Muslim law Notes

Sources of Muslim Law: -

Muslim personal law in India is largely uncodified. This basically means that it is not
based on laws made by the legislature. Instead, it originates from several other
sources of traditional law dating back several years. Since Prophet Mohammed had
proclaimed Muslim law to be the commandment of God, most Muslims adhere to it
strictly. It dictates several spiritual, religious, social and even legal activities of
many Muslims in India

Primary Sources of Muslim Law in India

1) The Quran

The Quran, which all Muslims consider to be their holy book, contains direct
revelations of God through Prophet Mohammed. It is due to this reason that it is
the foundation of all Islamic laws. All tenets, teachings, principles, and practices of
Islam originate from the Quran.

2) Sunna of Hadis

Sunna basically translates to ‘path’ and means the practices, traditions, and
precedents of Prophet Mohammed. Whenever the Quran did not explain
something, the Prophet’s actions and words became the authority.

3) Ijma

After Prophet Mohammed’s demise, there was a consensus in the Muslim world
that opinions of religious jurists will prevail. In other words, the Mujtahids (jurists
with knowledge of Islam) will interpret the Quran, Sunna, and Hadis.

4) Qiya

The term ‘Qiya’ basically means an analogical deduction from the existing
sources. Whenever the other sources do not explain something, Qiya helps in
deducting interpretations that seem to be the most obvious. Qiya, however, can
only explain or interpret the law but it cannot change the law or its essence.

Secondary Sources of Muslim Law in India

Apart from the primary sources we saw above, the following secondary sources
also govern Muslim law to a limited extent:

1) Legislation

Although Muslim law in India is uncodified, the Parliament has made some laws
to regulate some Islamic practices. For example, the Muslim Personal Law
(Shariat) Application Act, 1937 governs marriage, succession, and inheritance.
2) Judicial decisions
Courts in India have at several instances interpreted Muslim law in many cases.
All these interpretations generally rely on primary sources, legislation and
opinions of jurists.

3) Customs

Customs are basically practices that people follow continuously for a long period
of time. In fact, they follow them for so long that they obtain the status of law in
some cases.

Different Schools of Muslim Law

1. The Hanafi or Kufa School-
This school is named after its founder abu hanifa and is the most popular school
of Muslim Law. Abu Hanifa was an eminent scholar of his time and was widely
known for his outstanding logical reasoning. He preferred scientifically concluded
private judgments based on Quran over a blind reliance on the traditions. Abu
Hanifa is said to have relied upon 18 traditions only. Anu Hanifa was of the
opinion that the law must be formulated in accordance with the changing needs
of the society.

2. The Maliki School- Maliki School was established by Malik-ibn of Medina. He

was a great scholar and is regarded to be an authority on traditions. According to
this school as far as possible the new rules should be obtained exclusively from
the traditions. If it is not possible then only Quran and Ijma may be taken into
consideration.

3. The shafei School- The founder of this school is Ash shafei. He was an eminent
scholar of Islamic jurisprudence. He examined the traditions in the light of legal
reasoning and logic in order to get a very balanced and systematic rule of law.
Shafei was of the opinion that there was not a single problem of human life
which could not be solved by Quran or the traditions of the Prophet.

4. The Hanbali School- This school was established by Ibn Hanbal. Under this
school therefore there is no scope for private judgment and human reasoning.
The result is that the doctrines of this school are rigid and uncompromising.
Because of this, Ibn Hanbal and his followers were always regarded as
reactionaries and were harassed by the authorities from time to time.

5. The Shia Schools- Ali was acknowledged to be the first Iman by the Shia
community.

1. The Ithna Asharia School-

The followers of this school believe that starting from Ali there had been twelve
Imams who possessed spiritual powers. Everything that comes from the Imam is
taken to be a law. It is believed that the Twelfth Imam who disappeared when he
was still a child, would reappear in future.
2. The Ismailia School- For some reasons Jafar Sadiq disinherited his eldest son
Ismail. The majority of Shias, therefore did not accept him as their Imam. But
there were some Shias, although in minority who acknowledge Ismail as the
seventh Imam.
3. The Zyadis School- One of the peculiar features of this school is that its
doctrines incorporate some of the Sunni principles as well. The followers of this
school are not found in India they are mostly in Yemen.
4. The Motazila School- This school emerged as a separate sect of Islam around
9th Century A.D. This School was established by Ata-al-Ghazzal during the region
of Mamun. The followers of this school believe that Quran is the only basis for
their doctrines. Most of the traditions have been rejected by the Motazilas. One
of the characteristic features of the Motazilas is that this is the only school in
Islam which practices strict monogamy. Marriage with more than one wife at a
time is unlawful under the Motazilas principles
Marriage: - Muslim marriage, also known as Nikah, is a sacred and legal
contract between a man and a woman that is recognised by Islamic law. Nikah is
a religious and social institution that aims to create a bond between two
individuals that is based on mutual respect, love, and understanding. Marriage
acts as an outlet for sexual needs & regulates it so one doesn’t become slave to
his/her desires. It is a social need because through marriage, families are
established and the families are the fundamental entity of our society.
Furthermore marriage is the only legitimate or halal way to indulge in intimacy
between a man and woman.

A Nikah in Arabic means Union of the series and carries a civil contract for the
purposes of legalizing sexual intercourse and legitimate procreation of children.

The general essentials for marriage under Islam are as follows:-

(i) Every Mahomedan of sound mind and having attained puberty can marry.
Where there is no proof or evidence of puberty the age of puberty is fifteen
years.
ii) A minor and insane (lunatic) who have not attained puberty can be validly
contracted in marriage by their respective guardians.

(iii) Consent of party is must. A marriage of a Mahomedan who is of sound

mind and has attained puberty, is void, if there is no consent.

Essentials of Marriage

The essentials of a valid marriage are as follows:-

(i) There should be a 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 the other
party.
(ii) The proposal and acceptance must both be expressed at once meeting.
(iii) The parties must be competent.
(iv) There must be two male or one male & two female witnesses, who
must be sane and adult Mahomedan present & hearing during the marriage
proposal and acceptance. (Not needed in Shia Law)
(v) Neither writing nor any religious ceremony is needed.

The marriage must be effectively immediate. If the Wali says I will marry
her to you after two months, there is no marriage. The consent given must
be free consent,. It must not be an outcome of compulsion, duess,
coercion or undue influence.
it is unlawful to marry a woman who is already pregnant by her former
husband.
Marriage with a sickman suffering from disease which is likely to be fatal
is invalid. If however, he recovers and the marriage is consumed. It is
valid.

Kinds of Marriage
Under Muslim generally two types of marriage is recognized
(i) Regular Marriage (essentials discussed earlier)
(ii) Muta marriage The meaning of ‘Muta’ is enjoyment. Muta Marriage is a
marriage for a fixed period of time that is only for sexual pleasure. Muta
marriage is a temporary marriage. Muta marriage is recognized in Shia only.
Sunni law doesn’t recognize it. (Baillie, 18). A Shia of the male sex may contract
a Muta marriage with a woman professing the Mahomedan, Christian or Jewish
religion, or even with a woman who is a fire worshipper but not with any woman
following any other religion. But a Shia woman cannot contract a Muta marriage
with a non muslim.

Conditions and Essentials of Muta Marriage

1. The parties must have attained the age of puberty, which is above 15 years of
age.
2. There is no restriction on the number of Muta wives.
3. There must be free consent by the parties.
4. The time period and Dower must be mentioned in the nikah nama.
5. The cohabitation between the parties is lawful.
6. The children born out of such marriage are legitimate and have the right to
inherit the properties of both parents.
7. The husband and wife don’t have any mutual right of inheritance.
8. Muta wife is not entitled to claim maintenance under personal law, but she can
claim under Section 125 of CrPC.
9. The wife is entitled to get full Dower if the husband cohabits, but if the
husband doesn’t cohabit, then the wife is entitled to half dower.
10. Divorce is not recognised under Muta Marriage.

Termination of Muta Marriage

Muta Marriage can be terminated by one of the following reasons.
1. Expiry of the time period.
2. Death of either party.
3. Hiba I Muddat, that is, husband gifts the unexpired term of the marriage.

Effect of Marriage (Sahih)

The lawful obligations which arise after marriage are as follows-

(i) Mutual intercourse legalized and the children so born are legitimate.
(ii) The wife gets power to get ‘Mahr’
(iii) The wife entitles to get maintenance.
(iv) The husband gets right to guide and prohibit the wife’s movement(for valid
reasons only)
(v) Right of succession develops.
(vi) Prohibition of marriage due to affinity.
(vii) Women bound to complete Iddat period & not to marry during Iddat period;
after divorce or death of husband.

Iddat: - Iddat is described as a period during which a woman is prohibited

from marrying again after the dissolution of her first marriage.

Duration of Iddat
 Iddat of widowhood.- When a person dies leaving a widow, she is prohibited
from marrying before the expiration of 4 months and 10 days.

Iddat of pregnant woman - If the widow is pregnant at the death of her

husband, the iddat will not terminate until delivery or miscarriage. If delivery or
its miscarriage comes before 4 months and 10 days the remaining period will
have to be observed.

 Iddat of Talaq – The period of iddat in the case Talaq is three courses, if the
woman is subject to menstruation; otherwise three lunar months if the woman is
pregnant at the time of divorce, the iddat will not terminate till delivery.
 Iddat when marriage is irregular - if the marriage is irregular and
parties have separated before the actual consummation, there is no iddat. If the
consummation has taken place the wife is bounded to observe iddat.
 It he marriage is not consummated, iddat has to be observed in the case of
death, but not in the case of divorce.
 The period of iddat begins from the date of the divorce or death of the husband
and not from the date on which the woman gets the information of divorce or of
the death of the husband.
 If she gets the information after expiry of the specified term she need not
observe the required iddat.
 Where a husband had divorced his wife and has died before the completion of
the iddat, the woman is required to undergo a fresh iddat for four months and
ten days from the date of the husband’s death.

Right & duties while observing iddat:-

During iddat, husband bound to maintain his wife.
Wife can’t marry another person & husband can’t marry 5th wife.
She is entitled to different dower if prompt dower remains unpaid.
On the death of either party during iddat the other party has right to inherit from
his one’s property.

Dawer/Mahar
“Dower” is a sum of money or other property which the wife is entitled to receive
from the husband in consideration of the marriage. Dower is a sum of money or
other property which the wife is entitled to receive from the husband in
consideration of the marriage.

The object of Dower .-

To impose an obligate on the husband as a mark of respect of the wife;
To place a check on the capricious use of divorce on the part of husband
To provide for her subsistence after the dissolution of her marriage, so that she
may not become helpless after death of the husband or terminations of marriage
by divorce.

Classification of Dower
1. Specified dower (Mahr-i-Musamma.).- If the amount of dower is Stated in
the marriage contract, it is called the specified dower. Dower may be settled by
the parties to the marriage either before the marriage or at the time of the
marriage or at even after the marriage. specified dower is again divided into ;
 Prompt dower ,and
 Deferred downer.
2. Prompt Dower (Mahr-i-Misl).- It is payable immediately after marriage on
demand, a wife can refuse to enter into conjugal domicile of husband until the
payment of the prompt dower.

WILLS
In Muslim law, the testamentary document called the will is referred to as
Wasiyat .
The person who makes a will is called legator or testator. The legator must have
the capacity to make a will.
Every (i) Muslim of (ii) sound mind who has (iii) Attained the age of majority, has
capacity to make a will. Will or Wasiyat is a document made by the legator in
favour of legatee which becomes effective after the death of the legator. Under
Muslim law no person is entitled to make will of the whole property. It is to be
noted that devolution of property under a will takes place only after the death of
the testator, not from the date of making the will. A muslim can lawfully make a
will in favour of any person irrespective of religion, age, sex and the state of
mind. Upon your death, your parents, spouse, and children will be the primary
beneficiaries of your Fara'id. Where the decedent has both male and female
children, a son's share is double that of a daughter's. Section 61 the Indian
Succession Act, 1925 expressly states that a will which has been caused by
fraud or coercion, or any importunity which takes away the free agency of
the testator is void. Any will that has been made in the absence of free will of
testator can be challenged.

If the mother is the absolute owner of the property, on her death without any
Will, it will be equally distributed among her husband. Son and daughter and all
of them will be getting their respective share.

The beneficiary in whose name the will is written gets an indefinite right to get it
executed anytime after the death of the testator as the will remains valid for
time immemorial. There is no expiry date in case of Will and no authority can
enforce a restriction or limit on the time period of execution of will. No, there is
no legal requirement to register a will. It does not even have to be on a
stamp paper or notarised.

A mother is a legal heir to her deceased son's property. Therefore, if a man

leaves behind his mother, wife and children, all of them have an equal right on
his property.

Prohibition in Islam

This meat is called "halal." Muslims are also prohibited from gambling, taking
interest, fortune-telling, killing, lying, stealing, cheating, oppressing or abusing
others, being greedy or stingy, engaging in sex outside of marriage,
disrespecting parents, and mistreating relatives, orphans or neighbors.

“The one who looks after and works for a widow and for a poor person is like a
warrior fighting for Allah's cause.”

2 Wives Both wives are entitled to a share of 1/4th share in the property of
the husband if they are childless and 1/8th share in case there are children.

What happens if husband and wife live separately in Islam?

If the wife does not agree to her husband being away for more than six
months , the case should be referred to the qadi (judge) so that he can
correspond with her husband and order him to return. If he does not return, then
the judge may rule as he sees fit, either divorce or annulment of the marriage.
Restitution of Conjugal rights When either the husband or the wife has,
without lawful cause, withdrawn himself or herself from the society of the other,
the aggrieved party may bring a suit for the restitution of conjugal rights.

A will can be changed as many times as the testator wants to. Once a fresh will
is made, the previous one stands revoked. Will cannot be changed after the
death of the testator. If not attested by at least two witnesses, a will becomes
invalid.
Thus, if such a will has not been registered, the claimant is mandatorily required
to acquire the succession certificate from the court and this is always required
for moveable properties like bank account balances, shares, securities etc.

Hibba

A hibba is a transfer of Tengible property without consideration. A Muslim

can perform Hiba of whole of his property that has some legal value attached to
it to be a subject matter of Hiba. Only thing that is essential that the subject
matter of Hiab should be transferrable in nature i.e. any property over which
ownership can be exercised. No registration is necessary if hiba is made of even
immovable property like land or house if it is through oral declaration.Gift in
favor of an unborn person is void. but a father can lawfully make gift in respect
of his minor son.

Kind of Gifts: -

1. Hiba-il-iwaz: - Under Islamic law, Hiba means gift and iwaz means
consideration. Under all the laws, there is no system where there is a
consideration for the gift. But under Muslim law, there is a system of gift
with an exchange.

2. Hiba-ba-Shart-ul-Iwaz : - It means a gift made with a stipulation for return.

In this case, the consideration is not paid by the donee by his own choice but it is
paid because it is a necessary condition here.

Doctrine of MUSHAA (HIBA-bil-MUSHAA). According to these schools a

gift of undivided property can be validly made. In such cases it is necessary that
the donor must give to the donee the possession of the undivided property.
MUSHA is an arbic word derived from ‘saayu’ meaning “undivided share in a
property.”

WAKF

Wakf Act, 1954 defines Wakf as, Wakf means the permanent dedication by a
person professing the Islam, of any movable or immovable property for any
purpose recognized by Muslim Law as religious, pious, or charitable. Waqf
literally means 'detention' stoppage or tying up, meaning thereby that the
ownership of dedicated property is taken away from the person making waqf and
transferred and detained by God.

What are the three types of waqf?

The charitable Waqf (al-Waqf al-Khayri), The family Waqf (al-Waqf al-Ahli), The
joint Waqf (al-Waqf al-Mushtarak) and. Self-dedicated Waqf (al-Waqf 'Ala al-
Nafs).

What is an example of a waqf?

A famous example of waqf is the Al Azhar Mosque and University in Cairo,
Egypt. This University was founded as waqf in 1908, with funds donated
by wealthy Egyptians.

OPTION OF PUBERTY: - Under Muslim marriage, a minor on attaining the

age of puberty can exercise the option of puberty (Khyar-ul-Bulugh)
wherein the minor can approve or disapprove the marriage contracted by
the guardian who is not the father or the grandfather . The age of majority in
Muslim law is the age of puberty in spite of 18 years of age. Hedaya says the
minimum age of puberty for a boy is 12 years and for a girl it is 9 years but it has
been fixed at 15 years of age by the Privy Council in the year 1916. Therefore a
boy or a girl irrespective of the gender, of 15 years of age will be presumed to
have attained the age of puberty unless the contrary is proved. Under Muslim
law, a person under 15 years of age is presumed to be a minor and is therefore
incompetent to give consent for marriage. Unless and until the guardian’s consent
is not obtained the marriage will be void.

Under Muslim marriage, a minor on attaining the age of puberty can exercise the
option of puberty (Khyar-ul-Bulugh) wherein the minor can approve or
disapprove the marriage contracted by the guardian who is not the father or the
grandfather. If the minor objects to the marriage it will be dissolved with
immediate effect. If the minor didn’t raise any objection then it will be presumed
that he has approved the marriage. If the father or the grandfather has
contracted marriage fraudulently the minor under the doctrine of puberty can
repudiate the marriage on attaining the age of puberty. A wife can exercise the
right even if the marriage was contracted by her father or her grandfather. The
husband will lose his right to the option of puberty if the marriage has been
consummated after attaining puberty.
KHULA: -

Khula is a concept in Islamic law that refers to a woman's right to seek a divorce
from her husband. It allows a Muslim woman to initiate the dissolution of the
marriage by requesting it from her husband or through the intervention of a
religious authority, such as a judge or an imam. The most common of these
are: Where the wife suffers physical, financial or emotional harm from the husband. Any
violence in the marriage is condemned by Islam,

PRE-EMPTION

Pre-emption is the right which the owner of certain immovable property

possesses to obtain another immovable property not his own. 2. The right is
obtained in substitution of the buyer ( who has already purchased the other
immovable property). Example : - A and B is owners of their houses which are adjacent
to each other. B sells his house to C, who may be a stranger for A. Under this pre-emption
right, a who is a pre-emptor can legally repurchase that house from C at the same price at
which B sold it to C.

Example The owner of a plot of land, X is entitled to irrigate X by water from

channel running over plot y. Plot y adjoins another plot Z which, however is not
irrigated by the aforesaid channel. Y is sold. The owners of X and Z claim pre-
emption. Who is entitled to a decree? According to Hanafi Law, the owner of the
plot X enjoys the right of the nature of easement, i.e., he is a participator in the
appendages gets priority over a mere neighbour. Hence the owner of X will get a
preference over the owner of Z

Ijma' (Consensus), and Qiyas (Analogy).

Ijma is the consensus or agreement of the Islamic community on a point of Islamic

law.
When Quran and traditions could not supply any rule of law for a new problem, the
‘law-knowing persons’ used to agree unanimously and gave their common opinion
over that point. Such consensus opinion was termed Ijma .

MUTAWALLI: -In WAQF Ownership of the property is vested in god and becomes
his property. There must be some person or a human agency who could look after
the dedicated property on behalf of god. The person who supervises or takes over
the management of a WAQF, is called the MUTAWALLI, he is superintendent of the
property. He also distributes the benefits of the property according to the directions
laid down in the WAQF.

Who can appoint MUTUAWALLI? Any person may be appointed in order of priority
by any one of the following –
a. By founder of the WAQF,
b. By executor of the founder,
c. By a MUTAWALLI on his death-bed,
d. By the court, and
e. By congregation.

Who may be appointed MUTUAWALLI? Any person who is,

(a) of sound mind and,
(b) has attained the age of majority, is qualified to be appointed as a MUTAWALLI

Females and non-Muslims are legally qualified to be appointed as a MUTAWALLI.

A MUTAWALLI is primarily concerned with the superintendence or management of
the WAQF property. MUTAWALLI is entitled to get some remuneration in return of
services discharged by him. Generally, the founder himself provides for the
remuneration of MUTAWALLI. The founder may provide a fixed amount to be paid
periodically to the MUTAWALLI. He may also provide that instead of any fixed sum,
he would get the residue of the benefits of the WAQF-property. After distribution of
the income of WAQF-property and after meeting the necessary expenditure in its
maintenance etc. the remaining income is given to the MUTAWALLI as his
remuneration.
The MUTAWALLI is a manager of the WAQFQ property. His duty is to preserve the
property like his own, but to manage and spend it like a servant of god.

Removal of MUTAWALLI Once a MUTAWALLI has dully been appointed, he

cannot be removed by the founder for misconduct etc, except where the founder has
expressly reserved such a right but, the court has an absolute power to remove a
MUTAWALLI. Even though the WAQF-deed specifically provides that MUTAWALLI
should not be removed in any circumstances. The court has unrestricted power to
remove a MUTAWALLI from his office in any of the following circumstances.
a. Where a MUTAWALLI has become insolvent.
b. Mismanagement of the WAQF-property due to negligence.
c. Failure of a MUTAWALLI to perform religious services where it is an essential part
of his duties.
d. Where the MUTAWALLI applies the income of the WAQF-property against the
direction of the WAQF-deed:
e. Where a MUTAWALLI otherwise exceeds his power in dealing with the property.
f. Where the MUTAWALLI suffers from any physical or mental incapacity.

DIVORCE: - Generally, both the parties to the marriage contract have an option for
divorce, but the husband can dissolve the marriage at his will. A divorce can also
take place by mutual agreement. But the wife cannot divorce herself from her
husband without his consent. She can, of course, purchase her divorce from her
husband.

By Husband
1. Talaq Talaq-ul-sunnat:-Talaq which is effective in accordance with the
tradition of prophet. It is of two type-

a. Ahasan (approved mode):-This signifies that the talaq pronounced in the Ahsan
is best kind of talaq. The divorce must satisfy certain conditions that are:-
 Husband to pronounce divorce in single sentence
 Pronouncement must be in state of purity (Tuhr). (tuhr) is a period when a women
is free from her menstrual course.
 He must abstain from intercourse for the period of iddat the pronouncement can
be revoked during the period of iddat either by expressed words or by implied. After
expiration of iddat divorce become irrevocable.

b. Hasan (good mode): this signifies, that the talaq pronounced in hasan form is
of lesser worth than the one pronounced in ahsan form. It should satisfy the following
conditions.
 There must be three successive pronouncement
 Pronouncement should be made during a period of tuhr, the second during the
next tuhr and the third during the succeeding tuhr.
 Pronouncement should be made during the successive intervals of 30 days in
case of non-menstruating wife.
 No sexual intercourse should take place during this period.
Such divorce becomes irrevocable on the pronouncement.
2. Talaq –ul-biddat : -
It is sinful from of divorce. It is the irregular made of talaq.

Ila - Where a husband was had attained majority and is of sound mind, swears by
God that he will not have sexual intercourse with wife and leaves the wife, to observe
iddat he is said to make Ila. Thus if a husband says to his wife. ‘I swear by God, that
I shall not approach thee’ it is valid Ila.

3. Zihar (Injurious Assimilation) – “If the husband (who is sane and

adult) compares his wife to his mother or any female within a prohibited degree, the
wife has a right to refuse herself to him until he has performed penance. In default of
expiation by the penance, the wife has right to apply for a judicial divorce (Mulla).
IIngredients of Zihar
1. Husband must be sane and adult.
2. He compare his wife to his mother or any other female within prohibited degree.
3. Then the wife has a right.

By Wife

1. Talaq-e-tafweez An agreement made either before or after the marriage

providing that the wife would be at liberty to divorce herself from the husband
under certain specified conditions such as, in case the husband marries a
second wife or fails to maintain her for a specified period, is valid, provided first,
that the option is not absolute and unconditional and secondly, that the
conditions are reasonable and not opposed to public policy.

By Mutual consent
1. Khula : - Khula or redemption literally means “to lay down”. In law it means
laying down by a husband of his right and authority over his wife. A divorce by khula
is a divorce with the consent and at the instance of the wife, in which she gives or
agreess to give a consideration to the husband for her release from the marriage tie.
Khula in fact, is thus a right of divorce purchased by the wife from her husband.

2. Mubarat – Mubarat is also a form of dissolution of marriage contract .it signifies

a mutual discharge from the marriage claims. In mubarat the aversion is mutual and
both the sides desires separation. Thus it involves an element of mutual consent.
In this mode of divorce, the offer may be either from the side of wife or from the side
of husband .When an offer mubarat is accepted, it becomes an irrevocable divorce
and iddat is necessary.

By Judicial Decree under Dissolution of Muslim Marriage Act, 1939

1. Lian : - Where a husband charges his wife of adultery and the charge is false,
the wife is entitled to sue to obtain divorce. She must file a regular suit for dissolution
of her marriage as mere application to the court is not the proper procedure.

Features of Lian
 Husband charges his wife of adultery or, denies the paternity of her child.
 Such charge does not ipso facto dissolve the marriage, it only gives an opportunity
to the wife to move the court to dissolve the marriage .The marriage continuous till
the decree is passed.
 She must file a regular suit for the dissolution of marriage. Mere ‘application’ is not
enough no such suit will lie if the marriage was irregular.
 The judicial separation due to lian is irrevocable
 Lian is applicable only to sahih marriages not to fasid ones.

2. Termination of marriage through Faskh –Under the Muslim Law a lady

can approach to the Qazi for dissolving her marriage. Quran says that this is the duty
of the husband to give proper treatment to his wife .The wife is also under duty to
obey all lawful orders of her husband. If the husband and wife both come to the
conclusion that they cannot live as husband and wife, they can refer the matter
to Qazi who after careful examination, terminate the marriage.
The following were the main grounds for dissolving the marriage at the instance of
the wife:-
 That the marriage is irregular
 That a person having an option to void a marriage has exercised his option;
 That marriage was performed within prohibited degree or fosterage; or That the
marriage having been contracted by non-Muslims the parties have adopted islam.

Ground of Dissolution under Muslim Act, 1939 (section -2)

A wife can apply for divorce in the court on the grounds U/S 2 of Dissolution of
Muslim Marriage Act, 1939 are as follows-
1. Missing husband- Where about of husband is unknown for period 4 years. If
decree is passed it became enforceable after 6 months. If the husband appears and
satisfies court that he will perform his conjugal relation the court may set aside the
decree.
2. Failure to maintain- If the husband is unable to maintain his wife for a period of
2 years she can obtain decree
3. Imprisonment of husband- If the husband is imprisoned for the period of 7 years
or more the wife can obtain decree of dissolution.
4. Failure to perform marital obligation- if husband fails to perform married
obligation for period of three years she can obtain decree of dissolution.
5. Impotency of Husband- If the husband is impotent at time of marriage &
continues to be so. Wife is entitled to obtain decree of dissolution.
6. In sanity, Leprosy, venereal Disease: husband suffering from insanity or leprosy
or venereal disease for period of 2 years or more.
7. Option of Puberty: If she was married under the age of 15 years, she can
repudiate such marriage after attaining the age of puberty only if the marriage has
not been consummated.
8. Cruelty by husband- If husband treats his wife with cruelty then she is entitled to
get a decree of dissolution of marriage.

Legal Consequences of divorce

Irrespective of the mode of divorce following Legal consequences arises from
divorce
1. The parties become entitled to contract another marriage. If the marriage was
consummated, the wife may marry another husband after the completion of her
iddat, if the marriage was not consummated, she is free to marry immediately.
2. If the marriage was consummated and the husband had four wives at the date of
divorce including divorced wife, he may marry another wife after completion of the
iddat of the divorced wife.
3. Dower become immediately payable if the marriage was consummated the wife
is entitled to immediately payment of the whole of the unpaid dower both prompt and
deferred
4. Mutual rights of inheritance cease after the divorce becomes irrevocable
5. Cohabitation becomes unlawful after the divorce has become irrevocable and
the children born of such an intercourse are illegitimate and cannot be legitimate
by acknowledgment.
6. Remarriage between divorce couple is not lawful where the husband has divorced
the wife by three declarations ,unless and until the following course is adopted
 The wife should observe iddat;
 After observing iddat; she should be lawfully married to another husband;
 This intervening marriage must be actually consummated
 The second husband must pronounce divorce or die;
 The wife should observe iddat after this divorce or death.

 The wife become entitled to maintenance during iddat of divorce but not during the
iddat of death

Maintenance
Maintenance as all those things which are necessary to the support of life, such as
food, clothes and lodging, many confines it solely to food,” It means, “What a person
spends over his family
1. Food
2. Clothing
3. lodging
Person entitled to maintenance---

1. Descendants:
a. Father’s liability- is liable to provide maintenance as long he can earn. His
liability to provide maintenance is for:-
 Minor children of either sex
 Unmarried daughter
 Married daughter, if she is poor
 Adult son, if he is necessitous.
b. Mother’s liability:- When father has no means & is indigent. The mother is liable
to maintain her children, and can recover the expenses from the father.
c. Grandparents’ liability:-if both father & mother fail to maintain then it is the duty
of the grandparents (maternal or paternal) to provide the maintenance.
d. Father in law’s liability: - there is no obligation on father in law to maintain the
widow of his son.

2. Ascendants:
 Children’s liability: like parents children are also under obligation to maintain
their parents. Every child male or female, adult or minor, who has sufficient property
should maintain. Under sunni Law whether parents capable of earning or not makes
no difference whereas under shina law children are relieved if the parents are
capable of earning.
 Grand Children’s liability: - If there are no children or children are necessitous it
is the duty of grand children to provide maintenance to their grandparents.

3. Collaterals - Muslim are under obligation to maintain their collateral relations

within the prohibited degree
 When he himself is in easy circumstance
 The relative has no other means of maintenance

4. Wife’s right to be maintained - under Muslim law, the wife’s right to be

maintained by her husband is absolute. The right arises out of her status. It is a legal
obligation of ever husband to maintain his wife although the wife may have means to
support her and even if the husband has no means to provide her maintenance.

Parentage
Maternity and paternity Parentage is the relation of parent to their
children .Maternity is a legal relation between mother and child, and paternity is a
legal relation between relation between father and child. The term ‘parentage’ is
generally used for the legal relationship which a child has with the parents.

An illegitimate child has only maternity and no paternity The main point in the
case of legitimacy of a child is marriage between its parents.
Special rules regarding presumption of legitimacy
1. A child born within less than six months from the date of the marriage is
illegitimate, unless the father acknowledge it.
2. A child born after six months from the date of the marriage is presumed to be
legitimate, unless the putative father disclaims it by lian.
3. A child born after dissolution of the marriage is legitimate:
 Under Shia Law, if born within 10 lunar months,
 Under Hanafi lLaw, if born within 2 lunar years,
 Under Shafei and Maliki Laws, if born within 4 lunar years.

A child born after six moths from the date of the marriage, but within 280 days of the
termination of the marriage is legitimate under either system subject to lian, in the
one case and proof of non-access in the other A child, born after 280 days but within
2years after the termination of marriage would be legitimate according to the Hanafi
rule subject to lian.

Triple Talaq
Triple Talaq is a procedure of an instant divorce under Islamic Law followed by
Muslim men in India. It allows a Muslim husband to legally divorce his wife by
pronouncing ‘Talaq, talaq, talaq’ three times. It can be pronounced in oral or written
or by electronic media like email, SMS, or WhatsApp. This instant divorce is also
known as ‘Talaq-e-bidat’. Triple Talaq is the 1400-year-old practice among the Sunni
Muslims. The Muslim Personal Law Act of 1937 allowed the process of Triple Talaq
to give a special privilege to Muslim men over his wife. It allows a man to break his
marriage relationship whimsically. It is not required for the husband to mention any
reason to divorce his wife under this law. A divorced woman was not allowed to
remarry her divorced husband. She had to first marry another man, a practice known
as NikahHalala. She keeps possession of the custody of children up to the time she
remarried. Beyond this, the children will come under the guardianship of the father. It
has been an issue of concern for Indian Muslim women above 60 years of age. As
per census 2011, this triple talaq affects around 8% women population in India.

There are three types of Talaq for men and women under Islamic Law. These are
Hasan, Ahsan, and Talaq-e-Bidat that is Triple Talaq. The first two are revocable
whereas the triple talaq is irrevocable. The first two are not instant divorce, it takes
some time whereas the triple talaq is instant divorce.

In August 2017, Triple Talaq was termed unconstitutional by the five-judge

bench of the Supreme Court of India. Finally, the Protection of Rights on Marriage
Bill 2019 was passed by both the Houses on 30th July 2019. This Bill is also known
as Muslim Women Bill. It was passed to make an instant divorce a criminal offense.
Conclusion on Triple Talaq
The latest rule is truly an encouragement in the women empowerment movement in
India. The court has given progressive thoughts over the personal law in society. The
abolishment of Triple Talaq will deny discrimination and injustice from Muslim
women’s lives in the future. Society should also come forward against this social evil
to abolish this practice. Because women’s empowerment is very essential for the
progress of the nation.