and Amending Act, 1942 (XXV of 1942), section 2 and First Sch.
 Define Dower. What are its kinds? Discuss the nature and legal significance of Dower in
Muslim Law.
INTRODUCTION: - As it is evident from Quran, “if you separate yourself from your
wives, send them away with generosity, it is not permitted to you to appropriate the
goods you have once given them.”
Thus the custom originated in ancient times with the payment which husbands often
made to their wives as means of support in their old age or when turned out by
them. Mehr in the baal form of marriage was also recognised by the prophet to
ameliorate the position of wife in Islam and it was combined with sadaq, so that it
became a settlement or a provision for the wife. According to K.P.Sexena, “Dower is a
sum of money or any property promised by the husband to be paid o delivered to the
wife as a mark of respect for the surrender of her person after the marriage contract but
generally said to be consideration for marriage.”
DEFINITION:-Dower or mehr is a sum that becomes payable by the husband to the wife
on marriage either by agreement between the parties or by the operation of law. It may
either be prompt or deferred. According to Wilson, “dower is a consideration for the
surrender of person by the wife. It is the technical Anglo Mohammedan term for its
equivalent ‘Mehr’ in Arabic. According to Amir Ali, “Dower is a consideration which
belongs absolutely to the wife.” Mulla said, “Dower is a sum of money or other property
which the wife is entitled to receive from the husband in consideration of the marriage.”
KINDS OF DOWER: - Dower may be divided into two kinds:-
1.Specified dower: -This kind of dower is further divided into a) Prompt
dower b) deferred dower.
2.Customary Dower.
i) 1.SPECIFIED DOWER: - If the amount of dower is stated in the marriage
contract, it is called the specified dower. Dower is settled by the parties to the marriage
either before the marriage or at the time of the marriage or even after the marriage. If
the parties to the marriage attained the age of puberty and are of sound mind they are
competent to settle themselves the amount of dower. Guardian can settle the amount of
dower provided that at the time of settlement of dower the boy is still minor or lunatic.
Specified dower is again sub divided into:-
Prompt dower: - It is payable immediately after marriage on demand. Ameer Ali, a wife
can refuse to enter into conjugal domicile of husband until the payment of the prompt
dower. 2. Prompt dower does not become deferred after consummation of marriage. 3. It
is only on the payment of the prompt dower the husband entitled to enforce the conjugal
rights.4. Prompt dower is payable on demand.
Deferred dower:-It is payable on dissolution of marriage either by death or divorce. 2.
The wife is not entitled to demand payment of deferred dower. 3. The widow may
relinquish her dower at the time of her husband’s funeral by the recital of a formula. 4.
The interest of the wife in the deferred dower is a vested one and not a contingent one.
2. Customary Dover:- When the amount of the dower is not fixed in the marriage
contract or even if the marriage has been contracted on the condition that she should not
claim any dower, the wife is entitled to proper dower. The amount of proper dower is
settled by female members of the father’s family such as her father’s sisters.
Determination of Proper Dower: - the proper dower is regulated with reference to the
following factors:-
i) Personal qualification of wife, her age, beauty, fortune, understanding and virtue.
Ii) Social position of her father’s family.
Iii) Dower given to her female paternal relations.
IV) Economic condition of her husband.
v) Circumstances of the time.
There is no limit to the maximum amount of proper dower under the Sunni Law but
under theshia law the proper dower should not exceed the 500 dhirams. This amount
was fixed in the
Marriage of Fatima the Prophet daughter. In the shia Muslims it is therefore considered a
point of
Honour not stipulate for a sum higher than the sum of dower fixed by the Prophet for his
Daughter Fatima.
Legal Significance of Dower in Muslim Law :-The following are the legal significance of
Dower in Muslim Law:-
1. The reason of its significance lies in the protection that it imparts to the wife against
the arbitrary exercise of the power of divorce by the husband.
2. Dower is a right of the wife is fundamental feature of marriage contract and has a
pivotal place in the domestic relation affecting the mutual rights.
3. According to Muslim Law on the dissolution of marriage the wife can claim her dower
money. It may be higher or it may be low depends upon on the source of income of the
husband.
4. Legislature has given the power to make law providing that, the court will not be
bound to award the amount of dower according to marriage deed (Sec. Of Oudh Law
Act.1876). but only such sum as shall be reasonable with reference to the means of
husband and the Iddat of the wife as held in a case of Adul Rehman v/s Inayati Bibi-
1931.
5. Another Significance of Dower is to place a check on the capricious use of divorce
on the part of husband.
6. To impose an obligation on the husband as a mark of respect of the wife.
7. To provide for her subsistence after the dissolution of her marriage so that she may
not become helpless after the death of the husband or termination of marriage by
divorce.
 What are the different forms & Modes of divorce under Muslim Law? Discuss.
Introduction:-Among almost all the nations of antiquity divorce was regarded as a
natural corollary or marital rights. The provisions of divorce were recognised in all
religions Islam is perhaps the first religion in the world which has expressly recognised
the termination of marriage by way of divorce. In England it was introduced 100 years
back. In India it was allowed only by Hindu Marriage Act 1955 amongst the Hindu
community. Before passing this act divorce was not recognised by Hindu Law.
Before Shamim Ara v/s State of U.P.-2002, a Muslim husband had unlimited
power of effecting Talaq without assigning any reason. But in Shamim Ara’s case the
Supreme Court held that the talaq must be for a reasonable cause and there must be
preceded by an attempt of reconciliation between her husband and the wife by two
arbiters one chosen by the wife and the other by the husband.
Different forms & Modes of divorce under Muslim Law
1.Capacity for Pronouncing Talaq:-The only and only essential condition for pronouncing
Talaq by a Muslim husband is that he must have attain the age of puberty and must be
of sound mind at that time. In view of the position of Muslim Law it cannot be said that
Talaq namah was not sufficient to dissolve the marital relations. Refer case Abdul Wahid
v/s Raisa Bi-2007.
In another case of Mohamad Siddiqu Ali v/s Mustt. Fatima Rashid-2007, it was
held by the court that mere pronouncement of Talaw orally or in writing is not sufficient
to terminate the marriage. The factum of the Talaq should be proved by the independent
witnesses.
In the case of Iqbal Bano v/s State of U.P.-2007, the Apex Court held that the
conclusion that in view of the statement in the written statement about an alleged
divorce30 years back by utterance of the words talaq, talaq, talaq three times is
sufficient in law is not sustainable. A mere pleas in the written statement of a divorce
having been pronounced sometimes in the past cannot by itself be treated as effectuating
Talaq.
2. Talaq-ul- Sunnat: This form of Talaq is revocable hence it is regarded as approved
form of Talaq. This form of Talaq was approved by the Prophet both Shia and Sunni
schools recognise this form. It has two parts:-
i) Talaq Ahsan:- This consists of a single pronouncement of divorce made during a tuhr
followed by abstinence from sexual intercourse for the period of Iddat. The main
requirements of a Talaq Ahsan are :-
a) Formula of Talaq must be pronounced only once by the husband.
b) If the marriage has been consummated the pronouncement must be made during the
period of her purity.(tuhr). After such pronouncement the husband should abstain from
sexual intercourse during the period of purity and Iddat.
c) When the wife is not subject to menstruation the pronouncement may be made even
after sexual intercourse.
The above form of divorce is regarded as the best form because there is a chance of
reconciliation between the parties.
ii) Talaq Hasan:- This consists of three pronouncements made during
successive tuhrs the period of purity no intercourse taking place during any of these
three tuhrs. The chief requirements of Talaq Hasan are :-
i) There must be three successive pronouncements of the formula of divorce.
ii) In the case of a menstruating wife the first pronouncement should be made during a
period of tuhr or purity the second during the next tuhr and third during the
succeeding tuhr.
iii) In the case of a non-menstruating wife, the pronouncement should be made during
the successive 30 days.
iv)No sexual intercourse should take place during these three periods of tuhr.
This is also proper form of Talaq but less proper than talaq Ahsan, This Talaq is revocable
before the third pronouncement but becomes irrevocable immediately after the third
pronouncement.
3.Talaq-ul-Biddat or Talaq-i-Biddat:- It is sinful form of divorce recognised only under
Sunni Law. It is the irregular mode of Talaq introduced by Omeyyads in order to escape
the strictness of law. It consists the following two modes:- i) Three pronouncements
made during single tuhr either in one sentence e.g. “I divorce thee, I divorce thee, I
divorce thee. Ii) A single pronouncement made during a tuhr clearly indicating an
intention irrevocable to dissolve the marriage e.g .divorce thee irrevocably.” Talaq-ul-
Biddat form is recognised only in Sunni Law and not in Shia Law.
When They Become Irrevocabale
1. Talaq-ul-Sunnat:- Talaq Ahsan:- it becomes irrevocably on the expiry of the period
of iddat.
2. Talaq Hasan:- It becomes irrevocable on the third pronouncement irrespective of
Iddat.
3. Talaq-ul-Biddat:- It becomes irrevocable immediately when it is pronounced
irrespective of Iddat.
 What are the grounds of Judicial Separation under Muslim Law? And Discuss about
conjugal rights?
Introduction:- Marriage or Nikah in Muslim Law is a contract and needs nothing in
writing. There is only necessary is offer and acceptance made in the presence and
hearing of two male or female witness and recording the factum of the marriage in the
concerned register maintain in every mosque. Signed by the parties and attested by the
witness.
Muslim Marriage Laws:- Under the Muslim Personal Law a suit has been filed by the
husband or wife on withdrawal from the society of other without lawful ground.
Muslim law recognized two forms of divorce by mutual consent Khul or Khula (Divorce at
the request of wife) and Mubaraa or Mubaraat (by agreement).
No provision so far enabling parties o the marriage parties to the marriage to seek the
remedy of Judicial Separation.
A Muslim wife may seek Judicial Separation on the following grounds:-
i. Absence of the husband:- When a Muslim wife does not know where about the
husband for the last four years.
ii. Failure of husband to provide maintenance:- when a husband is failed to provide
maintenance to his wife from the last two year. Refer case Fazal Mahmud v/s Ummatur
Rahim, 1949 .
iii. Imprisonment of Husband:- When a husband has been sentenced of imprisonment for
seven years or more.
iv. Failure to perform to martial obligation:- When a husband is fail to perform martial
obligation in between the families.
v. Impotency of husband:- If the husband was impotent at the time of marriage and
continues to be so.
vi. Insanity, leprosy, venereal disease:- If the husband is has been insane for a period of
two years or suffering from Leprosy or venereal disease.
vii. Repudiation of marriage by wife:- If she having been given in marriage by her father
or other guardian before the attaining the age of fifteen year, repudiated the marriage
before 18 years and marriage is not consummated. She is able to seek for Judicial
Separation.
viii. Option of Puberty:- Option of puberty is the right of a minor boy or girl whose
marriage has been contracted through a guardian to repudiate or confirm the marriage
on attaining the age of puberty. Under this obligation a boy or girl has the option of
repudiating the marriage. In case of any negligence of father or the guardian. Refer
case Abhul Karim v/s Amina Bai, 1935.
Cruelty of Husband:- Judicial Separation may also be claimed by the Muslim wife if the
husband treats her with cruelty.
Conclusion:- A Muslim women may file a suit of Judicial Separation in courts of India on
the basis of facts mention above under Muslim Law which has been recognized by the
Muslim Society. As per provision laid down in Muslim law a husband after marriage
become responsible to maintain her wife and fulfil her reasonable requirement with in his
capacity but not on sake of his personal image.
Q-What is the objective of Muslim Divorce Law 1939? In what grounds a Muslim Woman
can apply for divorce under this law?
A- Grounds for Decree for Dissolution of Marriage
A woman married under Muslim Law shall be entitled to obtain a decree 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;
ii. that the husband has neglected or has failed to provide for her maintenance for a
period of two years;
iii. that the husband has been sentenced to imprisonment for a period of seven years or
upwards;
iv. that the husband has failed to perform, without reasonable cause, his marital
obligation for a period of three years;
v. that the husband was important at the time of the marriage and continues to be so;
vi. that the husband has been insane for a period of two years or is suffering from
leprosy or virulent venereal disease;
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;
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 evil repute or leads an infamous life, or
c. attempts to force her to lead an immoral life, or
d. dispose 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 wives than one, does not treat her equitably in accordance
with the injunctions of the Quran;
Discuss the cruelty as a ground of divorce under Special Marriage Act, 1954. Discuss the
consequences of marriage under this act.
Introduction:- Section 27 the Special Marriage Act 1954 provides for 12 grounds for
divorce. One of them is cruelty. Sec.2 of the Dissolution of Muslim Marriage Act
1939 provides for 8 grounds on which a woman married under this act is entitled to
obtain a decree for dissolution of her mirage. One of them is cruelty.
Sec. 32 of the Parsi Marriage and Divorce Act, 1936 provides 11 grounds for divorce. One
of them is cruelty.
Sec. 13 of Hindu Marriage Act, 1955 provides for dissolution of a Hindu Marriage by a
decree of divorce on 13 grounds. One of them is cruelty.
It is matter of strange that none of these acts however define as to what Cruelty is.
Definition: - The idea and meaning and the concept of cruelty changes from time to time
varies from place to place and differ from individual to individual. It is not the same for
persons situated in different economic conditions and status.
Perhaps this is the reason why the legislature has not in any of the Acts defined as to
what cruelty is and has left it to the best judgement of the judiciary to decide as to what
amounts to cruelty to a particular person in a particular set of circumstance.
Various judges have in numerous judgements defined as to what amounts to
cruelty but once again those definitions are not general but are related to the facts of
those particular cases.
The question of cruelty is to be judged on the totality of the circumstances in
order to term a conduct as cruel it should be so grace and weighty that staying together
becomes impossible. A conduct to be cruel must be more serious than the ordinary wear
and tear of marriage.
By cruelty we normally think a conduct behaviour an act of physical violence the
normal idea of cruelty in the common mans mind is assaulting somebody however
cruelty as a ground for matrimonial relief is just not physical violence. Cruelty as a
ground for divorce need not be physical only it may be mental .And believes me mental
cruelty is of a worse kind than that of physical violence.
A wife’s conduct of:
1. Humiliating her husband in the presence of family members and friends.
2. Taunting her husband on his physical in capabilities.
3. Neglecting her husband and avoiding him not to share family problems.
4. Coldness and insults him openly.
5. Deliberately wearing clothes which her husband dislikes.
6. Purposely cooking food which her husband is not fond of.
7. Visiting her parent’s family off and on against her husband’s wishes.
8. Undergoing an abortion despite her husband asking her not to do so.
9. Keeping husband outside the door of house.
10. Refusing to do household work.
11. Threatening to commit suicide.
12. Disobedience her husband and the parent of the husband.
All these are not acts of physical violence but yet it has an effect on the husband’s mind
and due to this the husband’s health suffers and therefore these acts can be termed as
cruel.

Husbands conduct of cruelty:-

1. Humiliating his wife, calling her frigid or cold fish making excessive sexual demands.
2. Comparing her with the maid servant.
3. Touting her for not having any child or giving birth to female children.
4. Demanding dowry.
5. Asking her to bring money or articles from her parents.
6. Objecting to her visiting her parents insulting her relatives when they visit her. 7.
Deliberately removing all servants and making her do all household work. 8. Denying
any medical treatment when she is ill.
9. The above are also the acts of mental cruelty by the husband upon his wife.
10. In one of the cases the conduct of a wife abusing her husband and his family
members in her letters. In defamatory and derogatory language and accusing her
husband of infidelity was considered as cruelty afflicted was considered as cruelty
afflicted by her upon her husband.
In a decided case a Learned Judge of High Court held that the accusation made by the
husband in his written statement opposing the petition of his wife and alleging there in
without roving the same that his wife was leading an adulterous life. Was cruelty afflicted
by the husband upon the wife.
In order to find out whether a particular act is cruel or not one has to look upon the
effect which is caused by that act. If he effect is that by a particular act harm has been
caused o the body or mind of the other the said act is an act of cruelty.
Indian people of whatever race and religion they may be and to whichever class of
society they may belong to are basically tolerant. Unless the treatment received by a
person from his or her spouse is extremely grave and unbearable, it is not treated as a
cruel conduct giving a ground for dissolution of marriage. Still we do not have cases of
divorce on the ground of husband snoring at night or wife refusing to accompany
husband to a party.
Conclusion: - The concept of cruelty changes from time to time varies from place to place
and differs from individual to individual. It is not the same for persons situated in
different economic conditions and status. The legislature has also not in any of the Acts
defined as to what cruelty is and has left it to the best judgement of the judiciary.