Family Law-II

UNIT-I
Status and Scope of Muslim Law in India,
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 Islamic law is known to be originated from the divine and
not like the man-made laws that are passed by the lawmakers and are
governed by the principles of modern systems of law. Islam signifies
submission to the will of God and means peace, purity, salvation, and
obedience. Muslims believe that there is only one god, Allah.
The traditional Islamic law or Islam's legal system is well known as
Sharia, it is an Arabic word which in the literal sense is referred to as the
way. Sharia is originated from Allah and that is the reason that Muslims
consider it as holy. Muslims considered it a word of god' which regulate
and evaluate human conduct. The Sharia is also derived from Prophet
Mohammed's principles and by some of the Muslim legal scholars who
interpreted his teachings. It is said that Islamic jurisprudence is also
something that goes back to the lifetime of Mohammed. For Muslims, the
Quran' is the only disclosed book of Allah.
In the case of Narantakath v. Prakkal, it was stated that there are two
basic beliefs of Muslims, first, the existence and oneness of God, and
second was the belief in the truth of Prophet Mohammed's mission.
History
✓ Muslim law is divine law as opposed to manmade law which is passed

✓ Muslims believe in ones of god unlike Hindus which believe in

by legislatures.

✓ Muslims believe that Mohammed was the last prophet sent by god
plurality of gods.

✓ Prophet Mohammed Born in 571 A.D., father died at Medina before

(Allah) and Quran is the only revealed book of Allah.

Mohammed’s birth.
• Raised by his mother till the age of 6, after his mother died his
grandfather Abdual Muttalib took care of him.
• Prophet at the age of 35 married Kadija and had six children. (2 sons
and daughters), the sons died during infancy.
• One of Prophet daughter (Fatima) married Ali (prophets’ cousin)
• At age 40 when the Prophet Mohammed was meditating in a cave called
‘Hira’ he received his first revelation (Wahi) or we can call it ‘message
of god’.
• First of his followers who believed him were Kadija, Waraqa (a blind
scholar) and his father in law Abu-Bakr followed by Umar (2nd caliph)
and Usman (3rd caliph)
• He also faced opposition; Abu lahab (uncle of prophet and son of Abdul
Muttalib) persecuted him and humiliated him. He was abused and
dragged by his hair from the temple of Mecca.
• Later the Prophet with his followers fled to Medina in 622 A.D. This
marked the start of a new era called ‘Hijrah’ (migration) because at
medina the prophet the prophet formed a political group called ‘Unna’
• Later after a war between the supporters of Mohammed and the
opposers, Mohammed emerged triumphant and finally became the ruler
for state which grew to be the empire of Abrbia in ten years and
gradually many tribes joined his empire.
• He died at the age of 63 till then he remained the supreme ruler of the
huge empire of Arabia.
• After Prophet Mohammed (Shia vs. Sunni).
✓ After the death of Prophet Mohammed the question as to who would be
the new successor as the ruler of Arabia arose.
✓ Prophet did not leave an heir and the closes to him at that time was Ali,
his son in law, friend and cousin.
✓ Two groups were formed which were formed which were on political
basis rather than religious bais.
✓ Sunnis held the election and Abu Bakr (father in law of prophet, father
of Kadija) was elected as their leader and became the 1st Caliph. (caliph is
the chief Muslim religious and civil ruler who is considered as the
successor of Mohammed)
✓ All swore allegiance to Abu Bakr, but Abu Bakr was assassinated in 2
years after hi election.
✓ Umar became the 2nd caliph (ruled for 10 years the he was also
assassinated)
✓ Usman became the 3rd caliph (ruled for 12 years and then
Assassinated)
✓ Ali finally elected as the 4th caliph (ruled for 5 years and he was also
murdered in a battle in 661 A.D)
✓ This bloodshed over all the years led to more differences between shias
and sunnis.
✓ After Alli, his elder son Hasna became the 5TH caliph but later
resigned in favor of Mouvia (leader chosen by Sunnis) but even after
resigning he was assassinated.
✓ After Hasan was murdered Ali’s younger son Hussain was regarded by
the Shias as their religious leader (not political just religious)
✓ But Hussain was also murdered by the forces of Yazid (Son of Mouvia)
✓ By this time the differences between Shias and Sunnis became very
wide and almost irreparable.
✓ Muharram is observed to remember the death of Hussain in the battle of
Karbala in 680 A.D
✓ After that the power was held in the hands of Sunnis, Mouvia
introduced hereditary succession rule and founded the Umayyad Dynasty
and the religious kingdom became a Dynastic rule.
✓ Later after many caliphs and change of dynasties the caliphate was
finally abolished in 1924 by the National Assembly of Ankara (Angola)
Law as per Islam
 THE SHARIAT THE FIQH
Shariat: The term literally means “road Fiqh: It means intelligence. It
to the watering place” or “the path to refers to ‘law’ in the modern
be followed’. sense and literally it refers to the
In Islam, law has a divine origin and knowledge of law.
God is the only true legislator. It is used for regulating human
The law is an order or hukm that is conduct and is secular in nature.
obtained through a communication It is jurisprudential in nature.
from God, whether express or implied. It refers to the knowledge of
There is either husn (good action) or one’s rights and obligations.
kubh (evil action). It is generally deduced from the
The Shariat says what is husn must be directions of God or traditions of
done and that which is morally bad or the Prophet.
kubh must be avoided. The Quran, It has been created through the
Sunna of the Prophet, etc tell power of reasoning by the
us what is husn or kubh. Muslims Jurists in the absence of
The that regulates all the spheres of a the word of God or the Prophet.
man’s life. It is a moral or spiritual It has narrower scope as it deals
code. The legal considerations are with only the legal actions. It
secondary. deals with logical and scientific
Thus, law is the direction given by god progress
Some directions are obligatory and Human action is treated as lawful
others are merely desirable. or unlawful and the punishment
It has a wider scope as it includes all comes from the state.
spiritual, moral and secular actions of It is comparable to the Hindu
a man. concept of Vidhi or Vyavhar.
It also has an additional category of In the classical view, it is the
actions, namely, what is advised not to knowledge of one’s rights and
be done. obligations derived from the
It is taken before any other source. Quran, Sunna (the traditions of
It is Muslim equivalent to the Hindu the Prophet), Ijma (consensus of
concept of Dharma. the learned) and the Qiyas
The Shariat includes farz (what is analogical deductions).
necessary) like daily prayers; haram
(what is strictly prohibited) like wine;
manruk (advised to refrain from) like
specific kinds of fish; mandub advised
to do) like additional prayers and jaiz
that to which the religion is indifferent
like travelling by air.

Statutory Application of Muslim Law including the Muslim

Personal Law (Shariat) Application Act, 1937;
Application of Personal law to Muslims
Notwithstanding any custom or usage to the contrary, in all questions
(save questions relating to agricultural land) regarding intestate
succession, special property of females, including personal property
inherited or obtained under contract or gift or any other provision of
Personal Law, marriage, dissolution of marriage, including talaq, ila,
zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts,
trusts and trust properties, and wakfs (other than charities and charitable
institutions and charitable and religious endowments) the rule of decision
in cases where the parties are Muslims shall be the Muslim Personal Law
(Shariat).
Statutory Authority: The British applied Muslim personal law for the
Muslims in India so as to maintain social stability for better trade
opportunities.
Warren Hastings plan of 1772 brought in maulvis to help expound the
Muslim personal law. Though the British were to enact general laws for
all the affairs of Indians despite their religion, they left personal laws
alone. Acts like Shariat Act, The Oudh Laws Act, 1876 authorises the
Indian courts to apply Muslim personal law.
The Shariat Act generally regulates the application of Muslim personal
law.
Explanation of Section 2: Section 2 of the Shariat Act provides that in a
case where both the parties are Muslims the rule for decision shall be
Muslim Law, if the case involves any of the following matters:
1. Intestate succession (i.e. inheritance),
2. Special property of the females,
3. Marriage (including all incidents of marriage),
4. Dissolution of marriage (including all kinds of divorce),
5. Maintenance,
6. Dower,
7. Guardianship,
8. Gift,
9. Trust and trust properties, and
10. Wakf.
It is therefore, clear that in respect of the above-mentioned matters, if both
the parties to a case are Muslims, the courts shall apply only the Muslim
personal law and nothing else. A custom or usage contrary to Muslim law
cannot be applied now.
Law applicable to:
1. Muslim law applies to a born Muslim or a person who is a convert
Muslim.
2. Muslim law even applies to certain other categories of people also such
as the Khojas, Halai Memons, Sunni Bohras of Gujarat Daoodi, and
Sulaimani Bohras and to Molesalam Broach Girasis.
In Azima Bibi v. Munshi Samalanand, (1912) 17 CWN 121, it was
observed that a child born out of a Muslim couple would be Muslim, even
if he by choice goes to a Hindu temple. The person would be a Muslim,
till the time he does not renounce his religion and converts to another
religion.
In Bhaiya Sher Babadur v. Bhaiya Ganga Baksh Singh, was held that if
a Muslim woman has a child from a Hindu man but the child from the
time he was born was brought up as a Hindu, then, in this case, he would
be called a Hindu.
The right to convert is given under Article 25 of the Constitution of India,
which guarantees every citizen of India, freedom to practice, profess and
propagate one's religion. There are many instances in which a Hindu man
who intends to get married for a second time, which is prohibited under
their set of family laws, purposefully converts to a Muslim to misuse it
and escape from the punishment given under Section 494 (bigamy) of
Indian Penal Code, 1860.
The Supreme court in Sarla Mudgil v. Union of India (AIR 1995 SC
1531) and Lily Thomas v. Union of India (AIR 2000 SC 1650), has held
that, if a Hindu married man converts his religion to Muslim just because
of the reason as to marry a second time then it will be void and he will be
punished under Section 494 of IPC for committing bigamy.
Under Muslim law, if a married man renounces his religion then in that
case his marriage ends immediately but this is not the case for Muslim
women who convert, her marriage would not come to an end if her
marriage was done according to the rituals of Muslim law. Unless and
until she was a convert Muslim and again re-embraces her faith.
A Muslim is a person who follows the religion of Islam. From the point of
law, the Court is interested if the person.
There are two ways in which a person can be regarded a Muslim
1. Muslim by Birth –
a. Believes in one God and b. Prophethood of Muhammad
If a person’s parents were both Muslims, he will be regarded as a Muslim
by birth. Where only one parent is a Muslim, the child will be regarded as
a Muslim if only he has been raised a Muslim as held in Bhaiya Sher
Bahadur V Bhaiya Ganga Baksh Singh (1914). A Muslim by birth will
continue to be one unless on attaining majority, he renounces Islam
through a public declaration.
Muslim by Origin: No person can be a Muslim who does not subscribe to
the basic tenet of the Islam. A person, who subscribes to the basic tenets of
Islam, is a Muslim.
The basic tenets of Islam are the following two:
(a) The principle of the unity of God, i.e., God is one, and
(b) Muhammad is the Prophet of God.
According to Islamic theology, other essential beliefs of a Muslim are : the
holy book, the Koran, is the only revealed book of Allah, Hazrat
Muhammad was the last rasul (prophet), and there is a day of judgment
(Keyamat) followed by life after death (Akhirat).
A person, who subscribes to the basic tenets of Islam, will be a Muslim by
origin if it is not established that he is a convert to Islam. If a person is
bom of Muslim parents, he will be a Muslim; and it is not necessary to
establish that he observes any Islamic rites or ceremonies, such as
performance of five prayers, observance of the Ramazan fast. It is not at
all necessary to establish that he is an orthodox believer in Islam. Such a
person will continue to be a Muslim till he renounces Islam. Mere
observance of some of rituals of Hinduism, or for that matter, of any other
religion, will not by itself make that person a non-Muslim. Conversely, a
person will not become a Muslim just because he calls himself a Muslim,
or is considered by others a Muslim.
In Muslim law, a child bom to Muslim parents is presumed to be a
Muslim. The Shariat lays down that if one of the parents is a Muslim, even
then the child will be a Muslim.' The ordinary rule in India is that the child
takes to the religion of his father, unless the contrary is proved. This rule is
now subject to the rule of modern Hindu law, viz., if one of the parents is
a Hindu and the child is brought up as a Hindu, then the child will be a
Hindu.
To this category of Muslims, Muslim personal law applies in its totality
and no rule of Muslim law can be modified by custom.
2. Muslim by Conversion –
a. Converts by profession of Islam.
b. Converts by formal ceremony.
Any person of sound mind and age of majority can convert in two ways –
a) He may publicly declare that he has renounced his original religion and
is now professing Islam. He should also believe that Allah is the one and
only God and Prophet Mohammad is his messenger.
b) Conversion through the ceremonies as prescribed in Islam itself. The
person goes to the mosque where the Imam may ask him to read a Kalema
and give him a Muslim name. The new name is then registered in the
Imam’s register.
A non-Muslim may become a Muslim by professing Islam, i.e., by
acknowledging that there is only one God and Muhammad is his prophet/
or by undergoing the ceremonies of conversion to Islam. A convert of
Islam is ordinarily governed by Muslim law. Till 1937, it was possible for
a convert to be continued to be governed by his personal law, including
customary law.
After the coming into force of the Shariat Act, 1937, the generality of that
statement stands modified, though, it is submitted, and the application of
custom to the Muslims has not been totally abrogated.
These two above mentioned points are the minimum and fundamental
rules for a person to be called a Muslim.
If a person formally professes Islam, he is a Muslim. This should not be a
conversion based on fraud or to defeat any law; thus, if the person’s
conduct and behavior runs contrary to Islam, the presumption of
conversion is rebutted.
Profession of Islam.—"Profession with or without conversion is
necessaiy and sufficient to remove the disability ofhaving another
religion."
Thus, observed Lord Macnaughten in Abdul Razak v. Aga
Mahommed In this case, a wealthy Muslim, Abdul by name, had died,
apparently, without any heir. But, one Abdul Kazak made a claim to his
estate on the plea that he was the son ofthe pre-deceased brother of Abdul.
The brother of Abdul had married a Burmese woman, Mah Thai, a
Buddhist by religion, but it was not established that she had been
converted to Islam either before, or after, the marriage. It was established
that she used to recite the Muslim prayers. The court came to the
conclusion that, since the marriage of Abdul's brother with the Buddhist
woman was void under Muslim law, Abdul Razak, though a Muslim could
not succeed to Abdul's estate, being an illegitimate child. The converse
situation arose in Mst. Resham Bibi v. Khuda Baksha, where a Muslim
wife, with a view to ending an unhappy marriage, renounced Islam, and
prayed to the court that Muslim law of apostasy should be applied to her,
and her marriage should be deemed to have been automatically dissolved
from the date of her apostasy. Curiously enough, the District Judge
ordered a plate of pork to be brought in the court room, and the wife was
asked to eat it. On her refusal to do so, the court concluded that her
apostasy was in sincere. Accepting the appeal, the appellate court
observed: "One may relinquish a faith which is an easy thing to do, but
one may not acquire liking for those things which one has been taught to
detest throughout one's life."
The court accepted the wife's statement that she no longer believed in
Allah, in Muhammed as her Prophet and in the Koran, and thus ceased to
profess Islam. The court then said: "a person's religious belief is not a
tangible thing which can be seen or touched. It is the mental condition of
one's believing in certain articles of faith that constitutes one's religion and
if one ceases to believe in them, which again is a mere mental condition,
one automatically ceases to profess that religion." In this case Din
Mohammad J. remarked that the motive of the declarer was also
immaterial; a person might renounce his faith for love or avarice; one
might do so to get rid of his present commitments or truly to seek
salvation elsewhere, but that would not affect the factum of change of
faith. And, in matters like these, it was the factum alone that matters and
not the latent spring of action which resulted there from.
Whether mere profession of Islam is sufficient to make a non-Muslim a
Muslim is not entirely free from doubt. It is true, as Lord Macnaughten
had stated, no court of law can test or gauge the sincerity of religious
belief. In all cases where, according to Muslim law, disbelief, or
difference of creed, is a bar to marriage with a true believer, it is enough if
the alien in religion embraces Islam. It is submitted that a non-Muslim will
become a Muslim by professing Islam, provided that it is not colourable or
mala fide or made with a view to perpetrating fraud upon law.
Conversion to Islam.—It appears to be a well established proposition of
law that a non-Muslim, on undergoing the ceremonies of conversion
prescribed under Islam, becomes a Muslim. In Islam, the ceremonies of
conversion are very simple. A person seeking conversion to Islam may go
to a Muslim mosque. On the Imam asking him, "Are you voluntarily
embracing Islam", if he answers affirmatively, he is given the Kalma to
recite. On the completion of the recitation of the Kalma, the conversion
ceremony is over, and the non-Muslim becomes a Muslim. The Imam then
confers a Muslim name on the convert. In most of the mosques, a register
is kept in which the name of the person embracing Islam is entered and the
convert puts his signature thereto.
Conversion of a Muslim from one sect to another does not amount to
apostasy, and a person changing from one sect to another continues to be a
Muslim.
The genuineness of belief in the new faith is immaterial, and even when a
convert does not practise the new faith, he will continue to be a Muslim.
But it is necessary that the conversion should be bona fide, honest, and
should not be colourable, pretended or dishonest. In the leading case
Skinner v. Orde a Christian woman was cohabiting with a married
Christian man. With a view to legalizing their living together as husband
and wife, both of them underwent a ceremony of conversion to Islam.
After conversion, they married.
Later on, when the question of validity of this marriage arose, the Privy
Council held that the marriage was null and "void on the ground that
conversion was not bona fide. Moreover, it was a fraud upon the law,
since the parties underwent the ceremony of conversion with a view to
eluding their personal law.
Consequences of conversion.—when a person converts to Islam, the
following questions arise:
(a) How far conversion can change the existing rights and the status of the
convert, and
(b) How far Muslim law applies to the convert and his descendants.
a) Rights and status of the convert—The question of rights and status of
the convert arises mostly when a married person converts to another
religion. The question has arisen in some acute form in cases where a
person whose personal law prescribe monogamy and who converted to
Islam with a view to taking advantage of the Muslim law provision which
permits polygamy. It is happening that Hindu or Christian who wants to
take a second wife and who has no ground available to divorce his first
wife, converts to Islam and takes another wife. Since Muslim law permits
polygamy, such a person cannot be prosecuted for bigamy, and his former
spouse has to put up with such situation. Of course, under Hindu law, she
may divorce her convert husband under the Hindu Marriage Act, 1955, but
that is not what she wants though her convert husband may welcome it.
There exists no objective test for checking the sincerity of faith. But
many a times, when the conversion is only to legalize an act that is illegal
in other faiths, the Courts will hold the conversion mala fide.
In Sarla Mudgal V Union of Inida (1995) 3 SCC 635, a Hindu husband
converted to Islam to marry a Muslim girl without first divorcing his first
wife (a Hindu). The court held that the conversion was mala fide and
declared the second marriage void while stating that “it is not the object of
Islam or intention of the enlightened Muslim Community that Hindu
husbands should be encouraged to become Muslims merely for the
purpose of evading their own personal laws by marrying again.” The
Supreme Court reinforced the same principle in Lily Thomas V Union Of
India A.I.R (2000) SC 1650.
b) Application of Muslim law to converts.—On conversion of a person
to Islam, ordinarily, the Muslim law of succession applies to him.
On the question whether the entire personal law applies to a convert, the
Privy Council in Abraham v. Abraham,^ observed that a convert who
renounced his old religion may also renounce his old law, or, if he thinks
fit, may abide by the old law, even though he had renounced his old
religion. This view was reiterated by the Privy Council in Muhammad
Ismail v. Lai Sheomukh. Several statutes passed during the British rule lay
down that in certain matters, a person may continue to be governed by
custom after his conversion.'' The generality of the observation of the
Privy Council in Abraham vs. Abraham, is true only theoretically. In
reality, even at the time when decision in Abraham's case was rendered,
there were very few matters in which a convert to Islam continued to be
governed by his old personal law.
Even the limited application of old personal law or custom to Muslim
converts, was resented by a section of the Muslim commimity on the
specious plea that it amounted to interference in their religious matters.
The result was that the Shariat Act was passed in 1937, with a view togive
effect to "the cherished desire of Muslims of India that customary law
should, in no case, take the place of Muslim personal law".
Feigning adoption of another faith for mere worldly gains is treated as
religious bigotry.
Once a Muslim, it is irrelevant whether he is a Muslim by birth or
conversion. In 1937, the Shariat Act abolished all the customs that the
converted Muslims used to follow from their original faith (except for
those that are related to agricultural lands or matter not included in the
Act).
Apostasy
If there is apostasy by a married person in a country where the law of the
land is the Muslim law, the converted party has to offer Islam to the other
partner. If the other party refuses, the marriage may be dissolved.
If the Muslim law is not the law of the land, the marriage is automatically
dissolved after 3 months of the conversion. This is NOT the case in India.
A suit for divorce has to be filed.
An apostate will be dealt under his original religion at the time of the
event or action even if he has converted to another religion. For example,
if a Muslim couple is divorced after the husband’s conversion. It is the
Muslim law that will apply because the marriage took place under the
Muslim law.
Application of Muslim Law
The Courts apply Muslim law for personal matters or where authorised by
law and legal principles.
Legal Application of Muslim Law
The Khojas and the Cutchi Memons were Hindus 400 years ago who then
converted to Islam. They are generally traders and had till recently
retained certain Hindu succession and inheritance laws. There was an
option for them to make a statutory declaration that they would be
governed under Muslim law for all purposes.
Now even that is not needed. They are covered under the Hanafi school.
The Shariat Act had applied the rules of Muslim law to intestate
succession in these communities. In 1938, even testamentary succession
was brought into the purview of Muslim law. Now, both the communities
are governed by the Muslim personal law except for those exceptions
stated in the Shariat Act like agricultural lands, etc.
Initially the wills of the Cutchi, Memons and the Khojas were constructed
as per the Hindu law, now the Muslim law applies. Thus, they cannot give
away more than 1/3rd of their property away through a will without the
consent of their heir(s).
The Muslim Memons are followers of the Hanafi school and are divided
into
a) Halai Memons who are found in Bombay
b) The Cutchi Memons.
The Khojas are converted Muslims who till 1937 were governed under the
Hindu law with respect to certain matters.
The Mapillas are converted Muslims and were formerly regulated by their
customary laws in the matters of succession that were against the Muslim
Law. But now they are compulsorily governed due to the present Acts.
Still a few areas like Tarvad and Tavazi are under the purview of
customary law.
Before the coming into force ofthe Shariat Act, the only areas, in which
the Khojas were governed by custom, were inheritance and succession.
Now, they are governed by Muslim law in regard to intestate succession,
and by custom in respect of testamentary succession. This means that a
Khoja can will away his entire property (under Muslim law, a Muslim can
bequeath only one-third of his property, see Chapter XIII of this work),
but if he dies intestate, his property will devolve in accordance with
Muslim law.
Sources of Muslim Law and their position in India:
A source of law refers to the original material(s) where the contents of law
are found. It is essential so as to have the law, its explanation and its right
interpretation.
SOURCES OF MUSLIM LAW
 PRIMARY  SECONDARY
1) The sources that the Prophet Mohammad directed will be the primary
sources.
2) These are to be followed in their respective order of priority
3) They are also called formal sources
4) The whole of Muslim personal law is based on these
1) These sources explain or modify the primary sources.
2) They deal with the needs of the Islamic society in the modern era.
3) These are also called extraneous sources.
4) Some of the personal rules may find places in the sources, e.g.,
customs.
THE PRIMARY SOURCES
1) Quran
2) Sunna or Ahadis: Traditions of the Prophet
3) Ijma: Unanimous Decisions of the Jurists
4) Qiyas: Analogical Deduction
THE SECONDARY SOURCES
1) Urf or Taamul: Custom
2) Judicial Decisions
3) Legislations
Origin of Muslim Law:
 The place of Muslim law's origin is Arabia where Mohammad

promulgated Islam. Basically, it is of divine origin, meaning Muslim

law originates from divinity. It is that law which is established by a
communication (Khitab) from God with reference to men's acts,
expressing either a demand or indifference on His part or being merely
declaratory.
 The entire system of Muslim law, as well as theology, ritual, and private

ethics, has been built upon two foundations - the Quran and the
traditions (Sunnah & Ahadis). The pre-Islamic customs are hardly
referred to by the Muslim jurists for elucidating the law.
Case - Narantakath v. Prakkal (1922):
 It was stated that there are two basic beliefs of Muslims: first, the

existence and oneness of God, and second, the belief in the truth of
Prophet Mohammed's mission.
These four sources namely Quran, Sunna, Ijma and Qiyas are the primary
sources of law. Muslim law mainly based on verses of Quran and practices
of hadith. There is secondary source of Muslim law which subsequent of
it. Sects of shias do not accept the Qiyas as source of Muslim law. It is due
to the contribution of all that an orderly and systematic theory of personal
laws of Islam came into existence which governs the Muslim community.
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 3. Modern sources.
2. Customary sources
Primary Sources (formal): Primary sources are those on which Muslim
law relied on. These sources are the foundation of Muslim law. Primary
sources of Muslim law are:
 Quran  Ijma

 Sunnat  Qiyas

1. Quran
Muslim law is founded upon Al-Quran which is believed by the
muslamans to have existed from eternity, subsisting in very essence of
god. The word Quran has been derived from the Arabic word Quarra
which means to read. The Quran is, Al-furqan i.e., one showing truth from
falsehood and right from wrong. The word Quran which is the ‘divine
communication' and revelation to the prophet of Islam is the first source of
Muslim law.
Quran is a primary source of Muslim law, in point of time as well as in
importance. The Islamic religion and Islamic society owes its birth to the
word of Quran. It is a paramount source of Muslim law in point of
importance because it contains the very word of god and it is foundation
upon which the very structure of Islam rests Quran regulates individual;
social, secular, and spiritual life of Muslims.
It contains the very words of god as communicated to prophet mohammad
through angel Gabriel. It was given to the world in fragmentary forms,
extending over a period of 23 years. It originally had for its objects
repealing objectionable customs, such as, usury, unlimited polygamy and
gambling, etc., and effecting social reforms, such as raising the legal status
of women and equitable division of the matters of inheritance and
succession.
The Quran can be no way altered or changed, thus, even the courts of law
have no authority to change the apparent meaning of the verses as it does
have an earthly origin. This view was held in Aga Mohammad Jaffer v.
koolsom Beebee (1895).
SALIENT FEATURES OF QURAN
1) Divine Origin: The religious book has a divine origin. It is believed
that these were the words of God himself and the Prophet mere uttered
these words. Thus, it is unchangeable and its authority is beyond reproach.
The Quran is the Al-furqan, the one that shows the truth from falsehood
and the right from the wrong.
2) First Source: It is the first and fundamental source of Muslim law and
Islamic principles. It is ultimate source of laws.
3) Structure: It is in form of verses, each verse is called an ‘Ayat’. There
are 6237 ayats in 114 chapters, each called ‘Sura’. The holy book is
arranged topic wise with respective titles.
The first chapter praises the almighty God. Other chapters include, surat-
un-nisa (chapter relating to women), surat-ul-noor (rules relating to home-
life) and surat-ul-talaq (the rules relating to divorce).
4) Mixture of religion, law and morality: It is believed that the verses
relating to law were revealed at Medina while the ones relating to religion
and mortality were revealed at Mecca.
In some places in the book, all three can’t be separated at all. Thus, the
whole of Quran cannot be source of a law, instead we refer to the 200 odd
law-making ayats scattered all over the book as the basic source of
Muslim Law.
5) Different forms of legal rules: It has many categories, the ones that
remove social evils like child infanticide, gambling etc, and the ones that
create specifics so as to solve daily life legal problems as well as
providing for the basis of juristic interpretations or inferences.
6) Unchangeable: The Quran can be in no way altered or changed, thus,
even the courts of law have no authority to change the apparent meaning
of the verses as it does not have an earthly origin.
7) Incompleteness: In the 200 odd verses of law in the Quran, only 80 or
so deal with the personal law. Hence, we say that it is not a complete code
of Muslim personal law; it only lays down the basic principle
Further, on many an issue, the Quran is silent. But whenever the Quran
was silent on any particular matter, guidance was taken from the ‘sunnat'.
1. Derived form the Arabic word 'Quarra' which means 'to read'.
2. Collected and arranged by Abu Bakar (1st Khalifa) and revised by
Usman (3rd Khalifa).
3. Communicated to Prophet by Gabriel (Angel of revelation) in form of
messages (wahi) over 23 years.
4. Around 6000 verses out of which 200 deals with legal principles such as
marriage, matrimonial remedies, maintenance, acknowledgement of
paternity, transfer of property, gift, wills, inheritance etc.
5. Abolished objectionable customs like female infanticide, gambling, and
usury (practise of lending money at unreasonable high interest of
minors and disabled and for overall increasing the status of women
were also there.
2. Sunnat
The word Sunna means the trodden path & as this meaning show it
denotes some kind of practices and precedent. It is belief of Muslim that
revelations were two kinds- manifest (zahir) and internal (batin). Manifest
revelation is communication which is made by angel Gabriel under the
direction of god to Mohammad in the very words of god. Quran is
composed of manifest revelations.
Internal revelation is opinions of the prophet which is delivered from time
to time on questions that happened to be raised before him. Sunna means
the model behavior of the prophet. The narrations of what the prophet said
did or tacitly allowed is called hadis or traditions. The traditions, however,
were not reduced to writing during lifetime of Mohammad. They have
been preserved as traditions handed down from generation to generation
by authorized persons. The importance of hadith as an important source of
Muslim law has been laid down in the Quran itself.
Kinds of Traditions: the traditions are of two kinds:
1. Sunnat 2. Ahadis
1. The Sunnah (Sunnat) - the path:
 Second source of Muslim Law

 Whatever the prophet said, did or allowed tacitly is called 'hadis'

(traditions)
 Whatever the prophet said in words- 'Sunnat-ul-qual'

 Whatever he did- 'Sunnat-ul-fail'

 Whatever he allowed to be done without actually saying it (tacitly)-

'Sunnat-ul-tuqrir'
 These Sunnats could be manipulated as they were not certain as the

'quran' and used as a political weapon which happened during the rule
of Umayyad dynasty so these sunnats were collected and compiled by
various people and these collection were called 'Musnads'
These two have been classified into the following three classes on the
basis of mode or manner in which it has actually originated:
 Sunnat-ul-fail (conduct) i.e., Traditions about which prophet did

himself.
 Sunnat-ul-qaul (word spoken) i.e., Traditions about which he enjoined

by words.
 Sunnat –ul-tuqrir (silence) i.e., The things done in his presence

without his disapproval.

The three class of Ahadisare:
 Alhadis -i-mutwair i.e., Traditions that are of public and universal

propriety and are held as absolutely authentic. In such hadis the chain is
complete.
 Ahadis -i-mashhoor i.e., Traditions which known to a majority of

people, do not possess the character of universal propriety.

 Ahadis-i-wahid i.e., Traditions which depend on isolated individuals.

Thus two sources, namely, the Quran and Sunna may thus be said to form
the fundamental roots of Islamic law.
3. Ijma
It was equally binding on the people to act on a principle (not contrary to
the Quran or hadis) which had been established by agreement among
highly qualified legal scholars of any generations.
Ijma has been defined by Sir Abdul Rahim as agreement of the jurists
among the followers of Prophet Mohammad in a particular question of
law. The validity of ijma, as containing a binding precedent, is based upon
a hadis of the prophet which says that god will not allow His people to
agree on an error. Ijma thus become a source of law. According to the
classical theory, failing Quran and traditions, and consensus of opinion
amongst the companions of the prophet is recognized as the best guide of
law. Thus it is the third source of law, both in point of time and
importance.
The authority of ijma as a source of Muslim law is also founded on Quran
and Hadith. The law is something living & changing. The aim of law is to
fulfill the needs of the society. The principle of ijma is based upon the text
i.e. god will not allow His people to agree on an error and whatever
Muslims hold to be good is good before god. Muslims religion does not
admit the possibility of further revelation after the death of the prophet,
the principle of ijma is the only authority for legislation in the present
Muslims system.
Kinds of Ijma: Ijma is of three kinds:
 Ijma of the companions of the prophet – is the consensual opinion of

companion which is universally acceptable, throughout the Muslim

world and is unrepealable.
 Ijma of jurists- is the consensual opinion of jurists which is believed

that its best ijma after ijma of companions. All the jurists should sit
together and discussed the reasoning, and majority of the jurists is of the
view that unanimity to form ijma.
 Ijma of the people – is the opinion of Muslim population as a whole

may have any importance but in actual practice ijma of Muslim public
had no value with regard to legal matters but in matters related to
religion, prayer and other observances have more value attached to it.
Ijma cannot be confined to any particular period or country. It is
completed when the jurists, after due deliberation, come to a finding .it
cannot be questioned or challenged by any individual jurist. Ijma of one
age may be reversed or modified by the ijma of the same or subsequent
age.
4) Qiyas (Analogical deductions)
This is a last primary source of Muslim law. Qiyas means reasoning by
analogy from above 3 sources i.e., Quran, Sunna and Ijma. In Qiyas rules
are deduced by the exercise of reason.
Qiyas may be defined as a process of deduction by which the law of the
text is applied to cases, which though not covered by the languages are
governed by reason of text. Thus, it should be noted that Qiyas does not
purport to create a new law, but merely to apply old established principles
to new circumstances.
Conditions of Validity of Qiyas:
 The original source from which Qiyas is deduced must be capable of

being extended, that is it should not be of any special nature.

 The original order of the Quran or hadith to which the process of Qiyas

is applied should not have been abrogated or repealed.

 The result of Qiyas should not be inconsistent with any other verse of

Quran or any established Sunna.

 Qiyas should be applied to ascertain a point of law and not to determine

the meanings of words used.

 The deduction must not be such as to involve a change in the law

embodied in the text.

Thus it can be said that Qiyas is weak source of law and rules analogically
deduced do not rank so high as authority, as those laid down by Quran and
Hadith or by consensus of opinion (ijma).the reason is that with respect to
analogical deductions one cannot be certain that they are what the law
giver intended. Such deduction always rest upon the application of human
resources which always are liable to err.
Compared with other sources, Qiyas is of much lesser significance. The
reason is that on the analogical deductions, resting as they do, upon the
application of human reasons, which is always liable to error.
Secondary Sources (Informal Sources): These sources are not basic
sources of Muslim law but the supplementary sources of Muslim law. The
secondary sources of Muslim law are:
 Urf or Custom

 Judicial decision
 Legislation
 Equity, Justice, & Good conscience

a) Urf or Custom
Before the emergence of Islam in Arabia , customs were the basis of entire
social life, religion, morality, trade and commerce. Custom has not been
recognized as a source of law in a Muslim law. However, it cannot be
denied that custom has always been given a place under Muslim law, if it
is in conformity with Muslim law. For example, prophet mohammad never
repeal the whole of the pre-Islamic customary law of Arabia.
According to Muslim jurists, a legitimate Custom must meet four
characteristics which are mentioned below:
1. A custom must be repeated regularly, i.e. it must be continuous and
noticeable.
2. It should be applicable to everyone and should be rational.
3. It must not contradict any implied text of the Quran or the Sunnah.
4. It does not have to be very old.
5. Custom must be territorial.
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.
In various matter of Muslim law, custom play a significant role when the
matter is relating to their:
a. Agricultural land;
b. Testamentary succession among certain communities; and
c. Charities other than wakf, because these matters have not been
included in the section 2 of Shariat Act, 1937. Custom influenced the
growth and formation of shariah in several ways:
a. A number of texts, particularly traditions are based upon usages.
b. A part of the shariah based upon tacit or silent approval of the
prophet comprises many of Arab customs.
c. Imam malik says that the customary conduct of the citizen of medina
was a sufficient ijma to be relied upon in the absence of other texts.
Pre- Condition of Valid Custom
 Custom must be territorial.
  It must be existing from memorable time i.e. ancient.
 It must be continuous and certain and invariable.

 Custom should not oppose the public policies.

 Custom must not in contravention of Quran and Ijma.

b) Judicial Decision: These includes the decisions of privy council, the

supreme court & high court of India, Judges explain what law is. These
decisions are regarded as precedents for future cases. Judicial decision is
one of the distinguish characteristic of English law. In India, the plan of
Warren Hastings of 1772 made provision that it was only judiciary which
introduced new set rules in personal laws of Hindus and Muslims.
There are number of judicial decisions which have given new
dimension to Muslim law:
 In Maini Bibi v. Choudhry Vakil Ahmad, the privy council held that a

widow possesses the right to retain the property of her husband till her
dower money was paid
 In Bai Tahira v. Ali Hussain, the Supreme Court gave a new line of

approach to the law of maintenance. The Supreme Court held that a

woman will be entitled for maintenance under section 125 of criminal
procedure code even though she has received a lump-sum amount under
her customary law.
 A similar view also taken in Shah Bano's case. It may be concluded

therefore, that to some extent, the courts in India have tried to modify
the rules of Muslim personal law as applied in India. Unless overruled
or negative by some legislative enactment, these rules through the
decisions, continue to be a source of Muslim law.
c) Justice, equity and good conscience
The doctrine of equity, justice & good conscience is regarded as one of the
source of Muslim law.
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.
1. Abu Hanifa, the founder of hanafi sect of Sunni, expounded the
principle that rule of law based on analogy could be set aside at the option
of the judge on a liberal construction or juristic preference to meet the
requirements of a particular case. These principles of Muslim law are
known as Istihsan or juristic equity. Istihsan literally means approbation
and may be translated as liberal construction or juristic preference.
This term was used by great jurist Abu Hanifa to express the libert that he
assumed of laying down the law, which in his discretion, the special
circumstances required, rather than law which analogy indicated. Several
areas of Muslim were modified so as to meet the changing conditions in
India.
In the absence of any enacted law, the Courts apply the principles.
For example, the Muslim law of pre-emption has not been mentioned in
any act and thus the courts are under no obligation to implement it.
Similarly Muslim law was applied in the case about the agricultural lands
on the principles of Equity.
The High courts are free to apply the unrepealed Provisions of law before
the Constitution Came into being on the basis of Art. 225. The Courts are
also free to apply the local usages and enactments. Muslim law is not
applied to muslims, if There is another law applying to the parties that
they choose over the particular Muslim law provision in existence dealing
With the same issue. For example, Marriage under Special Marriage Act,
1954 or inheritance under the Indian Succession Act, 1925 are a few cases
where Muslim law will not be applied even if both the Parties are
Muslims.
a) Isthsan:
Literally it means preferring or considering a thing to be good, it is also
called, by some authors a juristic preference or equity. Istehsan is a
doctrine by which a jurist is enabled to get over a deduction of analogy
(Qiyas) either because it is opposed to text or consensus of opinion or is
such that his better Judgement does not approve of it. Thus, Itishan is used
to over-ride the qiyas.
In presence of a basis strange than qiyas, such as a text of the Koran, the
Sunna or the Ijma. The folowing example shall make the principle clear:
“The sale of a non- existent thing namely, a thing which is not in existence
at the time of the signing of the contract, is void analogically as the
benefits and services are not considered in existence at the time of
contract. However, contract of hire was sanctioned by the Koran, the
sunna add the Ijma.
All these are the bases which are more substantial than analogy. Thus
analogy was set aside and transactions of hire were condidered permissible
through “preference” this sort of deduction, namely the setting aside of
analogy in the presence of stronger source is called “Istehsan’ or
“preference”. Thus, Istehsan came to signify a breach of strict analogy for
reason of public interest, convenience or similar consideration. This is
essentially a doctrine of Hanafis, and other schools of the Sunnis did not
look at it kindly.
b) Al-masalih-Al mursalah (public interest)
Shariah has religious and transactional aspect. The transactional aspect is
based upon the interests of, and the benefit of people. So Imam Malik
approved “public interest” as one of the sources of the Sharia. He named
this new source al masalih-al mursalah. These interests have not been
covered by any text of the Shariah and are therefore considered as mursal
i.e. set loose from such texts.
The following examples illustrate this rule:
I. The imposition of taxes on the rich in order to meet the costs of the
army and to protect the realm.
II. If the infidels in war shield themselves in their advance by Muslim
prisoners of war, public interest permits the killing of the Muslim
prisoners of war in the course of fighting the infidels, if such action be
found essential to contain and ward off the foe and to protect the intersts
of the Muslim people as a whole.
However, the followers of the Maliki School could not make much use of
it to be too vague to permit any deduction of rule of law.
c) Istidlal:
Literally, the word “istidlal” means the inferring form one thing to another
thing, in other words, Istidlal is an effort to reach at same rule acting on
certain basis. It connotes a special source of law derived form reason and
logic. An example of Istidlal is as follows:-
Sale is a contract; the basis of every contract is consent; it is necessary
therefore that consent be the basis of sale, this source of law is mainly
recognised by the Malikis and the shaffis, while Hanafis regard it as only a
special mode of interpretation.
d) Istishab:
Literally, it means permanency. Technically, it is used to denote thethings
whose existence or non-existence had been proved in the past be presumed
to have remained as such for lack of establishing any change. This
principle was particularly emphasised by most followers of as Shafi,
Ahmed ibn-Hanbal and adherents of Immamiysh shias.
For instance; A man who has disappeared and whose whereabouts are not
known, the shafis would treat such a man as living for all purposes of law
until his death is proved, so that his estate will not be distributed among
his heirs and he will be allotted his share in the estate of a person, form
whom he is entitled to inherit and who happen to die during his
disappearance.
e) Ijtihad (Interpretation)
Laterally means the extending of effort and the exhaustion of all powers
but technically, it means the expending of effort in seeking, and arriving at
rules from various sources of in seeking, and arriving at rules from various
sources of law.
Since Islamic law has been derived form the Koran, the Sunna, the Ijma,
the Qiyas, Istehsan, etc. Ijtihad serves as a medium in deducing rules from
these sources.
After Prophet’s death the companions of prophet took recourse to the right
of Ijtihad when need arose, under the shield of legislation approved and
sanctioned by the prophet and the Koran.
However, towards the end of the abbasidi period. Suuni jurists declared
that the Ijihad was closed. The reasons were:
1) A belief that the exposition of principles by four Sunni schols was
sufficient ot meet futuree requirements;
2) Evolution of sectarian groups gave rise to prejudices and unwarranted
hatred among the Muslims belonging to different schools;
3) Moral degradation of Muslims. Many intelligent people became
concerned with rulers of time and began to give futwas and practice Ijtihad
for their pleasure;
4) Absence of qualified persons competent to make Ijtihad.
With the dawn of 19th century, Imams like Shyakh Muhammad abud
advocated the unification of all schools, and return to source and true spirit
of sharia.
The purpose of Ijtihad is not to replace divine law by secular law, but to
understand supreme law.
It aims to make Islamic law dynamic, in conformity with fundamental
guidance of Sharia.
Ijtihad has been applied more extensively by the Imamiyah shais, than by
the followers of the Sunni schools. To shias, the door of interpretation has
always been open, and continues to be so.
f) Taqlid (Imitation)
“Taqlid” means to follow the opinions of others without scrutinizing of
understanding them. You know it fully that the Ijtihad was closed towards
the end of Abbasid regime with closing of the gate of Ijtihad, the right of
Ijtihad was replaced by duty of ‘Taqlid’ and since the every jurist was
“Muqallid”(Imitator) bound to follow and accept the doctrine already
established by his predecessor. In most cases the doctrine of Taqlid
continues to rule the hearts of the Muslims of the world.
d) Legislation
In India, Muslims are also governed by the various legislation passed
either by the parliament or by state legislature. The following are the
examples of legislation in India.
1. The usurious loans act, 1918
2. Religious toleration act
3. Freedom of religion act, 1850
4. The Mussalman Waqf Act, 1923
5. The mussalman wakf validating act, 1930
6. The shariat act, 1937
7. Dissolution of Muslim marriage act, 1939
8. Guardian & Wards Act, 1890.
These acts have considerably affected, supplemented and modified the
Muslim law. In 1986 an act i.e. Muslim Woman (Protection of Rights on
Divorce) Act, 1986 to provide separate law in respect of divorced Muslim
women was enacted by Indian parliament. According to the need of time
and circumstances Indian legislature enacted the law to fulfill the need.
Precedent cases that have given a new dimension to Muslim law
Judges emphasise the law when they investigate specific cases. These
rulings appear to set a precedent for future cases, and the courts will
certainly follow the precedents. The rulings are binding on all lower courts
and it follows a framework in terms of its application wherein decisions
taken by the Supreme Court will by default apply to High Courts and they
can’t deny rulings cited by the Supreme Court.
Chand Patel v. Bismillah Begum, 2008
In Chand Patel v. Bismillah Begum (2008) the following were the issues
that court considered adjudicating upon:
1. Whether marriage in Islam with a wife’s sister will be considered
void?
2. Another issue found was whether the wife will be entitled to
maintenance even after marriage with her sister is void or irregular?
Arriving on the fact sheet of the case the appellant married Mushtaq bee
who was the elder sister of the respondent. Further, with the consent of his
1st wife (Mushtaq bee); he (the appellant) even decided to marry his
wife’s sister (Bismillah Begum). In response to this, the respondent stated
that a child was born out after they consummated in their marriage.
Bismillah Bano claimed that she had been lawfully married to Chand Patel
for the past eight years and that a ‘Nikahnama’ had been performed. She
mentioned in her petition that she and her daughter shared a home with
Chand Patel’s first wife and that the appellant had knowledge about the
same and he had raised the daughter. However, after a few years of
marriage, her relationship with her husband began to worsen to the point
where he began to ignore her and their small daughter. But the appalling
argument found was that Chand Patel claimed that the two had never
married.
Supreme Court judgment
The Supreme Court ruled that if a Muslim man is married to his wife’s
sister while still married to his first wife, the marriage will be considered
irregular, not unlawful or void. The Supreme Court validated the lower
court’s verdict, ruling that the illegal marriage would continue to exist and
that the Muslim man would be obligated to support his wife until his
marriage was pronounced void by a court of competent jurisdiction.
Chand Patel was directed by the court to pay maintenance within six
months of the date of the judgement, as well as the respondent’s legal fees
for arguing the case and setting up a landmark judgment.
Shayara Bano v. Union of India, 2017
In Shayara Bano v. Union of India (2017), Rizwan Ahmed and Shayara
Bano were a married couple and they were living together for 15 years. In
2016, Shayara Bano was divorced through immediate triple talaq (talaq -e
biddat) in response to this she filed a writ petition in the Hon’ble Supreme
Court of India praying for holding 3 practices talaq-e-biddat, polygamy,
nikah-halala as unconstitutional as they infringe Articles 14, 15, 21, 25 of
the Constitution. The practice of talaq-e-bidat allows a man to leave his
wife by saying ‘talaq’ three times in one sitting without his wife’s
agreement. Nikah Halala is a Muslim custom in which a divorced woman
who wishes to remarry her spouse must first marry and divorce a second
husband before returning to her first husband. Polygamy, on the other
hand, is a practice that allows Muslim men to have many wives. On
February 16, 2017, the Court requested detailed responses from Shayara
Bano, the Union of India, several women’s rights organisations, and the
All India Muslim Personal Law Board (AIMPLB) on the issues of talaq-e-
bidat, nikah-halala, and polygamy. Ms Bano’s claim that these practises
are unlawful was recognized by the Union of India and women’s rights
organisations such as Bebaak Collective and Bhartiya Muslim Mahila
Andolan (BMMA). The AIMPLB has maintained that uncodified Muslim
personal law is not available for judicial examination under the
Constitution and that these are vital Islamic religious traditions
safeguarded under Article 25 of the Constitution. The Supreme Court’s 5
Judge Bench issued its verdict in the Triple Talaq Case on August 22,
2017, ruling the system unlawful by a 3:2 majority.
The Supreme Court verdict
The aforementioned practice of divorce is arbitrary, in respect that a
Muslim husband might break the marital tie unfairly and thoughtlessly
without making any effort to communicate to safeguard the marriage. The
Supreme Court, in a unanimous decision pronounced on August 22, 2017,
declared instant Triple Talaq to be a violation of Article 14 of the
Constitution, putting an end to the practice of divorce.
Danial Latifi v. Union of India, 2001
In Danial Latifi v. Union of India (2001), the Supreme Court’s decision
in Mohd. Ahmed Khan v. Shah Bano Begum appeared to be overruled by
the Muslim Women (Protection of Rights on Divorce) Act, 1986
(hereinafter referred to as MWPRDA, 1986). A Muslim husband was only
liable for keeping his divorced wife during the iddat period, according to a
prima facie interpretation of the MWPRDA, 1986, and after that term, the
responsibility of keeping the lady shifted to her relatives. The issue came
to the light when the constitutional validity of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 was questioned on the
grounds that the law was discriminatory and violative of Articles 14 and
21 of the Indian Constitution. The fact that Article 14 was being violated
because Muslim women were being deprived of the maintenance benefits
of Section 125 of Criminal Procedure Code, 1973. Also, it was pointed
out that the right to life guaranteed under Article 21 was being violated as
the law will leave Muslim women in a state of helplessness.
Judgment in the case
The Supreme Court maintained the validity of the MWPRDA, 1986, based
on critical analysis. It was decided that a Muslim husband is responsible
for making appropriate and equitable arrangements for his divorced wife’s
future beyond the iddat period. This approach was founded on the term
“provision” in the MWPRDA of 1986, which said that, “at the time of
divorce the Muslim husband is required to contemplate the future needs
[of his wife] and make preparatory arrangements in advance for meeting
those needs”.
Conclusion
Muslim law is an integral element of Indian laws and must be understood
and implemented in the similar manner as any other law in the country.
Despite the fact that most of it is uncodified, Muslim personal law has the
same legal significance in India as other religions’ codified personal laws,
such as the Hindu Marriage Act of 1955 and the Christian Marriage Act of
1872. The Hon’ble Supreme Court of India has taken into account that
women’s rights are not being neglected or discriminated against on any
grounds by delivering progressive judgments. This has developed in
contribution to Muslim law to have a newer perspective with the landmark
cases. Adding more to this, the judgments have set up a platform of a level
playing field and thus, leading to the formation of an egalitarian society.
Classical and Modern; Sects and Schools of Muslims in India
Muslim law is governed by the teachings of the Quran and the Prophet
Mohammad. There have been many different schools which follow their
own interpretations of these teachings on points on which the Quran is
silent. While the major schools of Muslims can be divided under the two
sects of Shia schools and Sunni schools, even the schools under these sects
have been further divided into various schools.
Each school has its own beliefs and practices and because is no set rule
regarding the matters on which the Quran is silent, one school cannot be
said to be better positioned than the other schools and thus even though
there are many schools in Muslim law, they all lead to one path. Thus, the
teachings of these schools can be compared to different paths which all
lead to the same destination.
SCHOOLS OF ISLAM
Two Major Schools – Sunni and Shia sects
• Main difference – Shias reject all traditions or words of any jurists
which were handed down by anyone other than Ali (Successor of prophet),
therefore they are called Shia –t –i- Ali or ‘Fraction of Ali’
• Sunnis consider the traditions and also Decisions of the lmams and the
general body of knowledge given by jurists which supplement the rules of
the quran.
• The division between the Sunni and Shia sects happened due to dispute
concerning the question of succession after the death of Prophet.
1. Sunni sect: This sect advocated for method of election for determining
the successor of Prophet This view was advocated by Ayesha Begum,
the youngest wife of Prophet.
• Elections were held and Abu Bakr was elected. He became the first
Caliph.
2. Shia sect: Minority believed that elections are not the suitable method
and it emphasized on the spiritual leadership of Prophet. They argued
that quality comes from nobility of blood and hence principle of
succession should be adopted rather than principle of election.
• This view was advocated by Fatima, the daughter of Prophet.
Consequently Ali was appointed as first Imam.
3. Motazila sect: They are defectors from Shia sect. However, they do not
associate themselves with any of the above two sects. It emerged in 9th
Century A.D. as was established by Ata-al-Ghazzal.
• This division later resulted in separation of legal principles as well.
Two major Schools of Shia
1. Ithana Asharia [two sects- Akhbari and Usuli]
2. Ismaili [khojas and bhoras]
3. Zyadis School
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.
Four Major School of Sunnis:
1. Hanafi [Founder- Imam Abu Hanifa]
2. Shafei [Founder- Ash Shaefi]
3. Maliki [Founder- Imam Malik-Ibn-Anas]
 4. Hanbali [Founder- Ibn Hanbal]
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.
# Sunni and Shia sects
The two largest Muslim subgroups are the Sunni and the Shia. Sunni
Muslims make up the largest percentage of Muslims overall. Until then the
Prophet was the universally accepted head of the Islamic commonwealth.
After his death, some thought the position should be given to person who
people trust and thus an elected leader would suffice. Others thought that
the spiritual leadership of the Prophet was more important and that this
quality would have passed on through his blood. A gathering of some
Muslims at Saqifah gave their allegiance to Abu Bakr, Muhammad’s
father-in-law, as the first Caliph. Shia Muslims believe that the Prophet
had appointed his son-in-law Ali ibn Abi Talib as his successor. Caliph
was more of an administrative head whose job was to enforce the Shariat
while the Imam was the religious head of the Shia community. These two
sects differed on the political and legal issues too.
Many Muslims, however, do not like to label themselves as from any of
the denominations as they believe that the Quran bans the formation of
sects within Islam, and therefore classify themselves as simply “Muslims”.
A) THE SUNNI SCHOOLS
The full name of the Sunni branch is Ahl al-Sunna waal-Jama’ah. Abu
Bakr, the Prophet’s close friend and father-in-law, was the first Caliph.
Sunnis initially believed that the position of Caliph should be
democratically chosen, but after the first four Rightly Guided Calliphs, the
position turned into a hereditary dynastic rule. After the fall of the
Ottoman Empire in 1923, there has never been another Caliph.
According to sources, present estimates indicate that approximately 85%
of the world’s Muslims are Sunni and approximately 15% are Shia.
There were various interpretations by the jurists and thus many schools
came up. Sunnis recognize four madhhabs (legal traditions): Maliki,
Shafei, Hanafi, and Hanbali as of now. These schools are similar and
differ mostly on the details.
1) THE HANIFI SCHOOL
Founded by Imam Abu Hanifa, Hanafi is considered to be the most liberal
school. Abu Hanifa is often referred to as the Great Imam. It is
predominant among Sunni Muslims in northern Egypt, the Indian
subcontinent, Iraq, Turkey and in many western countries. It is the largest
of the four schools; with a following of 45% of the Muslims world-wide.
The most prominent propagators of this school were the Ottoman Empire
and the Mughal Empire.
Abu Hanifa tried to formulate law through the analogical deductions from
the texts of the Quran. The school recognises only those traditions that
have been severely tested for originality and passed. It is believed that
Hanifa relied upon 18 traditions only. Qiyas and Ijma were given due
importance. The doctrine of Istihsan (juristic equity) was used by this
school for the first time. Some of the famous books of the school include
Fatwai Alamgiri, al-Hidyaya and Radd-Al -Makhtar.
Custody of children
Under the Hanafi School, the custody of a son lies with the mother until
the son attains the age of 7 years. In case of a daughter, the mother has the
custody till the daughter attains puberty. However, once the son attains 7
years of age or the daughter reaches puberty, the father is considered to be
the natural guardian.
In Abdul Kalam v. Akhtari Bibi (1987), there was a dispute relating to the
custody of a minor son. The parties were governed by the Hanafi School
of Mohammedan Law. The mother claimed the custody of the child under
Section 25 of the Guardians and Wards Act, 1890. Section 25 states that
when a child is removed from his guardian’s custody and the court finds
that the welfare of the child lies in him being restored to the custody of the
guardian, the court may make an order to this effect.
The appellants had pleaded that since under the Muslim personal law, the
father is considered to be the natural guardian of the Child, Section 25 of
the Guardians and Wards Act does not apply to a Muslim Child.
Rejecting this argument, the Orissa High Court held that the interest of the
child is of paramount consideration while deciding the issue of
guardianship. The Court held that the Guardians and Wards Act applies to
Muslims as well and thus, the mother was entitled to claim guardianship
of the minor child under Section 25 of the Act.
Legitimacy of child
Both the Sunni as well as Shia schools provide that if a child is born
within a specific time period from the dissolution of the marriage, then he
would be considered valid. However, this time period varies from school
to school. Under the Hanafi School, the child is considered to be
legitimate if it is born within a period of 2 years from the dissolution of
marriage.
Main features of this School:
(a) Less reliance on tradition unless their authority is beyond doubt. (Abu
Hanifa was stricter than others in lifting the traditions.)
(b) Greater reliance on Qiyas;
(c) A little extension of the scope of Ijma. (Abu Hanifa advocated the
validity of Ijma in every age, though in theory it was strictly confined to
companions of prophet.
(d) Recognizing the authority of Local custom and usages as guiding the
application of law.
(e) Evolving the doctrine of Istihsan. (It means the modification of theory
of law in its application to actual fact).
2) THE MALIKI SCHOOL (Madina School)
The Maliki School derives from the work of Imam Malik-ibn-Anas and
practiced in North Africa and West Africa. It is the second-largest of the
four schools, followed by approximately 25% of Muslims. It differs from
the three other schools of law in the sources it uses for derivation of
rulings. All four schools use the Quran as primary source, followed by the
Sunna of the Prophet Muhammad, Ijma (consensus of the People) and
Qiyas (analogical deductions).
The Maliki School uses the practice of the people of Medina (amal ahl al-
medina) as a source too. This source, as per Malik, sometimes supersedes
hadith, because the practice of the people of Medina was considered
“living Sunna,” as the Prophet migrated there, lived there and died there,
and so did most of his companions. They
Legitimacy of child
Under the Maliki School, a child born after the dissolution of the marriage
is considered legitimate if it is born within a period of 4 years from the
dissolution of the marriage.
It is interesting to note that Section 112 of the Indian Evidence Act, 1872
also deals with the legitimacy of a child born after dissolution of marriage.
Under the Evidence Act, the child would be considered legitimate if it is
born within a period of 280 days of the dissolution of marriage. Moreover,
the mother should be unmarried at the time of the birth of the child. Thus,
we see that there may be a situation where a child may not fulfill the
criterion of legitimacy laid down under the Evidence Act, but might still
be recognized as legitimate under the Maliki school.
Marriage: The Maliki School follows similar principles of marriage as
the Hanafi school, with an emphasis on mutual consent, proposal, and
acceptance as essential elements of a valid marriage contract. It also
recognizes the concept of Mahr (dower), which is a mandatory payment
by the husband to the wife as a sign of respect and financial security.
Divorce: The Maliki School recognizes three forms of divorce, namely
Talaq, Khula, and Mubara’at, similar to the Hanafi school. It requires the
husband to give a valid reason for divorce and emphasizes the importance
of reconciliation and settlement of disputes before resorting to divorce.
Inheritance: The Maliki School follows the principle of ‘Urf (custom),
where local customs and practices are taken into consideration in
determining inheritance rights. It also recognizes the rights of female
relatives, such as daughters, mothers, and wives, in certain cases. Critics
argue that the Maliki School’s emphasis on local customs may lead to
inconsistencies and inequalities in inheritance laws.
Main features:
1. Acceptance of traditions, which in the opinion of Imam Malik, were
authentic, even if tradition carried authority of only one narrator.
2. Acceptance of practices, usages customs of the people of Madina and of
the slaying of companions of prophet (PBUH).
3. Resource to Qiyas (Analogy), only in the absence of explicit of test.
4. Recognition of Principle of public welfare (Al-masalih al- mursalah) as
basis of deduction.
5. Adding to the four main sources of Muslim Law, one more source viz.,
Istidial i.e., principle of logical deduction.
Criticisms of the Maliki School
Rigidity in Interpretation: One of the main criticisms of the Maliki
School is its perceived rigidity in legal interpretation, as it strictly follows
the practices of the people of Medina and may not be adaptable to
changing social contexts. Critics argue that this may hinder the
development of Muslim personal law in India and may not always align
with modern principles of justice and equality.
Limited Application: Another criticism is that the Maliki School is
followed by a minority of Muslims in India, mainly in certain regions, and
may not have widespread applicability. Critics argue that there should be
more awareness and acceptance of diverse schools of Muslim law in India
to promote inclusivity and diversity in legal practices.
3) SHAFFIE SCHOOL
The Shaffie School gets its name on the name of Muhammad bin Idris
Shaffie, his period was between 767 AD to 820 AD. He was the student of
Imam Malik of Madeena. Then he started working with the disciples of
Imam Abu Haneefa and went to Khoofa.
He concludes the idea's and the theories of Hanafi School and Maliki
School in a friendly manner. The Imam Shaffie was considered as one of
the greatest jurist of Islam. He created the classical theory of the Shaffie
Islamic Jurisprudence.
According to this school, they considered Ijma'a as the important source of
the Muslim law and provide validity to the customs of the Islamic people
and follow more methods of Hanafi School. The main contribution of
Shaffie School is the Quiyas or Analogy.
# Key provisions of the Shafi’i School
Marriage: The Shafi’i school follows similar principles of marriage as the
other schools, with an emphasis on mutual consent, proposal, and
acceptance as essential elements of a valid marriage contract. It also
recognizes the concept of Mahr (dower) and encourages the parties to
enter into a formal written contract to avoid any disputes in the future.
Divorce: The Shafi’i school recognizes three forms of divorce, namely
Talaq, Khula, and Mubara’at, similar to the other schools. It requires the
husband to give a valid reason for divorce and emphasizes the importance
of reconciliation and settlement of disputes before resorting to divorce.
Inheritance: The Shafi’i school follows the principle of ‘Awl (nearest),
where the closest agnatic relatives inherit the property. It also recognizes
the rights of female relatives, such as daughters, mothers, and wives, in
certain cases. However, there are some differences in the distribution of
inheritance shares compared to the other schools, which may vary
depending on the local customs and practices.
Criticisms of the Shafi’i School
Limited Flexibility: One of the main criticisms of the Shafi’i school is its
perceived lack of flexibility in legal interpretation, as it strictly follows the
Qur’an and the Sunnah of the Prophet Muhammad without much room
for reinterpretation or adaptation to changing social contexts. Critics argue
that this may hinder the development of Muslim personal law in India and
may not always align with modern principles of justice and equality.
Regional Variations: Another criticism is that the Shafi’i school’s
application may vary depending on the local customs and practices,
leading to inconsistencies in legal practices within the school. Critics
argue that there should be more uniformity in the interpretation and
application of Shafi’i law in India to ensure consistency and fairness in
legal outcomes.
Pros of the Shafi’i School
Emphasis on Qur’an and Sunnah: One of the strengths of the Shafi’i
school is its strict adherence to the Qur’an and the Sunnah of the Prophet
Muhammad as primary sources of guidance in legal matters. This can be
seen as a positive aspect by those who value the preservation of traditional
Islamic teachings and practices.
Recognition of Rights of Women: The Shafi’i school recognizes the
rights of women in marriage, divorce, and inheritance, and provides
certain protections to them. For example, it emphasizes the importance of
mutual consent in marriage, encourages the settlement of disputes before
divorce, and provides inheritance shares to female relatives. This can be
viewed as a positive aspect by those who advocate for gender equality
within the framework of Islamic law.
4) HANBALI SCHOOL
The Ahmad bin Hanbal is the founder of the Hanbali School. He found the
Hanbali school in 241 (AD 855). He is the disciple of Imam Shaffie and
supports Hadis. He strongly opposed the Ijthihad methods. He introduced
the theory of tracing the root of Sunna and Hadis and try to get the answer
all his question. His theory was to return to the Sunna of the Prophet.
When the Imam Shafie left for Baghdad, he declared that the Ahmad bin
Hanbal was the only one after him who is the better jurist after him. The
followers of Hanbali School found in Syria, Phalastine and Saudi Arabia.
B) SHIA SCHOOLS
As per Shia Sect, there are three schools of law. Shia Sect is considered as
the minority in the Muslim world. They enjoy the political power only in
Iran though they don’t have the majority in that state also.
1. Ithna-Asharis
These schools are based on the following of Ithna-Ashari laws. The
followers of these schools are mostly found in Iraq and Iran. In India also
there is the majority of the Shia muslim who follows the principles of the
Ithna-Asharis School. They are considered political quietists. This school
is considered as the most dominant school of the Shia muslims. The ja’fari
fiqh of the shias in most cases indistinguishable from one or more of the
four sunni madhahib, except mutah is considered as the lawful marriage.
The people who follow the Ithna Asharis school believe that the last of the
Imams disappeared and to be returning as Mehdi (Messiah).
2. The Ismailis
According to Ismailis School, in India there are two groups, the Khojas or
Western Ismailis represents the followers of the present Aga Khan, who
they considered as the 49th Imam in this line of Prophet, and the Bohoras
i.e. the Western Ismailis are divided into Daudis and Sulaymanis.
The Bohoras and Khojas of Mumbai are considered as the followers of
this school. It is considered that the follower of these schools has special
knowledge of religious doctrine.
3. Zaidy
The followers of this school are not found in India but are maximum in
number in South Arabia. This sect. of the shia school is the most dominant
among all in Yemen. The followers of these schools are considered as
political activism. They often reject the twelver shia school philosophies.
C) Other schools
Besides the schools under Shia and Sunni sects, there are some other
schools which are also present which are:
1) Ibadi School
Ibadi is a school which belongs neither to the Shia nor Sunni sect and this
school claim that its history traces back to the times of 4th Khaleefa Ali.
The Ibadi school gives more preference to the Quran and they do not give
the Sunna much importance. This school has its followers in Oman. One
of the most important points about this school is that besides the Quran, it
has provided principal consideration to Ijtihad (personal reasoning) which
has been partially accepted by the Sunnis and has been completely
rejected by the Shias.
2) Ahmadiya School
The followers of Ahmadiya school claim to be Muslims but they do not
follow Prophet Muhammed. This school has a recent origin and they are
followers of one Ahmed who was alive in the 19th century.
This school is said to have a British-Indian origin and Mirza Ghulam
Khadiani is the founder of this school, who served the British
Government. Even though this school claims to be a follower of Islam,
none of the Muslim Government has accepted them as Muslims because
they believe this school’s faith is completely against the faith of Muslims.
The Khadiyan village which is situated in Punjab in India is said to be the
birthplace of Ahmed and thus it is their holy place and the followers are
also known as Kadhiyani. There is no authoritative book of this school and
because its origin is also recent, it has no recognition by the other
authoritative books of Islam.
There are many differences between the Ahmadiya School and Muslims
therefore; they are not regarded as part of Islam. The major points of
difference between them are as follows:
1. The Muslims believe that Prophet Mohammad was the Messenger of
God on Earth and he was the last Prophet who had spoken with God.
Thus, his teachings are an important part of the lives of Muslims but the
Ahmadiyas believe that God still communicates with his holy servants
even after Prophet Mohammad.
2. The Ahmadiyans claim that the list of Prophets before Mohammad
includes Buddha, Krishna, Zoroaster and Ramchandra and they claim it
is according to the Quran but the non-Ahmadiyans do not accept such
claims and refuse to acknowledge them as Prophets.
3. Unlike the Muslims, the Ahmadiyans do not accept the claim of the
Sultan of Turkey as the Caliphate and they claim that every Muslim
person should remain loyal to the Government of their country.
4. While Muslims believe that Mahdi will have a holy war or Jihad and
Islam will be spread by the sword, the Ahmadiyas believe that it will be
spread by arguments and heavenly signs and not through violence.
Zaidiyah School
After the death of fourth Imam, Zaynul Abidin, one faction of the Shias
accepted Zaydi, one of his sons, as Imam. Thus Zaidiyah School or sect
was founded. Zayd is the author of Majmu-ul-Fiah, but the work is
available in spurious form. The Zaidis are represented in South Arabia,
mostly in Yemen.
Main features
1. Recognition of principle of election as the basis of succesion.
2. Considering the Imam is nothing more than a ‘right guide’.
Ashriyah School
After the death of Imam Zainul Abidin, the majority, however, followed
Imam Muhammad al-Baqir and after him Imam Jafar-as- Sadiq aFter the
death of Imam Jafar the Sixth Imam a difference arose; the majority
folowing Imam Musa al-Kazim and though him six other Imams, thus
making twelve imams in all. Thus making twelve Imams in all. Thus ithna
Asharis school of Shias was founded. Ithna Asharis, an Arabic term,
means Twelvers.
It is the religion of ruling house of Persia. Almost half of the Muslim
population of Iraq belongs to this sect. They are also found in Syria,
Lebanon and Pakistan.
The majority of Shias belong to this school. In India, they are next to
Hanafis and mostly found in Lucknow, Murshidabad and Deccan. In
Kashmir Itnna Asharis are in majority among Shias.
Main feature:
Believing that last of these Imams has disappeared and to be returning as
Mehdi (Messiah).
Ismailiyah School
The minority of the Shias, after the death of Imam Jafar did not
acknowledge Musa-al-Kazim, but followed his elder brother, Ismail and
are known as Ismailies. They are also caled “Sabiyya” or “Seveners” for
acepting only seven Imams.
In India, they consist of two groups, viz,
(1) the Kohojas or Estern Ismailis, representing the followers of the
present Aga Khan, who is believed to be 49 th Imam in line of the prophet,
and
(2) the western Ismailis, who are popularly called Bohoras and may be
divided into Daudis and Sulaymanis and various other small groups. It
must be pointed out that the word “bohora” merely means mrchant and
does not signify any particular school of Muslim law.
Originally this school prevailed in Egypt where it found favour with the
Fatimid Kings. It is for this reason, sometimes called “Fatimid School”, it
has small number of followers in several contries, such as central Asia,
East Africa South Arabia, Iran Syria and Pakistan.
Differences among the Schools of Muslim Law in India
While the Muslim law schools in India share many similarities in their
basic principles and teachings, there are also some differences among
them. Some of the key differences include:
1. Sources of Law
The schools of Muslim law in India have slight differences in their sources
of law. The Hanafi school, being the most prevalent, places a strong
emphasis on the use of analogical reasoning (Qiyas) and the opinions of
jurists (Ijma) in addition to the Qur’an and Sunnah. The Maliki school, on
the other hand, gives more importance to local customs and practices (Urf)
in addition to the Qur’an and Sunnah. The Shafi’i school strictly follows
the Qur’an and Sunnah without much room for reinterpretation.
2. Interpretation and Adaptability
The schools of Muslim law in India also have differences in their approach
to interpretation and adaptability. The Hanafi school is known for its
flexibility and adaptability, as it allows for interpretation based on
changing social contexts and customs.
The Maliki School also takes into consideration local customs and
practices, which may vary from region to region. The Shafi’i school, on
the other hand, is perceived as being less flexible in its interpretation and
application of the law, as it strictly follows the Qur’an and Sunnah without
much room for reinterpretation or adaptation.
3. Application and Popularity
The Muslim law school in India also have differences in their application
and popularity among different regions and communities. The Hanafi
School is the most widely followed school in India, with a large majority
of Muslims adhering to its teachings. The Maliki School, on the other
hand, is followed by a minority of Muslims in certain regions of India.
The Shafi’i school is also followed by a significant number of Muslims in
India, especially in South India and parts of the coastal regions.
Conclusion: In conclusion, the schools of Muslim law in India, namely
the Hanafi, Maliki, and Shafi’i schools, have similarities in their basic
principles and teachings, but also have some differences in their sources of
law, interpretation, and application. While each school has its strengths
and weaknesses, they all play an important role in shaping Muslim
personal law in India.
The Hanafi School, being the most prevalent, is known for its flexibility
and adaptability, the Maliki School emphasizes local customs and
practices, and the Shafi’i school strictly follows the Qur’an and Sunnah. It
is essential to understand and appreciate the nuances and diversities within
Muslim personal law in India and to promote inclusivity, fairness, and
justice in its application.
DIFFERENCE BETWEEN SHIA & SUNNI SCHOOL
Shia School Sunni School
1 Muta or temporary Marriage is Muta marriage is not recognised.
recognised.
2 Father and grand- father are Father and father’s father how
recognised as legal guardians for high-so-ever, brothers other
marriage. paternal relations, mother are also
recognised legal guardians for
marriage.
3 The minimum amount for dower 10 dirhams is the minimum amount
is not fixed. of dower is fixed.
4 Talaq must be pronounced orally Talaq may be oral or in writing.
in Arabic language.
5 Divorce under compulsion or Divorce under compulsion or threat
threat or intoxication is void. or intoxication or jest is not void.
6 The mother is entitled to the She is entitled to the custody of the
custody of boy up-to two years boy up-to seven years and of a girl
and of a girl up-to seven years. until she attains puberty.
7 It is not obligatory to maintain It is obligatory to maintain even if
the father if he is able to earn. he is able to earn himself.
8 Without delivery of possession Mere declaration is enough for a
of the property the waqf is valid waqf.
invalid.
9 A gift of undivided share in the A gift of undivided share in the
property is valid provided it is property is invalid if it is undivided
capable of partition. and incapables of portion.
10 A person can be queath one third The consent of the heirs is essential
of his estate without the consent in case of legacy in favour of an
of the other heirs. heir.
11 There are only two classes of There are three classes of heirs:-
heirs namely sharers and a. sharers b. Residuary.
residuary. c. Distant kindred.

Muslim Marriage (Nikah),

In pre-Islamic Arabia, the term "nikah" referred to a variety of sexual
partnerships between a man and woman that were created under specific
conditions. Marriage is seen as a civil transaction in Islamic law, and after
marriage, a woman retains her identity. She continues to be a unique
member of the community; her marriage does not grant anyone additional
authority over her person or property beyond what is permitted by law.
Even after marriage, women retain complete ownership of their rights and
are free to alienate or transfer their property as they see fit without the
husband's interference. She is free to make legally binding agreements
with her spouse and, if required, to take legal action against him. The
Quran's prohibitions allow women to hold this role with no outside
influence over their husbands.
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. In
Islam, the main goal of marriage is to have children (procreate) and give
them a place to grow up where they can feel safe and cared for. People
also believe that marriage can bring spiritual satisfaction and make a
person closer to God.
Definition of Marriage
The Arabic word for marriage, nikah, also refers to the union of the sexes
in law. Marriage is described in Baillie's summary as "a contract to
legalize sexual activity and childbearing." It is described as "nikah in its
primitive sense, which means carnal conjunction" in Hedaya.
Justice Mahmood has defined the Muslim marriage as “a purely civil
contract”.
Hedaya says that “Marriage implies a particular contract used for the
purpose of legalising children.
Objects of Marriage
Five goals of marriage were outlined in a dictionary on tarmizi:
 stifling sexual arousal;

 organizing domestic life;

 growing the family;

 enforcing the goals of the family in the care and duty of wife and

children;
 raising moral offspring.

Hedaya describes cohabitation, society, and equal friendship as three ways

that marriage ends.
Nature of Muslim Marriage
Regarding the characteristics of Muslim marriages, there are differences of
view. Some jurists consider Muslim marriage as a religious sacrament,
while others just see it as a legal arrangement. To better comprehend the
nature of Muslim marriage, it would be useful to consider it in a variety of
settings. Muslim marriage is simply seen as a legal arrangement by some
text writers and jurists, not as a sacred institution. This statement seems to
be reinforced by the fact that marriage, by Islamic law, has certain
similarities to contracts.
NATURE AND CONCEPT OF MARRIAGE
The object of a Muslim marriage is to legalise children and to a large
extent to regulate and validate the sexual relations. Apart from being a
civil contract, it is also a social and religious institution.
LEGAL ASPECT
Legally speaking a Muslim marriage is a contract for it has a few elements
of a contract. The parties have to be competent and offer, acceptance and
free consent form an important part.
Within a limit, the parties can decide the terms of the marriage and in case
of breach; there are provisions for the rights and obligations of the parties.
It can be safely said that marriage is very similar to a contract.
SOCIAL ASPECT
Marriage is a social institution and a social method to give an equal status
to women. The dower, which is essential for a Muslim marriage, provides
a security net for the woman in case of need. Limited polygamy helps
raise the woman’s standing and dignity in the society.
By placing prohibitions on the marriage, the relationships of families can
be regulated and the ill effects of in breeding are avoided.
RELIGIOUS ASPECT
Marriage is the tradition of the prophet as well as present in the words of
Quran. Thus, a person who marries gets religious benefits and the
abstainer would have committed a sin. In ANIS BEGAM v MOHD.
ISTAFA (1933)55 All, 743, it has been held to be a religious sacrament.
For illustration
1. Similar to marriage, beginning a relationship requires a proposal (hijab)
from one side and an acceptance (qubool) from the other. A marriage
cannot be formally entered into without the permission of both parties,
and this consent should not be obtained via force, dishonesty, or any
other unethical methods.
2. A marriage contract under Muslim law can be revoked by a juvenile
upon reaching puberty, just as it can in the case of a contract signed by a
guardian upon reaching the majority.
3. The spouses of a Muslim marriage may agree to an ante-nuptial or post-
nuptial agreement as long as it is appropriate and does not violate
Islamic law. Contracts function similarly.
4. The provisions of a marriage contract may also be changed within the
bounds of the law to take into account specific circumstances.
5. Although it is forbidden by the holy Quran and hadith, the marriage
contract has a provision for breaching it, just like any other contract.
6. It has certain similarities to a contract in terms of Islamic law.
Scope of Muslim Marriage
In terms of scope, Nikah is a comprehensive agreement that covers the
rights and obligations of both partners. It has rules about paying dowry,
what the husband and wife are responsible for, and how to get a divorce.
In the Nikah contract, Islamic law stresses how important it is that both
parties agree and are free to do what they want. Because of this, both
parties must agree voluntarily to the terms and conditions of the contract
for it to be legal.
The nature of Muslim marriage is one of mutual responsibility, respect,
and cooperation between partners. Both parties have rights and
responsibilities in the marriage contract. Men are expected to provide
financial support to their wives and children, while women are responsible
for the care and upbringing of their children and the maintenance of the
household. In addition, both partners are expected to treat each other with
kindness, compassion, and love.
Aim and Object of Nikah
Like anything a Muslim does, marriage should only be undertaken after
gaining an understanding of all that Allah has prescribed in terms of rights
and obligations as well as gaining an understanding of the wisdom behind
this institution. Nearly all peoples and all societies practice marriage in
some form, just as they practice business (buying and selling). Umar ibn
Al-Khattab used to expel people from the marketplace in Madina who
were not knowledgeable of the fiqh of buying and selling. Likewise, a
Muslim should not engage in something as important as marriage without
having understanding of the purpose of marriage in Islam as well as a
comprehensive understanding of the rights and obligations which it brings
about.
One of the principles of Islamic Jurisprudence says that: "The default state
of all things is lawfulness until some evidence shows otherwise." Based on
this, if new foods are discovered, they are considered lawful, unless there
is some specific reason or attribute which would make it forbidden for
example if it is causes intoxication. Relations between men and women do
not follow this general principle and in fact are opposite to it. The
principle is that: "Relations between men and women are forbidden until
some evidence shows otherwise."
Procreation (Children)
One of the most important purposes of marriage is to continue and
increase the population of the Muslims. Clearly, this goal could be
achieved without marriage, but when actions are undertaken in
disobedience to Allah, they do not receive the blessing of Allah and the
whole society is corrupted. The Prophet said: "Marry, for I will outnumber
the other nations by you on Qiyama."
It should be stressed that the goal is not simply to produce any child that
will live in the next generation. It is to produce righteous children who
will be obedient to Allah and who will be a source of reward for their
parents after they die. The Prophet will NOT be boasting before the other
nations on the day of Qiyama with children of Muslim parents who left the
path of Islam. Thus it is the responsibility of Muslim parents to seek the
means of giving their children the training and education they need not
just to grow, but to succeed as Muslims worshipping and obeying Allah.
This obligation may include migration, establishing of Muslim
communities and schools and other obligations. As the scholars have said
in another principle of fiqht:
"That without which an obligation cannot be fulfilled is itself
obligatory."
Pleasure
Islam is the religion of the fitrah - the religion which is consistent with the
natural instincts and needs of mankind. It is not like the man-made (of
modified) religions which set unnatural constraints on people whether
self-inflicted prohibition of marriage (nuns and monks, etc.), prohibition
of divorce or monogamy. Men are inclined toward women and women are
inclined toward men. Marriage is the institution which fulfills this desire
and channels it in ways pleasing to Allah Most High. Allah mentions this
attraction:
The love of the desires for women, sons, ... has been made attractive to
people.
The Messenger of Allah himself made clear that the attraction between the
sexes is something natural and not something to be denied or suppressed -
only channeled in the ways pleasing to Allah Most High, saying:
"Women and perfume have been made beloved to me of this world of
yours and my peace of mind is in the prayer."
The desire of men and women for each other is an urge which needs to be
fulfilled. If it is left unfulfilled, it will be a source of discord and
disruption in society. For this reason, the Prophet ordered all men who are
capable of meeting the responsibilities of marriage to do it:
"Whichever of you is capable should marry for it will aid him in lowering
his gaze and guarding his body (from sin). As for the one who is not
capable, fasting is his protection."
Nature of Muslim Marriage
The Prophet emphasised the necessity of marriage saying-"To live in
marriage is to observe my way. He who turns away from this way is not of
me".
Rights & Duties
Mutual Rights and Obligations:
Marriage is a union for life having mutually inclusive benefits and
fulfillment for the contracting parties including the following:
# Preservation of chastity and security of gaze
# Companionship inside and outside home
# Emotional and sexual gratification
# Procreation and raising of any children by mutual consultation
# Agreement to live together in a mutually agreed country and establish
their matrimonial home therein
# Working collectively towards the socio-economic welfare and stability
of the family
# Maintaining their individual property rights but contributing to the
welfare of the family according to their capacity
# Maintaining social contacts with family and friends mutually beneficial
for the family
# Managing their individual activities/roles inside and outside the home by
mutual consultation.
Obligations of the husband:
In addition to the mutual duties and obligations, the husband undertakes
not to:
# abuse his wife/child(ren) verbally, emotionally, physically, or sexually
# desert/be absent from the marital home for more than 60 days unless by
mutual agreement
# withhold economic contribution towards his wife/family
# sexually transmit disease or other transmissible diseases
# misuse /interfere with the wife's property.
Obligations of the Wife:
In addition to the mutual duties and obligations the wife undertakes not to:

# abuse her husband/children verbally, emotionally, physically, or

sexually.
# desert/be absent from the marital home for more than 60 days unless by
mutual agreement.
# sexually transmits disease or other transmissible diseases.
# misuse/interfere with the husband's property.
MARRIAGE IS A CONTRACTUAL SACRAMENT
Muslim marriage is a contract, not a sacrament. Though it has importance
as the only religiously sanctioned way for individuals to have legitimate
sexual relationships and to procreate the children; marriage is a civil
agreement, entered into by two individuals or those acting on their behalf.
Muslim Marriage as a Civil Contract:
 Nikah is an Arabic word or term used for marriage which means

union of the series and carries a civil contract for the purpose of
legalizing sexual intercourse and legitimate procreation of children.
 The Quran specifically refers to marriage as Mithaqun Ghalithun

which means A Strong Agreement.

Ameer Ali: Marriage is an organization for the protection of the society.
This is to protect the society from foulness and unchastity.
Wilson: He defines Muslim Marriage as a contract for the purpose of
legalizing sexual intercourse and procreation of children.
Justice Mahmood: In The case Abdul Rahim Vs Salima; Justice
Mahmood commented on the nature of Muslim marriage that Muslim
Marriage is a civil contract and not a sacrament.
Muslim Marriage is a Civil Contract
The essentials of a civil contract are:
 Proposal  Free Consent

 Acceptance  ‘Lawful Object

 Consideration  Competency of The Parties

Similarly, essentials of Muslim marriage are:
 Ijab ( Proposal)  Free Consent

 Qubool (Acceptance)  Competency Of The Parties

 Dower ( Consideration)

Comparing both it seems the same conditions for both, thus we can
say that marriage under Muslim is a civil contract.
The object of civil contract:
1. Legalizing the sexual intercourse
2. Procreation of children
Muslim marriage as Sacrament view
Prophet’s saying:
 When a man marries he has fulfilled half of the religion, so let him

fear Allah regarding the remaining half.

 When a husband and wife look at each other with love, Allah look at

them with mercy.”

 The most perfect believer in faith is the one whose character is finest

and who is kindest to his wife”.

In a case Justice Suleman: Anis Begum vs Mohammad Istafa Wali
Khan In the above case, he has said that in Islam, marriage is not only a
civil contract but also a sacrament.
Muslim marriage can also be differentiated from a civil contract on
the basis of following points:
 It cannot be done on the basis of future happening unlike the contingent

contract.
 Unlike the civil contract it cannot be done for a fixed period of time.

(Muta marriage being an exception)

Conclusion
In the ultimate analysis it can be said that the marriage is Islam is neither
purely a civil contract nor as a sacrament. It is devoid of none but the
blending of the two. The transition from the sacramental indissolubility of
marriage to the treatment of marriage, as a civil institution, is a modern
idea. It is a logical development of Anglo Muslim law. Marriage is
nothing more or less than the voluntary union of one man and one woman.
The definitions that profound the idea of marriage as a contract only
represents one aspect of Muslim marriage. They ignore its ethical
importance and its religious value. They fail to realise the close and
intimate relation between religion and law in Muslim faith.
In my opinion although the essentials of a contract is fulfilled yet marriage
can never be said to be a contract because marriage can never be bondage
between the emotions and thinking of two persons.

Nikah legal requirements including all forms of Marriage

Legal impediments thereon,
Nikah is based on few conditions. When these conditions are fulfilled,
then a man and a woman are proclaimed as husband and wife and can live
together and carry on their marital duties. These are:
Essentials and Formal Requirements of Marriages
Even while some social obligations and ceremonial procedures are
fulfilled at marriage in Muslim communities, these obligations or norms
are not required by law. Adherence to specific paperwork and procedures
is necessary for the solemnization of marriage. They are known as the
requirements for a legal marriage. Any of these conditions must be met for
the marriage to be valid or irregular, as the case may be.
These requirements include a proposal from one of the parties to the
marriage or on their behalf, and an acceptance of the proposal from the
other party or on their behalf, both in the presence and in the hearing of
two males or one male and two female witnesses, all of whom must be
adult Muslims.
At the same meeting, the proposal and acceptance must be made. Marriage
is not legally recognized if a proposal is made at one meeting and accepted
at another. Both writing and religious rituals are not necessary. A Muslim
couple can get married without a priest if they so want.
ESSENTIAL OF A VALID MARRIAGE
A marriage is a valid marriage or Sahih only if it is recognised by the
courts to be lawful.
I) COMPETENCE OF THE PARTIES
a) Age of Puberty
For marriage, dower and divorce, the age of majority under the Muslim
law is the age of puberty and not 18 years of age. Though Hedaya says the
minimum age of puberty for a boy is 12 years and for a girl it is 9 years; it
has been fixed at 15 years of age by the Privy Council in the year 1916.
Thus, a boy or a girl of 15 years of age will be presumed to have attained
the age of puberty unless the contrary is proved.
Minor’s Marriage
Under Muslim law, a person under 15 years of age is presumed to be a
minor and has no capacity to give consent for marriage. Unless and until
the guardian’s consent is not obtained the marriage will be void.
Guardians for marriage are different from guardians appointed by the
court. The order of the priority is as follows:
i) Father;
ii) Paternal Grandfather, however high;
iii) Brother or other male members of the father’s family;
iv) Mother; and
v) Maternal uncle, aunt or other maternal relatives.
A remoter guardian for marriage cannot get the minor married off without
actually following the prescribed order and such a marriage will be void.
Shia Law says that only the father or the paternal grand-father however
high can be the guardians for marriage.
The Child Marriage Restraint Act, 1929 provides that a child marriage
exists and will be valid but the guardians and others who conduct it can be
punished. A child marriage can be prevented by an injunction.
Option of Puberty (Khyar-ul-Bulugh)
Under Muslim marriage, a minor on attaining the age of puberty can
exercise the option of puberty wherein the minor can approve or
disapprove the marriage contracted by the guardian who is not the father
or the grandfather. If he disapproves, the marriage will dissolve with
immediate effect. If the minor says nothing, it will be presumed that he
has approved the marriage. As per the Shia law, a minor has to approve his
marriage upon attaining the age of puberty.
If the father or the grandfather has contracted marriage fraudulently or
negligently, the minor 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. There can be no unreasonable delay in the
exercise of the option of puberty. The husband will lose his right to the
option of puberty if the marriage has been consummated. The wife will
also lose her right unless the consummation has taken place when the wife
was still a minor and against her consent.
b) Soundness of Mind
Lunatics can get married during the lucid intervals for they can understand
the consequences. Idiots on the other hand cannot do so. Idiocy refers to
an abnormal state of the mind wherein the person cannot understand the
consequences of their actions.
Marriage of insane persons
A person can contract a lawful marriage through a guardian. On
recovering reason the said person can repudiate the marriage.
c) Religion of the parties
The parties can marry any Muslim irrespective of sects or sub sects.
Inter-Religion Marriage
Under Sunni law, a male can marry a Muslim girl of any sect/ sub sect or
even a Kitabia girl.
A Kitabia female is one who belongs to a community that originated in a
book revealed by the heavens. Thus, the Jews and the Christians can be
wed to a Sunni male. A marriage with a non-Muslim or non-Kitabia
female, the marriage is merely irregular. Under Shia law, a marriage with
a non-Muslim or a Kitabia woman is not permitted. However, a Muta
marriage may be contracted with a Kitabia or Parsi female.
Marriage of a Muslim Female with a non-Muslim male
A Muslim female has no right to contract a marriage with a non-Muslim
even if he is a Kitabia or Parsi. Such a marriage will be void.
The Special Marriage Act, 1954 allows any man or woman to get married
to each other whether a Muslim or a non-Muslim. The succession will be
governed under the Indian Succession Act, 1925.
II) FREE CONSENT OF THE PARTIES
If the parties are sane and adults, they can give consent on their own and
the marriage will be a valid one. If the parties or one of them is either a
minor or insane, the consent has to be obtained by the guardian. The
consent will be deemed free when it is made at will and given voluntarily
and not under any coercion or fraud.
Coercion is when the party is made to consent under the threat of harm to
self or a loved one. All sects and schools render a marriage under coercion
to be void. The Hanafi School is the only exception. It is believed in the
school that three things cannot be undone ever even if committed as a
joke. The three things are marriage, divorce and taking back.
Fraud refers to a dishonest concealment of facts or presentation of false
facts or statements to obtain consent. The moment the party whose consent
was obtained by fraud comes to know of such fraud, he or she may accept
the marriage as a legal one or altogether reject it.
Mistake of Fact is when the parties agree but not on the same thing.
Consent refers to the meeting of the minds on the same issue. Where the
identity of the bride to be, for example, is mistaken, the marriage will be
void.
III) FORMALITIES IN THE MARRIAGE
Under Muslim law, religious ceremonies are not essential for validating a
marriage. The only essential formalities are that of offer and acceptance.
Offer and Acceptance
Offer or Ijab signifies the willingness of a party to contract marriage with
another. The offer comes in form of a declaration from the boy or his
guardian. This offer has to be accepted by the girl or her guardian. This is
referred to as acceptance or Qubool. Though no specific form exists, the
words must show the unequivocal intention of the parties or the guardians
to marry the parties. It may be oral or written. When written down, it is
referred to as the Kabinnamah.
It is essential that the offer and acceptance occur at the same sitting. Thus,
simultaneous actions must become a joint whole. For example, the groom
to be has to send the offer through another. The bride must accept it in
presence of others and then the marriage will be a valid one.
Reciprocity is another important aspect. The acceptance has to be for the
proposal word to word, as it is and without any variations.
Conditional or Contingent Marriage is void even if the event that they are
made dependent upon does in fact occur.
Presence of Witnesses is not essential under the Shia law. Under the Sunni
law, the offer and acceptance needs to two competent witnesses. A
Muslim male who is of sound mind and has attained the age of puberty is
a competent single witness. Two sane Muslim females who have reached
the age of puberty can also be treated as competent witnesses. Thus, two
Muslim women along with a competent Muslim male witness will be
regarded as competent witnesses for the marriage. Four females will not
be regarded as competent witness. The term ‘witnesses’ does not refer to
any one specifically asked or invited for this purpose only.
Registration under Muslim law is not essential for the validity of the
marriage. But certain enactments provide for registration in the matters of
marriage as well as divorces. The acts do so because then there exists a
proof of the marriage. But even then the registration is optional only and
not mandatory. It has also been held in a few cases that if the community
custom requires registration, even if it is in a different format, the marriage
has to be registered then.
Under the Indian Christian Marriages Act, 1872, the registration of
marriage will be essential if the marriage is between a Muslim and a
Christian.
IV) ABSENCE OF PROHIBITION
Prohibition refers to the impediments or restrictions placed on a person
with respect to another person or an action. The Muslim law provides that
the marriage should not be a marriage against Islam or have any other
impediments to it. Absence of prohibition refers to the freedom to marry a
person for they do not stand in a particular relationship to each other.
For example, a father cannot marry his own daughter
Absolute Prohibitions
They are mandatory and have to be followed or else the marriage will be
void. If a person is within the prohibited relationship of the other party, the
marriage cannot take place.
Whether a person is within the prohibited relationship or not can be
decided on the following basis:
a) Consanguinity is relationship by Blood. A Muslim cannot marry
one’s own descendant, however high or descendents of one’ father or
mother no matter how low. Similarly brothers and sisters of one’s
ascendants howsoever high cannot be married to. However, there is no
prohibition in the marriage of cousin brothers or sisters.
b) Affinity refers to relation by marriage. A Muslim cannot marry the
ascendant or descendant of one’s spouse or the spouse of one’s ascendant
or descendant.
c) Fosterage refers to the relationship of nurture and feeding. A child
is breast fed during its infancy. If the person providing the feeds is
someone other than the biological mother, the infant or child will still
stand in a prohibited relationship with her.
Relative Prohibitions
Where the compliance is not mandatory but non-compliance will be
frowned upon. Any marriage in violation will be only irregular and not
void. As per Shia law, the marriage will be either perfectly valid or void
and not irregular.
a) Unlawful Conjunctions
A Muslim cannot have two wives at the same time if the wives are related
to each other in a way that would have made their marriage void if they
had been of opposite sex. As per the Sunni law, a marriage against this
condition is irregular. The Shia law will treat violation as a void marriage.
The only exception will be if the marriage is with the wife’s consent.
b) Marriage with the fifth wife
If a Muslim man has more than five wives, it is merely irregular with
respect to the fifth wife. If he divorces a wife or a wife dies, the
irregularity will be removed with respect to the fifth wife.
c) Marriage with a non-Muslim has been discussed early on in the chapter.
d) Marriage without witnesses is irregular as per Sunni law.
e) Marriage during Iddat is irregular as per the Sunni law and void as per
the Shia law.
Iddat refers to the period that a woman undergoes after divorce or the
death of her husband. It literally means counting. This period is essential
to ascertain whether the wife/widow is pregnant or not. During this time,
the woman leads a simple and chaste life. The circumstances where she
has to observe Iddat and how are as follows.
1) Dissolution of Marriage by divorce
Shia Law says that only the father or the paternal grand-father however
high can be the guardians for marriage.
These restrictions have been divided into the following four
categories:
a. Complete inability c. Obstructive inability
b. Comparative inability d. Directory inability
Nikah by phone video conference and internet. Since the nikah
incorporates a component of ibadat and calls for two witnesses, it is more
complicated than a simple deed. As a result, a direct proposal of marriage
and proclamation of consent via the phone, internet, or video conferencing
is unreliable. However, the nikah will be legitimate if a lawyer is assigned
for a nikah procedure conducted via these electronic media, and the two
parties present their offers and give their witness their assent while acting
on the lawyer's behalf.
When the proposal and consent were made, the witness should have been
aware of the person named as an attorney or that his name was mentioned
together with the names of his father and residence address.
To make things more convenient, the rights and obligations of a husband
and wife under a legitimate marriage may be divided into the following
three categories:
a. reciprocal rights and obligations;
b. the rights and responsibilities of the wife and the husband;
c. the responsibilities of the husband and the duties of the woman.
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. A Muslim marriage requires proposal 'Ijab' from one party and
acceptance 'Qubul' from the other side. This must be done in one sitting.
(ii) The proposal and acceptance must both be expressed at once meeting.
The acceptance must be corresponding to what is being offered. The
marriage must be effectively immediate. If the Wali says I will marry her
to you after two months, there is no marriage.
(iii) The parties must be competent. The two parties must be legally
competent; i.e. they must be sane and adult.
(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.
Capacity to Marry: The following are the general requirements for
marriage in Islam:-
(i) Every Mahomedan of sound mind who has reached puberty is eligible
to marry. The age of puberty is fifteen years where there is no proof or
signs of puberty.
(ii) By their parents, a minor and insane (lunatic) who have not reached
puberty may be validly married.
(iii) The consent of the parties is required. If there is no consent, a
Mahomedan marriage that is of sound mind and has reached puberty is
void. Registration of Marriage Marriage registration is required in
Muslims since a Muslim marriage is considered a civil contract. “Every
marriage contracted between Muslims after the commencement of this Act
shall be registered as hereinafter given, within thirty days from the end of
the Nikah Ceremony,” according to Section 3 of the Muslim Marriages
Registration Act 1981. Nikahnama is a form of legal document used in
Muslim marriages that contains the marriage's basic conditions and
information.
Kinds of Marriage According To Validity-On The Basis Of The
Validity A Marriage May Be Of Four Kinds, Namely
1. Valid marriage (sahib or true)
2. Irregular marriage (fasid)
3. Void marriage (batil)
4. Muta marriage
Registration of Marriage Marriage registration is required in Muslims
since a Muslim marriage is considered a civil contract. “Every marriage
contracted between Muslims after the commencement of this Act shall be
registered as hereinafter given, within thirty days from the end of the
Nikah Ceremony,” according to Section 3 of the Muslim Marriages
Registration Act 1981. Nikahnama is a form of legal document used in
Muslim marriages that contains the marriage's basic conditions and
information.
Nikahnama is a type of legal document in Muslim marriages which
contains the essential conditions/details of the marriage.
According to this act, a Nikahnama contains:
1. Place of marriage (with sufficient particulars to locate the Place.)
a. Full name of the bridegroom
b. Age
c. Address
d. Full name of bridegroom’s father
e. Whether father is alive or dead
f. Civil condition of the bridegroom at the time of marriage whether –
Unmarried Widower Divorced Married, and if so, how many wives
are alive
g. Signature or thumb impression of the bridegroom/Vakil/ Guardian
according as the Nikah was performed in person by the bridegroom
or through his Vakil or Guardian
h. Full name of Nikah-Khan (that is the person conducting the Nikah
Ceremony.)
i. Signature of the Nikah-Khan (i.e person conducting the Nikah
Ceremony with date.)
j. Amount of dower fixed
k. Manner of payment of dower
l. Name of witnesses with parentage, residence and address

All forms of marriage/Classification of Marriage

Classification of Marriage
 Muslims are divided into two sects all over the world based on their
belief and tradition, viz Sunni Muslims and Shia Muslims.
 Muslim marriages are a social contract and legally binding upon parties
hence it is classified accordingly. The classification of marriages under
 Muslim laws is:
1. Sahih Nikah (Valid Marriage)
2. Batil Nikah (Void Marriage)
3. Fasid Nikah (Irregular Marriage)
4. Muta Marriage (Temporary Marriage)
1. Sahih Nikah (Valid Marriage)
a) A marriage that is neither void nor invalid is valid. In other words, a
marriage that conforms in all respects to the legal requirements is a
valid marriage.
b) A marriage to be valid must satisfy the following requirements:
1. There must have been a proposal by one party and its acceptance by the
other.
2. The consent of parties should be free consent.
3. Proposal and acceptance must have taken place at one meeting and
before two male witnesses, one male and two female witnesses under
Sunni Sect. They must be major and of sound mind. Under Shia Sect
witnesses are not necessary.
4. The parties must have the capacity to contract marriage i.e., they
should be:
 Of sound mind,

 Major,

 Capable of giving free consent, if they are minor or lunatic, it should

be done through their guardians.

There should be no impediment to marriage whether absolute or relative
on the ground of consanguinity, affinity, fosterage and polyandry or
temporary, viz relative, prohibitive or directory.
Effect of a Valid Marriage
 A valid marriage has social and legal implications some of which are
as follows:
1. Marriage provides husband and wife with rights of inheritance.
2. The wife gets the right of maintenance and alimony for her and the
children under Section 125 of Criminal Procedure Code, 1973 after
the decision of the Supreme Court in Mohd. Ahmad Khan v. Shah
Bano Begum (1985).
 3. The ritual of Iddat has to be performed by the divorced wife after
the dissolution of marriage or when she becomes a widow. During this
period, she cannot remarry.
2. Batil Nikah (Void Marriage)
 A void marriage is a marriage that does not fulfil the necessary
conditions of a valid marriage. In batil marriage no legal rights and
obligations are followed. Following kinds of marriages are considered
void:
o A marriage falling under prohibited degrees of relationship, i.e.,

marriage between the parties having blood relations.

o Marriage prohibited by the reason of affinity (E.g., Sister, aunt,

niece etc.).
o Marriage with foster mother or foster sister. The exception in

case of fosterage is observed by Sunnis, where marriage is valid

with sister’s foster mother, or foster sister’s mother, foster son’s
sister, or foster-brother’s sister.
o Marrying a woman who is undergoing Iddat is also void under Shia

law.
o Marriage with someone else’s wife provided her marriage is still

subsisting.
 The above-mentioned list is not exhaustive hence some other kinds of
marriages might be void as considered by rules of a certain school of
Muslim law.
 In Munshi v. Mst. Alam Bibii (1912), the court observed that
permanent or perpetual prohibition from marriage due to non-adherence
of a condition makes such marriage void.
Effect of a Void Marriage
1. A void marriage is of no legal effect either before or after
consummation.
2. It does not create any rights or obligations between the parties.
3. The wife is not entitled to maintenance.
4. One cannot inherit from the other, but the woman is entitled to dower
if the void marriage has been consummated.
5. The offspring of a void marriage is illegitimate.
 6. The parties can separate from each other at any time without
divorce and may contract another marriage lawfully.
3. Fasid Nikah (Irregular Marriage)
a) A marriage contracted by parties suffering from relative prohibition or
directory incapacity is irregular.
b) Some grounds which make the marriage irregular (fasid) are:
1. Marriages contracted without witnesses (Sunni Muslims),
2. Marriage with a fifth wife (Sunni Muslims),
3. Marriage with a woman undergoing Iddat,
4. Marriage with non-scriptural woman (i.e., idolatress or fire
worshipper),
5. Marriage contrary to the rules of unlawful conjunction.
Effect of an Irregular Marriage
a) Before consummation in a marriage, the wife is not entitled to
obtain a dower from her husband if he divorces her.
b) There is no legal obligation on the wife, she is not bound to follow the
rules of Iddat.
c) The wife has no right to claim maintenance from the husband during
the Iddat period.
d) After consummation of marriage a child born out of irregular marriage
is considered legitimate and has all right of inheritance of property.
 According to Shia Law marriage may only be either:
o Valid (Sahih) or

o Void (Batil)

e) There is nothing like invalid or irregular marriage under Shia Law

and hence marriages that are not valid are void. Those marriages
which are irregular under Sunni law are void under Shia Law.
o However, under Shia Law, marriage contracted without witnesses

is valid, it is not void.

 In Ata Muhammad Chaudhry v. Musammat Saiqul Bibi and Anr
(1910), the Court observed that when a marriage is temporarily
impedimental and not completely restricted it is considered as merely
irregular of fasid and not void marriage.
 f) As this marriage has several aspects involved and various points of
view. The social and legal implication of irregular marriage
depends upon the fact whether the marriage is consummated or
not.
4. Muta Marriage (Temporary Marriage)
 The word “muta” literally means “enjoyment or use”. It is a
marriage for pleasure for a fixed period of time, also known as
temporary marriage. The institution of muta marriage is not
recognized by Ithna Ashari or Shia School of Muslim Law.
Legal Requirement/Essentials of Muta Marriage
 There are four essentials of muta marriage:
1. Form – It must be in the form of a proper contract which means offer
and acceptance.
2. Consent: Like all other forms of marriage under Muslim law, the
parties to a Muta marriage must have the capacity to consent to the
marriage. This means that they must be of sound mind, free from
coercion and must have reached the age of puberty.
3. Subject – A man may contract a muta marriage with a woman
professing the Mohammedan, Christian or Jewish religion or even
with a fire- worshipper.
4. Mahr: The man must pay a fixed amount of money or property to the
woman as a gift or dowry. This is known as the Mahr and it is a
mandatory requirement for all types of Muslim marriages.
5. Witnesses: Like in all other types of Muslim marriages, the Muta
marriage must be witnessed by two male witnesses or one male and
two female witnesses who are of sound mind and of Muslim faith.
 A Shia woman, however, cannot contract a muta with a non-Muslim.
 Relations prohibited by affinity are also unlawful in such marriage.
The Term – It means that the period of cohabitation should be fixed,
which may be a day, a month, a year or a term of years; and
Dower – Dower must be fixed.
Characteristics
There are some specific characteristics of Muta marriage that distinguish it
from other forms of marriage under Muslim law. These include:
1. Fixed-term contract: The marriage is for a specified period, which is
agreed upon by the parties involved.
2. No automatic right to inheritance: Unlike permanent marriages, the
parties to a Muta marriage do not have an automatic right to inherit
from each other.
3. No automatic custody of children: The mother does not have an
automatic right to the custody of any children born out of the Muta
marriage.
Criticisms and Controversies Surrounding Muta Marriage
Muta marriage is a controversial practice that has been criticised by some
Muslim scholars and human rights groups. Some of the criticisms and
controversies surrounding Muta marriage are:
1. Morality: Critics argue that temporary marriages violate the Islamic
concept of morality and decency.
2. Exploitation: Some critics argue that Muta marriage can be a form of
exploitation of vulnerable women, especially those in need of financial
support.
3. Legal status: Muta marriage is not recognised by the Indian legal
system, which means that women in Muta marriages may not have legal
protection if they face abuse or violence.
Conclusion: Marriage under Muslim Law is considered a civil contract.
The main purpose of marriage is to create a family which is considered a
fundamental unit of society.

Legal impediments thereon on Nikah

Overall, it is pretty understandable that for a marriage to be considered
valid, it must not have impediments of any kind. An absolute impediment
renders the marriage void under all circumstances. Other prohibitions,
being temporary, only invalidate the marriage under Sunni law. There is a
scope of removal of any such irregularity. However, the Shia law
recognizes only two types of marriages: Valid (Sahih) and Void (Batil).
Almost all irregular marriages (Fasid) fall under the ambit of void or Batil
marriage. However, it must be noted that the requirement of two witnesses
to solemnize marriage does not exist under the Shia Law. Ergo, marriages
that are contracted in absence of any proper witness, are still valid under
the latter; and that particular relative incapacity does not apply in that
case.
Unlike the rather ceremonious Hindu Marriages, their counterparts in
Islam only require observance of certain rules and norms—also, known as
the ‘essentials of a valid marriage’. One such requirement is the absence
of any legal disability which might render the marriage void or irregular.
Broadly classified under four heads, legal impediments refers to the events
and conditions under which a valid Muslim marriage is not permitted.
Interpretation of Impediment to marriage
Under Islamic law, to stop someone to marry a woman or a man on the
grounds of fosterage, or sympathy is called impediment to a valid
marriage.
Kinds of impediment
Following are the kinds of impediments to a valid marriage.
1. Permanent impediment
Permanent impediment is such impediment which creates a permanent
restriction on a valid marriage due to some very valid reasons, in case of
blood relations, fosterage or affinity or polyandry (a women marrying
more than one person at a same time). It is permanently Haram in Islam.
2. Temporary impediment
Temporary impediment is such impediment which creates temporary
restriction on a valid reason but such kind of restriction can be removed by
eliminating the reason of restriction.
Grounds of impediments
1. Impediment due to consanguinity (Blood relation)
Following are the restrictions of a valid marriage with the following
person due to blood relations.
1. The father’s wife, whether divorced or widowed
2. The mother, including the grandmothers
3. The sister, including step-sisters.
4. The daughter, including the granddaughters
5. The paternal aunt
6. The maternal aunt
7. The brother’s daughter e.g. his niece
8. The sister’s daughter, i.e., his niece.
2. Impediment due to affinity (In Law Relation)
Following are the restrictions of a valid marriage with the following
persons due to relation in law.
1. With his mother in law or grandmother in law
2. With his daughter in law or granddaughter in law
3. His wife, s daughter by a previous marriage
3. Impediment due to fosterage
Following are the restrictions to a valid marriage with the following
persons due to fosterage. A man cannot marry to:
1. His foster mother 3. His foster mother’s sister
2. His foster sister
Exceptions: Following are the exceptions where a man can marry to
the following person.
1. Sisters foster-mother. 3. Foster son & sister.
2. Foster sister’s mother. 4. Foster brother’s sisters
4. Impediment due to polyandry
Under the Islamic law, it is an unlawful for a woman to have more than
one husband at a same time. Because a married woman cannot contract a
second marriage during the life of her first husband.
5. Impediment due to polygamy
Under the Islamic law, it is an unlawful for a man to have more than four
wives at a same time. If he marries a fifth wife where he has already four
wives, in this case the marriage is not void but irregular, in this situation
he can remove impediment by divorcing one of four wives. If she marries
with second person in this case she would be punished as per rules of
criminal law.
6. Impediment due to difference of religion
Under the Islamic law, it is an unlawful (Haram) for a woman to marry a
non-Muslim man whether he is people of the book or not.
Quran says
“It is not permissible for Muslim women to marry non-Muslim men.”
7. Impediment due to unlawful conjunction
Furthermore, a Muslim cannot marry at the same time with two sisters
who are so related to each other by consanguinity, affinity or fosterage,
8. Impediment due to iddat
Under the Islamic law, it is unlawful for a man to a woman who is
spending the period of iddat after the death of his husband.
9. Impediment due to difference of religion
Under the Islamic law, according to the Sunni school of thought if a
person who is in Pilgrimage cannot marry a woman and it is an absolute
impediment. If he does in this situation his marriage will be considered as
in valid.
Effects of impediments
Effect of the permanent impediment cannot be avoided in any case. But
the effect of the temporary impediment can be addressed or removed.
1. Legal effect on children
 IN PERMANENT IMPEDIMENT, the children are considered as
illegitimate
 IN TEMPORARY IMPEDIMENT, the children are not considered as
illegitimate.
2. Legal effect on marriage
 IN PERMANENT IMPEDIMENT, the marriage is not legal in the
eye of law
 IN TEMPORARY IMPEDIMENT, the marriage is legal but irregular.
Preclude Remarks
To preclude that we can say the marriage among Muslim is not ceremony
but it purely is a civil contract. In order to constitute a marriage as valid
there should be no impediments to the marriage. Because Islamic law
enforces some restrictions on the right of a person to enter into martial
relation with a person of opposite sex.

Effects of marriage
Effect of Marriage (Sahih): The lawful obligations which arise after
marriage are as follows-
The obligations and rights set between the two parties during and after the
marriage are to be enforced till legality. On the basis of a marriage
husband and wife do not get the right on one another’s property.

The following are the legal consequences of a legitimate (Sahih) marriage:

(1) The husband and wife's cohabitation is recognized as legal.
(2) Mutual intercourse legalized and the children so born are legitimate.
(3) The wife gets power to get ‘Mahr’
(4) The wife entitles to get maintenance.
(5) The husband gets right to guide and prohibit the wife’s movement (for
valid reasons only)
(6) Right of succession develops.
(7) Prohibition of marriage due to affinity.
(8) Women bound to complete Iddat period & not to marry during Iddat
period; after divorce or death of husband.
(9) Children born from a legal marriage are legitimate and have the right
to inherit their parents' assets.
(10) Inheritance rights are created for both the husband and the wife. That
is, after the husband's death, the wife is entitled to inherit the husband's
property, and after the wife's death, the husband is also entitled to inherit
her property.
(11) A prohibited marriage relationship is established between the
husband and wife, and each of them is prohibited from marrying the
other's relations under prohibited degrees.
(12) The wife's right to dower is completely established only after the
marriage is completed.
(13) With immediate effect, the marriage grants the wife the right to
maintenance from her husband.
(14) After the dissolution of the marriage, the widow or divorced wife is
required to observe the Iddat, during which time she is not permitted to
remarry.
(15) Under Muslim law, a woman's legal status is unaffected by marriage.
Her personality is distinct from her husband's. Even after marriage, a wife
remains a member of the same school of law of which she was a member
before the marriage. That is, if a Shia woman marries a Sunni, she retains
her Shia status and is subject to Shia law after the marriage. Both the
husband and wife have the right to buy and sell their property on their
own.

UNIT-II
Marital Rights, including dower and its Characteristics and
Enforcement;
Marital Rights
 Rights of wife in Islam
The wife has financial rights over her husband which are the mahr
(dowry), spending and accommodation.
And she has non-financial rights such as fair division between co-wives,
being treated in a decent and reasonable manner, and not being treated in a
harmful way by her husband.
Women’s Rights in Muslim Marriage Laws
Legal Protections
Islamic law provides various legal protections for women, particularly in
the context of marriage and family life. These include:
 Right to Consent: Women have the right to consent to marriage and

set conditions in the marriage contract.

 Right to Maintenance: Husbands are obligated to provide financial

support to their wives.

 Right to Divorce: Women can seek divorce under specific grounds,

as outlined in the Dissolution of Muslim Marriages Act 1939.

 Right to Inheritance: Islamic law ensures women’s rights to inherit

property.
Challenges in Practice
Despite these legal protections, women may face challenges in practice,
such as:
 Cultural Barriers: Social norms and cultural practices may limit

women’s ability to exercise their legal rights.

 Legal Complexity: Navigating the legal system can be complex,

requiring expert guidance.

  Economic Dependence: Economic factors may influence women’s
choices and ability to assert their rights.
 Gender Bias: Perceived biases in the legal system may deter women

from seeking legal remedies.

1- Financial rights of the wife
(a) The mahr (dowry): This is the money to which the wife is entitled
from her husband when the marriage contract is completed or when the
marriage is consummated. It is a right which the man is obliged to pay
to the woman . Allah says (interpretation of the meaning):
“And give to the women (whom you marry) their Mahr (obligatory bridal-
money given by the husband to his wife at the time of marriage) with a
good heart.”
(b) Spending: The scholars of Islam are agreed that it is obligatory for
husbands to spend on their wives, on the condition that the wife makes
herself available to her husband. If she refuses him or rebels, then she is
not entitled to that spending.
(c) Accommodation
This is also one of the wife’s rights, which means that her husband
should prepare for her accommodation according to his means and
ability. Allah says (interpretation of the meaning):
“Lodge them (the divorced women) where you dwell, according to your
means.”
2- Non-financial rights
(i) Fair treatment of co-wives
One of the rights that a wife has over her husband is that she and her co-
wives should be treated equally , if the husband has other wives, with
regard to nights spent with them, spending and clothing.
(ii) Kind treatment
The husband must have a good attitude towards his wife and be kind to
her, and offer her everything that may soften her heart towards him,
because Allah says (interpretation of the meaning):
“…and live with them honourably.”
(c) Not harming one’s wife
This is one of the basic principles of Islam. Because harming others is
haram in the case of strangers, it is even more so in the case of harming
one’s wife.
 Rights of husband in Islam
The rights of the husband over his wife are among the greatest rights;
indeed his rights over her are greater than her rights over him, because
Allah says (interpretation of the meaning):
“And they (women) have rights (over their husbands as regards living
expenses) similar (to those of their husbands) over them (as regards
obedience and respect) to what is reasonable, but men have a degree (of
responsibility) over them.”
These rights include:
(a) The obligation of obedience
“Men are the protectors and maintainers of women, because Allah has
made one of them to excel the other, and because they spend (to support
them) from their means.”
(b) Making herself available to her husband
One of the rights that the husband has over his wife is that he should be
able to enjoy her (physically). If he marries a woman and she is able to
have intercourse, she is obliged to submit herself to him according to the
contract, if he asks her. That is after he gives her the immediate mahr, and
gives her some time – two or three days, if she asks for that – to sort
herself out, because that is something that she needs, and because that is
not too long and is customary.
(c) Not admitting anyone whom the husband dislikes
One of the rights that the husband has over his wife is that she should not
permit anyone whom he dislikes to enter his house.
(d) Not going out of the house except with the husband’s permission
One of the rights of the husband over his wife is that she should not go out
of the house except with his permission.
(e) Discipline
The husband has the right to discipline his wife if she disobeys him in
something good, not if she disobeys him in something sinful, because
Allah has enjoined disciplining women by forsaking them in bed and by
hitting them (lightly and if there is any benefit in that), when they do not
obey.
(f) The wife serving her husband
There is a great deal of evidence (dalil) for this, some of which has been
mentioned above.
(g) Submitting herself to him
Once the conditions of the marriage contract have been fulfilled and it is
valid, then the woman is obliged to submit herself to her husband and
allow him to enjoy her (physically). This is because once the contract is
completed, he is allowed in return to enjoy her, and the wife is entitled to
the compensation which is the mahr.
(h)The wife should treat her husband in a good manner
Allah says (interpretation of the meaning): “And they (women) have rights
(over their husbands as regards living expenses) similar (to those of their
husbands) over them (as regards obedience and respect) to what is
reasonable.”
Dower and its Characteristics and Enforcement
Dower under Muslim Law
In Muslim Law, Dower means sum of money paid by husband to his wife
at the time of marriage. It is different from Dowry as dowry is social evil.
Dowry is given from wife's side to her husband or given when demanded
by husband or husband family. Dower is security given by husband to his
wife so that she can maintain herself after divorce.
Dower is followed among Muslim whereas dowry is followed among
Hindu. In both cases Dower and dowry as well could also be given before
or after the marriage .In case husband is minor at the time of marriage in
Muslim, his parents or guardian would be liable to pay it. In this article we
will discuss about Dower under Muslim Law.
Meaning and Definition
Dower is derived from the word Mahr means sum of money or property
paid by husband to his wife at the time of marriage or before the marriage
or after the marriage. It is considered as remark of respect of husband
towards her wife or as a token of love. In case of minor, his parents or
guardian would be liable to pay it. Dower money could not be reduced but
it could be increased.
Definitions
There are some definitions related to Dower: According to Justice
Mahmood, Dower under Muslim law is a sum of money or other property
promised by the husband to be paid of.
According to Wilson, "Dower is a consideration for the surrender of
person by the wife."
According to Ameer Ali, "Dower is kind of consideration belongs to
wife."
According K.P. Saxena, "Dower is a sum of money or any property
promised by the husband to be paid or 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."
According to Mulla, "Dower is a sum of money or a property which wife
is entitled to receive from her husband in consideration of marriage."
Thus from the above definitions we can understand that Dower is sum of
money paid by husband to his wife in consideration of marriage at the
time of marriage, before or after the marriage.
Origin of this concept
Before Islamic law the condition of wife was very miserable. There were
some forms of marriage existed which indicates condition of women.
These marriages were Shighar, Beena, Bala. In form of Shighar, father of
the bride gave his daughter to other in marriage in consideration of the
latter giving his daughter in marriage to the former. In form of Beena,
husband could contract his marriage to which he wants but could not allow
bringing his wife with him.
Wife was knoun as Sadiqa and gift which was given to her considered as
Sadaq. In Bala marriage, husband had to pay Dower to bride's parents in
consideration of marriage. After time evolved, era of Prophet Mohammad
began these forms of marriages was abolished and new form of marriage
introduced by Prophet i.e. Nikah. In this marriage, husband has to pay
Dower to his wife in consideration of marriage. It was followed by
Prophet, his daughter Fatima married Ali and in consideration of marriage
he paid her 500 drihams .
Object of Dower
Its primary objective is to secure the wife’s well-being and provide for her
after the termination of the marriage, whether through divorce or the
husband’s death. The object of Dower is to preserve the rights of women
and to protect her from the husband's abuse. The purpose of Dower is that
when husband gives divorce to his wife, she will be able to maintain
herself after divorce. Even husband will think twice before giving divorce
to her. Dower is a security against husband for his wife so that she will
never face any problem in future.
Legal Perspectives on Dower
In India, where Muslim Personal Laws are recognised, there is no specific
definition of the dower amount. Different High Courts and the Supreme
Court have offered varying interpretations and concepts relating to dower.
However, it is universally acknowledged that dower holds great
importance in Muslim law, ensuring the wife’s well-being and preventing
her from falling into helplessness.
Concept of Dower in Muslim Law
Muslim law recognises dower as an essential component of a marriage
contract. Unlike a civil contract, the consideration in a Muslim marriage is
the dower itself. The husband is obligated to pay the dower to the wife as a
sign of respect and acknowledgement of her rights. It signifies the
husband’s commitment to support and provide for his wife throughout the
marriage and in the event of its dissolution.
Legal 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.
Kinds of Dower
There are 4 types of Dower in Muslim law. Muta dower, a temporary
marriage arrangement, outlines specific conditions for the payment of
dower based on consummation and duration. Specified dower establishes a
fixed amount or property agreed upon by the parties involved, with
variations between Sunni and Shia law. Prompt dower necessitates
immediate payment, ensuring that the husband fulfils his financial
obligations before the marriage is consummated. Deferred dower, on the
other hand, becomes payable upon certain events or the dissolution of the
marriage.
Lastly, proper dower offers flexibility for a wife to determine a suitable
dower amount when no pre-decision has been made, irrespective of the
husband’s financial status. Each type of dower serves a distinct purpose
and is subject to specific conditions as per legal traditions and agreements
between the parties. There are two kinds of Dower specified Dower and
unspecified Dower:
1. Specified Dower:
Specified Dower is a fixed Dower. It is paid by the husband to his wife at
the tiome of marriage, before or after the marriage. In Hanifi school of
Muslim law, 10 drihams is fixed for Dower whereas in Maliki school of
Muslim law, 3 drihams is fixed for Dower. Specified Dower is also known
as Mahr- i- mussama.
It is of two types prompt Dower and deferred Dower.
a) Prompt Dower:
Prompt Dower is paid immediately after the marriage. The dower payment
is further categorised into prompt payment and deferred payment. A
prompt dower, as the name suggests, must be paid promptly upon demand.
The husband is obligated to pay the dower as soon as the demand is made,
usually before or immediately after the marriage ceremony and before
consummation.
Consequently, the husband’s right to restitution of conjugal rights arises
only after the dower payment has been fulfilled. Therefore, it can be
inferred that the dower should be paid before the marital relationship is
consummated.
In the case of Rabia Khatoon vs Mukhtar Ahmed, AIR 1966 All 548,
the Allahabad High Court ruled that a wife may refuse to live with her
husband or engage in sexual intercourse until the prompt dower has been
paid. It was further stated that the prompt dower is payable upon demand
and proof of sexual intercourse is not necessary to claim payment.
b) Deferred Dower
Deferred dower, also known as Mahr-i-Muwajjal, refers to a dower that is
not immediately payable after the consummation of the marriage. It
becomes due only upon the occurrence of a specific event, the expiration
of a particular period or the dissolution of the marriage through death or
divorce. The wife is not entitled to demand the payment of deferred dower
unless it has been mutually agreed upon by the parties.
2. Unspecified Dower:
Deferred Dower is paid after happening of a particular event like after
divorce, death of husband, adultery, cruelty, matrimonial offences etc.
Unspecified Dower is not a fixed Dower. It is not specified in kabinama a
deed at the time of marriage, before or after the marriage but it could be
demanded by the wife anytime. When she refused to take Dower she will
still entitle to get it. It is fixed by the court after observations like:
a. Social status of women's father
b. Economic status of husband
c. Dower which was given to her female ancestors
d. Women qualification like her beauty, fortune, age etc.
In the case of Abdul Kadir vs. Salima Justice Mahmood said that
husband has to pay Dower to his wife in consideration of marriage and if
she has not mentioned Dower in deed she is still entitled to get it.
3. Muta Dower
Muta marriage is one of the kinds of dower in Muslim Law. It refers to a
marriage that is contracted for a specific period of time. In the case where
the marriage is not consummated, the woman is entitled to receive only
half of the agreed dower. However, if the marriage is consummated, the
wife is entitled to the full dower amount. However, if the wife decides to
leave the marriage before the specified duration, she will not be entitled to
the dower or “Mehr”.
4. Proper Dower
Proper dower is one of the types of dower in Muslim Law. It is determined
when the husband and wife have not predetermined the amount of dower
to be paid. In such cases, the wife has the right to determine a reasonable
and appropriate dower amount based on her own judgment. It is important
to note that the proper dower is not dependent on the husband’s earnings
or financial ability.
Remedies of unpaid Dower
Rights of women when her Dower is not paid to her:
1. Refusal to cohabit:
When Dower is not paid to her after marriage she can refuse to cohabit
with her husband if no consummation takes place. She can live her parents
or guardian until her Dower s not paid. If consummation takes place
between them she cannot refuse to cohabit with her husband. But if she is
still refusing to live with him then she is not entitled to proper Dower, but
a conditional Dower.
In the case of Wilayat Hussain v. Allah Rakhi, The court held in this
case that even after consummation of marriage the husband failed to pay
mahr to his wife and on this ground, she can refuse to fulfil her marital
obligation.
In the case of Rabia Khatoon vs. Muktat Ahmad, sexual intercourse
takes place with wife's consent, so it was held that proper Dower is of
dismissal and she is entitled for conditional Dower.
2. Debt against husband:
Dower is an unsecured debt against husband. Husband is liable to pay
Dower to his wife if she has not mentioned about Dower in kabinama. If
husband is died, she is still entitled to claim it from his deceased husband's
legal heirs.
In the case Syeed David Hussain vs. Farzand Hussain it was held that a
Shia Muslim stood surety for the payment of the Dower by his minor son.
After his death, his estate was held liable for the payment of his son's mahr
and each heir was made responsible for a portion of the wife's claim in
proportion to his share in the estate of the deceased.
Bano Begum v. Mir Aun Ali In this case, the Bombay High Court held
that as per Muslim law if a widow has never received the amount of Haq
Mahr by her deceased husband when she was divorced, then in such a
situation she can approach the court for the payment of Dower money.
Thus, the court will be under an obligation to pass an order for the
recovery of the entire amount mentioned in the nikahnama.
3. Possession of property:
If no Dower is paid to her she can retain his husband's property in lieu of
Dower. She is entitled to get the possession of property only not the
ownership of that property. She has no title to that property so she cannot
alienate the property of her husband.
In the case Mama Bibi vs. Chaudhary Vakil Ahmed[vi] , a widow after
the death of her husband, retained her husband's property. In 1902, her
husband's legal heirs challenged it in the court. In 1903, the decision came
in favour of legal heirs. In 1907, Mma Bibi gifted the property to one of
her relative. Again legal heirs of husband challenged it before Privy
council and it decided the case in favour of legal heirs of husband.
Remission of Dower:
Wife can remit the Dower in favour of her husband. She can remit it if she
wants to relieve stress of her husband. Remission of Dower is solely on
discretion of wife.
For this purpose some conditions must be fulfilled:
1. If wife attains the age of majority
 2. If she is of sound mind
3. Dower is remitted by free consent, no undue influence.
4. Remission can be done after the marriage whether before or after the
consummation of marriage. No remission can take place before the
marriage.
5. Remission can takes place even without the consideration.
Rights of Dower
These are the following rights of Dower given to wife:
1. Even after Apostasy she can claim her Dower.
2. After matrimonial offences like divorce, cruelty, adultery etc. she can
claim it.
3. Under unspecified Dower, the court can fix her Dower amount.
4. It is an unsecured debt against husband. Even after the death of her
husband she can claim it from his husband's legal heirs.
5. If no Dower paid by her husband she can attach her husband's property
until her Dower paid
Limitation period of Dower
Dower is an unsecured paid against husband. If no Dower is paid to wife ,
she can claim it within 3 months from the date of Dower refusal. If her
husband is died she is still entitled to claim it from her husband's legal
representatives within 3 months from the date of death. If she is divorced
she is entitled to claim it within 3 months from the date of divorce.
Enforcement of Dower
In Islamic law, the dower, also known as mehr, is the right of the wife and
is mandatory for the husband to pay. If the husband fails to pay the dower,
the wife has certain rights to pursue the payment.
Firstly, the wife has the right to demand the payment of the dower from
her husband. Dower is an unsecured debt against husband.
Husband is liable to pay Dower to his wife if she has not mentioned about
Dower in kabinama.
If husband is died, she is still entitled to claim it from his deceased
husband's legal heirs.
The right of dower is an intrinsic right of Muslim marriage and it
cannot be taken away from her by the virtue of any pre-contract or
any terms and conditions. There are several rights that come into play
when the question of dower arises for the woman. The husband has failed
to deliver the sum of money or the property whichever, the woman has
certain other rights to ensure that the right towards the dower is
enforceable.
1. Conjugal rights
The man and wife, if have come upon this agreement that the mode of
payment of the dower shall be immediate. This infers that the husband
shall be liable to pay the dower before the woman leaves her maternal
house and goes to her husband’s house. Moreover, it becomes not only the
responsibility but also lies as a liability of the man to pay the dower
immediately.
2. Debt enforcement
If the husband dies, the widow shall be entitled to recover the sum by
suing the deceased husband’s legal heirs. However, the husband’s legal
heirs cannot pay the Dower personally. The Dower is a debt against the
estate of the dead man that the heirs inherit.
3. The right of restraint of the Widow
The practice of’ right of protection’ after the husband’s death is the most
efficient way of enforcing a dower. A widow whose Dower remains
unpaid is entitled to keep the husband’s property until his Dower debt is
met. That right is known as the protection right rather than the unpaid
Dower and a widow can be given whether the parties agree or not on that
right.
Conclusion
In the end we can conclude that before Islam the condition of women was
miserable. After introduction of Islam, many changes took place. One of
the drastically change was Dower which was introduced in favour of
Muslim wife. The purpose of Dower is to preserve the rights of wife. The
purpose is that when husband divorces his wife, she can maintain herself
after divorce. Even husband could think twice before utterance of these
words.
Special terms and conditions in marriage and their
enforcement;
Introduction
 Marriage is considered a social structure due to its universality

within different societies and cultures.

 Marriage is a socially and legally sanctioned union that is regulated

by laws, rules, customs, and beliefs that prescribe the rights and
obligations of the partners and accords status to their offspring (if
any).
 For a Muslim marriage to be valid it has to comply with the

formalities laid down by Muslim law although it is a contract. On

performance of nikah, a marital status arises between the parties.
The general essentials of a Muslim Niqah are:
 Parties must have capacity to marry.

 Proposal (ijab) and acceptance (qubool).

 Free consent of both the parties.

 A consideration (mehr).

 No legal Impediment.

 Sufficient witnesses (different in shia and sunni).

Essential Conditions of Muslim Marriage

A marriage can be legally performed between the parties possessing full
capacity to marry. The general essentials for marriage under Islam are as
follows:
1. Proposal and Acceptance
a) Marriage, like any other contract, is constituted by Ijab-O-Qabul, that is
by declaration and acceptance. One party to the marriage must make
an offer (Ijab) to the other party.
o Marriage becomes complete only when the other party has accepted

(Qabul) that offer.

b) The words conveying proposal and acceptance must be uttered in each
other’s presence or in the presence of an agent.
o Under Sunni law, the proposal and acceptance must be made in the

presence of two males or one male and two female witnesses who are
sane, adults and muslims.
 Absence of witnesses does not render marriage void but voidable.

o Under Shia Law, witnesses are not necessary at the time of marriage.
2. Free will and consent
 The consent should be without any fear, undue influence or fraud.
 That parties contracting a marriage must be acting under their free
will and consent.
 In the case of a boy and girl who have not attained the age of
puberty, the marriage is not valid unless the legal guardian consents
to it.
 The consent may be express or implied.
Related Cases
 In the case of Sayad Mohiuddin v. Khatijabai (1939), the Bombay
High Court held that where marriage of a Shafei Girl, who had
attained puberty was performed by her father against her consent, the
court held that marriage was void.
 Similarly in the case of Sheikh Abdullah v. Dr Hussaina Praveen
(2012), Nagpur bench of Bombay High Court had reiterated that:
o “Muslims in India are governed by the personal laws under which

Nikah (marriage) is a civil contract and may be permanent or

temporary. Therefore, all the ingredients of a valid contract must be
satisfied. A woman who has attained the age of puberty must be of
sound mind and competent to enter into a contract of marriage. Free
consent should be given by both the contracting parties. A vakil is
required to be voluntarily appointed. A proposal must be made in the
presence and hearing of two male or one male and two female
witnesses, all adult and sane muslims coupled with the payment of
prompt dower. But there appears no such evidence in the present case
to prove the marriage as valid.”
3. Competent Parties
For a marriage to be valid, the parties must be competent to give their
consent without any fear or undue influence. There are many factors
which determine the competency of the parties to the marriage. Some of
them are as follows:
a) Age of Marriage
 The parties to a marriage must have the capacity to enter into a
contract. In other words, they must be competent to marry. A
 Muslim who is of sound mind and who has attained puberty may
enter into a contract of marriage. The parties must be able to
understand the nature of their act.
b) Puberty
 Another important factor to determine whether the parties are
competent is puberty. Puberty means the age when a boy or a girl
becomes capable of begetting or bearing children.
 Puberty is presumed, in the absence of evidence, of the completion
at the age of 15 years. The Indian Majority Act, 1875 does not
apply to the muslims in respect of marriage, dower and divorce.
c) Marriage of minors and guardianship in marriage
 Marriage of a minor without the consent of the guardian is invalid
unless it is ratified after the attainment of majority. A boy or girl who
has attained puberty is at liberty to marry any one he or she likes, and
the guardian has no right to interfere if the match be equal.
Abdul Ahad v. Shah Begum (1996):
 Jammu and Kashmir High Court held that marriage of a minor
girl even contacted by a Wali is invited ab initio.
 A minor girl aged 14 years was married to a man who was a major.
The husband lived in the house of his wife for some time and when
he tried to carry his wife with him, the parents refused to send the
wife. The husband therefore instituted a suit for restitution of
conjugal rights against the defendant.
 The High Court in the case, came to a conclusion that at the time of
marriage the girl was a minor and the marriage was contacted during
her minority by a person who was not competent to give her in
marriage. He was simply a Wali (not a guardian) and had not shown
at any point of time that he had the authority of law to give minor girl
in marriage. The court further observed that in no such circumstances
there was given a reputation needed by the minor girl to enable the
marriage because the marriage in itself had been invalid ab initio.
d) Dower
 It is referred to as ‘Mehr’. Dower means sum of money paid by
husband to his wife at the time of marriage. According to Wilson,
 "Dower is a consideration for the surrender of person by the wife."
e) Free From Legal Disability
Under Muslim law, marriage is not permitted under certain circumstances.
The restrictions/prohibition can be divided into two parts:
f) Absolute Prohibition
 A Muslim marriage cannot take place if the parties are within the
blood relationship or prohibited degree of relationship of each
other in this case the marriage turns to be void.
i. Consanguinity
 It refers to blood relationship in which a man is barred from marrying
the following females:
o His mother or grandmother (how high so ever),

o His daughter or granddaughter (how low so ever),

o His sister (irrespective of full blood/ half-blood/ uterine blood),

o His niece or great-niece (how low so ever) and

o His aunt or great aunt, whether paternal or maternal (how high so ever).

 A marriage with woman prohibited under consanguinity is void.

Also, children born out of that wedlock are considered illegitimate.
ii. Affinity
 A marriage with certain close relatives is also prohibited in Muslims
due to closeness of relationship. The prohibited relationship are as
follows:
o His wife’s mother or grandmother (how high so ever),
o His wife’s daughter or granddaughter (how low so ever),
o His father’s wife or paternal grand-father’s wife (how high so ever) and
o His son’s wife or son’s son’s wife or daughter’s son’s wife (how low so
ever).
 A marriage with woman prohibited under affinity is void.
iii. Fosterage
 It refers to the milk relationship. It is a condition when a lady other
than the mother of the wife, breastfed/ suckled the child under the age
of two years, the lady turns to be foster mother of the child.
o A man is restricted from marrying the persons who comes under foster

relationship.
g) Relative Prohibition
 Under Muslim law, certain prohibitions are relative and not absolute. If
marriage takes place in violation of such prohibition, it is only irregular
and it can’t be declared as void. Following fall in the category of
relative prohibition:
i. Unlawful Conjunction
 It means contemporaneously marrying two women so 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 two sisters, or an aunt and her
niece.
 Under the Shia Law, a Muslim may marry his wife's aunt, but he
cannot marry his wife's niece without her permission. Marriage
prohibited by reason of unlawful conjunction is void under Shia Law.
ii. Polygamy
 In Muslim Marriage law, 4 wives are allowed at a time. But if a man
marries for the fifth time, that marriage becomes irregular. On
termination of earlier marriage or death of one wife, the fifth marriage
becomes valid.
 In Shia law, fifth marriage is void. Also, if a Muslim man is married
under the provisions of Special Marriage Act, then he cannot do bigamy
or polygamy, it means he can’t have 2nd wife while subsistence of the
1st marriage.
iii. Absence of Proper Witness
 The marriage must be performed in the presence of proper and
competent witnesses.
o Under Shia law, presence of witness in not at all important for a valid

marriage.
o Under Sunni law, presence of witness is essential else the marriage

would be irregular.
iv. Difference of Religion
 A Muslim man can marry a woman who is Christian, Parsi & Jews, but
he cannot marry a woman who is a worshipper of fire/idol. If he does
so, it is considered as irregular marriage.
 In the case of Muslim woman, she cannot marry a non-Muslim man, if
she does so, it is also considered as irregular.
v. Marriage During Iddat
 “Iddat” means a particular time after ending of marriage (divorce) or
when the husband dies.
 The period of iddat is 3 lunar months in case of divorce and 4 lunar
months 10 days when the husband dies. If the marriage was not
consummated there is no need to follow iddat period.
 Under Shia law, the marriage during Iddat period is void whereas under
Sunni law, the marriage during Iddat period is irregular.

Post Marriage Conversion to Islam; and

Legal Effects on Marriage
conversion could have the following legal effects on the marriage:
(i) An automatic dissolution of the marriage.
(ii) A ground for divorce at the instance of the non-convert.
(iii) A ground for divorce at the instance of the convert.
As to, (i), though there is no statutory provision to that effect in any of the
personal laws, under the Islamic law, a husband who renounces Islam is an
apostate, and as such,, his marriage with his Muslim wife is dissolved ipso
facto According to Mulla, apostasy of the husband from Islam operates as
a complete and immediate dissolution of the marriage.
As to (ii), conversion is a ground available for divorce and judicial
separation at the instance of the non-convert under all the personal law
statutes.
As to (iii), the converts Marriage Dissolution Act, 1866, which seeks to
legalise, under certain circumstances, the dissolution of marriage of
converts to Christianity, is the only relevant statute.
Statutory Provisions
The position under the various statutes is discussed below.
Muslim Law
Prior to the enactment of the Dissolution of Muslim Marriages Act, 1939
(DMMA), conversion of either spouse had the effect of automatic
dissolution of the marriage under the Muslim personal Law. The present
law however. is different and it makes a difference between a Muslim wife
who was before her marriage a non-Muslim and a wife who was a Muslim
before marriage. In the former case, the conversion of the wife would
result in instant dissolution of the marriage. In other words, if a woman
converts to Islam from some other faith and then re-embraces her former
faith, then it will have the effect of immediate dissolution of her marriage.
To take an example. a Muslim male marries a woman who was a Hindu
prior to marriage but she Converts to Islam and gets married. After
sometime, she renounces Islam and converts to Christianity. This will not
ipso facto dissolve the marriage, because she has not re-embraced her
former faith, viz., Hinduism. Had she re-embraced Hinduism, it would
have had the effect of immediate dissolution of the marriage bond. Thus,
in Munavvar-ul-Islam v. Rishu Arora, a Hindu wife converted to Islam
at the time of marriage. On her re-conversion back to her original faith viz
Hinduism, her marriage stood dissolved. Her case falls under the second
proviso to s. 4 of the Act, and the pre-existing Muslim Personal Law under
which apostasy of either party to a marriage ipso facto dissolves the
marriage, would apply.
In the case of a Muslim married woman, her renunciation of Islam or her
conversion to a faith other than Islam shall not by itself operate to dissolve
her marriage. Thus, if she remarries before the dissolution of her marriage,
she can be prosecuted. bigamy. However, even after such reconciliation or
conversion, the woman is entitled to obtain a decree for the dissolution of
her marriage on any of the grounds mentioned in s. 2 of the Act, viz,
unknown whereabouts of the husband, neglect, imprisonment of husband,
failure to perform marital obligations, impotency, insanity, and cruelty.
She can also exercise her option of puberty by repudiation of the marriage.
The husband's apostasy is not a ground on which she may seek
dissolution.
If a husband renounces Islam, the marriage stands automatically dissolved.
Thus if his wife remarries even before the expiry of iddat, she will not be
guilty of bigamy under s.494 of the Indian Penal Code, 1860. in Abdul
Ghani v/s Azizul Huq. a Muslim man and woman got married. After
sometime, the husband embraced Christianity but reverted to Islam during
the wife's iddat. Before the expiry of the iddat period, however, the wife
got married to another man. The first husband thereupon filed a complaint
against the wife, her father and her second husband under s.494. It was
held that no offence had been made.
The court remarked: Whatever view be taken of the uncertain status of
the parties during the period of iddat and however illegal and void under
Mohammedan law the second marriage of the woman during the period of
iddat may be, there is no foundation for any charge under. s 494 of IPC
against her. Her second marriage is not void by reason of its taking. place
during life of prior husband but by reason of special doctrine of the
Mohammedan law of iddat with which the Indian Penal Code has nothing
to do.
Miscellaneous
In this context, a reference may be made to the Converts Marriage
Dissolution Act. 1866. Under s. 4 and 5 of the Act, if a husband or a wife
changes his/her religion to Christianity, and if in consequence of such
change, the non-convert spouse for a space of six continuous months,
deserts or repudiates him/her. then the deserted spouse may sue the other
for conjugal society and if that is not complied with, may, ultimately seek
a dissolution.
The Special Marriage Act, 1954, being a secular legislation, it has no
reference to conversion. Apostasy or conversion therefore does not
constitute a ground for any matrimonial relief under this Act.
Conversion to Islam and Martial Rights
According to Muslim Law, a distinction, is made between conversion to
Islam of one of the spouses when such conversion takes place-
 In a country subject to Muslim Law, then one of the parties who

embraces Islam, he should offer Islam to the other spouse, if the latter
refuses, the marriage can be dissolved.
 In a country where the Law of Islam is not the law of the lane,

then the marriage is automatically dissolved after the lapse of a

period of three months after the adoption of Islam by one of the
spouses.
However, the courts in India do not administer the laws of any particular
community but they administer such laws as are valid in India. Muslim
Laws is administered only in those cases where it happens to be the law of
India and where the parties are muslims.
In the case of Robaba Khanun vs Bomanji Itani, 1946, it was held that
the spouse who has become a convert to Islam can sue for divorce or a
declaration of dissolution of the marriage on the ground that the other
spouse has refused to adopt the Muslim religion.
In Sarla Mudgal v. Union of India (1955), the Supreme Court has held
that the second marriage of a Hindu husband after conversion to
Islam without having his first marriage dissolved under law would be
invalid. The second marriage would be void in terms of the provision
of Section 494, IPC and the apostate husband would be guilty of the
offense under Section 494 of IPC.
In Lily Thomas v. Union of India, the Supreme Court has observed that
“Change of religion does not dissolve the marriage performed under the
Hindu Marriage Act between two hindus. Apostasy does not bring to an
end the civil obligation or matrimonial bond but it is a ground for divorce
under Section 13 as well as ground for judicial separation under Section
10 of Hindu Marriage Act.”
Similarly, in Govt Of Bombay vs Ganga (1880), the conversion of a
Hindu wife to Islam does not ipso facto dissolve her marriage with her
husband. She cannot enter into a valid contract of marriage with any other
person during the life-time of her husband. And if she goes through a
ceremony of marriage after conversion to Islam she will be guilty of
Bigamy under Section 494, I.P.C.
Ques. 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.

Post Marriage renunciation of

Islam,
Apostasy in Islam
Apostasy is called ridda in Islamic literature. An apostate is called
murtad, which means ‘one who turns back’ from Islam. A person born to a
Muslim parent who later rejects Islam is called a murtad fitri, and a
person who converted to Islam and later rejects the religion is called a
murtad milli.
Section 4: The renunciation of Islam by married Muslim woman of 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 provisions of this section shall not apply to a woman
converted to Islam from some other faith who re-embraces her former
faith.
Case: Sarla Mudgal and Ors. vs. Union of India (UOI) and Ors.
Facts: Husband converted to another religion and married to another
woman without having first marriage dissolved.
Held: Conversion does not ipso facto dissolve first marriage. Second
marriage during subsistence of first marriage is void even if solemnised
after conversion. Apostate husband guilty of bigamy.
When and how does one become apostate?
An individual becomes apostate by conversion from Islam to another
religion. An apostate can be implied if one does not formally renounce to
Islam. However, if any Islam believer was forced or in fear of war had to
denounce from Islam is not considered as an apostate.
In many Muslim centres, countries have imposed a criminal offence for
apostasy from Islam. However, the concern for the topic is the effect of
apostasy on marriage as India has no criminal or civil offence for apostasy
in religion.
Laws prohibiting religious conversion run contrary to Article 18 of the
United Nations’ Universal Declaration of Human Rights, which states the
following:
Everyone has the right to freedom of thought, conscience and religion; this
right includes freedom to change his religion or belief, and freedom, either
alone or in community with others and in public or private, to manifest his
religion or belief in teaching, practice, worship and
observance. Afghanistan, Egypt, Iran, Iraq, Pakistan and Syria have voted
in favour of the Declaration.

Effect of apostasy on marriage

Before the Dissolution of Muslim Marriage Act, 1939, apostasy from
Islam by one of the married pair would have been treated as dissolution of
marriage with effect immediately, without:
1. the decree of a judge; or
2. being a repudiation of marriage, whether the conversion was before
or after consummation.
After passing the Act in 1939, it resulted in section 4 of the Act.
1. Apostasy by husband
Apostasy from Islam from Muslim husband will have immediate effects of
dissolution of marriage. Section 4 of the Dissolution of Marriage Act,
1939 does not apply to apostasy by the husband. The result is that apostasy
of the husband is still governed by old law under which the renunciation
from Islam by a husband will result in complete and immediate dissolution
of marriage.
Where a Muslim husband converts to another religion (say Christianity),
his marriage is immediately dissolved and the wife ceases to be a Muslim
wife of that husband. As such, the wife is not governed by Muslim law
and is free to marry another person (immediately) without waiting for the
Iddat period.
2. Apostasy by wife
The conversion of a married Muslim woman to a faith other than Islam
does not by itself operate to dissolve her marriage. Moreover, even after
renouncing Islam, if the wife wants, she may obtain a decree for the
dissolution of her marriage on any of the grounds specified in Section 2 of
the Act.
Section 4 does not apply to a woman who converts to Islam from other
faith and take back her former faith. Thus, if a Hindu woman converts into
Islam and marries under Muslim law, the marriage would be ipso facto
dissolved, on her renouncing Islam and re-embracing Hinduism. However,
if she does not re-embrace Hinduism, but becomes Christianity, the
marriage would not dissolve.
In the case of Munavvar-ul-Islam v. Rishu Arora, (AIR 2014 Del 130 )
a Hindu wife converted to Islam at the time of marriage. On her re-
conversion back to her original faith viz Hinduism, her marriage stood
dissolved. Her case falls under the second proviso to Sec 4 of the Act, and
the pre-existing Muslim Personal Law under which apostasy of either
party to a marriage ipso facto dissolves the marriage would apply.
If a husband renounces Islam, the marriage stands automatically dissolved.
Thus if his wife remarries even before the expiry of iddat, she will not be
guilty of bigamy under Sec 494 of the Indian Penal Code, 1860. In Abdul
Ghani v/s Azizul Huq [(1912) ILR 39 Cal 409], a Muslim man and
woman got married. After some time, the husband embraced Christianity
but reverted to Islam during the wife’s iddat. Before the expiry of the iddat
period, however, the wife got married to another man. The first husband
thereupon filed a complaint against the wife, her father and her second
husband under Sec 494. It was held that no offence had been made.
The court remarked:
Whatever view be taken of the uncertain status of the parties during the
period of iddat and however illegal and void under Mohammedan law the
second marriage of the woman during the period of iddat may be, there is
no foundation for any charge under Sec 494 of IPC against her. Her
second marriage is not void because of its taking place during the life of
her prior husband but because of the special doctrine of the Mohammedan
law of iddat with which the Indian Penal Code has nothing to do.

Divorce and its Policy in Islam

Different religions define marriage differently, such as:-
1. According to the Hindu Marriage Act, 1955 marriage is a religious
sacrament.
2. Under Muslim Law, Marriage is a contractual relationship between
two parties. All the essentials that are required for a contract are present
under Muslim Marriage. There is an offer, acceptance, consent,
consideration, the capacity of parties, etc. The purpose of such a form of
marriage are:-
 Legalising sexual intercourse.  Procreation of children.

In the case of Shoharat Singh v Jafri Begum, the privy council held that
marriage under Muslim law is a religious ceremony. Under Islam,
marriage is recognised as a basis of society. Marriage is an institution
which leads to upliftment of man and is also a means for the continuance
of the human race.
Divorce is the end of such a marital relationship, as under Muslim law
there are two modes given for the dissolution of marriage-
 Divorce  Talaq

In daily life, these two terms are alternatively used, but under Muslim law,
if a person seeks “divorce”, he will be governed by the provisions of
Dissolution of Muslim Marriage Act, 1939. Whereas, “Talaq”
proceedings are governed by Muslim Personal Laws.
 Even though the provision of divorce was recognized in all religions,

Islam is perhaps the first religion in the world which has expressly
recognized the termination of marriage by way of divorce
 In Pre-Islamic Arabia, divorce was used as an instrument of torture. The

power of divorce possessed by the husband was unlimited. Such social

and moral ills and injustices engaged the attention of Prophet of Islam
for removal of prevailing evils and to ensure permanence of marriage
without impairing individual freedom.
 An effective check placed by Islam on frequent divorce and remarriage
was that in case of irrevocable separation, it is essential for remarriage
with the same person, that the wife should marry another man, and this
marriage should be consummated before divorce, and the wife should
observe Iddat (Doctrine of Halala).
 The Muslim law relating to divorce raises two significant questions for
consideration, one relates to the method of divorce, i.e., triple
pronouncement of divorce and the other to the problem of inequality of
two sexes in respect of the right to divorce.
 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.
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 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.

Divorce under Muslim law

Pre-Islamic era: In pre-Islamic Arab society, husbands used to possess
unlimited powers concerning divorce. They had the power to divorce a
woman at any time, with or without reason. Divorce by the husband was
revocable at the will of the husband and could be granted as many times as
he wished. There existed at least four types of methods for the dissolution
of marriage that were practised in pre-Islamic Arabia. A woman was free
to remarry after divorce, but not before serving the period of iddat. The
period of iddat was to determine the legitimacy of the child. But at that
time, this wasn’t a strict rule.
Post-Islamic era: After the advent of Islam, the Prophet discouraged such
customs of divorce and considered the practice a means to undermine the
foundation of society. Since the customs have been in practice since time
immemorial, the prophet had to mold the laws and wasn’t able to change
them in its entirety. The Prophet allowed the practice of divorce by the
husband under some conditions. The reforms marked a new journey in the
history of eastern legislation. The right to seek separation on reasonable
grounds was given to the women. To place an effective check on the rates
of divorce and remarriage, the prophet considered that it should be
essential for remarriage that the woman marry another man, consummate
the marriage, and follow the period of iddat. Though this idea was brought
about to curb remarriages, critics accused the procedure of being a
disgusting ordeal and a major show of disrespect for women.
Forms of divorce in Muslim Law of India,
Divorce under Muslim Law
The only essential condition for divorce under Muslim Law is marriage
between two parties. There are different forms and ways through which
marriage can be dissolved under Muslim Law, which are following:
Categories of Divorce under the Islamic law:
A. Extra judicial divorce.
a) Unilateral divorce:
(i) Divorce at the instance of the husband:
a) talaq:
1. Talaq-ul-Sunnat or revocable talaq.
i) Talaq Ahsan (most approved form or most proper form):
ii) Talaq Hasan (Approved form)
2. Talaq-ul-Biddat or irrevocable talaq.
a) Triple irrevocable talaq
b) Single irrevocable talaq
(ii)Divorce at the instance of the wife
a) Delegated Divorce: (Talaq-i-Tafweez)
1. Ikhtiyar (choice): It means giving her the authority to talaq herself.
2. Amr-bi-ya: It means leaving the matter in her own hands.
3. Mashiyat (pleasure): It means giving her the option to do what she
likes.
B. Judicial divorce.
The category of extra judicial divorce can he further subdivided into
three types, namely:
 Divorce by husband

o Talaq-ul-Sunnat o Ila

o Talaq-ul-Biddat o Zihar
  Divorce by wife
o Talaq-e-Tafweez

 Divorce by mutual consent

o Khula o Mubarat

 Divorce by judicial decree under Muslim Dissolution of Marriage

Act, 1939
o Lian o Faskh

A) Divorce by husband or Express Talaaq

When clear and unequivocal words, such as “I have divorced thee” are
uttered, the divorce is express. The express Talaaq, falls into two
categories. There are four ways a husband can give divorce.
1) Talaq-ul-Sunnat (Revocable Talaq/Approved Mode)
Talaq-ul-Sunnat is regarded to be approved form of Talaq and is effected
in accordance with the traditions of Prophet (Sunna). Also, known as
Talaq-ul-raje.
It is further sub-divided into:This form of divorce is based on Muslim
Personal Laws. It is further sub-divided into the following categories:
a) Ahsan (Most Proper):
The reason being the most proper is twofold: First, there is possibility of
revoking the pronouncement before expiry of the Iddat period. Secondly,
the evil words of Talaq are to be uttered only once. Being an evil, it is
preferred that these words are not repeated.
In the Ahsan Talaq, there is a single declaration during the period of purity
followed by no revocation by husband tor three successive period of
purity. In this form, the following formalities are required:
 The husband has to make a single pronouncement of Talaq during the

Tuhr (the period of wife's purity i.e. a period between two menstrual
cycle) of the wife. As such, the period of Tuhr is the period during
which cohabitation is possible. But if a woman is not subjected to
menstruation, either because of old age or due to pregnancy, a Talaq
against her may be pronounced any time.
 After this single pronouncement, the wife is to observe an Iddat of three

monthly courses. If she is pregnant at the time of pronouncement the

Iddat is, till the delivery of the child. During the period of Iddat, Talaq
 in the Ahsan form by the husband is revocable. Revocation may be
expressed or implied. Cohabitation with the wife is an implied
revocation of Talaq. If the cohabitation takes place even once during
this period, the Talaq is revoked and is presumed that the husband has
reconciled with the wife.
 Husband has to make an announcement of divorce in a single sentence

when the wife is free from the menstrual cycle.

 After divorce women have to observe Iddat for a certain period of time,

during which the husband cannot indulge in any form of sexual

intercourse, if he indulges then revocation of talaq becomes impliedly
revocable, otherwise, it becomes irrevocable.
 This type of talaq can be pronounced even when the wife is undergoing

menstruation, but for that marriage must not be consummated between

the parties.
 It is the most approved form of talaq.

b) Hasan (Proper):
It is not the best mode because evil words of Talaq are to be pronounced
three times in the successive Tuhrs.
The formalities required under this form are as under:
a. The husband has to make a single declaration of Talaq in a period of
Tuhr.
b. In the next Tuhr, there is another single pronouncement for the second
time. It is significant to note that the first and second pronouncement
may be revoked by the husband. If he does so, either expressly or by
resuming conjugal relations, the words of Talaq become ineffective as if
no Talaq was made at all.
c. But, if no revocation is made after the first or second declaration then
lastly the husband is to make the third pronouncement in the third
period of purity (Tuhr). As soon as this third declaration is made, the
Talaq becomes irrevocable and the marriage dissolves and the wife has
to observe the required Iddat.
 It is a less approved form of Talaq Ahasan.

 There is a provision for revocation of divorce.

 The word talaq is to be pronounced three times simultaneously.

 Three announcements should be made in the three states of purity if the
wife has not crossed the age of menstruation.
 If the wife has crossed the age of menstruation, pronouncement must be

made at the 30 days interval between the successive pronouncements.

 During the period of three pronouncements, no sexual intercourse

should take place, if it happens divorce is revoked.

 After completion of the iddat period, this type of divorce becomes

irrevocable.
4) Talaq-ul-Biddat (Irrevocable Talaq/Disapproved Mode):
 Biddat means sinful. It is a sinful and disapproved mode of divorce;

also known as Talaq-ul-Bain. Under the Shia law, an irrevocable Talaq

is not recognized. It is recognized only under Sunni law.
 According to Ameer Ali, this mode of Talaq was introduced by the

Omayyad Monarchs because they found the checks in the Prophet's

formula of Talaq inconvenient and endeavored to find an escape from
the strictness of law.
 A Sunni husband who wants to divorce his wife irrevocably, may do so

in any of the following manners:

o The husband may make three pronouncements in a period of purity

(Tuhr) saying: “I divorce thee, I divorce thee, I divorce thee”. He may

declare his triple-Talaq even in one sentence saying: “I divorce thee
thrice”, or “I pronounce my first, second and third Talaq.”
o The husband may make only one declaration in a period of purity

expressing his intention of divorce the wife irrevocably saying: “I

divorce thee irrevocably” or “I divorce thee in Bain”.
 It is this disapproved/sinful form of divorce.

 It is also known as triple talaq, after pronouncing talaq three times it

becomes irrevocable immediately.

 This form of divorce is only recognised under Sunni Law and not by

Shias and Malikis.

 Parties can remarry only after performing nikah halala by the female

partner, under which she has to marry another man and then get
divorced from him.
 This type of divorce is unconstitutional in India, through the judgement
of the Supreme Court in the case of Shayara Bano vs Union of India
and Others.
Case Laws:
 In Saiyad Rashid Ahmad v. Anisa Khatun, the Privy Council

recognized triple divorce pronounced at one time validly effective. In

this case husband, “triple talaq” in absence of her but in presence of
witnesses after 4 days executed “talaqnama” later started living together
without any proof of compliance of the doctrine of Halala five children
born and husband treated them as legitimate; privy council agreed with
the observation of the lower court that triple talaq broke the marriage
then and there.
 In Rahmatullah v. State of UP, Justice H. N. Tilhari of Allahabad HC

(Lucknow Bench) observed: Talaq ul-Biddat is, giving an irrevocable

divorce at once or at one sitting or pronouncing it in a tuhr once in an
irrevocable manner without allowing the period of waiting for
reconciliation or without allowing the will of Allah to bring about
reunion, by removing differences or cause of differences and helping
the two in solving their differences, runs counter to the mandate of holy
Quran and has been regarded as, by all under Islam-Sunnat, to be sinful,
only an “Obiter dicta” of the judgment therefore not binding.
 In Yousuf v. Swaramma, Justice Krishna Iyer pointed out: The view

that the Muslim husband enjoys an arbitrary unilateral power to inflict

instant divorce does not accord with Islamic injunctions. It is a popular
fallacy that a Muslim male enjoys under the Quranic law unbridled
authority to liquidate the marriage. The whole Quran expressly forbids a
man to seek pretexts for divorcing his wife, so long as she remains
faithful and obedient to him.
 The Gauhati High Court in Rukia Khatun v. Abdul Laskar, wherein

Justice Baharul Islam speaking for the Division Bench observed that the
correct law of talaq as ordained by the Holy Quran is:
a. that 'talaq' must be for a reasonable cause; and
b. that it must be preceded by an attempt of reconciliation between
the husband and the wife by two arbiters, one chosen by the wife
 from her family and the other by the husband from his. If their
attempts fail, 'talaq' may be effected.
 The Supreme Court in its landmark judgment in Shamim Ara v. State

of UP, has derecognized the husband's dictate to divorce in any manner,

from any date past or future and without any proof. The Apex Court
approving the views taken by Justice Baharul Islam further observed
that the condition precedent for effectiveness of divorce was the
pronouncement of divorce which has to be proved on evidence. When
the husband failed to prove the pronouncement of talaq, order of Court
negativing plea of divorce would be proper.
 In Masroor Ahmed v. State.

Constructive Divorce (Ila and Zihar)

1) Ila
 It is a form of divorce under which the husband has the power to

pronounce that he would not indulge in sexual intercourse with his wife.
 Subsequent to this pronouncement, the wife is required to observe iddat.

 If the husband cohabits with the wife during this period, then the Ila is

revoked.
 Once the period of iddat is over, divorce becomes irrevocable.

 This type of divorce is not practised in India.

2) Zihar (Injurious Assilimation)

It is also constructive divorce like Ila.
 In this form of divorce, the husband compares his wife with a woman

who comes under a degree of prohibited relationship, such as his

mother, sister etc, and pronounces that she is like his mother or sister.
 For doing this the husband must be of sound mind and above the age of

eighteen years.
 The wife has the right to seek judicial remedies such as restitution of

conjugal rights, cohabitation etc., but cannot seek judicial divorce.

 Husband can revoke such divorce by observing two months fast,

feeding sixty people and freeing a slave.

 This type of divorce is no longer in practice.

 The wife has a right to

  to refuse to have sexual intercourse with him until he has expiated
himself from penance prescribed by law, such as : (i) freeing a slave;
fasting, for two months; feeding, sixty poor persons,
 to apply to the Court for an order requiring him either to perform a
penance or to decree her a regular divorce.
B) Divorce by wife
1. Talaq-e-Tafweez
 It is also known as delegated divorce.

 The husband has the power to delegate such power to the wife, he must

be of sound mind and above 18 years of age.

 This type of talaq is also called an agreement, which may be entered

between the parties before or after marriage.

 If the terms of an agreement are not fulfilled, the wife can ask for a

divorce.
 It is the only way through which a woman can ask for a divorce.

 The right of the husband to divorce his wife remains intact, it does not

deprive the husband of his right to pronounce the divorce.

C) Divorce by mutual consent
1. Khula (Redemption: Divorce at the request of wife)
 Khula has been aptly defined by their Lordships of the Judicial

Committee in Moonshee-Buzlu-ul-Raheem v. Lateefutoonissa, “A

divorce by khula is a divorce with the consent and at the instance of the
wife, in which she gives or agrees to give a consideration to the husband
for her release from the marriage tie. It signifies an arrangement entered
into for the purpose of dissolving a connubial connection in lieu of
compensation paid by the wife to her husband out of her property.
Khula, in fact, is thus a right of divorce purchased by the wife from her
husband.”
 Essentials of Khula:

a. There must be an offer from the wife and the offer must be accepted
with the consideration for the release by the husband,
b. Consideration:
As regards the consideration, all agree that it can be everything and
anything that can be given as dower. Cases occur in which the wife
 agrees to pay something by way of consideration for her release but
after being divorced by her husband fails to fulfill her promise. In such
a case, the divorce doesn’t become invalid and the husband has a right
to claim the consideration, because as soon as the offer for khula is
accepted, it becomes an irrevocable divorce and the wife is bound to
observe iddat.
c. Capacity:
Under Shia law, the conditions necessary for the effectuation of a valid
talaq are also requisites for the performance of khula accordingly; that
is, the husband must be:
i. adult,
ii. of sound mind,
iii. free agent, and
iv. have intention to divorce her.
Under the Sunni law, only two requisites are essential, i.e., the
husband must be:
i. adult, and
ii. of sound mind.
 In Mst. Bilquis Ikram v. Najmal Ikram, it was said that under the

Muslim Law the wife is entitled to Khula as of right if she satisfies

the conscience of the Court that it will otherwise mean forcing her
into a hateful union.
 It means ‘laying down’, where the husband lays down the authority over

his wife.
 This is done through mutual consent between husband and wife, where

the wife pays the consideration from her property to the husband, for
her release.
 Wife releases Mehr and other rights for the benefit of her husband.

 Thus, divorce is purchased from husband by wife.

 There is an offer from the wife, which is accepted by the husband.

 Women are required to observe iddat after Khula.

2. Mubarat (Mutual Release)

 It means ‘release’, it releases/discharges parties from marital rights.
 Divorce is with mutual consent among parties to become free from one
another.
 Its formalities are the same as Khula, where there is an offer from one

party and acceptance from another.

 Women are required to observe Iddat.

Legal Consequences of Khula and Mubarat

 The legal effects of a valid Khula or Mubarat are the same as that of a

divorce by any other method, i.e., iddat, maintenance during the

period of iddat and after completion of Khula or Mubarat, the
marriage dissolves and cohabitation becomes unlawful.
Distinction between Khula and Mubarat:
S.
Khula Mubarat
No.
Redemption of the contract of
1. Mutual release from the marital tie.
marriage.
Offer comes from the wife, the Any party may make the offer, the
2.
husband accepts. other side accepts.
Consideration passes from the
3. No question of consideration.
wife to husband.
Aversion is on the side of the
4. Mutual aversion.
wife.
D) Divorce by judicial decree under Muslim Dissolution of Marriage
Act, 1939
1. Lian (False charge of Adultery)
 This type of divorce occurs when a wife is falsely charged with adultery

by her husband.
 She can move to court to file a regular suit for dissolution of marriage,

under the Muslim Dissolution of Marriage Act, 1939.

 The ground of divorce must be a false charge of adultery on the wife,

his husband.
 The husband imposing charge must be sane and above 18 years of age.
 Marriage is not dissolved until dissolution degrees are passed by the

court, once it is passed divorce becomes irrevocable.

 The husband can prevent divorce by the withdrawal of false assertion of

adultery on the wife, before passing of the decree by the court.

Retraction of Charge:
The Muslim Law permits the man to retract the charge but the retraction
must be (i) bona-fide; (ii) unconditional; and (iii) made at or before the
commencement of hearing and not after the close of evidence.
Conditions necessary for valid retraction:
1. Husband’s admittance of charge being made;
2. Admittance of false charge; and
3. Must retract before the end of trial.
2. Faskh (Judicial Divorce)
 Despite the Quranic injunctions and the traditions of the Prophet, the
Anglo-Indian Courts had denied to Muslim women the rights of
dissolution available to them under the Shariat.
 Before 1939, a Muslim wife could seek her divorce by a judicial decree
only on the ground of:
 Option of puberty (Khyar-ul-Bulugh);
 Impotency of the husband;
 Lian, i.e., false charge of adultery by the husband against her.
 On the other hand, the husband need not go to the court at all as all the
forms of divorce (Talaq, Ila, Zihar, Khula or Mubarat) depend solely
upon his will. The classical Hanafi law of divorce was causing great
hardships as it consisted no provision whereby a Hanafi wife could seek
divorce on such grounds as disappearance of the husband, his long
imprisonment, his neglect of matrimonial actions etc. Finding no other
way to get rid of undesired marital bonds, many Muslim women felt
compelled by their circumstances to renounce their faith.
 But now, the Dissolution of the Muslim Marriages Act, 1939 has
introduced revolutionary change in this respect and had restored to her,
right of divorce granted to her under Shariat. It is applicable to all
Muslim woman irrespective of their school to which they belong.
 Section 2 of the Act contains nine grounds on the basis of any one of
which a wife married under Muslim law, may filed petition for divorce.
 The grounds for matrimonial relief under Section 2 of the Act are
available only to the wife, not to the husband. This is because the
Muslim law has already given an absolute right to the husband to
divorce his wife without judicial intervention and without any reason.
The words used by Section 2 of the Act are a "woman married under
Muslim law" and not a "Muslim Woman". This protects women who
have already abjured Islam in the hope of getting their marriage
dissolved and are thus no longer Muslims; they also can get their
marriage dissolved on any of the grounds given in the Act.
 If husband and wife feel that they are not compatible together, they can
file for divorce.
Grounds in Section 2 of Dissolution of Muslim Marriage Act, 1939:
i. Absence of Husband: If the whereabouts of the husband are not known
for period of four years a woman married under Muslim law shall be
entitled to obtain a decree for the dissolution of her marriage, but, a
decree passed on this sound will not take effect for a period of six
months from the date of such decree; far the husband appears either in
person or through an authorized agent within that period, and satisfied
the Court that he is prepared to perform his conjugal duties, the court
must set aside the said decree
ii. Failure to Maintain: If the husband has neglected or has failed to
provide for her maintenance for a period of two years, a married
Muslim woman can obtain a decree for the divorce.
iii. Imprisonment of husband: If the husband has been sentenced to
imprisonment for a period of seven years or upward the wife is entitled
to decree the Court dissolving her marriage, but no decree can be passed
on this ground unless the sentence has become final.
iv. Failure to perform marital obligations: If the husband has failed to
perform without reasonable cause, his marital obligations for a period of
three years, the wife can get her marriage dissolved by means of a
decree.
 v. Impotency of husband: If the husband was impotent at the time of the
marriage and continues to be so, the wife is entitled to judicial divorce
for the dissolution of her marriage. Before passing such a decree on this
ground the Court shall, on application by 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 he
does so satisfy, no decree shall be passed on this ground.
vi. Insanity, leprosy or venereal disease: If the husband has been insane
for a period of two years or is suffering from leprosy or a virulent
venereal disease, the wife may claim a judicial divorce under the Act. It
is to be noted that leprosy and virulent disease need not to be two years
old, it may be even recent
vii. Repudiation of marriage by wife (option of puberty): If she, having
been given in marriage by her father or other guardian before attaining
the age of 15 years repudiated the marriage before attaining the age of
18 years and the marriage is not consummated, she is entitled to a
decree of divorce.
viii. Cruelty of husband: Judicial divorce may also be claimed by a Muslim
wife, if the husband treats her with cruelty, that is to say:
a. habitually assaults her or makes her life miserable by cruelty or bad
conduct even if such conducts does not amount to physical ill-treatment
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 from exercising her legal right
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.
ix. Grounds of dissolution recognized by Muslim Law: The wife is also
entitled to a decree for the dissolution of her marriage on any other
ground which is recognized as valid for the dissolution of marriage
under Muslim law. For example, under this clause, a wife may seek her
 divorce by judicial decree on the ground of false charge of adultery
against her (Lian).
Rights conferred by personal laws based on religion is not absolute.
For instance, the two most popular and important judgments of the
Supreme Court in this regard are discussed hereinafter, in the case of
Mohd. Ahmed Khan vs Shah Bano, Shah Bano at the age of 62 was
divorced by her husband Mohammed Ahmed Shah, and she along with her
five children were disowned and tossed out from her marital home. When
she approached Madhya Pradesh High Court to restore her maintenance
amount of rupees 200 which was halted by her husband, and to increase its
amount to rupees 500, she was divorced by her husband through instant
triple talaq or Talaq-ul-Biddat, who used it as a defence not to pay
maintenance as she no longer was his wife. But the court granted
maintenance to Shah Bano under Section 125 of CrPC on the grounds that
she is unable to earn and maintain herself. Though it was against the
provisions of Islamic law, Section 125 of CrPC override the personal law
and gave effect to the judgement.
Similarly, in the case of Shayara Bano vs Union of India, Shayara Bano
married to Rizwan Ahmed, was a victim of domestic violence, while she
was visiting her parents, Rizwan Ahmed sent her a divorce letter of Talaq-
ul-Biddat declaring instant divorce. She filed a petition before the
Supreme Court to declare triple talaq, nikah halala, and polygamy to be
unconstitutional. Although the court took into account only the plea of
triple talaq declaring it to be unconstitutional and it also held that until the
government formulates a law regarding instant triple talaq, there would be
an injunction against the pronouncement of triple talaq by husbands on
their wives.
3. Talaq-ul-Biddat or triple talaq is unconstitutional as it violates Article
14 of the Constitution in two ways; firstly, it discriminates Muslim women
from Muslim men on the basis of gender, as only Muslim men have the
right to declare triple talaq, and secondly, it is discrimination on the basis
of religion, women of no other religion are subject to cruelty and unjust
behaviour of triple talaq except Muslim women. Talaq-ul-Biddat also
violates Article 21 of the Constitution on the grounds of the right to live
with human dignity; Muslim women are subject to derogatory and cruel
behaviour of the Talaq-ul-Biddat, which reduces their presence to mere
unwanted beings in the eyes of their husband and society. A divorce that is
arbitrary, without justified reasoning and a reconciliatory process is never
allowed by the Koran. Thus, personal laws of Muslims are given
prominence unless and until they are against the right of women to live a
dignified life or are unconstitutional.
Changes brought by the Muslim Women (Protection of Rights on
Marriage) Act, 2019
The Muslim Women (Protection of Rights on Marriage) Act, 2019
brought the following changes:
 Section 3- Pronunciation of triple talaq on wife by husband in any

manner (including electronic), by words either spoken or written, is

void or illegal.
 Section 4- Any person who pronounces talaq to his wife in a manner

prescribed in section 3, shall be subject to imprisonment extendable to 3

years or shall be liable to a fine.
 Section 5- Muslim women who are being divorced can seek allowance

from their husband to maintain themselves and children dependent on

them.
 Section 6- Muslim women divorced by husband are entitled to seek

custody of their minor child.

 Section 7- Magistrate can grant bail to the accused after hearing both

the parties, if he feels that reasonable ground exists for granting bail.
The offence is compoundable and there is also an option of compromise
at the instance of a married Muslim wife, which will drop the charges
on the basis of fulfilment of certain terms and conditions.
Need for Uniform Civil Code (UCC)
Implementation of the Uniform Civil Code is the need of the hour. Article
44 of the Indian Constitution talks about the creation of the Uniform Civil
Code for all the citizens of India. The creation and implementation of
UCC will bring drastic changes in the Muslim personal laws, this is the
reason it is being opposed by the Muslims. It will lead to the permanent
abolition of triple talaq, all the marriages will be dissolved through Court
proceedings. The practice of polygamy will be abolished and monogamy
will be the norm. It will also bring change in maintenance provisions;
Muslim women will be able to claim maintenance for a lifetime. Civil
contractual nature of marriage will be abolished. Registration of marriage
will be compulsory practice, and implementation of UCC will also lead to
a violation of the period of iddat. These changes are pro-women and are
actively welcomed by Muslim women, as it will lead to the positive
betterment of women and society as a whole. But these changes are
opposed by Muslims as a whole because they feel the imposition of UCC
as an imposition of Hindu law over their personal laws, which is the
wrong notion. Uniform Civil Code will be secular in nature containing
essentials of all the diverse religions in India. Thus, Uniform Civil Code is
necessary for strengthening national unity and integrity among citizens of
India.
Divorce including divorce by wife outside and through courts
under the Dissolution of Muslim Marriages Act, 1939
Divorce by Wife under Muslim Law: A strong bond between husband
and wife is necessary for a happy family. In Islamic Law, marriage is a
contract between the parties. But in some cases the husband and wife faces
a lot of difficulties in performing their matrimonial ties which leads to
divorce between them. In Islamic Law divorce is considered as an evil.
But in some cases this evil is considered as a necessity because when it is
impossible for the parties to the marriage to maintain their relationship
with mutual love and affection, then Islam permits them to get separated
and live apart.
A divorce may be by the act of either husband or wife. In Islamic Law, the
basis of divorce is the inability of spouses to live together. If the spouses
are not happy together then it is better for them to live separately and
independently rather than to compel them to live together in an
atmosphere of hatred and anger.
Divorce by Wife: According to Prophet Mohammad (S.A.W), "If a
woman be prejudiced by a marriage, let it be broken off". It is of essence
in Islamic Law that women are given proper opportunity to divorce their
husbands if they are not able to perform their marital ties. Generally there
are two ways in which a woman can divorce her husband. First through a
mutual agreement between husband and wife i.e., Khula and Mubarat.
Secondly, through a judicial decree by filing a suit against the husband in
court of law i.e. under the Dissolution of Muslim Marriage Act, 1939.
Muslim Law provides for various kinds of divorce that Muslim
women can give to Muslim men:
1) Khula:
Khula means literally to take off clothes and hence to lay ones authority
over a wife. Under Muslim Law, a marriage can be terminated either at the
will of husband or wife or by a mutual agreement by the two. If the
marriage is dissolved at the request of husband then it is known as Talaq.
Similarly, the wife can also divorce her husband if she is satisfied that the
two of them are not able to perform their matrimonial ties. The Muslim
woman can release herself from the marital tie by giving up some property
in consideration for which the husband is to give her a Khula and when
they have done this a Talaq-ul-bain would take place.
Valid conditions of Khula are:
1. There must be a common consent of both husband and wife.
2. Some Iwad must be given by wife to her husband.
For Khula to take place it is necessary that some Iwad (return
consideration) should be given by wife to her husband. Under Khula, a
marriage can be dissolved by an agreement between husband and wife for
a consideration paid or to be paid by wife to her husband. Such an
agreement if the wife alone is desirous is called Khula and if both husband
and wife are desirous is called Mubarat.
When the husband and wife are not able to live happily together and are
apprehensive that they cannot observe the bonds prescribed by the divine
laws, then a right is conferred to the wife to get her released from the
marital ties. The concept of consideration is a necessary precondition for
the validity of Khula.
Since the wife is interested to break her marital tie and leave her husband
then she must pay a consideration to her husband as compensation and she
can also forgive full or part of her dower money. However, if the
consideration is not paid to the husband by his wife than he cannot be
compelled to comply with the agreement of Khula and he can ask for
restitution of conjugal rights.
Khula is a conditional divorce in which the wife is at liberty to purchase
her freedom from her husband if she comes to the conclusion that it is not
possible for them to live as husband and wife. Khula is at the instance of
wife in which she agrees to pay a consideration in return of which her
husband would release her from the marital ties.
1) Lian:- Under Muslim Law, a woman is guaranteed a right to divorce
her husband if he falsely and baselessly charges her with adultery and this
doctrine is known as Lian. The Quran and Hadith both guarantee a right of
divorce to a Muslim wife if her husband is imputing a false unchastity to
her character. If a man is charging his wife with adultery then he must
prove the allegations made by him and if he is not able to prove it then the
wife has a right to divorce him under the doctrine of Lian.
The objective behind this doctrine is to punish the husband for falsely
alleging the charge of adultery upon his wife. In India, a Muslim wife can
also bring a suit for defamation against her husband as a ground for false
charge of adultery.
In Z Hussain v. Ummat Ur Rahman, it was held that a Muslim wife is
entitled to bring a suit for divorce against her husband and can obtain a
decree on the ground that the latter falsely charged her with adultery.
In Rahima Bibi Case, it was held that a Muslim wife can sue her husband
for divorce on the ground that he had falsely charged her with adultery.
Under the doctrine of Lian, a mere charge levied by the husband will not
automatically dissolve the marriage, a dissolution decree by court of law is
essential to put an end to the marital ties. The charge of adultery by a
husband against his wife can only be established by a direct testimony of 4
witnesses from the nature of offence. However, the case in which clear
and direct evidence is present is extremely rare.
2) Talaq-E-Tafweez:
It is also known as Delegated Divorce. The delegation of power to
dissolve is technically called tafweez. Tafweez means to make someone
the owner of an act which appertains to the person making the tafweez.
Talaq-e-tafweez is one of the most important forms of divorce under
Muslim Law because it gives to Muslim women a right to divorce their
husband without going to court of law.
In this form of divorce a Muslim male can delegate his power of
repudiation of marriage to a third person or to his wife also. He can
delegate his own right of pronouncing divorce to his wife. It is a
delegation by the husband of the power of Talaq to the wife designing her
to give the effective sentence.
Tafweez is of 3 kinds:
1. Ikhtiyar (choice): It means giving her the authority to talaq herself.
2. Amr-bi-ya: It means leaving the matter in her own hands.
3. Mashiyat (pleasure): It means giving her the option to do what she
likes.
Under Muslim Law, a husband and wife can enter into agreement at the
time of marriage that this shall be the duty of husband to maintain his wife
and if he is not able fulfill his promise then the wife is at liberty to
dissolve the marriage. Under certain conditions a wife can pronounce
divorce upon her provided first that the option is not absolute and secondly
that the conditions are necessary and are not opposed to public policy.
A delegated divorce can be given by a person who has attained the age of
majority and of sound mind. In delegated divorce the age of majority is
determined by Muslim law and not by Sec.3 of The Majority Act. In
delegated divorce the husband can delegate his power of divorce to any
other person including his wife also. The husband possesses the power to
appoint another person as his Vakil. He can also appoint a third person to
divorce his wife on his behalf. But the husband still possesses the power to
divorce his wife even after he delegated his power to any other person.
In Hamidoollah v.Feizunnisa, it was held that under Muslim Law, a
husband may give to his wife the power to divorce herself from him
according to the form prescribed by that law for divorce by the husband.
Dissolution of Muslim Marriage Act, 1939:
In 1939, an act was passed to secure the rights of Muslim women. The
Dissolution of Muslim Marriage Act, 1939 was passed to provide various
grounds to enable Muslim women to divorce her husband. Women
generally faced many difficulties in their matrimonial relations for which
they have no remedy. To solve these problems the Act of 1939 enabled the
Muslim women to divorce their husband.
Sec.2 (ix) of the said act states that a woman married under Muslim law
shall be entitled to obtain a decree for dissolution of her marriage on any
one or more of the grounds mentioned in the act. This act states that it is
lawful for a Muslim wife to dissolve her marriage on any of the
recognized grounds in the act. But the wife cannot dissolve the marriage
herself, she has to obtain a decree from the court of law and the marriage
can be dissolved only if the court has passed the dissolution decree.
Various grounds on which a Muslim wife can claim dissolution of her
marriage are:
1. Whereabouts of husband not known: A woman married under
Muslim Law is entitled to obtain a decree for dissolution of her
marriage if the whereabouts of her husband is not known for a period of
4 years. However, it is of essence of that lady not to marry for 6 months
after the decree is passed. The reason for this is that if her husband
appears within 6 months and is willing to perform his marital
obligations and the court is satisfied then the decree may be set aside by
the court.
2. Failure to maintain wife or negligence on part of husband: A
woman married under Muslim Law in entitled to obtain a decree for
dissolution of her marriage if her husband has neglected her or has
failed to provide her maintenance for a period of 2 years. Under Muslim
Law it is essential that the husband is duty bound to maintain his wife
and if he fails to maintain her then the wife can sue him for divorce.
3. Imprisonment of husband: A woman married under Muslim Law in
entitled to obtain a decree for dissolution of her marriage if her husband
has been sentenced to imprisonment for duration of 7 years or upwards.
4. Failure to perform marital obligations: A woman married under
Muslim Law in entitled to obtain a decree for dissolution of her
marriage if her husband has failed to perform his marital obligations for
a period of 3 years. But it is of essence that he may have failed to
perform his marital obligations without a reasonable cause.
5. Impotency: A woman married under Muslim Law in entitled to obtain
a decree for dissolution of her marriage if her husband has been
impotent at the time of marriage and continues to be so. In this case the
burden of proof is upon the husband to prove that he is not impotent.
The husband can satisfy the court within a period of 1 year that he is no
longer impotent. If the court is satisfied then it can set aside the
dissolution decree.
6. Insanity, Leprosy and Venereal Disease: A woman married under
Muslim Law in entitled to obtain a decree for dissolution of her
marriage if her husband has been insane for two or more years or has a
leprosy which may be curable or incurable or has a venereal disease
which may be curable or incurable and may be of any duration.
7. Option of puberty: A woman married under Muslim Law in entitled to
obtain a decree for dissolution of her marriage if she has been married
before she attained the age of 15 by her father or any other legal
guardian.
8. Cruelty:
A woman married under Muslim Law in entitled to obtain a decree for
dissolution of her marriage if her husband treats her with cruelty.
Cruelty has been a ground for divorce even before this act. A Muslim is
always given the right to divorce her husband if she has been meted
with cruelty.
Conclusion
In this patriarchal society, where woman are always considered inferior to
men. Where a man has every right and remedy but a women has very little
to cherish for her. Women are not given their basic rights to live their
lives. In India, Talaq is a mere arbitrary act of husband who may repudiate
his wife at his own pleasure. Men can divorce their spouses easily whereas
a woman faces a lot of legal, financial and patriarchal hurdles to divorce
their husbands. Women face a lot of criticism of this patriarchal system if
they want to give divorce to their husbands.
However, this trend is changing now and women are also provided with
equal rights to divorce their husbands. Under Muslim Law, women are
given rights to divorce their husbands if he is not able to support her life.
Muslim Law provides for various kinds of divorce that a wife can give to
her husband i.e. Khula, Lian, Talaq-e-tafweez, Dissolution of Muslim
marriage act 1939. Women can also divorce their husbands if she is
satisfied that they are not happy together and cannot perform their
matrimonial ties. Women are now standing on an equal footing with men.
Post-Divorce Rights of parties including iddat period,
Marriage is a lifetime commitment. However, there are circumstances
whereby the marriage may end unexpectedly either by divorce or death of
either partner. It is undeniable that in most cases than not, women are
more affected emotionally or financially as a result of a divorce or death
of a partner. Women are more vulnerable in the event of marriage
breakup. First, because not all women have an independent means of
income. Many have to give up their careers to care for children. By the
time they are forced to get back on their feet they probably have missed
the age of employability denying them the opportunity to steady income.
For that reasons women need the force of law to protect them especially
when they are left to mend with young children. For the purpose of this
article, we will focus on post divorce rights accorded to Muslim women
embedded in the Islamic Jurisprudence
1. IDDAT:
Immediately after divorce, Muslim women has a right to Nafkah Iddah.
Nafkah Iddah is an obligatory maintenance relating to food, clothing and
accommodation for the wife, children and widow as required by Hukum
Syarak. The amount of compensation depends on the women’s life style
while she was married. In other words to preserve the status quo of the
women. The computation for Nafkah Iddah is equivalent to three months
of her normal monthly needs. The three times computation is precisely
based on the duration of three menstural period.
Iddah or Iddat is an Arabic term which means period of waiting and is
observed by Muslim women. It is a period of chastity which a Muslim
woman is bound to observe after the dissolution of her marriage due to the
death of her husband or by divorce before she can lawfully marry again.
The reason behind observing iddat period is to ascertain whether the
woman is pregnant or not and to acknowledge the certainty of paternity.
Iddat period varies in different cases
 a divorced woman observes it for 3 months whereas a woman whose

husband has died observes it for four lunar months and ten days after
the death of her husband, whether the marriage was consummated or
not.
 Iddat period lasts for divorced woman who is pregnant till the time

she gives birth or miscarriage.

 If a woman is pregnant at the time of husband’s death, she observes

iddat for a complete year consisting nine months for pregnancy and
three months of iddat period.
This period is considered as a balance by some Islamic scholars by
providing sufficient time to mourn for the death of her husband and also
protects the widow from criticism that she might be subjected for
remarrying too quickly after her husband’s death. This period mainly
helps in determining whether a woman is pregnant or not, since four and a
half months is half the duration of a normal pregnancy if there is any. In
Muslim law, husband shall make a will in favor of their wives for the
provision of one year’s residence and maintenance, unless the wives leave
the house out of their own free will.
(Al-Baqarah 2: 234–235) of Quran enlists the following things about
Iddah in the form of verses –
1. The observing period for a widow is four months and ten days,
2. During this period, a woman cannot marry another man
3. If a person wants to marry a widow or divorced woman, he may
declare his intentions in a socially acceptable manner while iddat
period is running, there shouldn’t be any secret commitment of
marriage with the widow.
4. Once the period of four months and ten days has completed, a marriage
contract can be finalized containing time and place for marriage rituals.
Place to observe Iddah
1. It is compulsory to observe iddat period in the same house where the
woman was residing permanently at the time of her husband’s death or
in case of dissolution of marriage.
2. If a woman receives the news of her husband’s demise while she was on
journey, she is supposed to immediately return to the place of her
residence to observe her iddah, provided that her home is within the
reach not beyond, else she could return back upon reaching the
destination.
3. A woman who was sent to her parental home should return to the home
of her husband, upon her husband’s demise to complete her Iddat there
because according to the rule, Iddat is completed in the house which is
the permanent residence of a wife. Her parents’ house is not considered
as permanent residence.
Rules of Iddat
Certain things are forbidden to muslim women during the period of iddat.
In Muslim Personal Law, the term ‘Haraam’ is used for strictly prohibited
things such as –
 It is Haraam upon a woman to indulge into the activities of beautifying

herself through makeups or any other ways during iddat.

 She is forbidden to wear silken clothes or other gaudy dresses. No

particular colour is specified to wear during this period like black or

white or any such, just a simple and plain clothing would suffice.
 She is not allowed to leave house till the completion of iddat period

unless there is some emergency like requirement of basic needs or

medical illness to such extent that it is not possible to arrange for a
house-call by a physician.
 She is obliged to mourn for her husband by praying to Allah (God) and

supplicating Allah-Subhanahu for her husband and for herself.

 There is no restriction of seeing the moon or the mirror as some people

in the name of islam try to enforce these restraints.

Commencement of Iddah/Iddat
Iddah period starts right after the death of husband or after a divorce for
muslim wife. Despite of her ignorance to observe iddah, it would not be
held due or affected in anyway.
1. If she didn’t receive the news on time of her husband’s demise but got
to know about it within the prescribed iddah period, then she is obliged
to observe it for the remaining days of iddat period.
2. In case if she receives the news at later stage when iddah period has
already passed, she is not bound to experience it. The time counts from
the time of husband’s demise or the time when divorce is given.
Prohibition of marriage during Iddat
The Quran permits only the socially acceptable manner to declare the
intentions of marrying a woman observing iddat, all the other direct
proposals or secret commitments are strictly prohibited. Once the
completion of iddah period, the women can lawfully enter into a contract
of second marriage. A marriage done during the period of iddah is not
recognised in the islamic law and considered as void.
Staying at home during Iddat
1. During the iddah period, the wife gets deprived of everything outside
the premise of her deceased husband’s house. She is not allowed
( Haraam) to leave her house if she has sufficient resources of basic
needs.
2. She is allowed to leave the house only in case if she is the sole
breadwinner with no other source of income to maintain her livelihood.
She is permitted to work during the day time only and must return home
before the nightfall.
3. She is not required to confine herself to a certain room or stay silent,
she may carry out household works or occupy herself in virtuous acts or
praying to Allah.
4. She is allowed to leave the house for any emergency medical treatment
accompanied by Mehram (a male member of the family whom she
cannot marry under Islamic Law).
5. She is forbidden from attending any funerals or visit the ill though they
might be close relatives or immediate neighbours.
6. She is allowed to shift from deceased husband’s house in case there are
no proper accommodations inside the house, or the remaining heirs do
not permit her to use the deceased’s property or she faces troubles in
maintaining the purdah required under Islam.
7. If the wife is unable to pay for the rented house, she can shift to the
nearest safe place available where she must complete her Iddah period.
8. In case she is the sole occupant of the house where iddah has to be
passed but fear of being alone is to that extent that might cause mental
illness or any defects, she is allowed to shift to another house.
Reasonable amount of fear does not permit to shift from the house.
9. If the house is in dilapidated condition and there is a risk that it might
mall down or collapse any time soon or it is not unsecured which might
put a threat to woman’s chastity or honour or life, she is allowed to shift
from that place. But as soon as the cause of risk is removed, she is
obliged to return to her house.
In all the instances mentioned above, utmost care must be taken like –
 The cause must be true and genuine

 She must move to the nearest available safe place.

 After changing the house once, she may not move to another place

before completion of her iddah without a valid reason.

Maintenance during Iddat
During the iddah period, a muslim wife is not entitled to claim
maintenance out of her husband’s estate as she is herself an heir to it. This
is because the liability of maintaining the wife lies only on the husband
and not on the other heirs. If she did not receive her dower (Mehr) nor did
she renounces it, she would be entitled to receive it as a first charge from
his estate.
Payment for maintenance is also mandatory. Not only a divorced woman
entitle to future maintenance but she can also claim for maintenance in
arrears, if any. It includes right to claim for maintenance not provided to
her even during marriage and all other maintenance in arrears after the
divorce. This claim can be brought against the husband anytime whenever
the husband fails to provide, be it during marriage or post divorce.
2. Hadhanah
In Islamic Jurisprudence on child custody (Hadhanah), there is an
inference that children, especially minor, are best cared for by their
mother. The rationale for this is that most cases and most of the time
women are to sacrifice their careers to care for the children thus putting
them in a special relationship with their offsprings. Section 81-87 of the
Islamic Family Law Act (Wilayah-Wilayah Persekutuan) 1984 also
specifically states the chronology of priority of whom shall have the
custody of minor children. The first in line is the mother then maternal
grandparents. The father is only third in line, but this is not to be construed
as the only determinant of rights to custody. There are many other factors
to be considered which may give the father custody if it is proven to be in
the best interest of the minor children. However, either father or mother
may apply for interim order for custody in urgent circumstances such as
school registration or medical purposes, before a permanent custody is
granted.
3. Wilayah-Wilayah Persekutuan
Section 72-80 of the Islamic Family Law (Wilayah-Wilayah
Persekutuan) 1984 provides for rights to children maintenance.
Maintenance for children under the custody of divorced women is one of
the very important rights accorded to divorced women. Minor children and
school going children must be able to continue their studies and their
wellbeing taken care of despite family breakups. Their daily needs such as
food, accommodation, clothings, medical and education must be provided
for. The amount of maintenance depends largely on the father’s financial
position and his other responsibilities such as if he is remarried and have
to care for his new family. Of course no formula fits all situation. It is
must really be fair and balance to all parties at stake.
Section 58 of the Islamic Family Law Act (Wilayah-Wilayah
Persekutuan) 1984, in the event of divorce, Muslim women have the
right to the division of matrimonial properties or Harta sepencarian
which properties are acquired during the marriage. It is undeniably that
women contribute directly or indirectly to the wellbeing of her family and
even help in elevating her family’s wealth and status in society. Thus,
women have rights to claim her share to the division of wealth in event
divorce inevitable. A Syariah Judge will determine to what extend the
spouses contribute to the acquisition of properties during marriage.
Islamic Jurisprudence relating to women’s rights in case of divorce has
thoughtfully considered that not all women have an independent means of
income or financial assets to support themselves. In most cases, women
would be unable to gain employment due to prolong period of
unemployment, will in the case of divorce or death of the husband, be left
in a precarious situation. This will have a long-term negative impact on
women. Thus, it is rightly so that women’s rights be protected by the force
of written laws.
4. Mutaah
Mutaah, which is a compensation given by a husband to a woman due to
divorce, is another rights accorded to Muslim women. It is meant to
provide for women to be able to carry on with her life. It is a big help
especially if a woman is unemployed. Section 56 of the Islamic Family
Law Act (Wilayah-Wilayah Persekutuan) 1984 specifically provided for
such compensation. The amount given is based on mutual agreement.
However, in the event the parties cannot agree on the amount, then a
Syariah Judge will decide. This will normally be based upon the length of
marriage, the life style during marriage and status in society as well as
education level a woman has achieved.
Define Maintenance. Discuss the provisions regarding maintenance of
divorced woman according to Muslim Women Protection Rights on
Divorce-1986. OR What are the arrangements for maintenance under
Muslim Law? Who are entitled for Maintenance? Discuss. OR
Maintenance of Muslim Women.
Introduction:- The Muslim Law, like the English Law treats the property
as primarily and naturally individual. It does not like the Hindu system
contemplate as the normal state of things. The existence of mass of family
property kept together thorough several generations as common fund for
the common needs.
Under Muslim Law a man is bound maintain his wife irrespective of his
and her means and his minor children if he is not indigent.
Definition of Maintenance: - Maintenance is equivalent to Arabic
‘Nafqah’ which means, “What a person spends over his family” however
in legal sense maintenance signifies and includes three things: (i) Food (ii)
clothing (iii) lodging.
According to Hedaya: “Maintenance as all those things which are
necessary to the support of life such as food, clothes and lodging.”
Provisions regarding maintenance of divorced woman:- In Shah Bano
Beguum v/s Mohammad Ahmed Khan-1985, the five judges bench held
that a Muslim husband having sufficient means must provide maintenance
to his divorced wife who is unable to maintain herself. Such a wife is
entitled to the maintenance even if she refuses to live with the Muslim
husband. The court also held that the ability of the husband to maintain his
divorced wife till the expiration of the iddat period extends only in case
the wife is able to maintain herself. The following are the rights of
maintenance of divorced wife:-
1. Maintenance during the subsistence of marriage:-
The husband is liable to maintain the wife from the date when the wife
attains puberty and as long as she is obedient and faithful to her husband.
The husband is bound to maintain her even though she may have the
means to maintain herself. A Muslim wife who is living separately may
claim maintenance against him for example if the husband treats her
cruelty or marries with second wife without her consent or if he paid
prompt dower to her as held in a case of Itwari v/sAshgari-1960.
2. Maintenance of a divorced wife:-
Under Muslim Law a divorced wife is entitled to obtain maintenance from
husband up-to her period of Iddat. In a case of Mohammad Ahmad Khan
v/s Shah Bano Begum-1985, although the Muslim law limits the
husband’s liability to provide maintenance for his divorced wife up to the
period of Iddat. The court held that if the divorced wife is unable to
maintain herself after the period of Iddat she is entitled to recourse to sec.
125 Cr.P.C.
3. Maintenance of a Widow: - According to Hedaya says, “That a widow
shall not have any right of maintenance after the death of her husband.
Under the Shia Law a Widow is not entitled to any maintenance though
she was pregnant at the time of the death of her husband. There are some
authorities in Mohammadans who recognised widow’s right if on the
death of her husband she was pregnant to maintenance until delivery, out
of share in estate of her husband which child borne by her entitled to
inherit.
In order to nullify the effect of the Shah Bano’s decision, Parliament
passed the Muslim Women’s Protection of Rights on Divorce Act-1986,
the following are the provisions :-
1. A reasonable and fair provision and maintenance to be made and paid to
her within the Iddat period by her former husband.
2. Where she herself maintains the Children born to her before or after her
divorce a reasonable a reasonable and fair provision and maintenance for a
period of two years from the respective dates of birth of such children.
3. An amount equal to the sum of mehr or dower agreed to be paid to her
at the time of her marriage or at any time thereafter according to Muslim
Law.
4. All the properties given to her before or at the time of marriage or after
the marriage by her relatives or friends or the husband or any relatives of
the husband or his friends.
Remarriage,
While the right to marry is a component of the right to life under Article
21 of the Constitution of India, the rules and regulations surrounding
marriage, especially second marriage, are intricate and multifaceted.
We will delve into the subject of second marriage under Muslim law,
exploring its legality, historical context, cultural variations, and modern
interpretations. From the early Islamic era’s social necessities to
contemporary debates on gender equality and human rights, second
marriage in Islam is a topic rich in history and complexity.

Whether you’re seeking to understand the legal procedures for divorce and
remarriage, the nuanced perspectives on polygamy, or the challenges and
protections related to women’s rights, this comprehensive guide offers
insights and practical guidance on these vital aspects of Muslim marriage
laws.
Historical Context of Laws Related to Second Marriage under
Muslim Law
Understanding the laws related to second marriage under Muslim law
requires delving into the historical and cultural context that shaped these
regulations. Here’s an overview to help readers appreciate why certain
laws exist:
Early Islamic Era
In the early Islamic era, polygamy was not merely a personal choice but
often a social necessity. Wars and tribal conflicts left many women
widowed and children orphaned. Polygamy served as a means to provide
protection and support to these vulnerable members of society.
Cultural Influences
Different Islamic cultures have interpreted and applied the laws related to
marriage and divorce in diverse ways. The variations in practice can be
traced back to regional customs, traditions, and interpretations of Islamic
jurisprudence.
Colonial Impact
During the colonial period, British rulers in India codified certain aspects
of Muslim personal law. This codification sometimes led to a rigid
interpretation of laws that were previously more flexible and adaptive to
individual circumstances.
Modern Interpretations
In contemporary times, debates around second marriage and polygamy in
Muslim law have become intertwined with broader discussions on gender
equality, human rights, and personal freedoms. Modern legal
interpretations often strive to balance traditional Islamic principles with
contemporary social norms and legal standards.
Second Marriage under Muslim Law for Men
1. A Muslim man can remarry if his wife dies or he has divorced her as
per the law and the second marriage will be considered valid.
2. A Muslim can also remarry his wife after divorcing her if the wife
follows and observes the prescribed iddat period.
3. According to the Sharia law, a man can perform a second marriage
under Muslim direction without divorcing the first wife but must get
consent from the first wife.
4. If a man marries a fifth woman while already married to four, the
marriage will be considered irregular but not invalid. However, the
 fifth marriage becomes lawful upon the death or divorce of any of his
four wives.
Second Marriage under Muslim Law for Women
The woman can seek divorce if her husband has died or is no longer
married to him based on the grounds of divorce, but she must follow
certain conditions before marrying another man, which is known as
observing ‘iddat.’
1. The wife cannot have a second marriage under Muslim law
immediately; during this period, she must not have sexual intercourse
with anyone.
2. If the husband dies, she will have to observe an iddat period of 4
months or lunar months and ten days from the date of her death.
3. If the husband is divorced but alive, she will have to follow an iddat
period of three months from the date the husband has pronounced
talaq or divorce.
4. If the woman is pregnant during divorce, then the period of iddat is to
be observed after the child is born.
5. If the woman wants to remarry her divorced husband, then she must
marry and get divorced from another man to marry her ex-husband
again. This practice is called Nikka Halala and is practised by a small
minority of Muslims.
Polygamy in Islam: A Nuanced Perspective
Polygamy, specifically polygyny (a man having more than one wife), has
been a subject of interest, debate, and misunderstanding in Islamic law.
This section explores the multifaceted aspects of polygamy in Islam.
Historical Connection
 As discussed in the Historical Context section, polygamy served

practical purposes in early Islamic society, often acting as a social

responsibility rather than merely a personal choice.
Cultural Variations
 Different Islamic cultures and schools of thought have diverse

interpretations and regulations concerning polygamy. While some

communities emphasize the practice, others have restricted or even
banned it, reflecting regional customs and legal frameworks.
Legal Conditions
 Islamic law permits a man to have up to four wives, but this comes

with stringent conditions. A husband must treat all wives equally in

terms of financial support, love, and care. Failure to do so can lead to
legal consequences.
Contemporary Debates
 Modern discussions around polygamy often intersect with broader

issues of gender equality, human rights, and personal freedoms. Some

argue that polygamy is incompatible with modern values, while
others defend it as a legitimate choice within the framework of
Islamic law.
Women’s Perspectives
 The voices and experiences of women within polygamous marriages

are vital to understanding the practice’s complexities. Some women

support polygamy, while others oppose it, reflecting diverse
perspectives and personal experiences.
Polygamy in Islam is not a monolithic or static practice. It is deeply rooted
in historical, cultural, legal, and individual contexts. Understanding
polygamy requires a nuanced approach that considers its multifaceted
nature and the ongoing debates that surround it.
Nikah halala’ is a practice in which a woman, after triple talaq, marries
another man, consummates the marriage, and gets divorced in order to be
able to remarry her former husband.
Right now, a constitution bench of the Supreme Court is going through
petitions challenging the age-old practice that many women feel violates
their right to equality and justice.
Remarriage Procedures
1. Completion of ‘Iddat’: Ensure that the ‘iddat’ period has been
completed if applicable.
2. Mutual Consent: Both parties must agree to the marriage, and the
terms should be clearly defined.
3. Witnesses: The presence of witnesses is required to validate the
marriage contract.
 4. Registration: Depending on jurisdiction, registration of the marriage
may be necessary.
5. Compliance with Polygamy Rules: If applicable, ensure compliance
with rules related to polygamy, such as equal treatment of wives.
Case Studies and Legal Precedents of Second Marriage Laws Under
Muslim Jurisprudence
To further elucidate the complexities of second marriage under Muslim
law, let’s explore some real-life examples and legal precedents:
Case Study 1: Equality in Treatment
In a landmark judgment, the court emphasized the importance of equal
treatment of wives in a polygamous marriage. The failure to provide equal
maintenance and emotional support led to legal action, highlighting the
responsibilities of a husband in a polygamous relationship.
Case Study 2: Validity of Nikah Halala
A controversial Nikah Halala case brought attention to the practice’s legal
and ethical implications. The court’s ruling sparked debates and led to
calls for reform, reflecting the evolving perspectives on traditional
practices within Muslim law.
Legal Precedent: Divorce and Remarriage Rights
In a significant ruling, the Supreme Court of India upheld the rights of a
Muslim woman to seek divorce and remarry without her husband’s
consent. This decision marked a shift towards greater gender equality and
autonomy within Muslim personal law.

Maintenance including the Muslim Women (Protection of

Rights on Divorce) Act, 1986 and
Maintenance during Subsistence of Marriage
Under Muslim law, a husband is obliged to maintain his wife and family,
and the term maintenance signifies the amount he is liable to pay for the
same. The term used for maintenance under Muslim Law is is called
nafaqa and it comprehends food, raiment and lodging, The wife is entitled
to maintenance from husband, despite the fact that she has means to
maintain herself. In addition to this, the marriage contract may stipulate
payment of special allowances by the husband, and in presence of these, it
becomes the obligation of the husband to pay these to the wife. Such
allowances are called kharch-e-pandan, guzara, mewa khore, etc. This can
be claimed as a right.
The Three sources from which these rights emanate are:
1. Muslim Personal Law.
2. Section 125, CrPC.
3. The Muslim Women (Protection of Rights on Divorce) Act, 1986.
Maintenance of Divorcees under Muslim Law:
Maintenance under, CrPC- Before and After 1973:
Initially, it was provided in the CrPC(earlier under section 488) that only a
wife is entitled to maintenance by husband. It was claimed by the
husbands that once dissolution takes place, a woman ceases to be a wife
and hence is not longer entitled to maintenance.
Looking at this loophole, an amendment was made in 1973, wherein under
section 125, a divorcee was entitled to maintenance till the time she
remarries. Being secular in nature, this provision applies to all women,
including Muslim women.
Conflict of Muslim Personal Law with section 125 of CrPC:
Under Muslim Personal Law, a woman is entitled to maintenance only till
the end of the Iddat period. Iddat is the period when co-habitation of the
parties end, on the expiry of iddat the spouses will stand divorced. The
period of iddat consists of three menstrual cycles or three lunar months , in
case of pregnant women , the iddat period would extend up to the time of
delivery. Hence, we can see a direct conflict, since CrPC does not
recognize iddat period and maintenance goes beyond the same.

In Mohammed Haneefa v. Mariam Bi the Court stated that in case of a

clash between personal law and CrPC, the former shall prevail. This
position was seconded by the Supreme Court in Saira Bano v A.M Abdul
Gafoor.
This caused a lot of dilemma in the legislature. To resolve this dilemma,
Section 127(3) (b)was added under which that if a divorced woman
receives an amount due to customary or personal laws of the community,
the magistrate can cancel any order for maintenance in her favour.
Judicial Decisions interpreting the Scope of Section 127:
It was held in Bai Tahira vs Ali Hussain Fissalli Chothia that payment
of "illusory sums" focused around the Muslim personal laws ought to be
considered to diminish the measure of maintenance payable by the spouse,
however that does not acquit the spouse from the liability in light of the
fact that each lady independent of her religion is entitled to maintenance.
The divorced wife has this right except from when the aggregate payment
stipulated by custom is pretty much sufficient to substitute the
maintenance.

An extra requirement was included by the Apex court in Fuzlunbi v. K

Khader Vali. The sum focused around Muslim law must be pretty much
identical to the month by month maintenance to the divorcee, required till
her remarriage or demise, with a specific end goal to substitute the
maintenance.
The Supreme Court expressed in Zohara Khatoon vs Mohd. Ibrahim
that the expression "wife" in S.125 and S.127 of CrPC incorporates
Muslim ladies who get separated by method for Talaq or under the
Dissolution of Muslim Marriage Act,1939. Therefore, the conflict between
Muslim Personal Law and CrPC still continued, and section 127 was not
sufficient to satisfy the Muslim community who opposed section 125 as a
detriment to their personal laws.
Mohd Ahmad Khan v. Shah Bano Begum or the Shah Bano Case:
In the present case, a 62 year old woman was divorced and subsequently
denied maintenance. She had not remarried. On moving the court of the
Judicial Magistrate at Indore under section 125 of the CrPC, and claiming
maintenance of Rs 500 per month, she was awarded a maintenance of Rs
25 per month from the husband. Aggrieved by the low amount, she filed a
revision petition before the Madhya Pradesh High Court, which entitled
her to a maintenance of Rs 179.20 per month. The husband appealed
against this order before the Supreme Court, his main contention being
that since the dissolution had taken place, she ceased to be his wife and
under Muslim law, he was not obliged to pay her maintenance. Also, since
he had paid the dower amount during the Iddat period, the wife was not
entitled to any maintenance.
The Supreme Court dismissed the appeal and upheld the decision of the
High Court. The Supreme Court explained this judgment by saying that,
even if there is a conflict, section 125 of CrPC is a secular law, and hence,
applies to all women, irrespective of their religion. It further stated that
CrPC shall prevail over Muslim Personal Law in case of a conflict.
Developments Post Shah Bano Case:
The Rajeev Gandhi government, coming under pressure from Islamist
groups decided to nullify the judgment, and in a effort to do the same, it
passed The Muslim Women (Protection Of Rights On Divorce) Act,
1986.This act became one of the most controversial legislations enacted.
The relevant provisions of this act are sections 3(1)(a) and 4(1), which
stated that the former husband must provide “a reasonable and fair
provision” and maintenance within the period of iddat and, that in case she
is unable to maintain herself after the period of iddat , she can claim
maintenance from her relatives and if they cannot pay , then she can claim
from the Wakf Board as per S.4(2),respectively.
Position Post Enactment of The Muslim Women (Protection Of Rights
On Divorce) Act, 1986- Daniel Latifi v. Union of India:
In this case, a writ was filed under Article 32 challenging the
constitutional validity of the Act.
In this case the constitutional validity of the Act was upheld and an
interpretation of the provisions of the Act was provided. The court
concluded that, one, the Act does not violate Articles 14, 15 and 21 and
hence, is not ultra vires.
The court made the following interpretations. Firstly, interpreting the
meaning of the term “within” used under section 3(1)(a) of the Act read
with the terms terms fair and reasonable, the court arrived at the
conclusion that the maintenance, being fair and reasonable, should exceed
the iddat period but must be made within the iddat period. Such
maintenance made during iddat period should be for her entire future, that
is the time after the expiration of iddat period as well. The liability of the
husband, therefore, is not limited to the iddat period. Therefore, this Act is
not in contravention of section 125 of CrPC.
Effects of Daniel Latifi Judgment:
Daniel Latifi judgment basically revived the principles settled in Shah
Bano case that, the husband’s liability to maintain his wife doesn’t end
with the iddat period. However, it explained this principle, not as
contravening the Act which was enacted as a result of the Shah Bano case,
as a commentary on that Act.
Also, the Act is consistent with section 125 of the CrPC and hence, there
is no scope for conflict. Hence, the position of law is that, the provisions
of the Act basically emanate from principles set forth in the Shah Bano
case. The same has not been changed till now, and continues to govern
matters related to maintenance of Muslim women after dissolution of
marriage.
The Present position
The principle has been seconded by the Supreme Court once again in
Iqbal Bano V/s. State of U.P. In the case the court reiterated the position
that divorced women are entitled for maintenance beyond the Iddat period
and stated that provisions of the Act do not contravene Article 14, 15 & 21
of the Indian Constitution.
The court further observed that “right under Section 125 of Cr. P.C.
extinguishes only when she receives “fair or reasonable” settlement
u/Sec. 3 of the Muslim Women Act. The wife will be entitled to receive
maintenance u/Sec. 125 of Cr.P.C. until the husband fulfils his obligation
u/Sec. 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986.

This was once again reiterated in the recent judgement in Shabana Bano
v. Imran Khan that after the expiry of iddat, a divorced Muslim woman
can seek maintenance under S.125CrPc as long as she doesn’t re-marry.
Hence, the position as laid down in the Daniel Latifi case is the settled
position and has not undergone any change.

Maintenance of Wife and Widow under Ss 125-

128 Cr.P.C., 1973-50
The legal requirement for someone to maintain their spouse, children, or
other dependent family members financially is known as maintenance
under India's Code of Criminal Procedure (CrPC).
Such substantive law is an example in Chapter IX (Sections 125 to 128 of
the Code). The support of spouses, children, and parents is outlined in
Sections 125 to 128 of the CrPC.
Maintenance: Meaning
It is quite challenging to formally define "maintenance" exactly. Even
S.125 of the Cr.P.C. does not clearly define upkeep.
The courts have, however, construed it to imply usually suitable housing,
clothing, and food. The word maintenance should not be used in such a
limited sense, though. As an illustration, in Ahmedullah V. Mafizuddin
Ahmed: It was decided that maintenance also covers educational costs. In
accordance with Section 3(b) of the Hindu Adoptions and Maintenance
Act, 1956, maintenance includes:
 In all circumstances, provision for food, clothing, residence,

education, and treatment.

 In the event of an unmarried daughter, also the reasonable costs of

and sequel to her marriage.

"Nafquh," which literally translates to "what a person spends over his
family," is the equivalent of "maintenance" in Muslim law. Mulla claims
that the term "maintenance" has come to mean "food, raiment (clothing),
and lodging."
Object
The maintenance of spouses, children, and parents is provided for in the
Code of Criminal Procedure (CrPC). In order to prevent those who are
unable to sustain themselves from having to live in poverty or become
homeless, this is being done. The CrPC also strives to safeguard women
and children against homelessness and scavenging.
Mani V. Jaykumari
The Madras High Court has ruled that the primary purpose of these
provisions is to provide social justice to women and children. The court
has also stated that these provisions are intended to prevent destitution,
distribution, and vagrancy.
The CrPC's maintenance provisions are a measure of social justice that are
specifically designed to protect women and children. These provisions
also fall within the constitutional framework of Article 15 (3), which
prohibits discrimination on the basis of sex, and Article 39, which
guarantees the right to an adequate standard of living.
Persons Entitled To Claim Maintenance In accordance with Section
125(1) of the Code, the following people may be eligible to make a
maintenance claim in specific situations:
 Wife

 Children

 Father or Mother

Maintenance to Wife
According to Section 125 (1) (a) of the Code, if a person with sufficient
means neglects or refuses to support his wife, who is unable to support
herself, a first-class Magistrate can order that person to provide a monthly
allowance for the maintenance of his wife. The amount will be determined
by the Magistrate, and the person must pay it as directed by the
Magistrate. In this context, "wife" includes a woman who has been
divorced by her husband or has obtained a divorce and has not remarried.

The term "wife" applies regardless of the woman's age, whether she is a
minor or an adult. The legality of the marriage will be determined by the
personal laws applicable to the parties, and if there is a dispute regarding
the validity of the marriage, the applicant will need to provide proof of
marriage. The Supreme Court in
Bakulbai V. Gangaram
It has been established that a woman who becomes the second wife of a
man who already has a living spouse at the time of the second marriage
does not have the right to receive maintenance. Even if the second wife is
unaware of the existence of the previous marriage, she is not entitled to
make a claim for maintenance.
In the case of Chanmuniya v Virendra Singh, Supreme Court has
defined ‘Wife’ and it includes even those cases where a man and woman
have been living together as husband and wife for a reasonably long
period of time. Strict proof of marriage should not be a precondition of
maintenance under Section 125 of the Cr.PC.
In the case of Smt. Yamunabai Anantrao Adhav v Ranantrao Shivram
Adhav, the Supreme Court held that marriage of women in accordance
with Hindu rites with a man having a living spouse is completely nullity in
the eye of law and she is not entitled to benefit under Section 125 of the
Cr.PC.
Right of Muslim Woman to Claim Maintenance U/S 125 Cr.P.C. After
Iddat Period.
A wife can claim and get maintenance from her husband in the following
conditions:
 She is divorced by her husband, or

 Obtained divorce from her husband, and

 She has not remarried, and

 She is not able to maintain herself.

A wife cannot claim and get maintenance from her husband in the
following conditions:
 Wife living in adultery, or

 Refuses to live with husband without any valid reasons, or

 Living separately by mutual consent.

Before the Mohammad Ahmed Khan v. Shah Bano Begum case, Muslim
wives were not entitled to claim maintenance after completing their Iddat
period.
However, this changed with the Supreme Court's ruling in the case.
Mohammad Ahmed Khan V. Shah Bano Begum
After her husband filed for divorce, 62-year-old Muslim Shah Bano
Begum filed a criminal complaint with the Supreme Court of India. She
requested maintenance, and the judge granted her request. The court ruled
that as long as a Muslim woman stays single and is unable to support
herself using the dower she received at the time of divorce, she has the
right to request maintenance under Section 125 of the Criminal
Procedure Code even beyond the Iddat period. Muslims were outraged
by this decision since it was against Islamic Law. The Muslim Women
(Protection of Rights on Divorce) Act, 1986 was subsequently passed,
which nullified the Supreme Court's ruling and prevented Muslim women
from suing their ex-husbands for maintenance.
Maintenance to Children
The Code doesn't define the term "child." According to Section 125(1): of
the Indian Majority Act of 1875, a child need not be a minor but must be
incapable of maintaining itself due to a physical or mental disability or
injury. This means that someone has not achieved full age, which is
defined as 18 years old.
However, a married daughter is not considered a kid.
The legality or illegitimacy of a child has no bearing on the determination
of maintenance. Maintenance is due to even an illegitimate minor.
In Moti Ram V. 1st Additional District Judge, Bareilly
Wife filed a petition for support for both her and her little kid. The
marriage was previously ruled void, and the daughter was not impleaded
as an applicant. Daughter's application was upheld as maintainable. It was
decided that "A woman may have a terrible character, but she may still be
entitled to an order for maintenance for an illegitimate child provided she
establishes that the person being sued is the child's father.
Maintenance to Father or Mother
The provision pertaining to a parent's maintenance who may not be able to
support themselves. Nowhere specifically did the stepfather or stepmother
fall under the definition of "his father or mother" as it appears in Section
125 of the Criminal Procedure Code. When the term "mother" is used in a
general sense, it refers to the woman who gave birth to the individual
whose support is being requested under section 125 of the Civil Rights and
Property Code. Further, in
Vijaya Manehar Arabat V. Kashirao Rajaram Sawai
The Supreme Court ruled that while it is true that the terms "his father"
and "his mother" are used in clause (d) of section 125 (1), the inclusion of
the pronoun "his" does not preclude the parent from requesting support
from the daughter. However, the court must be convinced that the
daughter has sufficient means of her own independent of the means of
income of her husband and that the father or mother, as the case may be, is
unable to support himself or herself before it can order maintenance of a
father or mother against their married daughter.
Can the husband ask the wife for maintenance?
It is obvious from a straightforward reading of S. 125 (1) that the right to
seek maintenance is only open to the individuals specified therein who are
not entitled to maintenance from their wives under S. 125 Cr.P.C. Since
the word "husband" is not used, it can be assumed that there is no
husband.
According to the aforementioned provisions of Section 125 of the Code, a
man has a natural and fundamental obligation to support his wife,
children, and parents for as long as they are unable to do so on their own.
In Jayashri Rajwade V. Vibhas Kulkarni
The Bombay High Court ruled that "the husband's application under
section 125 of the Code is certainly not maintainable" if there is a legal
prohibition on his claiming maintenance from his wife under section 125
of the Code. He may proceed to Civil Court to prove his right to
maintenance, but the Magistrate cannot grant him support in accordance
with his authority under Section 125 of the Code.
Additionally, under sections 24 and 25 of the Hindu Marriage Act of 1955,
a Hindu male may request maintenance.
Essential requirements for permitting maintenance:
1. Enough resources to maintain. The individual from whom
maintenance is demanded must have enough money to support the
person or people who are asking for maintenance. Here, the word
"means" refers to more than just outward things like tangible
possessions or steady job.
2. Ignorance or failure to uphold. The person from whom maintenance
is demanded must have ignored or refused to maintain the person or
individuals who are entitled to maintenance.
In contrast to "refuse," which denotes a failure to maintain or a denial of
an obligation to maintain after demand, "neglect" refers to a default or
omission in the absence of a demand.
3. The person requesting maintenance must be unable to care for
themselves.
 Due to the fact that the primary goal of Section 125 of the Code is to
prevent vagrancy, only those who are unable to care for themselves
should be subject to the duty to pay maintenance. An essential need for
the wife's application for maintenance is that she must be unable to
support herself.
Jurisdiction
 According to Section 125(1)(d), If any person neglects or refuses to
maintain his wife, children or parents, then a Magistrate of the First
Class can order such person to make a monthly allowance for the
maintenance of his wife, children or parents, at such monthly rate as
such Magistrate thinks fit, and to pay the same to such person as the
direction of magistrate.
If a minor female child is unmarried, then the magistrate can order to
make such allowance, until she attains her majority. In case a minor child
is married and the magistrate is satisfied that the husband of such minor
female child is not possessed of sufficient means, then the magistrate can
order father of the minor female child to make such an allowance for
maintenance.
When a proceeding is pending regarding monthly allowance for
maintenance, the Magistrate can order such person to make a monthly
allowance for the interim maintenance of his wife, children or parents and
the expenses of such proceeding which the Magistrate considers
reasonable.
An application for the monthly allowance for the interim maintenance and
expenses of proceeding should be disposed within sixty days from the date
of the notice of the application to such person.
 According to Section 125(2), If a court order for such allowance for
maintenance or interim maintenance and expenses of the proceeding,
then it should be payable from the date of the order or if so ordered,
then it shall be payable from the date of application for maintenance and
expenses of proceedings.
 According to Section 125(3), If any person fails to comply with the
order without sufficient cause, then Magistrate can order to issue a
warrant for levying the amount with fines. If the person again fails after
 the execution of the warrant, then the punishment of imprisonment for a
term which may extend to one month or until payment of sooner made
is awarded.
 Procedure for maintenance
Section 126 of Cr.PC deals with “Procedure for maintenance”. This
Section says the following:
 Proceeding under Section 125 may be taken in the following district:

1. Where he is, or
2. Where he or his wife resides, or
3. Where he last resided with his wife or mother of an illegitimate child.
 Evidence to be taken in the presence of a person against whom

maintenance is to be ordered.
 If a person is wilfully avoiding summons, then ex-parte evidence is

taken in that case.

A person seeking maintenance may submit an application to a
Magistrate in any of the following places, according to Section 126 of
the CrPC:
1. The address of the applicant's residence or place of business.
2. The place of residence or principal place of business of the person
from whom maintenance is demanded.
3. The last place the maintenance-seeker lived with the individual for
whom maintenance is being sought.
4. Where the person whose maintenance is demanded works or
maintains a business.
The several jurisdictions are listed so that the individual seeking
maintenance can submit their application easily and in a place that is
convenient for them. It also makes it possible to implement maintenance
directives effectively.
 Arrangement or termination of allowance s. 127: According to Sub-
Section 1 of Section 127, where a maintenance order has been granted
under Section 125, the amount specified therein may be changed based
on a change in the circumstances of the person receiving or the person
paying the amount.
According to Section 127's Subsection 2, the magistrate is required to
rescind or modify any orders made under Section 125 when he believes
that doing so is necessary as a result of a competent civil court's decision.
The magistrate may revoke the maintenance order granted to a divorced
wife in one of three situations, as outlined in subsection 3. If she has
remarried, has received the full amount due to her under any personal or
customary law, or has willingly relinquished the right that she had
obtained through a judge order.
 Enforcement of maintenance order [s. 128]: In the case that any
person thus ordered fails to comply with the order without good reason,
any such Magistrate may issue a warrant for the collection of the sum
due in the manner indicated for collecting fines.
The magistrate has the power to hold the offender in custody for a
maximum of one month or until the debt is paid, whichever occurs first.
Any magistrate in any location where the person against whom the order is
made may carry out such an order after being satisfied with the parties'
names and the non-payment of the allowance or, as the case may be, costs,
due.
 Alteration in allowance
Alteration in allowance means an order to increase, decrease or
remove/cancel the allowance which was ordered by the Magistrate under
Section 125.
 According to Section 127(1), if a magistrate ordered to give allowance
for maintenance under Section 125 according to the conditions of
parties at that time, but if the present conditions of parties have
changed, then he can also order to alter the allowance. For example-
1. Husband had a well-settled job and means for maintenance, on this
basis the Court has ordered him to maintain his wife and to allowance
under Section 125. But in the present condition, the husband has no
job and means for maintenance. Then, the Court can alter the
allowance and can reduce the amount of allowance.
2. If a wife was not having any job or she was unable to maintain
herself and she got the order of allowance under Section 125. But
after some months, she is well settled and she has the means to
 maintain herself. In this case, the Court can order to remove or cancel
allowance.
 According to Section 127(2), Magistrate shall cancel or revoke any
order given under Section 125 by him, if it appears that it should be
cancelled in consequences of any decision of the competent Civil Court.
For example- If Magistrate has ordered to give allowance to wife after
divorce but Civil Court has ordered to live together. Then, Magistrate
has to revoke his order which was given under Section 125.
According to Section 127(3), where an order has been made in favour of
women under Section 125, then the magistrate can cancel the order in the
following case:
1. If a woman is remarried after divorce.
2. If a woman has taken allowance under any personal laws after
divorce.
3. If a woman has voluntary leave her right to maintenance.
 According to Section 127(4), the Civil Court shall take into account the
sum which has been paid to such person as monthly allowance for
maintenance and interim maintenance under Section 125 at the time of
making any decree for the recovery of any maintenance or dowry.
 Enforcement of order of maintenance
Section 128 deals with “Enforcement of order of maintenance”. According
to this Section, the following are the conditions for enforcement of the
order of maintenance:
 Copy of order under Section 125 is given to that person free of cost in

whose favour it is made. In case the order is in favour of children,

then the copy of the order will be given to the guardian of children.
 If any Magistrate has made an order under Section 125, then any

Magistrate of India can enforce this order where that person lives
who have to give maintenance.
 The Magistrate has to satisfy two conditions before enforcement of

order:
1. Identity of parties, and
2. Proof of non-payment of allowances.
 UNIT-III
Surviving Spouse, his or her right to inherit;
Inheritance For the Spouses
[4:12] You get half of what your wives leave behind, if they had no
children. If they had children, you get one-fourth of what they leave. All
this, after fulfilling any will they had left, and after paying off all debts.
They get one-fourth of what you leave behind, if you had no children. If
you had children, they get one-eighth of what you bequeath.

All this, after fulfilling any will you had left, and after paying off all debts.
If the deceased man or woman was a loner, and leaves two siblings, male
or female, each of them gets one-sixth of the inheritance. If there are more
siblings, then they equally share one-third of the inheritance. All this, after
fulfilling any will, and after paying off all debts, so that no one is hurt.
This is a will decreed by GOD. GOD is Omniscient, Clement.

[4:176] They consult you; say, GOD advises you concerning the single
person. If one dies and leaves no children, and he had a sister, she gets half
the inheritance. If she dies first, he inherits from her, if she left no
children. If there were two sisters, they get two-thirds of the inheritance. If
the siblings are men and women, the male gets twice the share of the
female. GOD thus clarifies for you, lest you go astray. GOD is fully aware
of all things.
Spouse
1. If the deceased was a male, his wife always inherits as a class I heir and
takes 1/4th of his heritable estate if he has not left behind a child or an
eligible lower descendant – otherwise she takes 1/8th of it.
2. Since polygamy is believed to be permissible under Islamic aw, there is
a provision that if the deceased died leaving behind two or more lawfully
wedded wife’s, they will have to divide among them equally the share of a
single wife. This provision is expected to act as a deterrent for women
against marrying an already married man. Notably, the husband in this
case is not permitted to make a will in favour of his wives or any of them
to enhance their share.
3. If the deceased was a woman, her husband always inherits as a Class I
heir and takes half of her heritable estate if she has not left behind a child
or an eligible lower descendant- otherwise he takes 1/4th of it.
 Nevertheless, in a marital setting, the husband and wife are equally
entitled to inheritance from their spouse.
 A widow is also included in the scheme of inheritance. A widow who
has children or grandchildren is given 1/8 of the property of her
deceased husband, and if she is childless, she gets 1/4 of his property.
 However, if a woman marries a Muslim man during his illness, which
subsequently became the reason for his death, and the marriage has not
been consummated for that reason, then as a widow, she would not have
the right to inheritance.
 But if her husband divorced her before dying of illness, then her right to
inheritance continues until she remarries.
 The Islamic laws also give priority to the ascendants of the deceased
over the descendants in the scheme of inheritance by making them the
immediate heirs or the first-in-line to inheritance.
 The Islamic scheme of inheritance comprises two kinds of heirs – the
Sharers, or Quranic heirs, and the customary heirs, called the
residuaries. Therefore, if ‘M’ a Muslim man, dies leaving behind his
widow ‘W’ and his sons S1 and S2, then W, being the sharer, will take
1/8 (one-eighth) of the property and the remaining 7/8 (seven-eighths)
will be allocated to the residuaries – S1 and S2.
 However, there is divergence in the application of Quranic principles
between the divided sects of Sunni and Shia Muslims, creating slightly
different rules of inheritance – the Sunni law of inheritance and the Shia
law of inheritance.
Rights of the Widower
 S. 35 lay down the rights of the widower of the deceased. It says quite
simply that he shall have the same rights in respect of her property as
she would in the event that he predeceased her (intestate).
 Husband (widower) – gets 1/8 (one-eighth) shares, but in case he is
childless, the share portion increases to 1/2 (one-half). He can never be
excluded.
 A husband (in the case of succession to the wife's estate) takes a half
share in a case where the couple is without lineal descendants, and a
one-fourth share otherwise.
 A sole daughter takes a half share. Where the deceased has left behind
more than one daughter, all daughters jointly take two-thirds
 Under the Shia scheme of heirs, the husband and wife are never
excluded, and thus they always inherit with all other classes of heirs.
The class of distant kindred is not recognised under Shia law.
Rights of a Widow:
 Under Muslim law, no widow is excluded from the succession.
 If a Muslim widow is childless, she is entitled to one-fourth of the
property of her deceased husband. As mentioned earlier, the exact
volume of inheritance is determined only after the deceased’s loans are
paid off (if any) and his funeral expenses are met.
 If the widow has children and grandchildren, her share of the property is
one-eighth of the deceased husband’s property. If there is more than one
wife, this share may come down to one-sixteenth.
 If the marriage took place when the husband was ill and in case the
marriage is not consummated and if subsequently, the husband dies, the
widow is not entitled to any share in his property. However, if this man
who was ill, divorced the woman and died thereafter, the widow would
be entitled to a share till she remarried.
 Wife (Widow) – takes 1/8 (one-eighth) part of share if she has children
and ¼ in case of her being childless. She can never be excluded.
 S. 33, S. 33-A, S. 34 of the Act governs succession to the widow.
Together they lay down that if the deceased has left behind both a
widow and lineal descendants, she will get one-third share in his estate
while the remaining two-thirds will go to the latter.
 If no lineal descendants have been left but other kindred are alive, one-
half of the estate passes to the widow and the rest to the kindred. And if
no kindred are left either, the whole of the estate shall belong to his
widow. Where, however, the intestate has left a widow but no lineal
descendants, and the net value of his property does not exceed five
thousand rupees, the whole of the property will go to the widow.
 Muslim women and inheritance Both men and women are equal as
per the law of inheritance and there is no preferential treatment
imparted to either. However, the property share of men is double the
share of women.
 The understanding is that women, upon marriage, receive Mehr (money
or possession given by the groom during the marriage). She is also
maintained by the husband while her brother is totally dependent on the
ancestral property and therefore, her share is halved.
 According to the law, men have the responsibility to provide for their
wife and children. A husband must provide for his wife, even if she is
wealthy enough to maintain herself. In short, women can receive an
inheritance, not only as daughters but as wives and mothers too. She
need not spend her wealth on the household either.
Muslim woman’s property rights after divorce
 If the woman has a deferred Mehr, she will have all rights upon it after
the divorce.
 If the woman is divorced and has a minor child, she can ask for
maintenance from her former husband under Section 125 of the CrPC,
until she remarries.
 Iddah begins immediately after the death of the husband or the divorce
of a Muslim wife. Despite her failure to follow iddah, she would not be
held responsible or impacted in any way.
 If she did not receive news of her husband's death in time but learned
of it during the prescribed iddah period, she is required to observe it
for the remaining days of the iddat period.
 She is not obligated to perform iddat if she receives the news after the
iddah time has passed. The clock starts ticking when the husband dies
or when the divorce is granted.
 As per the Shariat, accepting or even offering maintenance after divorce
is not legal. However, the Indian legislature had passed the Muslim
Women (Protection of Rights on Divorce) Act, 1986, which provides
for a reasonable and fair provision of maintenance within the iddat
period, maintenance for children, amount of Mehr, as well as all
properties given at or after marriage.
 Deceased wife’s dower,
The dower is the right of a woman which cannot be waived off before the
marriage through a pre-contract or a pre-condition to the marriage.
This is the right of the wife, and it solely rests upon her decision how she
prefers to dispose-off the property or the sum of money of the dower.
Therefore, it asserted that the right to the dower of the wife cannot be
infringed or taken away from her.
Remedies of a Muslim woman to recover dower
The right to dower is an inherent right of every Muslim wife. But, unless
this right is effectively enforced, it is of no use to her. Under Muslim law,
following means of enforcement of the right to dower are available to a
wife (or widow):
Refusal of Conjugal Rights:
 Before consummation of the marriage, the wife is entitled to deny
cohabitation to the husband till he gives her Prompt Dower on demand.
It is to be noted that under Muslim law a husband has right to cohabit
with his wife and she cannot refuse the same without any reasonable
excuse.
 But non-payment of Prompt Dower before consummation is a lawful
justification for the wife to refuse cohabitation. A Muslim-wife can
refuse to live with her husband and refuse to him the sexual intercourse
so long as the Prompt Dower is not paid to her.
 Case: Nasra Begam v. Rizwan Ali
 The Allahabad High Court held that the right to dower comes into
existence before cohabitation and Prompt Dower may be demanded
even before the cohabitation.
 Where the wife is minor or insane, her guardian can refuse to allow the
husband to take his wife with him till the Prompt Dower has been paid.
If the minor wife is already in the custody of her husband, such
guardian can take her back on the ground of nonpayment of Prompt
Dower.
 But, where the consummation has taken place even once, the wife’s
right to refuse consummation is lost. If the marriage has already been
 consummated, the husband’s suit for restitution of conjugal right will
not fail on the ground of non-payment of Prompt Dower.
 However, the court has discretion, even in such a case, to pass a decree
for restitution of conjugal rights subject to the condition of payment of
Prompt Dower.
Enforcement of Dower as debt:
 Where the marriage has been consummated, the wife cannot enforce
her claim by refusing conjugal rights to the husband. In such a
situation the wife can recover her unpaid dower by maintaining an
action in a court of law. She may realise it from husband in the same
manner as a creditor recovers his loan.
 If the husband dies, the widow is entitled to recover the amount by
filing a suit against the legal heirs of the deceased husband. But the
legal heirs of the husband are not personally liable to pay the dower.
The dower is a debt against the estate of the deceased husband which
is inherited by heirs.
Widows Right of Retention:
 After the death of husband, the most effective method of enforcement
of dower is the exercise of right of retention. A widow, whose dower
remains unpaid, has a right to retain the properties of the husband till
her dower debt is satisfied. This right is termed as the right of
retention in lieu of unpaid dower and it is available to a widow,
whether there is any agreement between the parties for this right or
not.
 Under this right if a wife has taken possession of her husband’s
properties lawfully (with free consent of the husband) in lieu of
unpaid dower, then she is entitled to retain that possession after the
death of her husband, until her dower is paid out of the properties
retained by her.
 This right is exercised against the creditors, if any, of her deceased
husband, and his legal heirs. The legal heirs of the husband cannot
get possession (and benefit) of the properties of the deceased until
they make payments towards unpaid dower in proportion of their
 respective shares. Thus, this may be said to be a coercive method of
recovery of unpaid dower from husband’s legal heirs.
 Case: In Maina Bibi v. Choudhry Vakil Ahmad, it was held that a
widow possesses the right to maintain the assets of her husband till
her dower money becomes paid.
Suit for dower and limitation
If the dower is not paid to the wife while she is alive, then after her death,
her heirs can claim it. The period of limitation as per the Limitation Act,
1963, for a suit to recover prompt dower is three years from the date when
the dower is demanded, or refused. In the case of deferred dower, the
period of limitation is 3 years, from the date when the marriage is
dissolved by death or divorce.

Widow‟s lien/wife‟s right to retain,

Right to lien
 In a situation where the mehr is unpaid, and the husband passes away
then the wife has not been paid the mehr she also has the right to
recover the mehr from his heirs. This is to ensure that the woman is
maintained even under circumstances where her husband dies. But the
heirs are not required to pay the mehr from their own pocket.
 The legal heirs are required to pay by way of the property inherited by
the heir of the husband. Therefore, the woman is given the honour,
support and respect by way of mehr to ensure she does not suffer
especially in financial terms if her husband passes away. The woman
further has the right to reserve the property of the husband before
enforcing the will. This is similar to the right to lien under contract law.
 Illustration: Under Section 171 of the Indian Contract Act, 1872
there exists right to lien, this can be enforced by the banker where the
loan or debt is unpaid upon the security given. The banker shall hold a
lien on the securities. Similarly, the wife has the right of lien upon the
property of the husband.
 And she can enforce this right till the non-payment of mehr. Therefore,
this right shall be enforced by the wife after the death of her husband till
the legal heirs who have the right over the property pay her mehr. The
 mehr is to be paid by the legal heirs through their share in the property
and not by way of his personal property. The possession hence shall be
retained by the woman till the mehr or ‘Mehr’ is paid.
Lien is of two types:
1. Particular Lien: In the case of a particular lien, the person reserves
the right to keep possession of the goods until the charges owed on
the property are paid.
2. General Lien: A general lien is a right to keep ownership of property
in exchange for payment of a debt, even though the debt is unrelated
to the property in possession.
Legislative Enactment
When the seller transfers the title of the goods to the buyer and the buyer
fails to fulfil the payment requirements on time, the Sale of Goods Act of
1930 gives the seller certain rights. The right of lien is one such right.
Lien refers to the seller's right to hold a buyer's property until the buyer
pays the seller's debt for the goods sold to him. Sections 46, 47, and 49 of
this particular Act clarify the rights of the unpaid seller.
In instances where the buyer fails to complete to complete the payment,
the aforementioned sections provide the seller with a right to keep the
buyer's products or to refuse delivery of the same. In the event of a
transfer of ownership, the seller must sell the property.
Section 170 of the Indian Contract Act 1872 talks about Particular Lien.
It says that if a person is having a good shipped to them, the person has the
right to keep the goods until they are paid for the services provided. If the
individual seeking the right is not in possession of the products, the right
cannot be exercised. This right to keep possession applies only to the
goods on which the debts have accrued, and not to any other goods.
For example, if A gives his car to B for the purpose of reparation of some
faults then in such a case, B will have the right of particular lien to retain
possession of the car till A pays him for the services rendered by him.
The essentials for Particular Lien are:
1. Exercise of Labor and Skill
2. In Accordance with Terms of Contract
3. Goods upon which such skills are bestowed
 4. Possessory Right
Section 171 of the Indian Contract Act talks about General Lien. It talks
about the right of bankers, factors, wharfinger, and attorneys to retain
possession of any goods that are bailed to them to ensure that they're paid
for their labor/skill, unless there in an express contract contradictory to the
existence of this right.
In the case of Brandao vs. Barnett in England, the general lien was
recognized for the first time. It was held that in the general area of a
banker's lien, bankers have a general lien on all types of securities
deposited to the bank by customers, unless specified otherwise in a
contract or situations that indicate an implied contract that is not consistent
with the lien.
Lord Campbell provided this portion of the ratio by citing Lord Kenyon's
remarks in the case of David vs. Bowsher.
Unless there is evidence to prove that some specific protection was
received in exceptional conditions that would take it out of the common
law, he said, bankers have a general lien on all securities in their
possession for their general balance.
Service providers are usually the ones who are granted the right of general
lien. Such service providers have the right to keep the products that have
been bailed to them in situations where in the buyer owes them some
amount of money. This Section is highly concerned with restricting the
use of general liens by disallowing the use of this right unless it has been
expressly provided for in their contract. Lien is regarded as a primitive
remedy, and the common law does not encourage it, merely highlights it.
Since anyone can hold onto products of one kind or another, a general lien
could stymie trade and commerce.
There are several types of lien under General Lien:
1. Banker’s Lien: A banker's lien is created when products are bailed to
the bank. It is strictly limited to the banker's securities and properties,
and it is only applicable in situations where the bailed products are
owned by the consumer but kept by the bank as insurance. In case the
items entrusted to the bank are not owned by the consumer, then in such
cases the banker does not have right of general lien over these goods.
2. Factor’s Lien: A factor is anyone who is entrusted with the possession
of goods for the purpose of selling them. Such an individual had the
express authority to sell goods in their own name, without revealing the
name of the principal. A factor's lien occurs when products enter his
real or constructive custody. In the ordinary course of his business, he is
given possession. The court stated in the case of E.H. Parakh v. King
Emperor that lien arises when the goods are supplied to the factor in
the course of business and in his capacity as a factor.
3. Wharfinger’s Lien: A wharfinger is someone who owns a wharf and
often collects goods for hire on his wharf. Usually, such collection of
goods is for forwarding or distribution to the consignee, and the
wharfinger has the responsibilities of loading and unloading cargo, and
storing and delivering it.
4. Attorney’s Lien: Attorneys or Solicitors of any High Court have the
right of general lien over all papers and records held by his clients that
are in his possession in his professional capacity. Therefore, before the
attorney/solicitor is paid for his services, he has the right of lien.
However, with the refusal of further discharge of services by the
attorney/solicitor- he forfeits his right to lien.
Judicial Interpretation
The Allahabad High Court interpreted Section 170 of the Act's term
labour or skill. The Court held that the use of one's labor/skill must have
been in accordance with the specific intent of bailment, it must have been
used in an attempt to improve the goods and in specific goods, lien would
only be applicable over the goods which the bailee used his labor/skill.
Moreover, it is important to note that these sections only apply in cases
wherein there is no express contract prohibiting the use of the right of lien.
For instance, if goods are being stored in a warehouse and payment
remains incomplete, such goods will not fall under the ambit of Section
170 of the Act as there will no enhancement of the goods and no discharge
of labor/skill.
While examining Section 170 of the Act, a recent Bombay High Court
decision is noteworthy. The Court reinforced that a bailee claiming lien
does indeed have the right to keep the goods in question in his possession
till the time the payment is made in full, and after such payment the right
of lien ceases to exist.
In a King's Bench decision, it was declared that an individual cannot bail
goods to a third party if he himself does not have control over such goods.
In this particular case, a hire-purchase agreement was entered into by the
defendant with P, which allowed him to borrow the car and keep up with
its maintenance. However, the defendants stipulated that the agreement
could be terminated at any given time with adequate notice.
Scindia Steam Navigation Co. Ltd. v. Trustee of the Port of Karachi is
an important case in emphasizing that the bailee shall lose his right to lien
if he sells the goods as he has no right to do so, unless there is an express
contract for the same.
As held in the case of Transport & General Credit Corp. v. Morgan,
the right of lien exists only for the price of goods as stated in Section 46(1)
(a), and the right is solely based on statutory requirements rather than any
equitable considerations. As a result, the seller is not entitled to a lien on
any such payments, such as storage fees or the like.
In the case of Somes v. British Empire Shipping Co., it was decided that
once the payment has been completed, the seller has no right to demands
the return of goods for the storage costs he paid for such goods when they
were in his possession.
On the basis of the trade and commerce use of practice, specific carrier
products tried to claim the right to general lien in the case of Rushforth v.
Hadfield. In the instance of insolvency, it was noted that general lien has
the potential of causing a significant disadvantage. Such general liens can
cause a great deal of inconvenience to the entirety of traders as they
provide advantages to those individuals who claim to have the privilege
against the body of the creditors rather than coming with them for the sake
of the state's insolvency.
In the case of Davendra Kumar v. Chaudhary Gulab Singh, the Nagpur
High Court held that in instance where goods or securities are deposited in
bank for purposed like safe custody, then the banker shall have no general
lien on these goods as the acceptance of goods for specific purposes means
that general lien is exempt.
In a Supreme Court judgement delivered by K.T. Thomas, the court stated
that:
The term goods as specified in Section 171 of the Act must be interpreted
in accordance with the Sales of Goods Act, and that the Bar Council of
India Rules does not provide for any lien on the litigation files for the
litigants. The laws, on the other hand, forbids an attorney from adjusting
the fees owed to him or her against the client's liability.
Conclusion
To conclude, the researcher has examined the two broad types of Lien and
the legislative enactments concerning the same. Moreover, the researcher
has also examined some case laws that highlight the application of the
Right of Lien by way of judicial interpretation.
The Right of Lien can open up a box of dangers and yet, it continues to be
if great assistance and help. If a lien has been drafted well, it can help
those who claim it by providing them protection to an extent. In the
terminals of Lien worldwide, the group and subsidiary of a particular
corporation, and in terms of debt and liabilities, the range is much wider
than conventional terminal facilities.
Right to Retain Possession in Lieu of Unpaid Dower
 The wife is entitled to recover the dower amount, along with other
creditors. This right of the wife is no greater than an unsecured creditor.
If the wife obtains possession of the property of husband to recover her
dower amount from the rent or other issues accruing, or absolute
possession.
 This right of possession against the heirs and other creditor’s only
remains until the amount is satisfied or is duly paid by the heirs from
the estate. This right to retain possession arises only after dissolution of
marriage. The wife does not get any title over the property where she
obtains possession and hence she cannot alienate the property.
 After the death of a husband the most effective method of enforcement
of dower is the exercise of the Right of Retention. A widow, whose
dower remains unpaid, has a right to retain the properties of the
husband till her dower debt is satisfied.
 This right is termed as the right of retention in lieu of unpaid dower and
it is available to a widow, whether there is any agreement between
the parties for this right or not.
 Under this right if a wife has taken possession of her husband’s
properties lawfully (with free consent of the husband & without
force) in lieu of unpaid dower, then she is entitled to retain that
possession after the death of her husband, until her dower is paid out of
the properties retained by her.
 This right is exercised against the creditors, if any, of her deceased
husband, and his legal heirs. The legal heirs of the husband cannot get
possession (and benefit) of the properties of the deceased until they
make payments towards unpaid dower in proportion of their respective
shares.
Thus, this may be said to be a coercive method of recovery of unpaid
dower from husband’s legal heirs.
 However, this right of retention does not give her any title to the
property; therefore she cannot alienate the property. The right to
retain possession of the husband’s estate till payment of dower also
arises after divorce. In no case it arises during the continuance of
marriage.
Characteristics regarding Widow’s Right to Retention
 Widow's Possession over Husband’s Property
For the exercise of this right, it is necessary that the possession of
husband’s property was obtained only in lieu of unpaid dower. If she is in
possession of the husband’s estate for some other reason, she cannot retain
it under this right.
 Only Possessory Right
The widow’s right to retention is simply a possessory right. It does not
give any title or right of ownership to the widow over the property
possessed. Or the right to continue in the possession of the husband’s
property after termination of marriage (either by Divorce or by Death)
until the satisfaction of the dower debt.
It is, therefore, necessary for the exercise of this right that the wife or
widow must be in actual possession of the property at the time of the
termination of marriage. If she was not in actual possession of the
property at this time, she cannot afterwards acquire possession of the
husband’s property in lieu of this right.
 No Right of Retention during Continuance of Marriage.
The right comes into existence only after the death of her husband, or if
the marriage is dissolved by divorce, immediately on such divorce, but not
before.
Thus, if a creditor of the husband obtains a decree against him and the
husband’s property is sold in execution of such decree in his lifetime, the
wife has no right of retention against a purchaser in execution of the
decree and she must deliver possession to him.
 Payment of Dower from Income of Property
The property which a widow retains in lieu of her unpaid dower is owned
by the legally liable individuals of her unpaid dower, i.e. owned by the
legal heirs of her husband. Therefore, the income arising out of this also
belongs to those legal heirs.
 Possessed property must be Non-Transferable
The property in possession of the widow in lieu of unpaid dower cannot be
transferred by her. She is not the owner, she cannot transfer the property.
Any such transfer will be void.
 If the Possession is lost, it’s lost for ever
If the widow transfers and delivers the possession of the property retained,
the possession doesn’t come back to her, it goes to the legal heirs of the
husband according to their respective shares.
 Transferability of the Right to Possession
The right to retain the property of the husband is the exclusive right of the
wife. This right cannot be separated from her and transferred to anyone
else. According to Patna High Court, it was held that the right to retain the
property of the husband is non-transferrable.
 Heritability of the Right to Retention
The right to retention can be inherited by the legal heirs of the widow
provided her own retention was lawful and she died during such retention.
 No Fraud
It is also necessary that the wife should have obtained possession of the
property lawfully and without force or fraud.
In Babee Bachun v Hamid Husain, it was held that “the possession of the
husband‘s estate should have been acquired by the wife without force or
fraud, that is, it should be peacefully and lawfully acquired.”
 The right of retention is not analogous to a mortgage.
It means that the woman must have no interest in the property, as the
mortgagee has under ordinary mortgage. There is no true analogy
between her right of retention and mortgage.
In the case of a mortgage, the mortgagee retains possession under an
agreement between him and the mortgagor, while her right or retention
does not arise from any such agreement but is conferred on her by law,
constituting a charge on the property.
 Right of retention is not a Charge
The right does not constitute a charge on the property and as such she is
not a secured creditor.
If the property has been mortgaged by her deceased husband, the
mortgagee can sell it irrespective of her right of retention in lieu of unpaid
dower and can oust the property from her Possession.
 A possessory lien on property is no title.
It means that:
1. Wife or Widow can only satisfy her claim for dower with the rents and
profits accruing from the property.
2. The right of retention does not give her any title to the property. The
title to the property is in the heirs.
3. She cannot alienate the property by sale or mortgage to satisfy her
dower. If she alienates the property, it is valid to the extent of her own
share and not of the shares of other heirs of her husband.
Example– Her dower is Debt for 600rs and she got 1000s after alienating
the property then she is entitled to only 600 rs only and the rest will go to
heirs
4. If the widow is dispossessed by the heirs or their transferees, she can
recover possession only by instituting a suit under Section 9 of the
 Specific Relief Act, that too within 6 months of dispossession, failing
which she would lose her right to recover possession.
5. In case she is dispossessed by a trespasser, she can sue within 12
years under Article 12 of the Indian Limitation Act.
In Meer Meher Ally v. Mst. Amanee, it was said that “the lien of the
widow over the property in her possession is not a lien in the ordinary
legal sense of the term and that a claim for dower is in the same position
as that of any other ordinary creditor and ranks Pari Passu with them and
like other debts has to be paid before the heirs are entitled to take
anything.”
 Widow in possession liable to account.
A widow in possession of her husband’s estate is bound to account other
heirs of her husband for rents and profits received by her out of the estate,
and she is herself entitled to charge interest on the dower due to her
and to set it off against the net profits.
It was held in Shaikh Salima’s case, that ” A Widow in possession of her
husband’s property in lieu of dower debt is liable to account to other
sharers of income from such property, in her possession”.
 Can sue heirs.
The widow is not disentitled to sue her husband’s heirs for the recovery of
her dower out of his assets on the ground that she is retaining the property.
 The right of retention whether heritable or transferable.
There is a conflict of judicial opinions whether the widow’s right to hold
possession is transferable and heritable.
In the case of Hadi Ali vs Akbar Ali, 1898,
“One view is that the right to retention is a personal right and is not a lien,
therefore it cannot be transferred through sale, gift or otherwise and it
cannot be transferred to the widow’s heirs on her death.”
However, in Hussain vs Rahim Khan, 1951, Mysore High Court held
that “the right to retention is both heritable and transferable as the right
to retention can be exercised by the heirs of the widow on her death.”
Common Ground was reached in Maina Bibi vs Chaudhary Vakil
Ahmed (1925) court opined that “All that can now be said with certainty,
is that the right to hold possession is heritable. Though it cannot be said
with certainty whether it is transferable, the balance of authority in India
is in favor of the view that it is also transferable.
Thus, the right to hold possession cannot be severed from the dower-
debt and transferred as a separate interest.”
Rights of deceased husband’s heirs,
Muslim law recognizes two types of heirs, Sharers and Residuaries.
Sharers are the ones who are entitled to a certain share in the deceased’s
property and Residuaries would take up the share in the property that is
left over after the sharers have taken their part.
Under Muslim Law, widow is entitled to 1/4th share of the property, if she
is issueless, after meeting his funeral and legal expenses and debts. The
widow who is having children and grand-children is entitled to 1/8th share
of the deceased husband's property. The child in the womb of its mother is
competent to inherit only if it is born alive. A child in embryo is regarded
as a living person and as such the property vests immediately in that child,
but if such child in the womb is not born alive, the share already vested in
its divested and it is presumed as if there was no such heir (in the womb)
at all. The deceased Muslim who has no legal heirs under Muslim Law,
his properties are inherited by the Government through the process of
escheat. In Muslim Law, a non-Muslim could not inherit from a Muslim,
but the Caste Disabilities Removal Act, 1850 does away in India with the
exclusion of a non-Muslim from the inheritance of the property.
1. Spouse
1. If the deceased was a male, his wife always inherits as a class I heir and
takes 1/4th of his heritable estate if he has not left behind a child or an
eligible lower descendant – otherwise she takes 1/8th of it.
2. Since polygamy is believed to be permissible under Islamic aw, there is
a provision that if the deceased died leaving behind two or more lawfully
wedded wife’s, they will have to divide among them equally the share of a
single wife. This provision is expected to act as a deterrent for women
against marrying an already married man. Notably, the husband in this
case is not permitted to make a will in favor of his wives or any of them to
enhance their share.
3. If the deceased was a woman, her husband always inherits as a Class I
heir and takes half of her heritable estate if she has not left behind a child
or an eligible lower descendant- otherwise he takes 1/4th of it.
2. Children
1. If the deceased has left behind only daughters and no sons, they inherit
as Class I heirs and take their fixed share - half of the estate for a single
claimant, and 2/3rd of it for two or more to be shared equally.
2. If the deceased has left behind both sons and daughters all of them
inherit, as Class II heirs, the reminder of the estate after allotting the fixed
shares of Class I heirs – the share of each son being double the share of
each daughter.
3. If the deceased has left behind only sons they inherit, as Class II heirs,
the remainder of the estate after allotting the fixed shares of class I heirs
and share it equally.
3. Mother
1. The mother of the deceased always inherits as a class I heir and takes
1/3rd of the heritable estate if the deceased has not left behind a child or an
eligible lower descendant - otherwise she takes 1/6th of it.
2. If the deceased has not left behind any child or eligible lower
descendant, but there are the spouse and the father of the deceased, the
mother takes 1/3rd of the estate minus the fixed share of the spouse [since
otherwise little may be left for the father of the deceased]
3. As an exceptional case, if the deceased has left no child or eligible
lower descendant but has left behind both parents and two or more
siblings, the mother’s share gets reduced to 1/6th of the estate [so that the
father, in view of his extended family liability, gets a bigger share].
4. Grandmother.
1. If the mother of the deceased has not survived him but maternal
grandmother [or her mother] is alive, she inherits as a Class I heir and
takes 1/6th of the estate (even if the father of the deceased is alive).
2. A paternal grandmother [or her mother] Inherits only in the absence of
both parents of the deceased and takes a 1/6th share.
3. If there are two or more grandmothers [maternal or paternal] entitled to
inherit as per the above rules, they jointly take a 1/6th share to be equally
divided between them. The total share of eligible grandmothers, one or
more always remains 1/6th – it is never doubled.
5. Father
1. If the deceased has left behind a child or eligible lower descendant, the
father inherits as a Class I heir and takes 1/6th share of the estate.
2. If the deceased has not left behind any child or eligible lower
descendant, the father takes, as a Class I heir, what remains of the estate
after allotting fixed shares of the spouse and mother of the deceased.
3. If there is no Class I heir entitled to inherit, the father takes the entire
heritable property of the deceased.
6. Grandfather
1. If the deceased has left behind any child or eligible lower descendant
and the father has not survived him, the father’s father [or his father], if
alive, inherits as a Class I heir and takes a 1/6th share.
2. If the deceased has not left behind any child or eligible lower
descendant and the father too has not survived him, the father’s father [or
his father], if alive, takes as a Class I heir what remains of the estate after
allotting fixed shares of the spouse and mother of the deceased.
3. Mother’s or grandmother’s father does not find a place among the heirs
of Classes I or II and can inherit only as a Class III heir (see below).
7. Grandchildren
1. If the deceased is not survived by a daughter or son but has left behind
granddaughters [son’s daughters] and no grandsons [son’s son], they
inherit as Class I heirs and take their fixed share – half of the estate for a
single claimant and 2/3rd for two or more to be shared equally.
2. In such a situation if there are also grandsons along with granddaughters
all of them inherit together, as Class II heirs, the remainder of the estate
after allotting fixed shares of Class I heirs – the share of each grandson
being double the share of each granddaughter. In the absence of grandsons
and granddaughters the same rules would apply to great grandsons and
great-granddaughter.
3. If the deceased has left behind a single daughter but no son or grandson,
and there are granddaughters [one or more] but no sons or grandsons, they
also take a 1/6th share in the estate [reminder of the share of two or more
daughters].
8. Siblings
1. If the deceased has not left behind any child or eligible lower
descendant and the father (or his substitute) is also not alive, but there are
uterine brothers or sisters of the deceased, they inherit as Class I heirs and
take their fixed share – 1/6th for a single claimant and 1/3rd for two or
more to be shared equally [even if there are full-blood or half-blood
brothers or sisters of the deceased].
2. In the absence of a child or an eligible lower descendant, if the deceased
is not survived by father (or his substitute) and there are full-blood or half
–blood sisters (but no such brothers) of the deceased, they inherit as class I
heirs and take their fixed shares – half of the estate for a single claimant
and 2/3rd for two or more to be shared equally.
3. In such a situation if there are also full –blood or half-blood brothers
along with such sisters, all of them inherit the estate together as Class II
heirs –the share of each brother being double the share of each sister.
4. In this situation, as an exceptional rule, even in the absence fo brothers
– if there are daughters or granddaughters of the deceased taking their
fixed shares as Class I heirs and after allotting their fixed fractional shares
there is a residue, it may go to a sister
5. In all these situation full blood generally excludes half blood – but if
there is only one full-blood sister inheriting as a Class I heir and there is
also a half –blood sister but no full-blood or half –blood brother, the latter
also takes a 1/6th share [remainder of two or more full-blood sisters’
share].
Transferability and inheritability of dower,
Widow’s right to retention is the most effective method of enforcement of
dower after the death of the husband. A widow, whose dower debt is
pending, has a right to retain the properties of the husband till her dower
debt is satisfied. This right is termed as the right to retention in lieu of
unpaid dower and it is available to a widow, whether there is any
agreement between the parties for this right or not. Right to retention is a
right of Muslim wife to continue to be in possession of her husband’s
property in those cases where her dower has not been paid. However, the
right of retention is available when the marriage has been dissolved by
death or divorce. During the subsistence of marriage, the right of retention
is not available to the wife, unless she has, under a contract, a right of lien
or possession over her husband’s property.
Under this right, if a wife has taken possession of her husband’s properties
lawfully (with free consent of the husband) in lieu of unpaid dower, then
she is entitled to retain that possession after the death of her husband, until
her dower is paid out of the properties retained by her. When a wife was in
possession of her husband’s property during his life and continued in
possession after his death, the presumption is that her possession is lawful.
In Hamira Bibi v. Zubaida Bibi, it is submitted that in view of the nature
of the rights of retention, it holds that no consent is necessary, particularly
in view of the well-established preposition that widow’s possession should
be lawful and must have acquired it without force or fraud.
The right of retention has the following implications:
1. The widow is liable to render full account of all the income and
profits: The Muslim widow holding the possession of property in her
right to retention is liable to render full accounts of all rents and profits
of property received by her to those who are entitled to the property.
2. She has no right to alienate the property: Right of retention confers
on her the right to satisfy her dower-debt out of the income and profits
of the property, but she has no right to alienate the property for value or
gratuitously.
3. Widow has the right to sue for the recovery of her dower: The right
of retention is no bar to her suit for the recovery of her dower-debt. In
such a suit, she will have to offer to give up possession on the recovery
of her dower-debt. She cannot retain possession as well as have a decree
passed in her favor of dower-debt.
Right to Dower as a Debt
Dower is an unsecured debt which the wife or widow, or divorcee, can
recover from her husband, when alive, or from his estate when dead. Not
merely the widow has the right to recover the dower-debt, but, on her
death, her heirs, too, can recover it. Similarly, the dower-debt can be
recovered not only from the husband, but also, after his death, from his
heirs.
Also, Heirs of a deceased husband are not personally liable for the
payment of dower debt; they are liable to the extent in which they
inherit the property of the deceased. If the property of the deceased
husband is already in the possession of the widow, then the other heirs of
the deceased are entitled to recover their shares according to the payment
of the debt proportionate to their shares.
In Kapoor Chand v. Kadar-unnissa,’ the Supreme Court laid down the
following three propositions:
 The widow is like any other creditor of the husband and cannot,
therefore, claim any priority for the dower-debt over other creditors,
 The widow’s claim for dower-debt has priority over the claim of heirs
(but it seems, if she omits to put up her claim for dower and allows a
person to take the amount of his legacy from the estate of the deceased
husband, she cannot afterwards retract her assent), and
 The heirs of the deceased husband are not personally liable for the
dower-debt of the widow; the amount can be realized ratably from their
share in the estate.
 Transferability of the Right to Possession
The right to retain the property of the husband is the exclusive right of the
wife. This right cannot be separated from her and transferred to anyone
else. According to Patna High Court, it was held that the right to retain the
property of the husband is non-transferrable.
 Possessed property must be Non-Transferable
The property in possession of the widow in lieu of unpaid dower cannot be
transferred by her. She is not the owner, she cannot transfer the property.
Any such transfer will be void.
 Heritability of the Right to Retention
The right to retention can be inherited by the legal heirs of the widow
provided her own retention was lawful and she died during such retention.

Parent Child relations including acknowledgement of paternity

and concept of Legitimacy;
Legitimacy and Parentage under Muslim Law
In India, our judicial system still allows the practice of personal laws. This
means, that every religious community or group can practice and follow
the rules and regulations of their own laws, up to a certain point. One such
prevalent law in India is the Muslim law or Islamic law. Let us look
into Legitimacy and Parentage under Muslim Law.
How is Paternity Established?
Paternity is the relationship between a child and his paternal figure, i.e. his
father. Parentage under Muslim law is not a matter of fact. The only way
to establish paternity is by marriage to the mother of the child. So as per
Islamic law, maternity is by fact but paternity can only be by marriage.
In Islamic law, the concept of paternity is of great significance. Paternity
of a child is presumed after the acknowledgment is made by the father.
Acknowledging a child, in Islam, is a crucial aspect of family
relationships, as it establishes the child's legal status and rights.
Acknowledgment is a formal declaration of paternity, and it is required for
a child to have legal rights to inheritance, support, and other benefits. The
acknowledgment of paternity is a legal process by which a man can
formally recognize a child as his own. The acknowledgment of paternity
in Islam is considered to be a legal act, which creates a bond between the
father and the child. The acknowledgment of paternity can be established
by various means, including verbal acknowledgment, written
acknowledgment, or the performance of certain acts that indicate
paternity.
The acknowledgment of paternity in Islam is a legal process by which a
man can formally recognize a child as his own in cases of uncertainty with
respect to the child's legitimacy. The recognition of paternity is an
important concept in Islam as it establishes the child's rights and the
father's responsibilities.
This concept of Acknowledgement of Paternity is, however, a highly
patriarchal concept that is deeply ingrained in the Muslim Shariyat Law. It
reflects the discriminatory mentality of the society. A child is labeled as
legitimate or illegitimate solely based on acknowledgment by the father.
In Islam, the concept of acknowledgment of a child is significant, and it
has far-reaching implications for family relationships, inheritance, and
other legal rights. This article examines the concept of legitimacy of child
and acknowledgment of paternity and explores the intersection of
patriarchy and the concept of acknowledgment of a child in Islam.
Deciding the legitimacy of a child
In order to decide the question of legitimacy of the child, the paternity has
to be proved.
The legitimacy of the child has to be decided from the date of conception
of the child and not their date of birth. In addition to that, only a child born
out of a Sahih Nikah or Fasid Nikah is considered to be legitimate. If the
marriage is void to begin with or no marriage ever existed then the child
would be considered illegitimate right away.
If there is not a lawful and direct marriage between the said people, then
an indirect marriage can be established if,
 There is cohabitation of the father and the mother

 The father acknowledges the mother as his wife

 The father acknowledges the child as his own. So if the marriage

cannot be proven between the father and mother, or there is a doubt

as to the paternity of the child, the father can choose to acknowledge
the child as his own. This is true for both sins and daughters. It is
known as ikrar-e-nasab. Also, such acknowledgement need not be
expressed; it can also be implied by conduct.
Presumptions with regard to legitimacy of a child
There are several presumptions with regard to legitimacy of a child. They
are as follows:
1. In order for a child to be Jaez or legitimate, there should be an existence
of a valid or Sahih nikah or irregular or Fasid nikah at the time of their
conception. A child conceived after a valid or irregular marriage is
considered to be a legitimate child.
2. If a child is born after a period of six (minimum) lunar months after a
valid or irregular marriage, then the child so born would be a legitimate
child.
3. A child born after the dissolution of marriage is legitimate in certain
cases. Different schools of Muslim Law prescribe different time periods
 for the same.
a. According to the Shia Law, the child must be born within ten lunar
months of the dissolution of marriage.
b. According to the Hanafi School of the Sunni Law, the child must be
born within 2 lunar months of the dissolution of marriage.
c. According to Maliki School and Shafi School of the Sunni Law, the
child must be born within 4 lunar months of the dissolution of
marriage.
In order to better understand the concept of legitimacy of child, we shall
peruse some illustrations:
1. A, a Muslim woman conceived a baby 3 months after her marriage to B,
a Muslim man. In this scenario, the child after their birth would be a
legitimate child because the child was conceived post-marriage.
2. A and B, two Muslim persons, were in a live-in relationship. One fine
morning, A felt nauseous. To be on the safer side, she decided to take a
pregnancy test. The test turned out to be positive. Both A and B decided
to go ahead with the pregnancy. 9 months later, A delivered a beautiful
baby girl named C. C would be considered as an illegitimate child.
3. A and B were two Muslim persons who decided to run away and get
married. They were under prohibited degrees of marriage. Soon after
their marriage, they conceived a baby. The child born out of such a
relationship would be an illegitimate child because the marriage
between A and B was void.
4. A and B were two Muslim persons who were in a relationship. They
indulged in unprotected sexual intercourse with each other due to which
A got pregnant. Both of them, decided to get married subsequently. 2
months later they had baby boy named C. C would be considered as an
illegitimate child because despite the fact that a valid marriage existed
between C's parents A and B at the time of his birth, his parents were
not married at the time he was conceived.
Can an illegitimate child be legitimized?
In order for a child to be considered legitimate, either there should be an
unequivocal legitimacy since their birth or in cases of uncertainty; there
should be acknowledgment of paternity by the father.
In the latter case, if a Muslim father acknowledges the paternity of an
illegitimate child, it would not render the child to become legitimate
merely because of acknowledgment of paternity.
In a historical case of Mohd. Allahdad Khan v. Mohd. Ismail Khan, the
Hon'ble court held that if the illegitimacy of a child is proved, then
acknowledgment of paternity would have no effect.
In another case of Habibur Rahman Chowdhury v. Altaf Ali Chowdhury,
the Hon'ble court observed that if a child is proved illegitimate, then they
cannot become legitimate merely by acknowledgment.
Acknowledgment of child
In Islam, acknowledgment of child applies only in circumstances when
there is vagueness with respect to legitimacy of a child. In order for the
acknowledgment to be legally valid, certain conditions have to be
fulfilled:
1. Only a natural parent can acknowledge the paternity of a child.
Therefore, only the father can acknowledge paternity.
2. A lawful marriage between the mother of the child and the father of the
child should be established.
3. Acknowledgment of a child can either express or implied.
4. The father must acknowledge the child as his legitimate child and not
just his child.
5. The father of the child should be competent to acknowledge paternity.
He should be an adult and a sane person.
6. Acknowledgment of a child once given cannot be revoked.
Patriarchy and the concept of acknowldegment of paternity
In Islam, the acknowledgment of a child is an important concept, and it is
governed by certain rules and regulations. Patriarchy plays a role in this
concept, as it determines the legal and social status of a child. According
to Islamic law, the father is the legal guardian of the child, and he has
certain rights and responsibilities towards the child. These include
providing for the child's basic needs, such as food, shelter, and clothing, as
well as protecting the child's rights and interests. In terms of
acknowledging a child, Islamic law recognizes two types of
acknowledgment:
 • Acknowledgment through marriage and
• Acknowledgment through paternity.
In both cases, the father is the one who must acknowledge the child. If the
child is born within a marriage, the father is automatically considered the
legal father, and the child is considered legitimate. However, if the child is
born outside of marriage, the father must formally acknowledge the child
in order for the child to be recognized as legitimate. In cases where the
father does not acknowledge the child, the child is considered illegitimate,
and he or she may face certain legal and social disadvantages. For
example, the child may not be able to inherit from the father or may not be
able to claim certain benefits or rights that are reserved for legitimate
children.
Necessity of Acknowledgement of Legitimacy
When there is direct proof of marriage and a child born out from such
marriage, the question of acknowledgement does not arise because, in
such cases, the legitimacy is ipso facto established.
If there is no such direct proof of legitimacy, then legitimacy may be
proved by indirect proof, which is called acknowledgement.
Note: Acknowledgement is made by the father only not the mother. In
other words, the doctrine applies only to cases of uncertainty about
legitimacy. Acknowledgement is made on the assumption of a lawful
union of the parents and the acknowledged child.
Basic Principles of Acknowledgement
1. Express or implied acknowledgement
It is not necessary that an acknowledgement should be express. It may also
be implied. The acknowledgement may be of a son or daughter, but it
must be made by the father only. The acknowledgement of the child must
not be casual.
Muhammad Ali Khan vs Muhammad Ibrahim Khan 1929 PC
The father made the acknowledgement of the child in a casual manner. He
never intended that his acknowledgement should have serious effects. It
was held by the Privy Council that the act of the father is not sufficient to
confer the status of legitimacy.
2. Age of the Acknowledger
The age of the parties must be such that it is possible that they may be
father and son. According to Bailie, the acknowledger must be at least
12.5 years older than the person acknowledged.
3. The child of others
The child who is acknowledged must not be known as a child of another.
4. Offspring of Zina
An offspring of Zina is one who is born either without marriage or a
mother who was the married wife of another or of void marriage.
When the man has committed Zina with a woman, and she has delivered a
son, such a son cannot be acknowledged. So the acknowledgement must
be of the child who is offspring of a legal marriage.
5. Legal marriage possible between parents of the child acknowledged
The acknowledger and the mother of the child must have been lawfully
joined in marriage at the time when the child was begotten. It is essential
to show that lawful marriage is possible between the acknowledger and
the mother of child. And the child is not the fruit of an adulterous
intercourse.
Similarly, if it is definitely proved that no marriage took place between the
parties, the issue will be illegitimate, and the acknowledgement will be
ineffective.
6. Person acknowledged should confirm acknowledgement
The child, if adult, must confirm the acknowledgement.
7. Competency of the Acknowledger
The acknowledger must be competent to make a contract, which means he
must be major and of sound mind.
Effects of Acknowledgement
Acknowledgement produces all the legal effect of a natural paternity and
vests in the child the right of inheriting from the acknowledger.
In the case of wife, which means the mother of an acknowledged son, it
has the effect of giving her the status of legal wife and hence the right of
maintenance and inheritance.
Analysis and conclusion: Acknowledgment of paternity is the process of
establishing the legal relationship between a child and their father. In
Islam, legal acknowledgment is important for determining the child's legal
rights, including inheritance, financial support, and guardianship.
However, this concept of acknowledgment of a child has its roots in
patriarchy.
The concept of acknowledgment of child aims to decide legitimacy of a
child in cases of uncertainty. However, this power is vested only in the
hands of the father. In this way, this process reinforces patriarchal values
and norms. Men are expected to take on the responsibility of
acknowledging their children, which gives them the power to determine
their children's legal rights, inheritance rights, and social status. This
augments the patriarchal notion that men are the primary caretakers and
breadwinners of the family. Another patriarchal implication of the
acknowledgment of a child in Islam is that it reinforces gender roles.
Islamic law is based on the concept of gender roles, where men are
expected to be the primary providers for the family, while women are
expected to be the primary caretakers of the household. The
acknowledgment of a child in Islam buttresses these gender roles by
giving men the power to determine their children's legal rights, inheritance
rights, and social status.
Distinguish between Acknowledgment and Adoption.
Introduction:- Adoption differs materially from acknowledgment of
paternity. In adoption, the adoptee is the known son of another person
while one of the essentials of acknowledgment is that the acknowledgee
must not be known son of another.
In Mohammedan Law the acknowledger is presumed to be the lawful
father of the acknowledgee. The acknowledgee is supposed to have been
born out of a lawful wedlock. Acknowledgment of paternity under Muslim
Law is the nearest approach to adoption, but the two processes of filiations
are quite different and their comparison will give a clear idea of the
subject:-
Adoption Acknowledgment
1 An adoptee is a son of another It proceeds on the basis of actual
person. paternity. If the son is proved to
be others acknowledgment is
ineffective.
2 It is established by a gift from the It is possible only when the
natural parents to the adoptive paternity of the child is not known
parents. and at the same time child is not
proved to be a child of another
person.
3 Parentage of the adoptive family No such transplantation is
is affiliated after renouncing the possible in acknowledgment.
natural family.
4 It has no connection between the It relates to the theory of actual
natural descent of the adoptee and descent of the acknowledgee by
the adoptive father. legitimate means.
5 The motive of adoption may be There is no such religious or
religious and spiritual. spiritual motive.
CONCLUSION:- The adoption is the transplantation of a son from the
family in which he is born into another family by gift made by his natural
parents to the adopting parents. Muslim Law does not recognize adoption.
In Acknowledgment the paternity of a child that is his legitimate descent
from his father cannot be proved by establishing a marriage between his
parents at the time of his conception of birth. Muslim Law recognizes
Acknowledgment.

Concept of Minority and puberty including guardianship and

1. Minor Defined: A minor is one who has not attained the age of
majority. Puberty and majority presumed to have been attained on the
completion of the 15. But now the Muslims in India are governed by the
Indian Majority Act 1875. Except in the matters of marriage, divorce
and Mehr.
2. Fifteen years is the age of majority is general. As regarding other
matters of guardianship of a person attaints the age of puberty and
Muslim will be governed by majority act which provide the age of
majority is 18.
3. Puberty: If there is contrary evidence of puberty being attained at an
earlier age, the person pleading so shall prove it beyond all reasonable
doubts.
4. This minority of age is determined by whether a boy or a girl has
attained his/ her puberty. As puberty is a biological factor, and is
subjected to differ from individual to individual, a set standard of fifteen
years is being presumed to demarcate a minor attaining puberty which
is subjected to change as per different schools of Muslim law.
5. Age of majority:
 Muslim law:15 years- marriage, dower and divorce
 18 years- guardianship and other matters.
 Indian law: 18 years- Indian majority act, 1875
 21 years- guardianship and wards act, 1890.
6. Guardian Defined: According to Section 4(a) of the Act, minor means
a person who has not completed the age of 18 years.
7. A guardian is a person who has the right and the authority to take care
of the child and the properties of the child.
8. According to Section 4(b) of the Act, a guardian means a person
having the care of the person of a minor or of his property or of both his
person and property, and includes
o A natural guardian.

o Testamentary Guardian: A guardian appointed by the will of the

minor’s father or mother.

o A guardian appointed or declared by a court.

o A person empowered to act as such by or under any enactment relating

to any court of wards.

Guardianship under Muslim Law
Wilayat/Gaurdianship
The sources of law of guardianship and custody are certain verses in the
Quran and a few Ahadis. The Quran, the Ahadis, and other authorities on
Muslim Law emphatically speak of the guardianship of the property of the
minor; the guardianship of the person is a mere inference. Under Muslim
law as a 1. Guardianship, 2. Custody and 3. De facto guardianship.
Defined: The term guardianship (Wilayat) denotes the guardianship of a
minor. The Quran is a basic of the law relating to concept of guardianship.
Muslim law makes a difference between guardian of the person and the
guardian of the property and guardian for the purpose of marriage
(Wilayat-ulnikah) In case of minors.
 Guardianship means “a bundle of rights and powers which a person gets
in relation to the person and property of a minor child”.
 In the Hindu religion, there was no guardianship law as all the family
members always stayed together. If the parents were not there, then the
other members of the family would take care of the child.
 Guardianship of Minor: In India laws the period of guardianship is
divided into three categories
A person under 15 as per Muslim Law
A person under 18 year under the Indian Majority Act.
A person under 21 who has a guardian appointed by the Court.
 In Muslim law there is a different law of guardianship and the age of
minority is also different from other law. Minor age according to
Muslim law for boys are 17 years and for girls is until they attain
puberty.
 The welfare of the child plays the most important role in the
appointment of the guardian.
 Guardianship in all three aspects is with father and after him the
grandfather.
• Under the Muslim Personal law, a father enjoys a more dominant
position for both custody and guardianship.
• The mother can get custody of the child but she is not considered the
natural guardian of the child.
 Guardianship is right to control the movement and actions of a person
who, owing to mental defects is unable to take care of himself and to
manage his own affairs, for example an infant, an idiot, a lunatic. It
extends to the custody of the person and power to deal with the property
of the ward.
 Explaining this difference it was observed by privy council in
Imambandi v Mutsaddi that under Muslim law “the mother is entitled
only to the custody of the person of her minor child up-to a certain age
according to sex of the child. But she is not the legal guardian father
alone or if he be dead his executor is the legal guardian.”
 Tyabji concludes that where the husband and wife are living together
the child must stay with them, and the husband cannot take the child
away with him nor can the mother even during the period that she is
entitled to the custody of the child take it away without the permission
of the father.
 The mother right of custody is not lost merely by her being divorced.
But where she marries a second husband, the custody of children
normally belongs to her former husband. Staying away from the
husband doesn't destroy her entitlement to the custody of her children.
According to Bombay high court there is no absolute bar on giving
custody of a child to its mother if she remarries. The welfare of the
child is of paramount importance. Personal rights of either of the parties
cannot be permitted to override the welfare of the children- Md.
Riazuddin Ahmed v Ms Farida Begum.
 Therefore, to have a proper guardianship law in the country, the Hindu
Minority and Guardianship Act, 1956 (hereafter, Act) was enacted.
 Subject matter Guardianship: Guardianship in Muslim law is for
three things:
a. Guardianship of the person
b. Guardianship of the property
c. Guardianship of marriage
a. Guardianship of person
Legal Guardian (Wilayat-e-mal)
1. Legal Guardian (Dejure)
2. Guardian appointed by the court. (Certified)
3. De-facto guardian
4. Guardianship of marriage (Jabar)
A Muslim law, guardians fall under the following three categories, they
are:
1. Natural or Legal Guardian (Wilayat-e-mal)
A natural guardian is one that encompasses a right to regulate and
supervise the activities of a minor. Father is recognized as the natural
guardian of his kid underneath all the schools of Muslim law. The father’s
right to act as guardian of a minor is an independent right and is given to
him underneath the substantive law of Islam. As long as the father is alive
he is the sole and supreme guardian of his children. In Muslim law, the
mother is not a natural guardian even of her minor illegitimate children but
she is entitled to their custody.
A natural guardian is additionally known as a legal guardian. But within
the absence of the father, the father’s executor might also act as a legal
guardian. The executor could be one who is appointed by the father or
grandfather to act as the guardian of his minor kid on his behalf.
Among the Sunnis, the father is the natural guardian of the minor children.
after the death of the father, the guardianship passes to the executor. Shia,
after the death of the father, the guardianship belongs to the grandfather,
even if the father has appointed an executor, the executor of the father
becomes the guardian only in the absence of the grandfather.
2. Testamentary Guardians
A testamentary guardian may be one that is appointed as guardian of a
minor beneath a will. Only the father or, in his absence, paternal
grandfather has the right to appoint a testamentary guardian. Among
Shias, the father’s appointment of a testamentary guardian is valid only if
the grandfather is not alive.
Among both Shias and Sunnis the mothers have no power of appointing
testamentary guardians for their children. It is only in two cases :
1. The mother can appoint the testamentary guardian and that is When
she has been appointed as the general executrix by the will of the
children’s father.
2. She can appoint an executor in respect of her own property which
will devolve after the death of her children.
Practically, no distinction exists between the powers of a natural and
testamentary guardian. It seems that the Muslim law-givers first lay down
the power of an executor or testamentary guardian and then state that the
natural guardian has the same powers. The Muslim law-givers also
approach the subject from the point of view of the needs of the minor.
After classifying the acts, they state which acts can be performed by
whom.
These acts may be divided into the following three points:
 a. Acts that is beneficial or advantageous to the minor
b. Acts which are absolutely injurious to the minor
c. Acts which are mid-way between the two.
As to the activities falling under the first category any person whether a
guardian or not, in whose care the child is, can perform those acts. Under
this category fall such acts, as acceptance of gifts and alms. If the minor is
of the age discretion he himself can perform them.
The facts which are absolutely injurious to the minor, such as
emancipating a slave, or divorcing a wife, no person is empowered to do
on behalf of the minor. As to the acts under the third category, such as the
sale or hire of the property for profit, they can be done only by the father,
grandfather, or the executor.
Powers of guardian under natural and testamentary:
Whatever powers are having the testamentary guardians and then state that
the natural guardians have the same powers.
1. Power of alienation
The guardian is allowed to dispose of the minors immovable properly only
in exceptional cases. It is clear that the sale of movable property is
justified one for the necessity of the minor but on the basis of the
conservation. In Meethiyan v. Md. Kunj AIR 1996 SC1003 – the father
as a natural Guardian has the right to sell property minor but the sale by a
mother who is not a legal Guardian nor testamentary Guardian, sale void.
2. Power to grant lease:
Ameer Ali takes view that the executor may give on lease the minors’ s
property if there need to do so, and if it is advantageous to the minor, may
be pledgee the goods and movable property of the minor if it is necessary
for the maintenance of the minor. In case of need, a Guardian also has the
power to pledge the goods or movable property but not for long period. In
Zeebuniss v. Danaghar (1936)49 Mad 942, the court said that a guardian
of the minor has the power to lease out the minor’s property if
it is for the benefit of a minor, but he cannot give leases of the minor’s
property extending beyond the period of minority of the child.
3. Power to carry on business: Guardian must carry out business like an
ordinarily prudent man and has the power to enter into partnerships on
behalf of minors. The Fatawai Alamgiri empowers an executor to invest a
minor’s property in partnership and he may enter into partnership with
others. In Jaffer v. Standard Bank Ltd. 1929 PC 130, the Privy Council
held that though the guardian had the power to enter into partnership on
behalf of the minor, the minor’s liability was only to the extent to which
he had shared in the partnership, in no case minor is personally liable.
4. Power to incur debts and enter into contracts:
The Guardian of a minor has the power to incur debts on behalf of the
minor if there is an urgent need for it. In case of any necessity of minor
and debt contracted without any necessity is not binding on the minor.
5. Power to make partition
The guardian power of partitions qualified one. In case a guardian is
appointed by the court with the general power to deal will all matters of
the minor then the guardian has the power to effect a partition, if all are
minors, the partition is invalid but if some of them are minor and some are
adults, then if the adults are present, the executor can separate their share
from the share of the minors and hand it over to them and retain the share
of the minors with himself. But in no case the guardian should separate the
shares of each minor as it is unlawful; the whole partition will result in
invalidity.
6. Any other powers as per requirement:
The Bombay and Allahabad High Courts hold the opinion that the
guardian has the power to assert a right of pre-emption on behalf of the
minor or to refuse or accept an offer of a share in pursuance of such right
and the minor will be bound by such act, if done in good faith. The de jure
guardian i.e. legal guardian has the power to acknowledge debts on behalf
of the minor.
Rights and Duties of guardian:
 Duty to support:

 Duty to file suits

 Duty to arrange the marriage of the ward

 Duty of the father to take charge

 Duty of the guardian not to use the ward’s property

 Duty to take proper care

  Duty to maintain proper accounts
 Duty to seek an opinion from the court.

3. Guardians appointed by the Court

In case of the absence of a natural and legal document guardian, the court
is authorized to appoint a guardian for the aim of the minor’s person or
property or for both. The appointment of a guardian by the court is ruled
by the Guardianship and Wards Act, 1890 which is applicable to all
Indians irrespective of their religion.
According to this act, the power of appointing or declaring any person as
guardian is conferred on the district court. The district court may appoint
any person as the guardian of the minor as well as his property whenever it
considers it necessary for the welfare of the minor, taking into
consideration the age, sex, wishes of the child as well the wishes of the
parents. Such guardians are also called Statutory Guardian.
4. De-facto Guardians (Fazioli)
A de-facto guardian is a person who is neither a legal guardian nor a
testamentary guardian or statutory guardian but has himself assumed the
custody and care of a child.
According to Tyabji an l and de-facto guardian means an unauthorized
person who, as a matter of fact, has custody of the person of a minor or his
property.
A de facto guardian could be a person having no authority for the
guardianship however underneath the circumstances has taken the
responsibility to act as the guardian of a minor. In Md. Amin v. Vakil
Ahmad (1920) 47 Cal 713, the brother of the minor had entered into a
family arrangement on behalf of a minor. It was held that the minor is not
bound by such partition.
Powers of the De-facto guardian
De-facto guardian has no power to transfer any right or interest in minors’
immovable property. If the de-facto guardian had violated this rule the
transaction will be traded as void ab-intio. Power to alienate the property
for satisfying the debts or legacies of the deceased.
5. Guardianship in marriage (Jabar):
Marriage is often contracted on behalf of the minors by the guardian. The
father can impose the status of marriage on his minor children. This power
of imposition is named ‘Jabar’, the abstract right of guardianship
(wilayat), and therefore the guardian so empowered is understood as
‘Wali’.
1. One of the most essential part of a valid marriage that the parties are
competent to enter into marriage contract, i.e. among other things they
must have attained the age of puberty.
However there is exception which is most distinguishing feature of
Islam which empowers a father to impose status of marriage on his
minor children. This power of imposition is called Jabar. Under this
exception the marriage is contracted on behalf of the minors by the
guardian.
2. No one can be appointed guardian by the Court in respect of marriage
guardianship.
3. The Court also cannot appoint Wali for marriage; however in some
cases Quazi or Court itself can act as a marriage guardian.
4. Under the Muslim Law of all schools, the father has the power to give
his children of both sexes in marriage without their consent until they
reach the age of puberty i.e. known as bulugh.
5. The following persons who can act as guardians in the marriage of a
minor:-
1. Father.
2. The father’s father how high-so-ever.
3. Full brother and other male relations on the father’s side.
4. Mother.
5. Maternal relation within prohibited degrees.
6. The Quazi or the Court.
Guardianship of the property
If a minor owns the movable or immovable property, a guardian is
required to manage the property of the minor. The Muslim prescribed
certain person in an order of preference who can be the guardian of a
minor’s property as per Muslim law as follows:
Legal Guardian: The person who is entitled in the order mentioned
below to be the guardian of the property belongs to the minor are:
a. The father
b. Father’s executer
c. Paternal grandfather
d. Paternal grandfather’s executor.
It may be said that the substantive law of Muslim does not recognize any
other relative such as mother, uncle and brother as the legal guardian of
the child. Only the father or father’s father may appoint them or any other
person for the purpose of taking care of the minor’s property.
Except for the father and father’s father, no other person is entitled even
not a mother is legally entitled to appoint by will, any person as the
executor of the minor’s property. Thus mother, brother and uncle etc. are
not entitled as of right to be the legal guardians of the property of minor as
held in the case of Sayed Shah Gulam Ghoshe v/s Sayed Shah Ahmad-
1971.
General Powers of the Guardian
• Can sell the movable property for minor’s essential necessities like food,
clothing or nursing.
• Can alienate immovable property only in exceptional circumstance and
fraudulent transactions are voidable at the instance of the minor.
• Can lease the property for benefit or needs of minor, but the duration of
the lease can’t be more than the duration of minority.
• Can carry on the business of the minor but likes a prudent man would
have carried the business.
• In emergency can also procure debt on behalf of minor, if there was no
necessity and debt was taken it would not be binding on the minor.
• Where, there is a conflict in the application of the provision of personal
law, and the Guardians and Wards act, 1890 the latter will prevail-
Poolakkal Ayissakutty v. P.A. Samad ( AIR 2005 Ker 68 )
2. CUSTODY
Under Muslim Law custody can be called Hizanat; the mother has the
right of custody and care of children during the period laid down in
Muslim Law. The mother’s right is slowly recognized in the interest of
children. Under Muslim Law considers the right of Hizanat as no more
than the right of rearing of the children, it terminates at an early age of the
child, a distinction between son and daughter. Under Muslim, Law
guardians are entitled to the physical (tahwil) and upbringing
(parvarish) of the minor.
According to Radd-ulMuhatar, “the right of a mother to the custody of her
child is re-established whether she be a Mosalman or a Kitabia or a
majoosia, even though she is separated from her husband. But she should
not be an apostate”. Since Muslim law considers the right of Hizanat as no
more than the right of rearing of the children, it terminates at an early age
of the child. In this regard, Muslim law makes a distinction between the
son and the daughter.
To Son:
Hanafi, Shafi’s and Hanabalis School mother right of hizanat is 7 years,
Maliki’s school son continues till the child attains the age of puberty. after
the completion of this age /attains puberty father is entitled to the custody
of his son.
Shia’s mother is entitled to the custody of her son until he is weaned.
(Completed the age of 2 years, then the father is entitled to custody of his
son.
2. Daughter:
Hanafi School mother custody of her daughter till the age of puberty.
Maliki’s, Shafi’s, and Hanbali school the mother’s right of custody over
her daughters continues till they are married.
In Shia’s particularly Ithana Ashari School mother has the right to custody
of her Daughter till they attain the age of seven years.
In all the schools of Muslim Law, the mother has the right to the custody
of her married daughter below the age of puberty in preference to the
husband. The mother has the right of custody of her children up to the
ages are specified in each school, irrespective of illegitimate/legitimate.
Applicability of Muslim personal law (Shariat) to custody matters
The Guardians and Wards Act, 1890, is the enactment that regulates and
governs the law relating to the appointment and declaration of guardians;
duties, rights, and liabilities of guardians, and all laws relating to the
Guardian and Ward.
As per Section 4 of the Guardians and Wards Act, 1890 a minor is a
person who, under the provisions of the Indian Majority Act is deemed not
to have attained the age of majority.
As it is well known that the age of majority for a person in India has been
defined under Section 3 of the Indian Majority Act, 1875 stipulates “that
every person domiciled in India shall be deemed to have attained his
majority when he shall have completed his age of eighteen years and not
before”. Thus on the face of it an inference is drawn that all persons are
considered minors if he or she has not attained the age of 18 years.
The question that emerges is whether the Muslim personal law
(Shariat) would also be applicable to a proceeding under the
Guardianship Act.
As stated earlier Section 6 gives scope for the application of the personal
law to which the minor is subjected to. Further Section 17 of the G&W
Act also stipulates that a guardian has to be appointed in consonance with
the personal law by which the parties are governed. He said the legal
proposition was amply dealt with by the Hon’ble High Court of Delhi in
Akhtar Begum vs Jamshed Munir, which held that “the personal law of
the parties has to be kept in view in deciding an application for custody by
virtue of the mandate of Section 6 of the Act. If a Court does not keep that
in view it would be acting illegally and with material irregularity”.
The Hon’ble Court further reiterated that in consonance with section 2 of
the Majority act which states that its provisions do not impact on matters
of marriage, dower, divorce, and adoption, the Indian Majority act cannot
be looked into while ascertaining the age of a minor and the personal law
of the parties would be the driving factor.
Custody v. Guardianship
(a) Custody is granted specifically as a matrimonial relief to a parent who
seeks such custody, whereas guardianship exists at law.
(b) A guardian need not be a custodian; or a custodian, a guardian of the
child.
(c) Custody could be for a short duration or for a specific purpose but
guardianship is more permanent in nature.]
• Custody might not be with father but guardianship is always with the
Father in Muslim law.
• Under the Shia law, a mother’s right to the custody of the minor
children, i.e., Hizanat extends until a son is two years old, and till the
daughter attains the age of seven.
• Under the Hanafi (Sunni) law, a mother is entitled to the custody of her
son till he reaches the age of seven, and in case of daughter, till she attains
puberty.
• The mother’s right continues, even if she is divorced from the father of
the child, unless she remarries, in which case the custody belongs the
father.
• This, however, is not a rigid rule and the court can deviate, if the welfare
of the child so demands.
• In Irfan Ahmad Shaikh v. Mumtaz (AIR 1999 BOM 25)
• Custody of a female child was given to the mother. The mother’s
marriage with the child’s father was dissolved and she remarried a person
who was not within the prohibited degree of relationship to the child. The
court nonetheless gave custody to the mother the child had also expressed
a desire to remain with the mother.
• Even though as a natural guardian, the father may have prima facie right
to the minor’s custody, this may be negated, if the infant’s welfare lies in
keeping him with the mother Abdul Kalam v. Akhtari Bini (AIR 1988).

Illegitimate Children
• The father has no right over the illegitimate children and he is not the
guardian of illegitimate children, even the mother is also just a custodian
of the illegitimate children and not the guardian. (Gohar Begam vs Suggi
Alias Nazma Begam And Others 1960.
Concept of Muhrim:
• The custody of a Muslim child cannot be given to a person who is not
muhrim.
• Muhrim means a person who is in relation to the child and is within the
prohibited degree of relations with the child. i.e., any person who unfit to
marry the child.
CONCLUSION
Guardianship under Muslim Law is an essential part of the personal laws
of people and with the passage of time; it has been codified by way of
legislation. The Guardians and Wards Act is the legislation passed by the
Parliament that deals with the laws and processes related to guardianship
in India.

Parents maintenance under Muslim Law and Cr.P.C. (Ss 125-

128),
Nafqah / Maintenance
Maintenance under Muslim Law known as ‘Nafqah’ means amount spent
by a man on his family to provide for food, shelter, clothing, lodging and
other essential requirements for livelihood. A Muslim husband has
obligation to maintain his wife during the subsistence of marriage. A
husband is require to maintain his wife irrespective of his financial
condition.
According to Ameer Ali’s Mohammedan law, the right of the Muslim
wife to maintenance is subject to the condition that she is not ‘refractory’
or does not refuse to live with her husband without reasonable cause.
Under Muslim law, maintenance is known as “Nafqah” which means what
a man spends on his family.
Requirements for claim of maintenance:
 Inability of person to maintain himself/herself

 Failure or neglect by the person/ obligation

 Person must be related

 Statutory obligation to maintain

When maintenance can be claimed

During the subsistence of marriage
During the pendency of the any matrimonial relief
After obtaining decree of divorce.
Applicability
1. Wife 3. Parents and Grandparents and
2. Children- Both boy and girl 4. Any other relatives
1. Wife:
The right to maintenance of a Muslim woman is absolute and not
conditional on whether she can maintain herself or not.
Hence all the Muslim women earning or not earning are eligible for the
right to maintenance which is contrary to most of the other religious acts
where only dependent women are eligible for the maintenance.
It is the duty and liability of the husband to provide adequate maintenance
to his wife in all the circumstances irrespective of his financial condition
Muslim women cannot applicable for maintenance
1.She has not attained puberty.
2.She has abandoned her husband and marital duties with sufficient
reason.
3.Where she elopes with some other man.
4.In a case where she disobeys the reasonable commands of her husband.
The refusal of the wife to perform her matrimonial obligation towards
husband and her claim of maintenance is to be examined not only under
Muslim personal law but also under the Criminal Procedure Code. The
claim of wife for the maintenance under this act is an independent
statutory right not affected by her personal law. A Muslim wife, who lives
separately due to her husband’s second marriage, is entitled to claim
maintenance allowance under the provisions of Criminal Procedure Code,
1973.
In Begum Subanu alias Saira Banu v. A.M Abdool Gafoor, the
Supreme Court held that irrespective of a Muslim husband’s right to
contract a second marriage, his first wife would be entitled to claim
maintenance. A Muslim wife, whose husband neglects to maintain her
without any lawful justification, is entitled to file a suit for maintenance in
a civil court under her personal law. She is also entitled to enforce her
right under the CrPc 1973. Where a Muslim wife is in urgent need, she
may apply for an order of maintenance under section 125 of the Criminal
Procedure Code; 1973. A magistrate of the first class may then order the
husband to provide monthly allowance not exceeding five hundred rupees,
for the maintenance of his wife.
Maintenance of the divorced woman
It can be discussed under the following heads:-
1. Muslim personal law
2. Section 125 Criminal Procedure Code 1973 and
3. The Muslim Women (Protection of Rights on Divorce) Act,1986
A divorced wife can claim maintenance from the former husband only for
that period during which she is observing her Iddat. The duration of Iddat
on divorce is three menstruation periods or, if pregnant, till delivery of the
child. The former husband’s liability extends only up to the period of
iddat, not beyond that.
The term ‘wife’ includes a ‘divorced wife’. Section 125 is applicable also
to a divorced Muslim wife. Section 127(3) provides that the order of
maintenance in favour of a divorced wife shall be cancelled, and such
woman shall not be entitled to maintenance under the following
circumstances:
1. Where the divorced woman has remarried
2. Where such woman has received the whole sum due to her on divorce
under any customary or personal law, and
3. Where the woman, after obtaining a divorce from her husband, has
voluntarily surrendered the right to maintenance.
In Mohd. Ahmad Khan v. Shah Bano Begum AIR 1985 SC 945, the
Supreme Court reiterated its stand and held that a divorced Muslim
woman, so long as she has not remarried, is a wife for the purpose of
section 125, and is entitled to maintenance from her former husband.
Maintenance after the Iddat:
The divorced woman who remains unmarried after the Iddat, and is unable
to maintain herself, is entitled to get maintenance from her such relatives
who would inherit her properties upon her death. In the absence of any
such relatives or, where they have no sufficient means, then ultimately the
liability to maintain her is cast upon the Waqf Board of the state in which
she resides.
The Muslim Women (Protection of Rights on Divorce) Act,1986 has now
made the operation of section 125-128 of the Criminal Procedure Code
optional in respect of Muslim woman. The first landmark judgment that
deals with Muslim personal law was the 1986 judgment in Shah Bano
Begum v. Md. Ahmed.
In this case, the apex court held that Muslim women have a right to
maintenance under Section 125 of the Cr.P.C even if the Quran or their
personal laws have provided for an alternate remedy. The same ratio was
upheld by the apex court in Daniel Latifi v. Union of Inia.
Recently, in the leading case of Shayara Bano v. Union of India, the
apex court held the system of instantaneous divorce by the utterance of the
word ‘talaq’ thrice orally unconstitutional because the right to
instantaneous divorce is only with the men and not women.
Further, the system is arbitrary and hence, violative of Article 14.
Therefore, the judiciary has assisted in the development of Muslim
personal law.
In Danial Latifi and others v. Union Of India AIR 2001 SSC 958 all
the writ petitioners challenging the constitutional validity of the Muslim
Women Act 1986 were clubbed together in this P.I.L. under article 32 of
the constitution. The writ petition was dismissed by the Supreme Court
challenging the validity of Muslim Women Act 1986. The Court upheld
the validity of the Act.
In A. Yousuf v. Sowramma it was held by the court that whatever the
cause may be the wife is entitled to a decree for the dissolution of her
marriage if the husband fails to maintain her for a period of two years,
even though the wife may have contributed towards the failure of the
maintenance by her husband.
Children- Both boy and girl
Muslim Father is under the obligation to maintain his legitimate child until
he attains the puberty age. Under Muslim Law, the father has to maintain
his son only until he attains majority. While he has to maintain his
daughter until her marriage and till the time she goes to her husband’s
home. Under the law, the father is not under a duty to maintain the
illegitimate child. Thus after perusing the above-mentioned facts, it can be
easily concluded that the maintenance provisions of Muslim Law are
different from other personal laws and are very unique.

Parents and Grandparents

It is obligatory upon a man to provide maintenance for his father, mother
and grandfather and grandmother if they happen to be in circumstances
necessitating it. The fact that they may belong to different religions makes
no difference. Except his wife, children, parents, grand-children and
grandparents, a man are not obliged to maintain other relations belonging
to other religions
The parents have the next position in the right of maintenance after the
children. The liability to maintain parents rests only on the children and is
not shared by anyone else. As between the parents the mother is entitled to
preference over the father. Shia Law – the right of the two parents is equal.
So also the right of the parents and children are equal. Maintenance must
in each case be divided equally. But the parents are preferred to
grandparents.
Parents and children are jointly liable for a person’s maintenance.
Thus, if a man has both father and a son who are not poor, the liability
falls equally upon them. The grand-children of a person would not be
liable to maintain if there is a husband, children or parents who would be
under a duty to maintain, even though they may be entitled to daughter or
the father must maintain. Thus, if a man has a daughter or father and a
son’s son, the daughter or the father must maintain. The son’s son would
not be bound to maintain even though he is entitled to inherit. As in the
case of sons, the liability of all grand-children would be equal. law –
maintenance is due from all the descendents together but they are not
equal in all respects.
The obligation is on the nearest. If there is equality in the degree of
relationship, the obligation is in the person who will be heirs. There is,
however, a difference in opinion as to whether the liability is joint or only
in proportion to shares in inheritance. If both the ascendants and
descendants are alive, the latter would be primarily liable irrespective of
the distance of degree of relationship.
Quantum of Maintenance
The quantum of maintenance is not prescribed under any personal law.
The court decides the quantum on the basis of the financial condition of
husband and wife and any other circumstances relevant to the case. The
Shia Law decides the quantum of maintenance by taking into
consideration the requirements of the wife. The Shafei Law determines the
quantum of maintenance by the post of the husband. Thus, the basis of
determination of quantum of maintenance is different for different sub-
castes of Muslims.
Conclusion
The whole concept of maintenance is to protect the rights of wife and
protect her a dignified life and even after dissolution of marriage the
husband is in the liability to provide maintenance to his wife if she is not
able to maintain herself. It is not only provided to the wife but also to
children parents grandparents and grandchildren and other relation by
blood. The amount of maintenance depends on the financial position of the
person who is bound to provide maintenance. Under Muslim law women
are considered be as compared to men. It is believed that they are not able
to maintain herself on her so it is the liability of the husband to provide
maintenance to wife in all conditions even if she is capable of maintaining
herself. As per the rule except for the only wife and minor children The
Other relations Which are which are not entitled for maintenance. But
each Muslim is bound to provide maintenance for the ancestors and the
descendants . And he’s also entitled to obtain maintenance from their as
well provided that the person who has provides maintenance and should
not be poor.

Maintenance Under: Section 125-128

The legal requirement for someone to maintain their spouse, children, or
other dependent family members financially is known as maintenance
under India's Code of Criminal Procedure (CrPC).
Such substantive law is an example in Chapter IX (Sections 125 to 128 of
the Code). The support of spouses, children, and parents is outlined in
Sections 125 to 128 of the CrPC.
Maintenance: Meaning
It is quite challenging to formally define "maintenance" exactly. Even
S.125 of the Cr.P.C. does not clearly define upkeep.
The courts have, however, construed it to imply usually suitable housing,
clothing, and food. The word maintenance should not be used in such a
limited sense, though. As an illustration, in
Ahmedullah V. Mafizuddin Ahmed
It was decided that maintenance also covers educational costs. In
accordance with Section 3(b) of the Hindu Adoptions and Maintenance
Act, 1956, maintenance includes:
 In all circumstances, provision for food, clothing, residence,

education, and treatment.

 In the event of an unmarried daughter, also the reasonable costs of

and sequel to her marriage.

"Nafquh," which literally translates to "what a person spends over his
family," is the equivalent of "maintenance" in Muslim law. Mulla claims
that the term "maintenance" has come to mean "food, raiment (clothing),
and lodging."
Object
The maintenance of spouses, children, and parents is provided for in the
Code of Criminal Procedure (CrPC). In order to prevent those who are
unable to sustain themselves from having to live in poverty or become
homeless, this is being done. The CrPC also strives to safeguard women
and children against homelessness and scavenging.

Mani V. Jaykumari
The Madras High Court has ruled that the primary purpose of these
provisions is to provide social justice to women and children. The court
has also stated that these provisions are intended to prevent destitution,
distribution, and vagrancy.
The CrPC's maintenance provisions are a measure of social justice that are
specifically designed to protect women and children. These provisions
also fall within the constitutional framework of Article 15 (3), which
prohibits discrimination on the basis of sex, and Article 39, which
guarantees the right to an adequate standard of living.

Persons Entitled To Claim Maintenance

In accordance with Section 125(1) of the Code, the following people may
be eligible to make a maintenance claim in specific situations:
 Wife

 Children

 Father or Mother

Maintenance To Wife
According to Section 125 (1) (a) of the Code, if a person with sufficient
means neglects or refuses to support his wife, who is unable to support
herself, a first-class Magistrate can order that person to provide a monthly
allowance for the maintenance of his wife. The amount will be determined
by the Magistrate, and the person must pay it as directed by the
Magistrate. In this context, "wife" includes a woman who has been
divorced by her husband or has obtained a divorce and has not remarried.

The term "wife" applies regardless of the woman's age, whether she is a
minor or an adult. The legality of the marriage will be determined by the
personal laws applicable to the parties, and if there is a dispute regarding
the validity of the marriage, the applicant will need to provide proof of
marriage. The Supreme Court in
Bakulbai V. Gangaram
It has been established that a woman who becomes the second wife of a
man who already has a living spouse at the time of the second marriage
does not have the right to receive maintenance. Even if the second wife is
unaware of the existence of the previous marriage, she is not entitled to
make a claim for maintenance.

Right Of Muslim Woman To Claim Maintenance U / S 125 Cr.P.C.

After Iddat Period.
Before the Mohammad Ahmed Khan v. Shah Bano Begum case, Muslim
wives were not entitled to claim maintenance after completing their Iddat
period.

However, this changed with the Supreme Court's ruling in the case.
Mohammad Ahmed Khan V. Shah Bano Begum
After her husband filed for divorce, 62-year-old Muslim Shah Bano
Begum filed a criminal complaint with the Supreme Court of India. She
requested maintenance, and the judge granted her request. The court ruled
that as long as a Muslim woman stays single and is unable to support
herself using the dower she received at the time of divorce, she has the
right to request maintenance under Section 125 of the Criminal Procedure
Code even beyond the Iddat period. Muslims were outraged by this
decision since it was against Islamic Law. The Muslim Women
(Protection of Rights on Divorce) Act, 1986 was subsequently passed,
which nullified the Supreme Court's ruling and prevented Muslim women
from suing their ex-husbands for maintenance.
Maintenance To Children
The Code doesn't define the term "child." According to Section 125(1)�
of the Indian Majority Act of 1875, a child need not be a minor but must
be incapable of maintaining itself due to a physical or mental disability or
injury. This means that someone has not achieved full age, which is
defined as 18 years old. However, a married daughter is not considered a
kid.
The legality or illegitimacy of a child has no bearing on the determination
of maintenance. Maintenance is due to even an illegitimate minor.
In Moti Ram V. 1st Additional District Judge, Bareilly
Wife filed a petition for support for both her and her little kid. The
marriage was previously ruled void, and the daughter was not impleaded
as an applicant. Daughter's application was upheld as maintainable. It was
decided that "A woman may have a terrible character, but she may still be
entitled to an order for maintenance for an illegitimate child provided she
establishes that the person being sued is the child's father.
Maintenance To Father Or Mother
The provision pertaining to a parent's maintenance who may not be able to
support themselves. Nowhere specifically did the stepfather or stepmother
fall under the definition of "his father or mother" as it appears in Section
125 of the Criminal Procedure Code. When the term "mother" is used in a
general sense, it refers to the woman who gave birth to the individual
whose support is being requested under section 125 of the Civil Rights and
Property Code. Further, in
Vijaya Manehar Arabat V. Kashirao Rajaram Sawai
The Supreme Court ruled that while it is true that the terms "his father"
and "his mother" are used in clause (d) of section 125 (1), the inclusion of
the pronoun "his" does not preclude the parent from requesting support
from the daughter. However, the court must be convinced that the
daughter has sufficient means of her own independent of the means of
income of her husband and that the father or mother, as the case may be, is
unable to support himself or herself before it can order maintenance of a
father or mother against their married daughter.
Can the husband ask the wife for maintenance?
It is obvious from a straightforward reading of S. 125 (1) that the right to
seek maintenance is only open to the individuals specified therein who are
not entitled to maintenance from their wives under S. 125 Cr.P.C. Since
the word "husband" is not used, it can be assumed that there is no
husband.
According to the aforementioned provisions of Section 125 of the Code, a
man has a natural and fundamental obligation to support his wife,
children, and parents for as long as they are unable to do so on their own.
In Jayashri Rajwade V. Vibhas Kulkarni
The Bombay High Court ruled that "the husband's application under
section 125 of the Code is certainly not maintainable" if there is a legal
prohibition on his claiming maintenance from his wife under section 125
of the Code. He may proceed to Civil Court to prove his right to
maintenance, but the Magistrate cannot grant him support in accordance
with his authority under Section 125 of the Code.
Essential requirements for permitting maintenance:
1. Enough resources to maintain. The individual from whom
maintenance is demanded must have enough money to support the
person or people who are asking for maintenance. Here, the word
"means" refers to more than just outward things like tangible
possessions or steady job.
2. Ignorance or failure to uphold. The person from whom maintenance
is demanded must have ignored or refused to maintain the person or
individuals who are entitled to maintenance.
3. In contrast to "refuse," which denotes a failure to maintain or a denial of
an obligation to maintain after demand, "neglect" refers to a default or
omission in the absence of a demand.
4. The person requesting maintenance must be unable to care for
themselves.
Due to the fact that the primary goal of Section 125 of the Code is to
prevent vagrancy, only those who are unable to care for themselves
should be subject to the duty to pay maintenance. An essential need for
the wife's application for maintenance is that she must be unable to
support herself.
Jurisdiction
A person seeking maintenance may submit an application to a
Magistrate in any of the following places, according to Section 126 of
the CrPC:
1. The address of the applicant's residence or place of business.
2. The place of residence or principal place of business of the person
from whom maintenance is demanded.
3. The last place the maintenance-seeker lived with the individual for
whom maintenance is being sought.
4. Where the person whose maintenance is demanded works or
maintains a business.
5. The several jurisdictions are listed so that the individual seeking
maintenance can submit their application easily and in a place that is
convenient for them. It also makes it possible to implement
maintenance directives effectively.
Arrangement or termination of allowance s. 127 According to Sub-
Section 1 of Section 127, where a maintenance order has been granted
under Section 125, the amount specified therein may be changed based on
a change in the circumstances of the person receiving or the person paying
the amount.
According to Section 127's Subsection 2, the magistrate is required to
rescind or modify any orders made under Section 125 when he believes
that doing so is necessary as a result of a competent civil court's decision.
The magistrate may revoke the maintenance order granted to a divorced
wife in one of three situations, as outlined in subsection 3. If she has
remarried, has received the full amount due to her under any personal or
customary law, or has willingly relinquished the right that she had
obtained through a judge order.
Enforcement of maintenance order [s. 128] In the case that any person
thus ordered fails to comply with the order without good reason, any such
Magistrate may issue a warrant for the collection of the sum due in the
manner indicated for collecting fines.
The magistrate has the power to hold the offender in custody for a
maximum of one month or until the debt is paid, whichever occurs first.

Any magistrate in any location where the person against whom the order is
made may carry out such an order after being satisfied with the parties'
names and the non-payment of the allowance or, as the case may be, costs,
due.

Conclusion:
Although these provisions deal with civil matters, their inclusion in the
CrPC is primarily justified by the fact that the needy individuals they
reference are given access to a remedy that is quicker and more cost-
effective than what is offered by civil courts. The provisions seek to
ensure that the neglected wife, children, and parents are not left beggar
and destitute on the scrap heap of society and are not compelled to live a
life of vagrancy, immorality, and crime for their sustenance by providing
simple, quick, but limited relief. It could also be said that these provisions
are intended to prevent starvation and vagrancy leading to the commission
of the crime.

Disposition of property including gifts(hiba), debts and

bequests(wasiyat);
Disposition under Muslim law
Introduction:
 After the death of a person, his property may be devolved in two
manners – by the way of his Will (testamentary) and by the laws of
succession when there is no Will (intestate). After the requisites of
inheritance are made, that is, the burial expenses, debts, and bequests
are taken care of, the inheritance is then devolved.
 According to Muslim law, the heirs are the successors of the deceased
who are legally recognized by the Sharī‘ah to inherit his estate, given
that they are not impeded from inheritance. The heirs succeed to the
estate as tenants-in-common in specified shares. There is no joint
tenancy in Muslim Law, and the heirs are only tenants-in-common.
 There are enormous ways to make disposition of property in Islamic
Law. Under Islamic law, a Muslim can dispose of his property by gift,
by creating a wakf or by accessing his testamentary powers i.e. by
making a Will.
 The concept of a Will under Islamic law is a sort of bargain between
two different propensities. One, the view of the prophet is clear that
after the death of a person, his property has to be distributed to his heirs
and this rule is considered as divine law and any interference to it is
unacceptable. On the other hand, it is a moral duty of every Muslim to
make appropriate arrangements for his property after his death.
a) Hiba: Unveiling the Legal Dimensions of Gift under Muslim Law
A gift is generally a transfer of Ownership of a property by a living person
to another living person without any consideration.
Definition: In Muslim law, a gift is a voluntary transfer of Ownership in
an existing property from one person (donor) to another (donee) without
any consideration or payment in return. Gift is an essential aspect of
Islamic jurisprudence rooted in the principles of generosity, charity and
the spirit of giving in Islam.
This transfer, known as Hiba, establishes the donee as the rightful owner
of the gifted property. A written document that represents a gift made
under Muslim law is known as Hibanama.
The meaning of terms donor and donee.
The person who signifies his willingness to the other person for
transferring his property is known as a Donor. On the other hand, the
person who expresses his consent for the acceptance of the gift made by
the donor is known as the Donee.
Essentials of Hiba
There are mainly three conditions which need to be fulfilled for the
successful transfer of property or making of a gift by a Muslim person.
These conditions are as follow:
1. Declaration of gift by the donor.
2. Acceptance of gift by the donee.
3. Transfer of possession by the donor and it’s acceptance by the donee.
1. Declaration by the donor
The donor must express a clear and unambiguous intention to make a gift
under Muslim Law. The declaration should leave no room for doubt
regarding the donor’s willingness to transfer Ownership.
In the case of Md. Hesabuddin v Md. Hesaruddin, where Muslim
women transferred her property by the way of Gift or Hiba and the gift-
deed was not on the stamp paper it was held to be valid by the Gauhati
High Court.
The declaration should also be expressed. A gift made in an unambiguous
manner is null and void.
2. Acceptance by the donee
The gift under Muslim Law becomes valid only when the donee accepts it.
The gift is considered void if the donee does not accept his acceptance. In
the case of a minor, the legal guardian may accept the gift on the minor’s
behalf.
3. Delivery of possession
A crucial aspect of a valid gift is the physical delivery of possession by the
donor and the acceptance of possession by the donee. In Muslim law,
possession means having control and benefiting from property. The key
consideration is who, between the donor and the donee, is enjoying the
benefits of the property. If the donor continues to derive the benefits, the
delivery of possession is not considered complete, and the gift would be
invalid.
4. Parties and Conditions for Donor (Who can give)
For a valid gift transaction under Muslim Law, two parties must be
involved – the donor (the person giving the gift) and the donee (the person
receiving the gift). The donor must meet the following conditions:
a. Attainment of the age of majority: The donor must have reached the
age of majority, as governed by the Indian Majority Act 1875.
b. Sound mind and understanding: The donor must be of sound mind
and clearly understand the gift transaction.
c. Absence of fraudulent or coercive advice: The donor should not be
under the influence of any fraudulent or coercive advice, and the decision
to gift must be voluntary.
d. Ownership over the property: The donor must have legal Ownership
over the property they intend to transfer as a gift.
e. Validity of gifts by specific individuals:
 A gift by a married woman is valid and subject to the same legal rules

and consequences as gifts by others.

 A gift by a pardanashin woman (a woman who observes seclusion) is

also valid. However, in case of a dispute, the burden of proof that the
transaction was not conducted under coercion or undue influence lies
on the donee.
 A gift by a person in insolvent circumstances is valid if it is genuine

and not intended to defraud creditors.

Conditions for Donee (Who can receive)
The donee (the person receiving the gift) must meet the following
conditions:
a. Capable of holding property: The donee must be capable of holding
property, including individuals and juristic persons. A Muslim may also
make a lawful gift to a non-Muslim.
b. Existence of the donee: The donee must exist when the gift is given. In
the case of a minor or a person of unsound mind, the possession of the
gifted property must be given to their legal guardian or else the gift in
Muslim Law is considered void.
c. Gift to unborn persons: A gift to an unborn person is considered void.
However, a gift of future usufructs (the right to use and enjoy the
property) to an unborn person is valid, provided that the donee is born and
in existence when the interest opens out for heirs.
Conditions for Gift in Muslim Law (What can be gifted)
To be a valid gift under Muslim Law, the subject matter of the gift must
meet certain conditions. The following are the conditions for what can be
gifted under Muslim law:
Designable under the term mal: The subject of the gift must fall under
the category of mal, which refers to tangible property that can be owned,
possessed and transferred. Intangible items or things that cannot be owned,
such as services or future obligations, cannot be gifted.
Existence at the time of the gift: The property intended to be gifted must
exist when the gift is made. Gifts under Muslim Law of future items or
properties that are yet to be created or acquired are considered void.
Possession by the donor: The donor must be in possession of the
property they intend to gift under Muslim Law. A person cannot gift
something they do not own or have control over.
Muslim law recognises a distinction between the corpus (Ayn) and the
usufructs (Manafi) of a property:
a. Corpus (Ayn): It refers to the absolute right of Ownership of the
property, which is heritable and has no time limitation. In other words, it is
the Ownership of the property itself.
b. Usufructs (Manafi): This refers to the right to use and enjoy the
property without possessing the ownership rights. It is limited and not
heritable.
In the case of Nawazish Ali Khan vs. Ali Raza Khan (AIR 1984), the
court held that the gift of usufructs is valid under Muslim law. However, if
the gift is of the corpus, limitations might be imposed if the usufructs have
been gifted to someone else. The court clarified that a gift of life interest
(usufructs) is valid and does not automatically extend to become a gift of
corpus (absolute Ownership). This ruling is applicable to both Shia and
Sunni schools of thought in Islamic law.
Subject Matter of Gift under Muslim Law
Certain general principles govern the subject of a gift in Muslim law. It
includes:
 Anything over which dominion or right of property may be

exercised: This covers any tangible or intangible property that can be

owned, possessed and transferred, including both movable and
immovable assets.
 Anything which may be reduced to possession: The property to be

gifted must be in existence and capable of being transferred from the

donor to the donee.
 Anything which exists either as a specific entity or as an

enforceable right: The subject of the gift can be an identifiable

object or a legally enforceable right that the donor possesses.
 Anything that comes within the meaning of the word mal refers to

property or wealth that a person can own and forms the basis for a
valid gift under Muslim Law.
In the case of Rahim Bux vs. Mohd. Hasen (1883), the court held that the
gift of services is not valid because services do not exist as a specific
entity that can be transferred at the time of making the gift.
It is also important to note that a gift of an indivisible property can be
made to multiple recipients.
The Extent of Donor’s Right to Gift
The general rule is that a donor’s right to gift is unrestricted. As
established in the case of Ranee Khajoorunissa vs. Mst. Roushan Jahan
(1876), the Privy Council recognised that a donor may gift all or any
portion of their property, even if it adversely affects the expectant heirs.
The donor has the freedom to decide how much of their property they
wish to gift under Muslim Law.
However, there is one exception to this rule. The right of a person on their
deathbed (Marz ul maut) to make a gift is restricted in the following ways:
  The donor cannot gift more than one-third of their property.
 The donor cannot gift it to any of their heirs.

These restrictions are in place to prevent any potential misuse or

manipulation of gifts made by individuals who may be in a vulnerable
state due to their health condition.
Kinds of Gifts under Muslim Law
Hiba under Muslim Law
In Islamic law, gifts are referred to as “Hiba.” While the term “gift” has a
broader meaning and encompasses various transfers of Ownership without
consideration, the term “Hiba” has a narrower scope and specifically
pertains to transfers of property between living persons.
According to different legal scholars:
1. Hedaya: “Hiba” is an unconditional and immediate transfer of
Ownership in an existing property, made without any consideration.
2. Ameer Ali: “Hiba” is a voluntary gift of property from one person to
another without any consideration, resulting in the donee becoming the
proprietor of the gifted property.
3. Mulla: “Hiba” is the immediate and unconditional transfer of property
from one person to another, and the gift can be accepted by the donee or
on behalf of the donee.
4. Fyzee: “Hiba” is the immediate and unqualified transfer of the
Ownership of the property without any expectation of return.
Hiba-bil-Iwaz
Hiba-bil-Iwaz is similar to a sale, where the donee has already provided
some consideration to the donor and in return, the donor makes a gift to
the donee. In this type of gift, unlike a regular Hiba, the donee must first
give some consideration to the donor without any prior agreement for a
gift. After receiving the consideration, the donor gives the donee the gift in
Muslim Law.
It is not necessary for the donor to immediately give possession of the
gifted property to the donee in Hiba-bil-Iwaz. Instead, the donor may
promise to give the gift in exchange for the consideration. However, such
a gift must be registered, and an oral promise is not sufficient. Once the
registration is done, the gift becomes irrevocable. Additionally, the gift of
Musha (co-ownership) is permissible even in divisible property under this
type of Hiba.
Hiba-ba-shart-ul-Iwaz
In Hiba-ba-shart-ul-Iwaz, the donor and the donee have an agreement
where the donor will make the gift to the donee immediately and in return,
the donee will provide something to the donor in the future. The
possession of the property must be delivered to the donee at the present
time in this type of gift under Muslim Law.
However, Musha (co-ownership) cannot be gifted under Hiba-ba-shart-ul-
Iwaz. Initially, it is considered a simple gift, but once the Iwaz
(consideration) is performed, it transforms into a sale.
Sadaqah
Sadaqah is a gift made with a religious motive, and the donor gifted both
the corpus (the property itself) and the usufruct (the right to use and enjoy
the property). Once the gift of Sadaqah has been made and possession has
been delivered, it becomes irrevocable. The gift of Sadaqah can be made
to charity or even to poor individuals. It can also be given jointly to two or
more persons. The donee has the right to use or consume both the corpus
and the usufruct of the gifted property.
Unlike a regular gift, Sadaqah does not require an express acceptance by
the donee. The key distinction between Sadaqah and Waqf is that the gift
is made for religious and charitable purposes. Still, in Waqf, the corpus of
the gift cannot be consumed, whereas in Sadaqah, both the corpus and
usufruct can be consumed.
Ariyat
Ariyat is a form of gift primarily intended for charitable purposes. In this
type of gift in Muslim Law, the Ownership of the property is not
transferred; only the usufruct, which grants the right to enjoy the benefits
of the property, is transferred. Upon the death of the donee, the property
will revert back to the donor or, if the donor is deceased, then to the legal
heirs of the donor. Ariyat is a gift without consideration and can be
likened to a license.
Unlike a normal gift, an express acceptance by the donee is not required
for Ariyat, and the donor doesn’t have to be of the age of majority.
Musha
Musha, also known as Hiba-bil-musha, literally means confusion. It is a
gift that conveys an undivided share in the property to the donee. Hence,
the gift of Musha represents an undivided portion of the property. In the
Hanafi school (Sunni), there is a prohibition against Musha, and if the
property is divisible, it must be divided first before transferring the share.
According to the Hanafi Sunnis, the gift will be irregular if a divisible
Musha property is gifted without dividing it. However, if the property is
indivisible, such as the gift of the right to use stairs or a pathway passing
through the property, Musha is allowed.
There are certain exceptions to the prohibition against Musha:
A gift of Musha can be made without dividing a divisible property if the
gift is made to a co-heir.
When a person makes the gift of their share in a zamindari.
 When the gift is of one’s share in a limited company.

 When the gift is of freehold property in a commercial town.

Despite the prohibition of Musha in the Hanafi school, it is not commonly

followed at present, as it goes against the right to dispose of property
freely. Many consider a person to have full rights to dispose of their
property as they see fit, including the ability to gift an undivided share
(Musha) in the property.
Void Gifts in Muslim Law
The following gifts are considered void under Muslim law:
 A gift to an unborn person: A gift made to a person who is yet to be

born is not valid. However, a gift of a life interest in favour of an

unborn person is valid if the person comes into existence when such
interest opens up.
 Gift of future property: A gift of something that is to come into

existence in the future is void. For instance, a gift of a crop that will
grow in the future is not valid.
 Contingent gift: A gift that depends on the occurrence of a

contingency is void. For example, a gift by A to B, subject to the

condition that A does not get a male heir, is not valid.
  Gift of speculative successionists: This refers to a mere chance of
succession to some property upon the death of someone or upon the
partition of some property. Since the donor presently does not own
the property, it cannot be gifted, and thus, the gift is void.
 Gift of the right to claim dower: The right to claim dower during

the continuation of a marriage is a purely personal claim of the wife

and cannot be transferred to a third person, making such a gift void.
However, the right to claim dower can be transferred if the wife dies.
 Gift of services: A gift of services is not considered valid.

 Gift with a condition: A gift must always be unconditional, and any

condition attached to the gift that obstructs its completeness is

considered void. In such cases, the gift itself remains valid, but the
condition becomes ineffective. For instance, if A gifts their house to
B with the condition that B cannot sell it or can only sell it to C, the
condition will be deemed void, and B will have full rights to the
house. The condition cannot restrict B’s Ownership or use of the
gifted property, as it goes against the essence of a gift, which is
meant to be a voluntary and unconditional transfer of Ownership.
Revocation of a Gift under Muslim Law
Under Muslim law, all voluntary transactions are generally revocable. In
Hanafi law, even a gift is considered revocable, though it is considered
abominable to revoke a gift. In contrast, in Shia law, a gift can be revoked
by a mere declaration, while in Sunni law, revocation can only occur
through the intervention of a court of law or with the consent of the donee.
However, there are certain situations where a gift becomes absolutely
irrevocable:
 When the donor is deceased.

 When the donee is deceased.

 When the donee is related to the donor in prohibited degrees of

consanguinity. Note that in Shia law, a gift to any blood relative is

irrevocable.
 When there exists a marital relationship between the donor and the

donee. Again, in Shia law, a gift to a husband by the wife or vice

versa is revocable.
  When the donee has transferred the subject of the gift through a sale
or gift to another person.
 When the subject of the gift is lost, destroyed or has undergone such

a change, it loses its identity.

 When the subject of the gift has increased in value, and the increment

is inseparable from the original gift under Muslim Law.

 When the gift is given as a “sadqa,” which refers to a gift made for

charitable or religious purposes.

 When the donor has accepted anything in return for the gift.

In these specified circumstances, the gift becomes irrevocable, and the

donor loses the right to revoke it. It is important to note that the rules
regarding revocability may vary slightly between the Shia and Sunni
schools of thought in Islamic law.
Conclusion
The concept of gift under Muslim law holds significant importance,
reflecting the principles of generosity, charity and the spirit of giving in
Islam. A gift is a voluntary transfer of Ownership in an existing property
from one person (donor) to another (donee) without any consideration or
payment in return. The act of giving a gift is considered virtuous and
aligns with the teachings of Islam to share wealth and support those in
need.
For a gift to be valid in Muslim Law, certain conditions must be met. It
requires a clear and unambiguous declaration by the donor, acceptance by
the donee (though not strictly required under most interpretations) and the
subsequent delivery of possession of the gifted property. The subject of
the gift must be an existing property that the donor currently owns, and the
gift must be unconditional, without any obstructive conditions.
B) Debts
Extent of liability of heirs for debts
The Qur’anic principle, “There is no inheritance until after the payment of
the debt” is an integral part of the Muslim law of Inheritance.
Under Muslim law, the property is not jointly held by heirs. Similarly, the
debt that they inherit from the person deceased is also divided amongst all
the heirs according to the proportion of the estate that they inherit. They
are separately responsible for paying that and no one heir is said to be
paying on behalf of the other co-heir.
In Muhammad Muin-Ud-Din and Anr. vs Musammat Jamal Fatima,
it was held by the Court that upon the death of a Muslim owner the heir,
but not the estate, become answerable for the debts. Hobhouse, J. observed
that “..it is the heirs themselves who are answerable and that to the extent
of any asset which they may have received.” This means that along with
the estate, the heirs also inherit the debt. They may also be told by the
court to pay the amount to protect the rights of the Creditor.
Alienation
According to Muslim law, and the judicial precedents, an heir may not be
able to alienate the property as long as he does not pay the debts that he
has inherited from the deceased. He is duty-bound to pay the same from
his share of the estate. In the case of Syed Shah Muhammad Kazim vs
Syed Abi Saghir and Ors., the Court said that “it is the duty of the heir to
pay all debts before appropriating any portion of the assets to his use.” If
the heir succeeds in selling the property to a third-party, even then the
creditor to whom he owes the debt shall hold a better ground upon such
estate than the person who might have, in good faith, purchased it.

Testamentary Capacity: A Muslim cannot dispose of by will more than

one-third of the net assets after allowing for the debts and funeral expenses
of the testator (under both Hanafi Law and Shia Law). The remaining 2/3
share should be made available for distribution amongst the heirs. Even
for bequeathing the 1/3rd share, the Muslim has to obtain the consent of
the other heirs. Thus, the testamentary capacity of a Muslim is cut down
by two principal limitations:
a. as to quantum where he cannot bequeath more than one-third of his net
estate
b. as to the legatees where he cannot bequeath to his own heirs.
Bequests(wasiyat);
Meaning and Nature of Will under Muslim Law
Traditionally, a Will, also referred to as a ‘testament,’ is a legal instrument
that empowers an individual to distribute their own property to designated
beneficiaries upon their death. The execution of a Will under Muslim Law
takes effect solely after the demise of the testator. Essentially, a Will
serves as a formal declaration of property transfer to be carried out
posthumously.
In the realm of Islamic law, a Will established by a Muslim is known as
‘Wasiyat.’ The individual executing the Will is referred to as the ‘legator’
or ‘testator,’ while the beneficiary named in the Will is known as the
‘legatee’ or ‘testatrix.’ A prominent Muslim scholar, Ameer Ali, defined a
Will as a divine institution in terms of its regulation by the Holy Quran.
Simultaneously, the Prophet emphasised that such testamentary powers
must not cause harm to the rightful heirs.
Islamic law imposes a stringent rule that governs the validity of a Will.
According to this rule, a Muslim can bequeath assets to anyone, but only
up to one-third of their total property. If the Will exceeds one-third of the
property, the consent of the legal heirs becomes mandatory, regardless of
the intended beneficiary.
One can postulate that a Will represents a voluntary transfer of ownership
facilitated through a testamentary document, which becomes operative
upon the death of the testator. In terms of the legal concept, a Will
essentially functions as a testamentary gift.
Essentials of a Valid Will under Muslim Law
When considering the legal validity of a Will under Muslim law, there are
specific conditions that must be met for a Will to be deemed appropriate
and enforceable. The following requirements need to be fulfilled:
 Competence of the legator: The person making the Will under

Muslim Law must have the mental capacity and legal competence to
create a Will.
 Capability of the legatee: The intended recipient of the bequest must

be legally eligible to receive such an inheritance.

 Bequeathable property: The property being gifted by the legator

must be capable of being legally bequeathed according to Islamic

law.
 Consent of the legator and legatee: Both the legator and the legatee

must provide their free and voluntary consent to the terms of the
 Will.
 Testamentary rights of the legator: The legator must possess the

legal authority and ownership over the property being bequeathed.

Who can make a Will?
For a Will under Muslim Law to be considered valid, the competency of
the legator is a fundamental requirement. The legator must possess the
following characteristics:
Muslim Identity
According to Islamic law, a valid Will can only be made by a Muslim. If a
legator is a Muslim at the time of creating the Will, it falls under the
jurisdiction of Muslim Personal Law. However, if a Muslim individual has
married under the Special Marriage Act, 1954, their Will is governed by
the Indian Succession Act, 1925, rather than Muslim Personal Law.
Change in Religious Status
In certain cases, a legator may have been Muslim when they executed the
Will but renounced Islam afterwards, thereby being recognised as a non-
Muslim at the time of death. Such a Will created by a former Muslim is
still considered valid under Muslim law.
School of Thought
Since there are different schools of thought within Islam, it is important to
note that a Will is governed by the rules of the specific school to which the
legator belongs at the time of declaring the Will. For example, if the
legator is a Sunni Muslim when the Will is created, the Sunni Laws of
Will apply.
Soundness of Mind
The legator must be of sound mind when making the Will. According to
Muslim law, the legator must possess a clear and rational mind, fully
understanding their actions and the legal consequences at the time of
executing the Will. If a legator is of sound mind during the creation of the
Will but later becomes insane until their death, the Will becomes void.
Similarly, if the legator is already insane at the time of making the Will, it
is considered null and void, even if they recover from insanity before
passing away.
Age of Majority
The legator must have reached the age of majority when creating the Will.
Under Muslim law, the age of majority is determined by the Indian
Majority Act, 1875, with exceptions regarding marriage, dower and
divorce. In general, the age of majority is 18 years or 21 years if the
person is under the supervision of the Courts of Wards.
Any Will under Muslim Law executed by a minor is considered void. The
validity of such a Will is suspended until the legator reaches the age of
majority. Therefore, to create a valid Will, the legator must be 18 years or
21 years old, depending on the circumstances. Once the legator becomes a
legal adult and ratifies the Will, it becomes valid.
Attempted Suicide by Legator
If a person who has attempted suicide executes a Will, it is considered
void under Shia law. The rationale behind this rule is that an individual
who has attempted suicide is presumed to be mentally unstable and
disturbed and therefore not in a sound state of mind. For instance, if a
person consumes poison or inflicts serious harm on themselves and then
creates a Will before their death, that Will is declared null and void
according to Shia law.
However, under Sunni law, a Will executed under such circumstances is
considered completely valid. Both Shia and Sunni laws recognise the
validity of a Will declared by a legator prior to an attempted suicide.
Consent of the Legator
When executing a Will, the legator’s free consent is essential. Any Will
under Muslim Law found to be executed under coercion, undue influence
or fraud is deemed null and void and the legatee is not entitled to any
property under that Will.
Free consent is generally assumed by the law unless proven otherwise.
However, in the case of a pardanashin lady (a secluded or veiled woman),
free consent is not presumed and the legatee must provide evidence that
the Will was executed by the lady while exercising her independent
discretion.
Who Can Take Property under a Will under Muslim Law?
In addition to the competency of the legator, the competency of the legatee
is another essential requirement for a valid Will. The following are the
characteristics of a legatee who is capable of receiving a Will executed by
a legator:
Person in Existence
A legatee must be alive at the time of the legator’s death. Since a Will
under Muslim Law takes effect only after the legator’s death, the legatee
must be a person who exists at that time.
Non-Discrimination
A Will can be made in favor of a non-Muslim, a minor or an insane
person. The important factor is that the legatee must be in existence and
legally capable of holding the property. Age, sex, caste, religion, gender
and mental state are not significant factors in becoming a lawful legatee.
Charitable or religious institutions can also be valid legatees and any Will
under Muslim Law in their favor is legally permissible.
Child in Mother’s Womb
A child in a mother’s womb is considered a living person and can be a
competent legatee under Islamic law under two conditions. Firstly, the
child must exist in the mother’s womb at the time of the Will’s
declaration. Secondly, the child must be born alive within six months
(under Sunni law) or ten months (under Shia law) from the date of Will’s
execution.
Legatee as a Murderer
As a Will under Muslim Law only comes into effect after the legator’s
death, there is a possibility that an avaricious and impatient legatee may
cause the legator’s death to obtain the property quickly.
Generally, a legatee who intentionally or unintentionally causes the
legator’s death is not allowed to inherit under the Will and is disqualified
from receiving the property. However, under Shia law, if a legatee causes
the legator’s death unintentionally, negligently or accidentally, they are
still eligible to inherit the property and the Will is considered valid.
Consent of Legatee
Prior to transferring the legal title to the legatee under a Will, it is
important to obtain the legatee’s consent to determine whether they wish
to accept the Will or not. This consent can be expressed or implied. A
legatee has the right to disclaim the Will under Muslim Law and refuse
ownership of any property bequeathed to them. If a legatee declines to
accept any property bestowed upon them, the Will is considered
incomplete and invalid.
Joint Legatee
There are instances where a legator issues a Will jointly in favor of
multiple legatees, referred to as joint legatees. A Will under Muslim Law
can be made in favor of joint legatees in two ways:
Where the Share is Specified
If the legator explicitly specifies the share of each legatee in the Will,
there is no ambiguity regarding the distribution of the property. The
property will be divided according to the ratios mentioned by the legator
and each legatee will receive their respective allotted share.
For example, if a legator creates a Will in favor of his three sons, stating
that the distribution ratio should be 3:2:1 for S1, S2 and S3, respectively,
the property will be distributed among the three sons in accordance with
the specified ratios.
Where the Share is Not Specified
In some cases, the legator may not explicitly describe the share of each
legatee. In such situations, the general rule is applied and the property is
presumed to be divided equally among the legatees. When a Will under
Muslim Law is made in favor of a class of individuals, that class is treated
as a single legatee and each person within the class receives an equal
portion of the property.
For instance, if a legator creates a Will stating that the property is to be
given to a mosque and the poor people in the legator’s locality, half of the
bequeathable property will be granted to the mosque, while the remaining
half will under Muslim Law be distributed equally among the poor
individuals in the locality.
What are the Modes of Execution of Will under Muslim Law
In Muslim law, there are no specific formalities prescribed for the
execution of a Will. The intention of the legator holds significant
importance in validating a Will and it must be clear, explicit and
unequivocal.
A Will can be made orally, in writing or even through gestures.
Oral Will
A simple oral declaration can be considered a valid Will. There is no
requirement to follow a particular process or formality to create a Will.
However, proving an oral Will can be challenging as it must be
corroborated with precise details of the date, time and place. The burden
of proof is substantial in such cases.
Written Will
A Will can be declared in writing without any specific form prescribed. It
is not necessary for the legator to sign the Will or for it to be attested by
witnesses. The name of the document is not crucial as long as it possesses
the essential characteristics of a Will. If these requirements are met, the
written document will be considered a valid Will under Muslim Law.
Will Made by Gestures
Under Islamic law, a Will can also be made through gestures. For
example, if a sick person is unable to speak due to weakness but
communicates their intentions through comprehensive nods of the head
and subsequently passes away without regaining the ability to speak, the
bequest made through gestures will be considered valid and lawful.
The Subject matter of a Will under Muslim Law
Any type of property, whether corporeal or incorporeal, movable or
immovable, can be the subject matter of a Will under Islamic law.
However, a legator can bequeath a property in a Will only if two
conditions are met:
Ownership at the Time of Death
The legator must own the property at the time of their death. While the
bequeathed property may or may not exist at the time of executing the
Will, it is essential that the legator has ownership of the property at the
time of their death.
This rule is based on the fact that a Will becomes operative after the
legator’s death and the transfer of property to the legatee occurs from the
date of the legator’s death, not from the date of executing the Will.
For example, let’s consider a scenario where ‘A’ executes a Will giving all
their property to ‘B’. At the time of executing the Will, ‘A’ owns a house.
However, at the time of ‘A’s death, they also own a car. In this case, ‘B’ is
entitled to receive both the house and the car as per the provisions of the
Will.
Transferable Property
The property being bequeathed must be transferable. This means that the
property should be capable of being transferred from the legator to the
legatee as per Islamic law. The property should not be subject to any legal
restrictions that prevent its transfer.
By fulfilling these conditions, a legator can include any eligible property
in their Will, ensuring that it will be transferred to the designated legatee
after their death.
Restrictions on Will
Under Islamic law, there are certain restrictions on the testamentary
powers of a Muslim. These restrictions can be categorised into two types:
Limitation on Bequest Amount
A Muslim is allowed to make a Will for his property up to one-third of his
bequeathable property. This one-third limit is calculated after deducting
expenses such as debts and funeral costs. Any bequest exceeding the limit
of one-third will not be effective unless the heirs of the legator give their
consent to it. If the heirs do not consent, the bequest will be valid only to
the extent of one-third and the remaining two-thirds will be distributed
according to the rules of intestate succession.
However, if a Muslim does not have any legal heirs, he may bequeath his
property to anyone and in any amount he desires, without being restricted
to the one-third limit. But if a Muslim bequeaths his property to a non-heir
or a stranger, the consent of the legal heirs is required if the bequest
exceeds one-third of his total property.
These restrictions aim to protect the rights and interests of the legal heirs,
which may be adversely affected by such bequests. If the heirs give their
consent to bequeath the entire property to a stranger, the Will is valid;
otherwise, it is valid only up to the limit of one-third.
Consent of Legal Heirs
The consent of the other legal heirs of the legator is significant when the
legatee is one of the heirs of the legator, regardless of the bequest amount
(whether it is one-third or less). This rule is in place to prevent feelings of
jealousy and enmity among the heirs that may arise if one heir is given
preferential treatment in the Will under Muslim Law.
In Shia law, there is no distinction between an heir and a non-heir. A
bequest can be made in favor of anyone up to the extent of one-third of the
property and it is considered valid.
Therefore, it can be concluded that Shia law provides more flexibility and
power to make a Will compared to Sunni law, which imposes stricter
restrictions on testamentary powers.
Revocation of a Will under Muslim Law
Under Islamic law, a legator has the right to revoke a Will or any part of
the Will at any time. This right to revoke is considered an emancipated
right of the legator. The revocation can be done expressly or impliedly.
Express Revocation
Express revocation can be done through oral or written means. For
example, if a legator bequeaths certain property to a person in a Will and
subsequently creates a new Will bequeathing the same property to another
person, the first Will is automatically revoked.
If the legator intentionally burns or tears the Will that was executed by
him, it is also considered an express revocation. It’s important to note that
mere denial of a Will is not sufficient to revoke it. There must be some
action taken by the legator that clearly indicates his intention to revoke the
Will.
Implied Revocation
Implied revocation occurs when the legator performs an act that is
contrary to the bequest made in the Will, leading to the annihilation of the
subject-matter of the bequest. For example, if a legator executes a Will
bequeathing land to a person and subsequently builds a house on that land,
sells the land or gifts it to someone else, the Will is considered to be
impliedly revoked.
In both express and implied revocation, the legator’s clear intention to
revoke the Will or the relevant part of the Will is essential. The revocation
can be proven through the legator’s actions or declarations that
demonstrate his intent to cancel or modify the bequests made in the Will.
Construction of a Will under Muslim Law
In Islamic law, the interpretation of a Will is based on the rules and
principles outlined in Islamic jurisprudence. When a person creates a Will
during their lifetime, it is meant to be enforced and implemented after
their death. Therefore, the interpretation of a Will should aim to fulfill the
intentions of the legator after their demise. However, there may be
instances where the language used in the Will is unclear or the intentions
of the legator are ambiguous.
In such cases, the responsibility of interpreting the Will is often entrusted
to the heirs. They have the discretion to interpret and clarify the content of
the Will in a manner that they collectively deem appropriate. For example,
if a legator bequeaths a house and a shop to their two sons without
specifying which property is assigned to each son, the heirs can mutually
agree and decide how to distribute the properties among themselves.
This approach allows flexibility in the interpretation process, empowering
the heirs to make decisions that align with the overall intent of the legator
while considering the specific circumstances and needs of the family. It
also promotes consensus and cooperation among the heirs in resolving any
uncertainties or ambiguities present in the Will.
Abatement of Legacies
The abatement is a reduction in the legacies of the beneficiaries in order
to maintain the rule of bequeathing only one-third of the property.
In Sunni law, the abatement of legacies is done in a rateable or
proportionate manner. This means that each beneficiary’s share is reduced
proportionally, according to the ratios specified in the Will, while
maintaining the same distribution ratio among them.
In Shia law, the abatement is done preferentially. This means that the
distribution is made in order of preference, based on the order in which the
names of the legatees are mentioned in the Will. The first legatee
mentioned receives their full share as specified, while the remaining
property is passed on to the next legatee and so on. The distribution
continues until one-third of the property is exhausted.
Distribution of Property under Will in Muslim Law
The distribution of property in accordance with the rules of abatement
varies between Sunni and Shia law.
Under Sunni law, the principle of rateable distribution is applied when the
bequeathable property exceeds one-third of the total property. In this
method, if a legator bequeaths property to multiple beneficiaries in
specific ratios, the abatement is done in the same ratio in which the
property was initially distributed. Each beneficiary’s share is reduced
proportionally, while maintaining the same ratio among them. This
ensures a fair and proportional reduction of the shares.
On the other hand, according to Shia law, the principle of preferential
distribution is followed. If the bequeathable property exceeds one-third
and the heirs refuse to give consent for the excess, no reduction is made in
the shares of the legatees. Instead, the distribution is made in order of
preference, based on the order in which the names of the legatees are
mentioned in the Will. The first legatee mentioned receives their full share
as specified, while the remaining property is passed on to the next legatee
and so on. The distribution continues until one-third of the property is
exhausted. This means that a legatee either receives their full share or
receives nothing.
It’s important to note that the rules of abatement and distribution may vary
within different schools of Islamic law and specific circumstances and
local customs may also influence their application. Consulting a
knowledgeable Islamic scholar or legal expert familiar with the applicable
laws and interpretations would provide more accurate guidance in
individual cases.
Comparison of Sunni and Shia Law of Will under Muslim Law
Basis for
Sunni law Shia law
Comparison
Invalid without consent
Valid up to one-third of
Bequest to an of other heirs, even
property, consent required for
heir within one-third of
more than one-third.
property.
Consent of heirs must be Consent can be given either
Time of Consent given after the death of before or after the death of the
the legator. legator.
Legatee causingLegatee cannot takeIf the death is intentional,
 legatee cannot take the
property if they commit
the death of property, but if accidental or
murder or cause the
Legator negligent, they can take the
death of the legator.
property.
Will is valid if legator
Will is valid only if legator
Suicide attempt commits suicide before
commits suicide after
by Legator or after executing the
executing the Will.
Will.
Bequest for unborn child
Bequest for unborn child valid
valid if born within 6
Child in Womb if born within 10 months of
months of making the
making the Will.
Will.
Abatement of Follows rule of rateable Follows rule of preferential
Legacies distribution. distribution.
Legacy lapses only if legatee
Legatee dies Legacy reverts to the
dies without leaving an heir or
before Legator legator.
if the legator revokes the Will.

Conclusion
A Will is indeed a legal instrument that grants the right to property to a
designated beneficiary, which takes effect upon the death of the person
making the Will (legator). It serves as a means for the legator to exert
some control over the distribution of their assets, deviating from the strict
laws of inheritance under Islamic law.
By creating a Will, a legator can include individuals who are not entitled
to inherit under the rules of Islamic inheritance, thereby allowing them to
receive a share of the property. This aspect of the Islamic law of Will
provides an opportunity for the legator to rectify the distribution of their
estate to some extent and accommodate their personal preferences.
While the Islamic law of Will allows for the devolution of property
according to the legator’s choice, it also ensures a reasonable balance
between the principles of inheritance and the testamentary disposition of
property. This balance ensures that the rights of the legal heirs, as
prescribed by Islamic law, are respected and upheld to a significant extent.
 Revocation and lapse of legacies,
Revocation Legacies/Revocation of Wills
Muslim law grants an emancipated right to legator exercising which he
can revoke the Will or any part of the Will executed by him anytime.
Similarly, he can add something reasonable to the Will as well. A legator
may revoke the Will either expressly or impliedly.
Muslim law confers on a testator unfettered right to revoke his will. A
Muslim testator may revoke, during his life-time, any Will made by him
expressly or impliedly.
Thus, if he sells, makes gift of the subject of bequest or deals with the
same in any other manner like constructing a house on the piece of land
bequeathed earlier, would implied revocation.
For example, where the testator gives land to his friend under a Will but a
year later gifts the same to his daughter, the bequest in favour of the friend
is automatically revoked.
Where a testator makes a Will, and by a subsequent Will gives the same
property to someone else, the prior bequest is revoked. But a subsequent
bequest (though of the same property) to another person in the same Will
does not operate as a revocation of prior bequest, and the property will be
divided between the two legatees in equal shares.
It is not necessary that for revoking an earlier will, another will must be
made. A Will can be revoked by a simple and clear declaration to that
effect or by a formal deed of cancellation or revocation of Will.
Muslim law grants an emancipated right to legator exercising which he
can revoke the Will or any part of the Will executed by him anytime.
Similarly, he can add something reasonable to the Will as well.
A legator may revoke the Will either expressly or impliedly.
Express Revocation
An express revocation may be done in oral or in writing. For example, if a
legator bequests some of his property to a person and by making a
subsequent Will he bequeaths the same property to another person, then
the first Will is considered to be revoked automatically.
If legator burns or tears off a Will executed by him, then also the Will is
said to be expressly revoked. It is to be noted that mere denial of a Will is
not sufficient to amount a Will as revoked. Some action must be taken by
the legator which indicates his clear intention for the revocation of the
will.
Implied Revocation
Any act done by legator contrary to the bequest will revoke the Will. In
other words, an act which leads to the annihilation of the subject-matter of
the bequest is considered as an implied revocation of the Will. For
example, if a legator executed a Will giving land to a person and builds a
house on the same land, or if he sells or gifts that land to someone else,
then consequently, the Will is said to be impliedly revoked.
Death of Legatee before Operation of Will (Lapse of Legacy)
Under Sunni law where before the Will can operate, the legatee dies, the
bequest will lapse and the property bequeathed would remain with the
testator and on his death will go to his heirs in absence of any other
disposition by him.
Under Shia law, the legacy will lapse only if the legatee dies without
leaving an heir or if the testator, after the death of the legatee, revokes the
Will. However, if the testator even after the death of the legatee does not
revoke the Will, on the date of operation of the Will, the benefit under it
will pass to the heirs of the legatee.
Section 105-Lapse of legacy: he Indian Succession Act, 1925
This takes us to section 105. It provides as follows:-
"105. (1) If the legatee does not survive the testator, the legacy cannot take
effect, but shall lapse and form part of the residue of the testator's
property, unless it appears by the will that the testator intended that it
should go to some other person.
(a) In order to entitle the representative of the legatee to receive the
legacy, it must be proved that he survived the testator.
Illustrations
(i) The testator bequeaths to B "500 rupees which B owes me". B dies
before the testator. The legacy lapses.
(ii) A bequest is made to A and his children. A dies before the testator, or
happens to be dead when the will is made. The legacy to A and his
children lapses.
(iii) A legacy is given to A, and, in case of his dying before the testator, to
B. A dies before the testator. The legacy goes to B.
(iv) A sum of money is bequeathed to A for life, and after his death to B.
A dies in the lifetime of the testator; B survives the testator. The bequest
to B takes effect.
(v) A sum of money is bequeathed to A on his completing his eighteenth
year, and in case he should the before he completes his eighteenth year, to
B. A completes eighteenth year and then dies in the lifetime of the testator.
The legacy to A lapses, and the bequest to B does not take effect.
(vi) The testator and the legatee perished in the same shipwreck. There is
no evidence to shows, which dies first. The legacy lapses."

The six illustrations to the section may now be analysed. Illustration (i)
takes a simple case of lapse of bequest. Illustration (ii) is also a case of
lapse, and rightly assumes that a bequest to "A and his children" is not to
be treated as a separate gift to the children of A, but merely connotes' the
quality of A's interest. Illustrations (iii) and (iv) are cases where a different
intention appears from the will, so that the thing bequeathed does not go as
residue. They also illustrate the operation of the rule in subsection.
Illustration (v) illustrates the first sub-section of section 105, namely, that
if the legatee does not survive the testator, the legacy cannot take effect.
The alternative bequest to B does not take effect in this case, because the
gift to B is conditional on A's death before completing his eighteenth year-
a condition not fulfilled on the facts in this case, as put in the illustration.
Illustration (vi) to the section relates to the very interesting situation
described in juristic writings as "commorientis."
Thus As per Section 105, of Indian Succession Act, if the legatee (person
named in will as, successor of the property or, one who receives legacy in
will) dies before the testator (person who makes the will regarding
succession of his property), then the will or legacy cannot take effect.
Beneficiaries and executors of a Will have various rights which they share
in common. These rights only come into effect after the death of the
testator, up until this point any beneficiary will have no interest in the
assets. Beneficiaries can be removed/changed any time before the death of
a testator.
In order to ensure beneficiaries understand the trust, it is necessary that
they receive adequate details regarding the trust assets. The trustee has a
responsibility to produce copies of the relevant documentation. In some
situations beneficiaries may want further information, however it is not the
trustee’s duty to provide this, and it is down to their discretion
Who Can Be a Beneficiary?
• Spouse • Children / Grandchildren
Until a child becomes an adult, their gift/inheritance is held, unless an
age is specified in the terms of the Will.
• Other relatives • Organisations
• Friends • Charities

What Happens if a Beneficiary Dies Before the Testator?

If a beneficiary dies between the point when the Will was made and the
death of the testator, under this scenario the beneficiary’s estate will
usually have no benefit from the Will.
If the beneficiary has died before the testator, the benefit is said to have
lapsed, although there are exceptions to this rule.
It cannot be forced upon a beneficiary of a Will to take a benefit; they may
reject the benefit at any point before possession of assets have been taken.
If the interest is rejected then the disclaimer is treated for a transfer of
value. Beneficiaries can also choose to redirect a benefit.
What Happens if a Beneficiary Dies After the Testator?
In some instances a gift can be subject to conditions. If the beneficiary
does not meet the requirement(s), the beneficiary’s estate will not be
entitled to the benefit.
An example of when this can happen is if a testator has left a gift to a
child/grandchild for them to receive when they reach a certain age and
they die before the age is reached. If the conditions are not met the benefit
cannot be claimed by the beneficiary’s estate.

Bequest to heirs, and

Muslims are governed by their personal (Sharia) law and by the rules of
intestate succession as provided in this law. Strictly speaking, there is no
restriction as to the person to whom a property can be given through a
will. However, under Muslim law, there are a few restrictions as to the
persons to whom a bequest can be made.
Bequest to heir: Under Shiite law, Muslims can bequest one-third of their
estate without consent of heirs. Consent of heirs is required if bequest
exceeds one third of estate. Under Sunni law, bequest to an heir is invalid
unless consent of heirs is obtained after death of testator.
Where the testator makes a bequest to heir as well as non-heir by the same
legacy, in absence of the consent of heirs, the legacy will not be invalid in
its entirety but will take effect with respect to non heirs. The rule is that as
far as possible, the Will, will be given the maximum effect that it is
capable of.
For example, if the testator bequeaths his total property to an heir and a
non-heir, without the heirs giving the consent, the non-heir will take one-
third of the property and the rest of the two-thirds will go to the heirs of
the testator by inheritance -Muhammad V. Aulia Bibi.
Bequest to Heir-Its legality
A will for the benefit of any of the testator's heir is invalid The heirs
cannot object the decision of the legator. They cannot veto it either when
the will is made or when it becomes opearative.
If a man makes a bequest in favour of a part of his heirs it is not valid,
because of a traditional saying of the Prophet, “God has allotted to every
heir his particular rights”; “and also, because a will in favour of a part of
the heirs is an injury to the rest, and, therefore, if it were deemed legal,
would induce a breach of the ties of kindred. Besides, it is said in the
traditions, a bequest to particular heir is unjust.”

Basis for Sunni law Shia law

Comparison
Invalid without consent of Valid up to one-third of
Bequest to an
other heirs, even within one- property, consent required for
heir
third of property. more than one-third.

Principle limitations on testamentary powers

Contrary to the general rule, there are certain restrictions on the
testamentary powers of a Muslim. There are two types of restrictions:
 With respect to the extent of the property that can be bequeathed

If a Muslim desire to make a Will of his property, he is allowed to do so

only to the extent of one-third of the bequeathable property. This extent of
one-third is calculated after the expenses of his debts and funeral etc. Any
bequest exceeding the limit of one-third Will not come into effect unless
the heirs of the legator give their consent to it. In case the heirs do not give
their consent, then the bequest will be valid to the extent of one-third only
and the remaining two-thirds will be transferred through intestate
succession.
A Muslim who does not have any heir may bequest his property to anyone
and in whatsoever amount he may desire to give. But if a Muslim bequest
his property to a non-heir or a stranger, then the consent of the legal heirs
is of utmost significance if the property exceeds the one-third of his total
property.
The reason is to protect the rights and interests of the legal heirs which
may adversely affect in case of such bequest. If heirs give their consent to
give an entire property to a stranger, the Will is valid otherwise it is valid
to the limit of one-third.
 With respect to the legatees to whom the property is given

Furthermore, the second restriction comes into action only where the
legatee is one of the heirs of the legator. Whether the property bequeathed
is one-third or less, the consent of the other legal heirs of the legator is a
dominant factor in order to establish a valid Will. The ground of this rule
is that a legator may make a bequest in favour of one of the legal heirs
giving more precedence to him which may result in a feeling of jealousy
and enmity among the other heirs.
On the other hand, Shia law doesn’t discriminate between an heir or a non-
heir. A bequest can be made in favour of anyone till the extent of one-third
of the property is treated to be valid. Thus, it can be concluded that Shia
law provides ample powers to make a Will as compared to Sunni law.

Limitation on bequest to heirs: The reason for putting restriction on the

bequest in favour of heirs seems to be intended to prevent of the showing
of favouritism to any heir to the prejudice of the others, and this defeating
the policy of the Quaranic injunctions as to the division of heritage
according to fixed principles. Such restriction safeguards against a breach
of the ties the kindred.
Rule of Consent:
The consent of the heir is essential if a bequest is made in favour of an
heir. The consenting heirs must be major and of sound mind. But if the
heirs are minors at the time of the testator’s death, consent must be given
by them on attaining majority. Here minor’s guardian’s consent does not
work. Consent should be given after the testator’s death. If consent is
given during the life-time of the testator, that will not be a valid consent.
The reason for making such a rule is obvious; before the death of the
testator it is not known as to who would be heirs and to what extent. If the
consent of the heirs is not obtained, the bequest would be void. Even a
single heir may consent so as to bind his share. It is immaterial that at the
time when the heirs gave his consent he was an insolvent.
Limitation on bequeathable Property: The testamentary power of a
Muslim is limited to the bequeathable one-third. The one-third of a
heritable estate within which a Muslim has full legal freedom of
testamentary disposition is called the ‘bequeathable third’. So the
bequeathable one-third, means a third of the estate of a testator. One-third
will be counted after paying general expenses and debts.

Limitation on Bequest Amount

A Muslim is allowed to make a Will for his property up to one-third of his
bequeathable property. This one-third limit is calculated after deducting
expenses such as debts and funeral costs. Any bequest exceeding the limit
of one-third will not be effective unless the heirs of the legator give their
consent to it. If the heirs do not consent, the bequest will be valid only to
the extent of one-third and the remaining two-thirds will be distributed
according to the rules of intestate succession.
However, if a Muslim does not have any legal heirs, he may bequeath his
property to anyone and in any amount he desires, without being restricted
to the one-third limit. But if a Muslim bequeaths his property to a non-heir
or a stranger, the consent of the legal heirs is required if the bequest
exceeds one-third of his total property.
These restrictions aim to protect the rights and interests of the legal heirs,
which may be adversely affected by such bequests. If the heirs give their
consent to bequeath the entire property to a stranger, the Will is valid;
otherwise, it is valid only up to the limit of one-third.
The will of a Muslim is not required to be in writing. If it is in writing,
it need not be signed and if it is in writing and signed, it need not be
attested. Here are the essentials of a valid gift under Mohammedan
law:
1. The donor must be at least 18 years of age and of sound mind. He may
dispose of the whole of his property by gift to any person including a
stranger.
2. There must be a declaration of the gift by donor and an acceptance of
the gift by donee.
3. In case of movable property, it should be delivered.
4. In case of immovable property of which the donor is in possession, the
donor should physically depart from the property and the donee must
make a formal entry.
In case the immovable property of which the donor reserves the right to
receive rent but continues to be in possession of the property, if the person
to whom the gift is made does an act by which the property is conferred on
him without possession being actually given, the gift is complete. If the
immovable property is in the occupation of tenants, a request by the donor
to the tenants to acknowledge the donee as the owner of the property will
suffice.
5. In case of incorporeal property, the donor must show a clear intention to
confer the property upon the donee.
6. In case of property which is held by a person against the will of the
donor, gift of such property is not valid unless the donor recovers
possession and puts the donee in possession of it.

Bequeathable third and deathbed transactions,

According to Mohammedan law, a Muslim cannot dispose of by Will
more than one-third of what remains of his property after his funeral
expenses and debts are paid.
Therefore, the remaining two-thirds of the property must go to the heirs of
the deceased as in intestacy (i.e. the persons entitled to the estate of the
deceased as per Mohammedan laws of succession applicable to such
deceased), unless his heirs consent to the bequest in excess of the third in
favour of another.
It is pertinent to note that in the case of Sunni Muslims, while a bequest to
a stranger (i.e., a person who is not an heir) to the extent of one- third is
permissible, any bequest to an heir is not valid unless the other heirs of the
testator consent to such a bequest, even if it is within this permissible limit
of one-third.
The consent of the other heirs to such a bequest must be given after the
death of the testator and such consent would bind the share of the
respective heir.
In the case of Shia Muslims, however, a bequest may be made to a
stranger and/or to an heir (even without the consent of the other heirs) so
long as it does not exceed one-third of the estate of the testator.
However, if it exceeds one-third, it is not valid unless the other heirs
consent.
In the case of Shia Muslims, the consent of the heirs may be given either
before or after the death of the testator.
The above rule under Mohammedan law, which restricts a Muslim from
bequeathing more than one-third of his or her estate by Will, may not
strictly apply to certain sects of Muslims, such as Khoja Muslims, Cutchi
Memons or Muslims who have solemnised their marriage under the
Special Marriage Act.
Accordingly, assuming you do not fall under an exempted category or sect
as mentioned above, and the one-third rule applies to you, then you may
make a Will bequeathing one-third of your estate (including immovable
property) to a stranger (or even to an heir in the case of Shia Muslims).
In respect of the remaining two-thirds of a property, if the beneficiaries
under your Will are not the same as your heirs under Mohammedan law,
then such bequest would not be valid unless your heirs consent to such
bequest, as mentioned above.
As regards your other assets, it would be important to determine the
manner in which the assets are held by you and the second holder.
If your assets are held as tenants- in-common with the second holder, it
would be open to your heirs to claim a share in those assets (to the extent
of your share), since, unlike joint tenants where on the death of one of the
persons, his or her interest in the property automatically passes to the
surviving joint owner, in the case of tenants in common, the interest of the
deceased owner passes to heirs in accordance with the rules relating to
intestate succession under the personal law applicable to him or as per the
Will and not upon the surviving owner.
Under Sunni Islamic law the power of the testator is limited in two ways:
firstly, he or she cannot bequest more than 1/3 of the totally property
unless the other heirs consent to the bequest or there are no legal heirs at
all or the only legal heir is the spouse who gets his/her legal share and the
residue can be bequeathed and secondly, the testator cannot make a
bequest in favour of a legal heir under traditional Sunni Muslim law. Here
consent must be given at the time of the operation of the Will, that is, after
the death of the testator.
There are two exceptions to the one-third rule:
a. When the testator does not have any heir. In such cases, if the restriction
of permissible one-third is applied, then the beneficiary is the Government
who will take the property by doctrine of Escheat, while the primary
purpose of applying the bequeathable permissibility to the extent of one-
third is to protect the rights of the heirs, and not that of the Government.
An heirless person can thus make a bequest of the total property.
b. Where the heirs themselves consent to the bequest in excess of one-
third. As the chief objective is to safeguard the interests of theirs, the
excess bequest can be validated by consent.
Under Shia Law, the bequest in favour of an heir is valid without consent
of other heirs provided it does not exceed the bequeathable one-third limit.
If it is in excess of the one-third, then the consent of those heirs is
necessary whose share is likely to be affected by the bequest.
The consenting heirs must be majors, sane and not insolvent in law to be
considered as valid consent. The consent given by the heirs may be
expressed or implied. It may be oral or in writing. It can also be implied
from conduct. Mere silence or inaction would not be taken as consent even
if heirs were present at the time of the proceedings for affecting the names
in the Will. Where a will is executed in writing and is attested by the
testator’s heirs it is sufficient proof of their consenting to the act of the
testator. Where the testator makes a bequest in favour of an heir and on his
death, the other heirs help the legatee in effecting a mutation in name or
allow the heir to take exclusive possession of the property it is proof of the
heirs’ consent.
Under Shia Law, the consent of heirs whose shares are adversely affected
can be given before or after the death of the testator and under Sunni Law,
it must be given after the testator’s death. But once the consent is give, it
cannot be rescinded subsequently and the heirs are bound by it. Similarly,
consent cannot be given after an heir has previously repudiated it.
The legacy in favour of an heir can be validated by obtaining the consent
of one or some of the heirs or even all of them collectively. Where all the
heirs give their consent the legacy is valid to the extent of the shares of all.
Where only one or some of them give their consent the legacy would be
valid only to the extent of the heirs’ shares. In the case of Gulam
Mohammed v Gulam Hussain, the Privy Council held that a bequest in
favour of heirs without the consent of other heirs is invalid.
Testamentary Power and its Limits (Bequeathable one-Third)
A Muslim does not possess an unlimited power of making disposition by
Will.
There are two-fold restrictions on the power of a Muslim to dispose of his
property by Will, which are in respect of the person in whose favour the
bequest is made, and as to the extent to which he can dispose of his
property.
This is obvious, because the object behind this restriction is to protect the
interests of the testator’s heirs.
# No Muslim can make a bequest of more than one-third of his net assets
after payment of funeral charges and debts. If the bequeathed property
exceeds one-third, the consent of other heirs is essential (Sunni and Shia
laws).
A bequest of entire property to one heir to the exclusion of other heirs is
void -Husaini Begum V. Mohd. Mehdi
Where the heirs refuse to give their consent, the bequest would be valid
only to the extent of one-third of the property and the rest of the two-thirds
would go by intestate succession.
# In respect of bequest of one-third to an heir, the consent of other heirs is
required in Sunni law, but not in Shia law. In case of a non-heir (stranger)
the consent of heirs is not required in both.
# The above rule of bequeathable one-third will not apply to a case where
the testator has no heir. The right of Government to take the estate of an
heirless person will not, in any way, restrict the right of a person to make a
disposition of his property as he likes. Thus Government is no heir to an
heirless person.
# A bequest made for pious purposes is valid to the extent or one-third of
the property, both under Sunni as well as Shia law.
# The ‘1/3rd limit’ rule will not apply if a Muslim marries under the
Special Marriage Act, 1954, because then he has all the powers of a
testator under the Indian Succession Act, 1925.

Q-1 Explain the rule that “No muslim can bedueath more than one-
third of the Reside of this estate after Payment of debts and other
changes.” In what circumstances the will can be Revoked under
Muslim Law?
A will is defined as the local declarations of the intention of a testator with
respect his property which he desires to be curried into effect after his
death. It is usually drafted by the person who wants to make disposition of
his property. Having hardly any knowledge of law and being his own
composition at which he may never have been too good. He is likely to
leave loopholes.
The word used in Muslim Law to denote a will is it. This word has a
meaning besides a will. It also signifies a moral exhortation Ameer Ali
says a sill from the Mussalman point of view is a divine institution, since
its exercise is regulated by the Quran... At the same time the Prophet
declared that the power should not be exercised to the injury of the lawful
heirs" Sir Thomas Strange's remarks in this respect are useful to note. He
says:
Originally the chief of which first prevailed in making wills was to expiate
for the sins committed, by making pious disposition through wills, and the
proportion is commonly the ratio of the decide with which the property
has been acquired or of the sensuality and corruption to which it has been
devoted.
CONDITIONS FOR A VALID WILL
Under Muslim Law, the following conditions are necessary for valid
testamentary of the property. These conditions are, however, not applied
in the case of a Ashari Shiite Muslim.
(i) Will can he made only of one third of the property
Under Islamic law, wills are declared to be lawful in the Can and the
Traditions and our entire doctor moreover, have concurred to this opinion.
In Pre-Islamic times on an almost unlimited power of disposing of his
property. An expectant heir was not having any right over the property of
his/her parents. Under the Islamic law a Muslim can post of his property in
favour of stranger only to the extent of one third of his total property and
in this way Islam has recognized the rights of the heirs in the property of
her parents. A bequest to any amount accessing the end of the testator's
property is not valid. In proof of this the following tradition is good as
delivered by Abee Vekass:
In the year of the conquest of Mecca, being taken to extremely ii that my
life was despaired of the Prophet of God came to pay me a right of
correlation. I told him is by the leasing of God, having a great estate, but
no heirs except one daughter, I wished to know if I might dispose of it All
by Will.
He replied. No And when I severally interrogated might curve TWO
THIRDS or ONE HALF: he also replied in the negative but when I Asked
might leave a THIRD, he answered “yes, you may leave it THIRD of your
property by will: but a third part, to be disposed of by will, is a great
portion and it is better you should leave your heirs rich, than in a state of
poverty, which might oblige them to beg of others”.
The Muslim Law guarantees 1/2 right of inheritance to the newly entitled
heir. The property is to be divided in this those whose rights were prior in
time, taking twice as much as those who had just acquired them, Let the
customary heir took 2/3 und the Islamic heir 1/3.
The nucleus of the law of wilts by common consent to be found in a
transition of the Prophet, reported by Bhukari. In Abdul Manan Khan v
Mirtuza Khan, the Patna High Court said that any Muslim having a sound
mind and not a minor make a valid will to dispose of the property. As
regards a deed of will, no formality or a particular form is necessary for
the purpose of creating a valid will. An unequivocal expression by the
testator serves the purpose. However, the legatee must be competent to
take the legacy or bequest. Saksena in his book entitled "Muslim Law says
that appears the rule of one third was taken from Roman law. It is,
therefore, clear that a Muslim cannot dispose of more than the
bequeathable third. Under Islamic law, a man is not allowed to dispose of
his whole property. At the maximum he can dispose of only one third of
his estate and that only after payment of funeral expenses and debts. The
two third of his estate must go to his heirs as an intestacy.
Where the testator has disposed of more than one third of the property by
way of will the will is not void. It is only invalid. Such a will can be
legalised after obtaining the consent of the heirs. The heirs are fully
competent to give their consent for such transaction. The heirs may give
their consent expressly or impliedly. They may give their consent without
raising any argument. Under Hanafi law the consent of the heirs has to be
obtained after the lagator’s death.
There is not much difference between Shia and Sunni shools on the point’s
duscussed above. Under Shia law, a testator can dispose of more than one
third of the property. The heirs are fully competent to give their consent
during their lifetime and it need not be obtained either during the lifetime
of the legator or after his death.
It is necessory on the part of the testator to obtain the consent of the heirs
in the following cases:-
(i) He may lawfully bequeath legacies to any of his heirs, payable out of
the bequeathable one third;
(ii) It is necessary on the part of the testator to obtain the consent of heirs
if the disposition of property has become necessary on account of the
perfomance of certain religious duties.
A will made for non-religious purposes will not be valid. The will cannot
be validated by obtaining the consent of heirs. A Muslim is not permitted
to make a will for the construction of Jewish synagogues or Christian
churches.
Similarly, he is not allowed to make a will for translating the Taurit or
Injeel.
Shafii school of Sunni law has prescribed certain conditions which are as
follows:-
(i) A person who is capable of duties can make a valid will;
(ii) A person who is under inhibition on account of imbecility; an insane
person cannot make a will;
(iii) A person who is not in his sense cannot make a will;
(iv) A will made by a child is also not valid. There is a difference of
opinion amongst various doctors of Muslim Law on this point. According
to one authority a will made by a child will be valid if the child is having
discernment, at the time of the making of the will.
(ii) Will made by a guardian Under Muslim Law a will cannot be made by
the guardian. A guardian cannot make will on behalf of a minor or an
insane person. A will made by the guardian on behalf of the minor or
insane will be treated as void.
(iii)Validity of a will made by the person who has attempted suicide Under
Shia law, a will made after the testator who was injured by his own deeds
or who administered poison for committing suicide will be invalid. A Shia
Muslim can validly make a will and later on commit suicide.
(iv) Soundness of mind Tyabji says that a will made by a testator whose
mind is unsound does not become valid by his subsequently becoming of
sound mind.
There is an exception to the above rule. Where the legator has left only his
or her spouse, and apart from the spouse there is no other heir, the above
rule of only making one third of the property may become inapplicable. In
such cases, the spouse shall take the whole property. The rule of
bequeathable third shall have no application if no heir has survived the
legator.
If a Muslim bequest more than one-third of the property and the heirs does
not consent to the same, the shares are reduced proportionately to bring it
down to one-third. Bequests for pious purposes have no precedence over
secular purposes, and are decreased proportionately. Bequests for pious
purposes are classified into three categories:
a. Bequest for faraiz, that is, purposes expressly ordained in the Koran viz.
hajj, zakat and expiation for prayers missed by a Muslim.
b. Bequest for waji-bait, that is, purposes not expressly ordained in the
Koran, but which are proper such as charity given for breaking rozas.
c. Bequest for nawafali, that is, purposes-deemed pious by the testator, viz.
bequest for constructing a mosque, inn for travellers or bequest to poor.
The bequests of the first category take precedence over bequests of the
second and the third category and bequests of the second category take
precedence over those of the third.
An example under the Rule or Rateable Proportion: If a Muslim Man
executes a Will giving Rs.30,000 to A and Rs. 20,000 to B. He leaves
behind property that comes up to Rs.75,000 after payment of funeral
expenses. Here the bequeathable limit would be one-third, which would be
Rs.25,000 while the bequest in the will at the moment is Rs.50,000. The
bequest in favour of A and B will be proportionately reduced.
The ratio of the bequest will be the same but both bequests will be reduced
to half, that is, the bequest due to A would become Rs. 15,000 and that of
B would be Rs.10,000. The sum total would then by Rs.25,000 which
would make it valid.

Death Bed Transactions Under Muslim Law In India: Marz-Ul-Maut

In Latin Death Bed Transactions are called “DONATIO MORTIN
CAUSA”. When a person is suffering from MARZ (malady or illness) is
under the apprehension of MAUT (Death) is said to be suffering from
MARZ-UL-MAUT or death-illness. Gifts made by Muslims during
‘death-illness’ (Marz-Ul-Maut) are considered wills. Where a Muslim
makes any gift of his properties while on his deathbed, the lawful impact
of the transaction is not of a ‘Hiba’ yet of will.
“The death-bed gifts are recognized in many systems of law, though to
what extent and in what circumstances such gifts can be made, the laws
differ.” Marz-ul-maut gifts of Muslim law derive their rules from two
branches of Muslim law, the law of gifts (Hiba) and the law of wills.
‘There are two aspects of a gift made during death-illness; in its formation,
it is a pure gift but in its legal consequences it is a will.’ Depicting the idea
of a ‘gift during death illness Buckley, L.J. has seen that it is a gift of
amphibious nature; not a gift nor precisely a legacy but rather participating
in the idea of both.
The different schools of Muslim law take divergent views on the marz-ul-
maut gifts. The Malikis take the view that the marz-ul-maut gifts are void.
The Hanafis and the Shia hold that such gifts to the extent of one-third are
valid.
The doctrine of death-bed gifts depends on the donor’s perspective of
mind at the hour of the transfer. At the point when an individual makes a
gift during death- illness, he expects to disperse his properties as indicated
by his plan to surrender all the desires for his life.
An individual experiencing mortal illness accepts, past sensible
reasonability that he would kick the bucket very soon. In view of these
fears, he endeavours to part with his properties. The outcome is the
transfer, which is inter vivos. However, the thought behind such a transfer
is that it is probably going to happen simply after the donor’s demise.
Through a gift, a Muslim donor on his deathbed may transfer his
properties without any limitation of its amount even though in its
belongings, the transfer is a will. This may baffle the very purpose behind
the 33% (one-third) principle in regard to Muslim wills. As needs are, to
forestall the avoidance of limitations on the testamentary capacity of a
Muslim, a death-bed gift is deciphered as a will.
Essentials of A Death-Bed-Gift
A gift during death-illness is a pure Hiba in its development, however,
after the benefactor’s demise it works like a will. Along with this, the
basic conditions for a gift during death-illness are:
(i) There is a substantial and complete gift, and;
(ii) This gift is made during the death-illness (Marz-ul-maut) of the giver.
(i) A valid and complete gift: The only difference between a simple gift
and a deathbed gift is that if a gift is made by a giver during his death-
illness, the gift is testamentary; if it is made normally, the gift is inter
vivos i.e. pure Hiba. Thus, in a deathbed gift, all the essentials of a valid
Hiba are necessary.
There must be declaration, acceptance and the actual or constructive
delivery of ownership. In a word, the gift must be valid in all respects
according to the provisions of Muslim personal law.
(ii) Death-illness (Marz-ul-maut): “A gift to be valid as a marz-ul-maut
gift must be made during marz-ul-maut, or death-illness. The most valid
definition of marz-ul-maut is a malady that, it is highly probable, will
issue fatally. A gift must be deemed to be made during marz-ul-maut if it
was made “under the pressure of the sense of the imminence of death.But
where the malady is of long duration, such as consumption or albuninuria,
and there is no apprehension of death, the malady cannot be called marz-
ul-maut.” The Muslim law-givers hold the view that if the disease
continues for a period of more than one year then it cannot be called marz-
ul-maut, because, as the Durr-ul-Mukhtar puts it when a person suffers
from a malady which is ordinarily mortal for over a year, it ceases to have
any apprehensive influence on his mind as it has become part of his
nature.
“However, even then the disease may become marz-ul-maut if it reaches a
stage where the apprehension of death is genuine or death is highly
probable.”
When a person is in imminent fear of death whether from disease or any
other cause in case of an illness the man is so broken by it as to be
incapable of conducting his ordinary avocations outside his house; for
example, a Fakih (jurist) from going to the mosque, a tradesman to his
shop, a woman from attending to her indoor occupation, it is marz-ul-
maut.
A test is thus laid down: when the malady has become so severe as to
make it permissible for the sufferer to offer his prayers without standing
up, it must be regarded as an illness of death. Hectic fever, hemorrhage,
bilious, bloody swelling and fetid purgings have been considered to be
marz-ul-maut by Muslim authorities.
The Shia authorities are to the same effect. Sharaya-ul-Islam holds that
every malady which is accompanied by a genuine apprehension of death is
Marz-Ul-Maut. Thus, temporary fever, headache, ophthalmia and tubercle
on the tongue are Marz-Ul-Maut.
“It is submitted that all those ailments, whether dangerous or not, which
result in death, should be regarded as Marz-Ul-Maut maladies and those
from which death does not ensure should not be regarded as Marz-Ul-
Maut maladies.”
According to Tyabji, for building up the presence of death-illness
following conditions are vital;
(a) The illness must have caused death;
(b) There should be proximate peril of death, so that there was a
prevalence of apprehension of death (i.e. at given time death is more
probable than life);
(c) Some level of abstract trepidation of death in the mind of a debilitated
person; and to ordinary avocations.
There can’t be any target standard for deciding the presence of death-
illness. If an ailment causes death and the giver (donor) thought it highly
probable that this sickness would soon end lethally, it is death-illness.
Regardless of whether an illness is a mortal illness or not is an issue of
certainty and each case must be inspected in the light of proof created
before the court.
Restrictions Related to Death Bed Gifts
As per Islamic personal law, a gift made at a time when there is a
reasonable apprehension of death of the testator will be distributed as per
the canons of Shariat. This is called death bed gifts and is valid only if the
testator dies after executing a will. As per the Shariat, there are 2
restrictions imposed on this gift on the death bed which are as follows:-
1)There can be no disqualification of an heir or successor.
2)The net value of the property that can be disposed of should not be
greater than 33% (one-third) of the total value of the assets.
The Shariat Law is inviolable, except with the consent of the heirs. Thus
on his own, no Muslim can disown any heir while making a will during
Marz-Ul-Maut.
“Some reasonable restrictions are imposed by the Shariat on Marz-Ul-
Maut.” These are:-
1) There should be genuine apprehension of death due to an illness. In
case a person does not die, they will be made null and void.
2) “Mere apprehension of death due to old age is not a ground for Marz-
Ul-Maut.” Thus a man dying from natural causes due to old age does not
come under the purview of this law.
MARZ-UL-MAUT is an important pillar of Islamic law and is accepted
by Courts in India. As per Islamic personal law, the following transactions
are valid during Marz-ul -Maut.
A) Marriage: It is clearly stated that no marriage solemnized during
Marz-ul-Maut is valid in Islamic law. Thus a man on his deathbed cannot
marry. He can however marry after he recovers from his illness. This is an
important restriction in Islamic law and is accepted by all sects of Islam.
B) Divorce: Regarding Divorce the reverse of the above is true. A man on
his deathbed can divorce his wife as per Islamic law. Both Shia and Sunni
schools of Islamic law accept this proviso of the Sharia. The Indian courts
have upheld this provision of Islamic law.
C) Mehr: This is the dowry agreed for the bride at the time of the
marriage. In Islamic law, marriage is a contract and not a sacred act. Mehr
is part of the pre-nuptial agreement and is binding on both parties. It is
payable to the wife and not to the parents. As such in case a divorce takes
place then the wife will be entitled to Mehr as per Mehr-e- Misl.
D) Gift: This is one of the important deathbed acts recognized in Islamic
law. During Marz-ul–Maut a man can make a gift of his property up to
1/3rd of its value without the consent of the heir in case he is not the heir
of the property. When the gift deed is executed by the donee who is the
heir he can gift a maximum of 1/3rd of the property with the consent of
the heir.
Islamic law has many interpretations, but broadly the above is valid in the
case of Marz-ul -Maut.
Cases Related To Death Bed Transactions in India
ABDUL HAFIZ VS SAHIB BI
A serious case of pneumonia was held to be a death illness. In Abdul
Hafiz v. Sahib Bi, an aged Muslim of over eighty years remained ill very
seriously for four days. On the last day, i.e. just before his death, he made
a gift.
It was held by the Bombay High Court that the gift was made during a
death- illness. The Court observed that what is required to be proved upon
the preponderance of probabilities is whether the gift was made by the
ailing person while under the apprehension of death and, that whether in
such ailing he died. “During the delivery of a child, the pains of child-birth
may also be regarded as death-illness.”
MOHAMMAD GULSHERE VS MARIYAM
It has been held that paralysis is not a death illness. In Mohammad
Gulshere v. Mariyam, it was held by the Allahabad High Court that boils
or carbuncle for long continuance for over a year may not cause
apprehension of death, therefore, it cannot be regarded as death-illness.
Similarly, asthma, lingering consumption and sudden bursting of blood
vessels have not been regarded as death- illnesses. But, rapid
consumption, tumour in the stomach and tuberculosis of the last stage has
been held to be death-illness.
It is to be noted that a gift during Marz-ul-maut is established only where
the donor dies. If the donor survives that illness, the transaction continues
to be a gift.
SHAIKH MOHAMMAD VS KHADIJA BIBI
It was held that to establish Marz-Ul-Maut there must be present at least
the following conditions:-
1) The Proximate danger of death so that there is, as it is phrased, a
preponderance (ghaliba) of knout or apprehension, that is, that all at the
given time death must be more probable than life;
2) There must be some degree of subjective apprehension of death in the
mind of the sick person;
3) There must be some external evidence chief among which would place
the inability to attend the ordinary avocations.

Muslim Law of inheritance including Women‟s right to inherit

Muslim inheritance law Inheritance only after death: Among Muslims,

only after death of a person, the inheritance factor emerges. No person can
inherit the property belonging to a person who is still alive. The Muslim
law does not acknowledge the ‘right by birth’ that exists in the Hindu law.
Treatment of property: There is no distinction between movable and
immovable property or corporeal and incorporeal property. All of the
deceased’s belongings are meant for inheritance.
Volume of inheritance: The exact inheritance is determined only after the
deceased’s debts, legal expenditure like will, etc. and funeral expenses, are
paid off.
Nature of property: The Muslim law does not distinguish between self-
acquired property and ancestral property. Both are treated equally and are
open for inheritance by the legal heirs.
Types of heirs: There are two types of heirs – heirs or sharers and
reliquaries (beneficiaries of residual share of property). Sharers include the
husband, wife, daughter, daughter of a son (or a son’s son or a son’s son’s
son), father, paternal grandfather, mother, grandmother on the side of the
males, full sister, consanguine sister, uterine sister and uterine brother.
Property rights: Inheritance is not a birthright. It is believed among
Muslims that there can be no heir to a living person.

Muslim women and inheritance

Both men and women are equal as per the law of inheritance and there is
no preferential treatment imparted to either. However, the property share
of men is double the share of women. The understanding is that women,
upon marriage, receive Mehr (money or possession given by the groom
during the marriage). She is also maintained by the husband while her
brother is totally dependent on the ancestral property and therefore, her
share is halved.
According to the law, men have the responsibility to provide for their wife
and children. A husband must provide for his wife, even if she is wealthy
enough to maintain herself. In short, women can receive an inheritance,
not only as daughters but as wives and mothers too. She need not spend
her wealth on the household either.
Property rights of Muslim widows
If a Muslim widow is childless, she is entitled to one-fourth of the
property of her deceased husband. As mentioned earlier, the exact volume
of inheritance is determined only after the deceased’s loans are paid off (if
any) and his funeral expenses are met.
If the widow has children and grandchildren, her share of the property is
one-eighth of the deceased husband’s property. If there is more than one
wife, this share may come down to one-sixteenth.
If the marriage took place when the husband was ill and in case the
marriage is not consummated and if subsequently, the husband dies, the
widow is not entitled to any share in his property. However, if this man
who was ill, divorced the woman and died thereafter, the widow would be
entitled to a share till she remarried.

Muslim woman and her right to Mehr

The Quranic right of dower or Mehr defines their right to property. The
husband, during marriage, pays (in cash or as property), or promises to
pay a Mehr. A Mehr thus constitutes a woman’s property and she may use
it in the way she wants. It is meant for the future security of the woman
and she has the right to ask for a reasonable Mehr.
The Mehr does not belong to a married woman’s parents or guardians and
therefore, this cannot be inherited by others. A husband may give a
property entirely to his wife as Mehr. The house or its monetary value is,
thus, the woman’s property alone. If the Mehr is not provided by the man,
the woman may even deny marital obligations or even refuse cohabitation.
Only if a woman transfers her share can her husband, parents or others,
claim it lawfully.
Muslim woman’s property rights after divorce
If the woman has a deferred Mehr, she will have all rights upon it after
the divorce.
If the woman is divorced and has a minor child, she can ask for
maintenance from her former husband under Section 125 of the CrPC,
until she remarries.
As per the Shariat, accepting or even offering maintenance after divorce is
not legal. However, the Indian legislature had passed the Muslim Women
(Protection of Rights on Divorce) Act, 1986, which provides for a
reasonable and fair provision of maintenance within the iddat period,
maintenance for children, amount of Mehr, as well as all properties given
at or after marriage.
Muslim woman’s rights over her children’s property
If a woman’s son (who in turn should also be a father) dies, the woman
(mother) is entitled to one-sixth of her deceased son’s property.
If the deceased son did not have any children of his own, his mother’s
share would be one-third.
The role of a will in a Muslim’s inheritance rules
A will is called ‘wasiyat’ and it can be made in favour of anyone but it
should not give away more than one-third of the testator’s property.
Beyond this, the consent of the legal heirs would be taken into account.
Also, note that in case the wasiyat is made by a Muslim who has married
under the Special Marriage Act, 1954, the wasiyat will be regulated by the
provisions of the Indian Succession Act, 1925 and not by the Shariat.
If the testator was a Muslim when he created the wasiyat but renounced
Islam thereafter and was practicing a non-Islamic faith, his wasiyat will
still remain valid.
If the testator attempted suicide, his wasiyat would be treated as invalid. It
is also important to note that both Shia and Sunni laws treat this matter
differently.
The consent of the legatee to accept the wasiyat is important, prior to
conferring the property on him or her. If he or she does not wish to accept
it, the will is invalid. Whether the legatee is competent is also studied. The
legatee can be a minor, follower of a different faith or even mentally
challenged – this does not deprive of him or her of being a beneficiary.
A wasiyat may be oral, written or even made through gestures, in case it
has been made by an ailing person.
Muslim woman’s right to property for child in her womb.
A Muslim woman’s child in her womb is an eligible heir for the property
if it is born alive, as it is considered as a living being. However, if the
child in the womb is not born alive, the share is null and void and it is
considered that there never was any heir.

Disqualification of heirs;
Grounds Of Disqualification: Disqualification Under Muslim law of
inheritance, just as in any other system of law, there are certain person
who are, though heirs, not entitled to as share in the inheritance on account
of heir disqualification.
 Under the Hanafi law an heir who has caused the death of the deceased
intentionally, inadvertently, by accident, mistake, or negligence is
excluded from inheritance.
 Under the Shia law the heir is disqualified only if the death is caused

intentionally.
However, a widow who has children or grandchildren is entitled to one-
eighth of the deceased husband’s property. If a Muslim man marries
during an illness and subsequently dies of that medical condition without
brief recovery or consummating the marriage, his widow has no right
of inheritance.

A.Murderer:
Under the Hanafi law an heir who has caused the death of the deceased
intentionally, inadvertently, by accident, mistake, or negligence is
excluded from inheritance. Under the Shia law the heir is disqualified
only if the death is caused intentionally. This is a principle of general
policy, and if followed in most systems of law that an heir who has
caused the murder of the deceased is disqualified from inheritance. In
the pre-Islamic Arabia the inheritance was tagged with blood-wide and
blood-feud, and in that system, a murderer could obviously not inherit.
The principle was adopted in the Islamic law and is recognized in all
Muslim countries.
B.Illegitimate Children: Under the Hanafi law an illegitimate child is not
entitled to inherit from its father, but it is allowed to inherit from its
mother. The mother can also inherit the property of her illegitimate
children. The illegitimate child inherits not merely the property of its
mother but also the property of all other relations with whom it is
related through the mother. Thus, when a Hanafi female dies leaving
behind her husband and an illegitimate son of her sister, the husband
will take 1/2 as sharer and the residue will go to sister's son. Since the
illegitimate child cannot inherit from its father, it cannot inherit from
any other relation through the father.
C.Childless widow: Under the Isthana Ashari law, a childless widow is
not entitled to a share in her husband's land, both agricultural as well as
 urban. However, she is entitled to her share in the value of trees and
buildings standing on the land as well as share in the movable property
of her husband. Immovable property includes the debts due to her
husband.
D.Apostasy: A person who changes into a different faith than Islam or an
apostate is not entitled to inherit the property of a deceased Muslim
under Islamic law. However, Section 3 of the Caste Disabilities
Removal Act, 1850 abolished this disability. In India, an apostate is
entitled to inherit the property of a deceased Muslim, but his
descendants are not entitled to inherit.
E. Step Relations: Since step parents are not related to their step children,
they are not entitled to inherit the property of their step children. The
Step Child is not entitled to any right to inherit the property of their
step-parents. In a similar manner, the step-parents too do not inherit the
property of their step-children. Hence, the Step-father and the step-son
are not competent to inherit the property of each other. But the Step-
Child is competent to inherit the property of his Natural Father or
Natural Mother. However, Step-Brothers can inherit each other's
property.
F. Non Muslim: Under the Islamic law, a non Muslim was not entitled to
inherit the property from a Muslim. In India this is not so a Muslim who
has renounced Islam or had in any manner so as to be a Muslim will
nonetheless be entitled to inheritance in the property of his deceased
Muslim relation whose heir is. But his non Muslim descendant will not
be entitled to inherit the property of the deceased Muslim. The
inheritance to the property of a convert to islam is governed by the
muslim law (“Miler Sen Singh V/s Moqbul Hassan Khaan AIR
1930”).
G. Child in the womb: Under Muslim law, a child in a womb of her
mother is entitled to inherit, if it is born alive. A stillborn child is treated
as having been born alive if it’s mother was treated with violence as a
consequence of which she gave birth to it. The law among the Shias and
Sunnis in this regard is the same.
H. Daughters: Daughters as a rule are entitled to inheritance. But
sometimes they are excluded from inheritance by custom or statues. In
such a case, the shares of the other heirs are calculated as if daughter
did not exist.
Among the gujars of Punjab and Jammu and Kashmir, daughters are
excluded from inheritance by custom. They succeed to the property
only in the defaults of agnates (“ASCII DAR V/s. Faze, AIR1960”).
Under the Bombay Watan act,1886, if a Muslim watandar died leaving
a widow, a daughter and a paternal uncle, then the daughter had no right
to a share in watan land. In such a case, the widow and uncle took the
land as if the daughter did not exist.
I. Insanity and Unchastity: Insanity and Unchastity are not
disqualification under the Muslim law, and therefore, an insane or
unchaste heir is entitled to inherit.
J. Absent heir: If an heir is absent at the time of the distribution of assets,
then his share as to be kept apart for him until such time as he is
presumed to be dead(“section 107 evidence act”).

Muslim Law on Increase and return,

In the Muslim law of inheritance has a lot a number or fractional parts of
unity to various heirs. It may happen that the fractions when added
together may sometimes be:
1. Equal to unity,
2. More than unity, or
3. Less than unity.
When the sum of fractions is equal to unity, there is no problem. But if it
is more or less than unity, the shares of respective heirs are reduced or
increased respectively. The process whereby the shares are reduced is
called the Doctrine of AUL (Increase) and the process whereby the shares
are increased is called the Doctrine of Radd (Return).
The Doctrine of Radd
When in the case the property is left after distribution or we can say when
the party of unity divided and the sum is less than unity. After distributing
the property of the deceased amongst the Sharers, but there is no heir of
the deceased falling under the category of Residuary, the residue of the
property reverts back to the Sharers in the proportion of their shares. The
Right of the Sharers of reverts back of the Residue property to the Sharers
in absence of the residuary heirs is called as the Return or Doctrine of
Radd.
For instance, a female Muslim dies surviving her husband and two full
sisters, as shown in the table below:

The Doctrine of Return:

Under the Muslim Law this doctrine comes into action when the residue
property returns to the Sharers and not the Distant Kindred in absence of
any heir under the residuary category. When in case of more than one
Sharer then the property shall be proceeding to be returned in the
proportionate shares and if there is only one sharer then the whole of the
residue property should be transferred back to the sole sharer. The
remaining property or called the residue can not be transferred to distant
kindred as long as there is a sharer or residuary alive.
For instance, a male Muslim dies surviving mother and a daughter and no
residuary, as illustrated in the table below:
Generally, husband and wife are not entitled under the doctrine of Radd.
However, if there is no other surviving heir, the residue returns to the
husband and wife.
Exception:
The exception to this doctrine is that neither the husband nor the wife is
entitled to the return so long as there is another sharer or distant kindred
alive.
In the cases of M. A. Chowdry v. S. Banoo, (1878) I. L. R. 3 Calcutta p.
702., and Bafatun v. B. Khanum, (1903) I. L. R. 30 Calcutta (683) the
court recognised that the husband or the wife can claim the return of
residue property. This however was not recognised in the early orthodox
Muslim laws.
If, for example, a male dies leaving his mother whose share is 1/6 and a
daughter whose share is 1/2 but no widow. And, if there were two
brothers, one of them died leaving two widows. Then the second brother
also died leaving behind a widow. It was decided that she would get 1/4
shares as a sharer and remaining 3/4 by the doctrine of Radd.
Illustration:
This Doctrine of Return or Radd can be explained with the help of an
illustration where a person dies leaving behind his property. Then the
property left after paying for her funeral expenses, debts and legacies is
distributed among the Sharers. The Mother and the Daughter of the
deceased are alive and fall under the category of Sharer. Then, the mother
will be entitled to 1/6th of the property and daughter will be entitled to 1/2
of the property.
The total sum of the properties of Mother and Daughter will be, 1/6 + 1/2
= 2/3. 2/3 is less than the unity and the 1/3 of the property will still remain
after distributing the property amongst the Sharers. Therefore, in this case,
the doctrine of Return or Radd will apply.
The first step would be to reduce the fractions of the Sharers to a common
denominator. Thus, 1/6 + 1/2 = 2/3 = 1/6 + 3/6 (The fractions are reduced
in such a form where 6 is the common denominator).

The second step would be to decrease the denominator to make it equal to

the sum of numerators and allow the individual numerators to remain the
same as they were. Thus, 1/6 + 3/6 will become 1/4 + 3/4 (in this case, the
denominator is made equal to 4 because the sum of both the numerators is
4).
Hence, with the help of this doctrine, the Shares of the Sharers are
increased proportionately in such a manner that the um of the Shares of
the property of Sharers become equal to unity.

The doctrine of Aul

When in case, the total sum of the specific shares allotted to various shares
exceeds the unity then the doctrine of increase (Aul) comes into the
application. In this doctrine, the specific share of each sharer is reduced in
a proportionate manner.
The proportionate share reduces in the following manner:
1. The first step is by reducing the shares to a common denominator.
2. The second step is by increasing the denominator to make it equal to
the sum of the numerators allowing the numerators to stand as they
are.

Illustration:
A woman dies leaving behind her property. Then the property left after
paying for her funeral expenses, debts and legacies are distributed among
the Sharers. The husband of the deceased women and her two full sisters
are alive and fall under the category of Sharer. Then, Husband will be
entitled to 1/2 of the property of the deceased and the two full sisters will
be entitled to 2/3rd of the property.

Total of 1/2 and 2/3 will be 7/6 which exceeds the unity and hence, in this
case, the Doctrine of Increase or Aul will come into application.

The first step would be to reduce the fractions of the Sharers to a common
denominator. Thus, 1/2 + 2/3 = 7/6 = 3/6 + 4/6 (The fractions are reduced
in such a form where 6 is the common denominator).

The second step would be to increase the denominator to make it equal to

the sum of numerators and allow the individual numerators to remain the
same as they were. Thus, 3/6 + 4/6 will become 3/7 + 4/7 (in this case, the
denominator is made equal to 7 because the sum of both the numerators is
7).
Hence, with the help of this doctrine, the total sum of the shares of the
property of Sharers are reduced in a proportionate manner and become
equal to unity.

Eg: A. Husband holds share 1/4 = 3/12 reduced to 3/13

Mother holds share 1/6 = 2/12 reduced to 2/13
2 Daughters hold shares 2/3 = 8/12 reduced to 8/13
Total come out with our reducing is 13/12 but after reducing 13/13.

Muslim Law relating to wakfs and their administration

including the Wakf Act, 1995.
The concept of Waqf has been developed under Islamic Law. There was
no concept of waqfs in Arabia before the advent of Islam. Although there
is no mention of Waqf as such in Quran such Quranic injunctions which
deal with the charity are at the root of the development and extension of
wakfs. Ameer Ali describes the law of Waqf as, “the most important
branch of Muslim Law, for it is interwoven with the entire religious
life and social economy of Muslims Waqf in its literal sense means
detention or stoppage .”
The definition of Waqf according to the accepted doctrine of the Hanafi
school is the extinction of the proprietor’s ownership in the thing
dedicated and its detention in the implied ownership of God in such a
manner that the profits may revert to and be applied for the benefit of
mankind.
Waqf under the Muslim Law owes its origin to a rule laid down by the
Prophet and means “the tying up of property in the ownership of the
God, the Almighty and the devotion of the profits for the benefit of
human beings.
What is the meaning of Waqf?
If we look at the word ‘Waqf’, in its literal sense it is referred to as
‘detention’, ‘stoppage’ or ‘tying up’. According to the legal definition, it
means a dedication of some property for a pious purpose in perpetuity.
The property so alienated should be available for religious or charitable
purposes. Such a property is tied up forever and becomes non-transferable.

It has been observed in the case of M Kazim vs A Asghar Ali that waqf in
its legal sense means the creation of some specific property for the
fulfilment of some pious purpose or religious purpose.
A lot of eminent Muslim jurists have defined Waqf in their own way.
According to Abu Hanifa, “Wakf is the detention of a specific thing that is
in the ownership of the waqif or appropriator, and
the devotion of its profits or usufructs to charity, the poor, or other good
objects, to accommodate loan.”
“As defined by Abu Yusuf, waqf has three main elements. They are-
 Ownership of God

 The extinction of the founder’s right

 The benefit of mankind.

Definition under Mussalman Waqf Validating Act, 1913- Section 2 of

the Act defines waqf as, “the permanent dedication by a person professing
the Mussalam faith of any property for any purpose recognised by
Musalman Law as religious, pious or charitable.”
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.”
A waqf can be either in writing or can be made by an oral presentation. In
the case of an oral agreement, the presence of words emphasising on the
intention of the parties is a prerequisite.
Objective and scope of the Act
The main objectives of the Waqf Act, 1995 are:
1. To provide better administration and management of waqf, waqf
properties, and anything in relation to waqf.
2. To establish and facilitate smooth functioning of Central Waqf
Council and State Waqf Boards, which will also keep Central
Government and State Governments informed regarding the
administration of waqf.
3. Distribution of power between the Chief Executive Officer and waqf
boards.
4. Appointment of the executive officer to those waqfs whose
performance is unsatisfactory and annual income is 5 lakh rupees or
more.
5. To regulate judicial proceedings that arise relating to waqf.
6. To supervise the powers, functions, and duties of mutawallis.
7. Alienation of waqf property to be made difficult.
8. To conduct surveys by appointing a Survey Commissioner and as
many Additional or Assistant Survey Commissioners required by the
State under Chapter II Section 4 of the Waqf Act, 1995.
9. To strengthen the finances for the management of waqf. The
contribution of a mutawalli to the board has been raised to 7% from
6%.
10. To remove encroachment from waqf under Section 54 of the act.
11. To prepare the waqf maintenance budget for the coming
financial year under the direct management of the board.
12. To maintain records and to conduct an inspection of the records.
 13. To bring about uniformity in waqf administration throughout the
country.
Important provisions
Central Waqf Council
Section 9 of The Waqf Act, 1995 authorizes the Central Government to
establish a Central Waqf Council.
i. Functions of Central Waqf Council
The functions of the Central Waqf Council in accordance with The Waqf
Act, 1995 are listed as follows:
 The Central Waqf Council is empowered to issue directives to The

State Waqf Boards on the matter of their financial performance,

maintenance of waqf deeds, revenue records, surveys, etc.
 It is authorized to advise the Central Government and the State Waqf

Boards.
 To render legal advice in matters of protection and retrieval of waqf

properties.
 To maintain and regulate the Central Waqf Fund as the Council may

deem fit.
 The Council is required to maintain all the books of accounts in the

manner prescribed by the Central Government.

ii. Composition of Central Waqf Council
The Union Minister in charge of waqf shall be the ex-officio chairperson
of the Council, and The Central Government will appoint the following
members; three-person of national importance representing Muslim
organization, four individuals each from the field of administration or
management, financial management, engineering or architecture and
medicine, three Members of Parliament, Chairpersons of three Boards by
rotation, two individuals who are or have been judges of Supreme Court or
High Court, one advocate of national importance, one person to represent
the mutawallis and three eminent scholars of Muslim Law.
iii. Financing of the Central Waqf Council
The provisions for the financing of the Central Waqf Council are laid
down in The Waqf Act, 1995. Section 10 of the act states that every state
waqf board should pay from its waqf fund annually to the council that is
equivalent to one percent of the aggregate of the net annual income of the
waqf. All the funds received by the council by the state waqf boards and
all the funds received as donations, benefactions and grants will be
deposited in the Central Waqf Fund. The Central Waqf Council will be
directly controlling the Central Waqf Fund and it is also authorized to
make rules pertaining to the Central Waqf Fund.
iv. Provisions for Accounts and Audit
According to Section 11 of the Waqf Act, 1995 the Central Waqf Council
is liable to maintain such books of account in the form and manner which
is prescribed by the Central Government. These books are to be audited
and examined annually by the auditor appointed by the Central
Government. The costs of the audit shall be paid from the Central Waqf
Fund.
Doctrine of Cypress
The word cypress means ‘as nearly as possible.’ The doctrine of cypress
is a principle of the English law of trusts. Under this doctrine, a trust is
executed, or carried out as nearly as possible, according to the objects laid
down in it.
Where a settlor has specified any lawful object which has already been
completed or the object cannot be executed further, the trust is not allowed
to fail. In such cases, the doctrine of cypress is applied and the income of
the property is utilised for such objects which are as nearly as possible to
the object already given.
The doctrine of cypress is applicable also to waqfs. Where it is not
possible to continue any waqf because of (a) lapse of time or, (b) changed
circumstances or, (c) some legal difficulty or, (d) where the specified
object has already been completed, the waqf may be allowed to continue
further by applying the doctrine of cypress.
Legal Incidents of Waqf
The following are the legal incidents of Waqf.
 Irrevocability

 Perpetuity

 Inalienability

 Pious or charitable use of usufruct

  Absoluteness

State Waqf Boards

The act empowers every State government to establish a State Waqf Board
each for Shia and Sunni school of Muslim Law under Section 13 of the
Waqf Act, 1995.
i. Composition and Term of Office
The Board shall Consist of a Chairperson, a member amongst the Muslims
who has professional experience in town planning, finance, agriculture,
etc., a recognized scholar in Shia and Sunni Theology nominated by the
State Government, one person amongst the Muslims nominated by the
State Government who is an officer of the State Government (but not
below the rank of Joint Secretary) and not more than two members will be
elected by the electoral college constituting; Muslim Members of the
Parliament from the particular state, Muslim Members of the State
Legislature, Muslim Members of the Bar Council of the concerned state
and mutawallis having an annual income of one lakh rupees and above.
Under Section 15 the term of office of the members is for five years.
ii. Disqualifications of the members
The members of the board shall be disqualified under the subsequent
conditions:
 If he is not a Muslim and less than 25 years old,

 If he is of unsound mind,

 If he is an undischarged insolvent,

 If he has been convicted of an offense involving moral turpitude.

iii. Powers and functions of the Board

Section 32 of the act, guides the power and functions of the board. General
superintendence of all waqf in a State shall vest in the Board established
by the concerned State and it is the duty of the board:
 To ensure proper administration, maintenance, and control of the

waqf.
 To ensure income and income of other properties of waqf are applied

to the objects for the key purpose, the waqf was created.
  To give directions in the administration of waqf and to settle schemes
for management of waqf.
 To appoint and remove mutawallis and also to scrutinize and approve

the budget submitted by mutawallis.

 To take necessary measures for recovery of waqf property.

 Authorized to institute and defend suits in relation to waqf property.

 To administer the waqf fund.

 Power to inspect and investigate waqf properties, accounts, records,

and documents.
 And to carry out all the necessary activities in relation to

maintenance, administration, and control of waqf properties.

iv. Financing of State Waqf Boards
Under Section 72, the mutawallis are liable to pay 7% of the net annual
income derived from waqf properties of which the net annual income is
not less than 5000 rupees. Chapter VII, Section 73 of the act authorizes the
Chief Executive Officer to direct banks or any other person, with whom
any money belonging to a waqf is deposited. The board with the previous
sanction of the State Government can borrow money for giving effect to
any provisions of the act.
Section 77 states that all the money, benefaction, grants, and donations
received by the board shall be deposited in the Waqf Fund which is to be
controlled by the board. The fund shall be used under the following
circumstances:
 Repayment of loan,

 Payment of the cost of the audit,

 Payment of the salary and allowances to the officers and staffs of the

board,
 Payment of traveling allowances of Chairperson, members,

 Payment of expenses incurred by the board while performing the

duties,
 Payment of maintenance to Muslim Women as directed by a court of

competent jurisdiction under The Muslim (Protection of Rights on

Divorce) Act, 1986.
Every year the board shall prepare the budget of the next financial year
and forward a copy of it to the State Government under Section 78. The
State Government shall examine the receipt of the budget and to
recommend altercations, corrections, a modification that is to be
considered by the board. Furthermore, the board shall be responsible to
maintain all the books of account in the manner as provided by
regulations.
v. Powers and Duties of the Chief Executive Officer
Section 25 of the Waqf Act, 1995 mentions the powers and functions of
the Chief Executive Officer:
 The Chief Executive Officer is authorized to investigate the nature of

the waqf and to ask for any necessary detail from the mutawalli
relating to the waqf.
 He can inspect accounts, deeds, documents, etc. relating to waqf

properties.
 Doing acts necessary for control, maintenance, and superintendence

of waqf.
 And to perform any other duties which are assigned to him or

delegated under this act.

vi. Registration
According to Section 36, it is mandatory to register all waqf at the office
of the board. The application of registration shall be made by the
mutawalli and the form and manner of registration shall be prescribed by
board keeping in mind some pertinent factors such as; description of the
waqf property, the gross annual income of such properties, the amount of
land revenue, the estimate of expenses, etc.
The State Waqf Boards shall be responsible for maintaining a register of
all the waqf properties.
vii. Meetings of the board
Section 17 of the act states that for the proper transaction of business the
board shall conduct necessary meetings. Those meetings are to be presided
by the chairperson, or any other member chosen amongst the members in
the absence of the chairperson.
Judicial Proceedings
Section 83 of the Waqf Act, 1995 authorizes the State Government by
notification to the Official Gazette to constitute as many tribunals as they
deem fit for the administration of waqf and waqf property. The Tribunals
are deemed to be a civil court and required to exercise all the powers and
functions exercised by a civil court under the Code of Civil Procedure,
1908. The decision of a Tribunal shall be final and binding on the parties.
No suit or legal proceedings shall lie under any civil court which this act
requires to be determined by a Tribunal.
Composition of the Tribunals: The Tribunals will consist of the following
members:
 One person who shall be the member of State Judicial Service not

holding a rank below a District, session or Civil judge,

 One person who shall be the member of State Civil Services

equivalent to the rank of District Magistrate, and

 One person having knowledge of Muslim Law and Jurisprudence.

When a mutawalli fails to perform his duties which are required under the
Muslim Law or unable to discharge the duties which he is bound to
perform the board shall make an application to the Tribunal, and it may
take required actions.
If under any circumstances the waqf property falls under the jurisdiction
of two or more tribunals, then the application shall be made to the tribunal
within whose local limits the mutawalli resides.
Provisions for Mutawallis
Mutawalli is the manager of the waqf or waqf property. He is not the
owner or trustee of the property; his duty is to supervise that the usufructs
of the property are being properly utilized as desired by the waqif.
According to Section 3(i) mutawalli, is defined as the person appointed by
a competent authority for managing and administering waqf. The position
of mutawalli had been explained in Syed Ahmad v. Hafiz Zahid, it stated
that the position of mutawalli is not merely the manager or servant of
waqf, and to carry out the directions of waqif as mentioned in the deed,
but rather a significant one. He has the right to exercise his discretion and
take decisions diligently while managing a waqf.
i. Duties of mutawalli
Section 50 states the required duty of a mutawalli:
 To carry out the directions of the board in accordance with the said

act.
 To furnish such returns and supply such information which is needed

by the board.
 To allow inspection of waqf properties, accounts, documents, and

records.
 To discharge all the public dues, and to carry out all the necessary

activities which are lawfully required under this act.

ii. Penalties faced by mutawalli
A mutawalli will be facing penalties if he fails to perform the following
activities as mentioned in Section 61(1):
 Apply for registration of waqf,

 Furnish statements of accounts required under this act,

 Allow inspection of waqf properties and follow the directions of the

board,
 Discharge any public dues,

 And any other activity which is lawfully required under this act.

iii. Removal of mutawalli

A mutawalli will be removed under the following circumstances as per the
provisions laid down in Section 64:
 If a person is convicted of an offense more than once under Section

61 of The Waqf Act,1995. Or if a person is convicted due to criminal

breach of trust or moral turpitude.
 If a person is of unsound mind or an undischarged insolvent.

 If a person is proved to be addicted to drinking or any other narcotic

drug.
 If a person is employed to be a paid legal practitioner on behalf or

against waqf.
 If the person has failed to maintain accounts for two consecutive

years without providing any reasonable excuse.

 If the individual willfully disobeys the lawful orders made by the

Central Government, State Government, or any Board.

  If the person persistently neglects his duties or fraudulently deals
with the property of waqf.
Controversies associated with the Waqf Act, 1995
After the implementation of The Waqf Act, 1995 a controversy arose,
regarding the jurisdiction of waqf Tribunals and exclusion of the
jurisdiction of the civil courts. This was resolved by the High Court of
Madras in the case Nagore Andavar Sambiranichatty Dhoopam Family
Trust, Nagapattinam vs. S. Jegabar Ali, the suit property was in
possession of the plaintiff and the house adjacent to the northern side of
the property was in possession of the defendant. However, the defendant
trespassed the property of the plaintiff and constructed a water tank and
lavatory.
Thereafter, the plaintiff filed a suit and the defendant contested it by
saying that he has been in the possession of the property for more than 20
years and even his ancestors have enjoyed the possession of the property.
Before the civil court, it was denied that the suit property belonged to the
plaintiff and the suit was not maintainable before the civil court. The High
Court came to the conclusion that civil court has no jurisdiction as per
Section 85 of The Waqf Act, 1995 and all the issues related to waqf and
waqf properties ought to be presented before the waqf Tribunals.
Similarly, in Intazamia Committee Idgah v. M.P. Waqf Board, it was
contended that when an appeal is made against any decision to the
Tribunal and the decision of the Tribunal is final then the jurisdiction of
the Civil Court is dismissed.
In, Maharashtra State Board of Wakf v. Shaikh Yusuf Bhai Chawl,
Supreme Court had to resolve a controversy relating to the incorporation
of Maharashtra Board of Waqfs and its effect on the waqfs created by
persons belonging to different sects of Islamic Law, as previously in
Maharashtra, the waqf was governed by The Waqf Act, 1954 and the
public trust was governed by The Bombay Trust Act.
Significance of the Act
The Waqf Act, 1954 which was implemented for the proper
administration of waqf, gave birth to difficulties and therefore it had to be
amended several times. In 1984, an amendment act was passed to
overcome those difficulties but it was criticized as the Commissioner was
given overriding powers and the Waqf Board was considered subordinate
and the act also caused unnecessary interference of the Central and State
Government in the duties and functions of mutawallis.
But The Waqf Act, 1995 aims to tackle such problems, under this act the
Waqf Commissioner is now known as the Chief Executive Officer and is
subordinate to the board. It also reorganized the members of the board to
provide better administration of Waqf. Previously The Waqf Act, 1954 did
not apply to certain parts of the country but on the contrary, the said act
applied to the whole of India excluding Jammu and Kashmir and Durgah
Khawaja Saheb, Ajmer.
Furthermore, this act not only establishes Central Waqf Council and State
Waqf but also lays down detailed provisions of their powers, functions,
financing, number of members, required qualifications of the members,
etc. This act also mentions the role of a mutawalli and the duties which are
to be performed by him. The Waqf Act, 1995 also states the provision to
audit the waqf and all costs of the audit are to be deducted from the
Central Waqf Fund.
Therefore enactment of this act is considered an important piece of
legislation concerning Muslim Law, as apart from subjugating the
previous complications it also laid down the hierarchy of the bodies
administering waqf, the power of Waqf Tribunal in settling disputes
pertaining to waqf, provisions for the financing of the boards and Central
Waqf Council, etc.
Critical analysis
Doctrine of Cypress
The doctrine of cypress means when any object of waqf has ceased to
exist or has become incapable to achieve; then the income of waqfs which
was previously applied to that object shall be applied to any other object
that is similar or remotely similar to the original object. This doctrine is
mentioned in Section 32 (2) (e) (iii) and sanctions the State Waqf Boards
to utilize the income of waqf which has ceased to exist for any such
purpose akin to the original purpose, benefit of poor or promotion of
knowledge. It is also laid down under this clause that the powers of the
waqf board shall be exercised by Sunni members in Sunni Waqf and Shia
members in Shia Waqf.
Current Status of Waqf in India
The subject waqf is relative to Entry Number 10, “Trust and Trustees” in
Concurrent List attached to the 7th Schedule of Indian Constitution hereby
declaring that it is a matter of both Central and State Governments. Prime
Minister’s High-Level Committee affirmed, there are more than 4.9
registered waqfs spread over the country, and of which the estimate of the
current value of waqf property in Delhi exceeded Rupees 6,000 crores.
Therefore, the large number of waqf in India demands the need for strict
administration and management of waqf pertaining to The Waqf Act,
1995.
Issues and Challenges faced by the State Waqf Boards
At present, there are 32 waqf boards all over the country, although under
the said act, there are some challenges faced by the boards. The Waqf Act,
1995 has empowered every state to establish but many state governments
have either failed to constitute a board or the board failed to function
properly. Often due to the political affiliation of certain members of the
board, political loyalties curbed constitution duties. Survey of waqf is a
key part of the act under Chapter II, Section 4 but the negligence of the
State government in appointing Survey commissioners and successfully
carrying out the survey has led to large scale encroachment which is faced
by the waqf properties.
Under Section 72 Waqf Boards annually receive contributions not
exceeding 7% from mutawallis whose net annual income is not less than
5,000 Rupees. This puts the board in an economically difficult position
since most of the waqf often does not yield any income.
In case of litigation regarding waqf, as State Waqf Boards are financially
weak to afford such legal machinery, the State Government should
provide necessary incentives to the boards to beat this. Due to the presence
of such problems it has been cumbersome for the boards to deliver
apposite administration and management of waqf under The Waqf Act,
1995.
Recommendations
Despite laying down numerous provisions in The Waqf Act, 1995 to
overcome the conditions faced by The Waqf Act, 1954 it took a long time
to implement those successfully. The waqf council has never prepared any
scheme in an organized manner for the development of waqf in India. The
administrative bodies are unprogressive and lack directions. The legal
setup of the boards is weak which hinders them to defend suits filed
against them. Negligence of mutawallis in carrying out their duties is the
main reason why several waqf properties are not duly registered.
Mentioned below are a few recommendations to enhance the
administration of waqf all over the country and to ensure proper
implementation of the act:
1. The State Government should provide incentives to the State Waqf
Board when required so that they can carry out their order of business
successfully.
2. Mutawallis, when appointed, must follow all the provisions of the act
sincerely.
3. Surveys regarding waqf should be appropriately conducted and
reports should be furnished in due course.
4. Waqf administration in India should be devoid of politics, corruption,
and nepotism.
5. Competent staff should be appointed and corruption and nepotism
should be prevented in the working of waqf administration.
6. The funding development by Central Waqf Council should be
improved as it is sparse and inadequate for the development of the
urban properties.
7. Proper utilization of waqf properties and development of urban waqf
properties.
8. Allowing non-Muslims to create waqf.
9. The Central and State Governments should discharge their wide
powers and responsibilities granted by the act for waqf
administration.
10. Strong measures should be taken to waqf property from being
encroached or illegally transferred.
Conclusion
The Waqf Act, 1995 established the Central Waqf Council and State Waqf
Boards to bring about consistency and steadiness in waqf regulation all
over India. The act brought significant changes in the powers and
functions of the board. It laid down important provisions regarding
jurisdiction of waqf Tribunal, duties of mutawallis, financing of waqf
administrative bodies, conducting surveys, power of Chief Executive
Officer, maintenance of records, etc. The Waqf Act, 1995 is an exhaustive
piece of legislation that aims to provide better administration and
supervision of waqfs, but it has revealed numerous shortcomings.
Currently, the waqf administration is in a crippled condition, due to the
failure of administrative bodies in appropriately implementing the
provisions of the act. The act has failed to make any improvement in
developing waqf institutions and it is insufficient and ineffective. The
existing waqf administration desperately calls for structural and
administrative reforms. Thereafter, it is essential to implement necessary
changes in the act, to do justice to waqf administration in India.

i) Begum Subhanu V Abdul Ghafoor AIR 1987 SC 1103

PETITIONER: BEGUM SUBANU ALIAS SAIRA BANU & ANR.
Vs.
RESPONDENT: A.M. ABDUL GAFOOR
DATE OF JUDGMENT03/04/1987
BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) SEN, A.P. (J)
CITATION: 1987 AIR 1103 1987 SCR (2) 773 1987 SCC (2) 285 JT 1987 (2) 55 1987 SCALE (1)672
ACT: Code of Criminal Procedure, 1973--Section 125 and Expla-
nation to second proviso of sub-section (3)--Maintenance--Right of a
Muslim wife to live separately and claim maintenance against the husband
who marries another wife or takes a mistress--Liability to
pay maintenance- Husband not absolved by offer to take back wife and
maintain her--Right of Muslim husband to take more than one wife not
affected--Scope and effect of.
FACTS: The parties to the suit were married on May 11, 1980 and a
daughter was born to them on May 9, 1981. On grounds of neglect and
failure to provide maintenance, the wife filed a petition under Section 125
of the Code of Criminal Procedure, 1973 in the court of Judicial First
Class Magistrate, seeking maintenance for herself and the child at Rs.500
and Rs.300 per month respectively.The Magistrate dismissed the petition
on the ground that the wife had failed to establish adequate justification
for living separately.
• The wife, then, advanced a Revision Petition to the Sessions Judge.
During the pendency of the said petition the husband married Sahida
Begum on October 18, 1984 as his second wife. It was, therefore, urged in
the revision petition that irrespective of the other grounds, the second
marriage of the husband was by itself a ground for grant of maintenance.
The Sessions Judge, however, held that the wife was not entitled to claim
maintenance since the husband had contracted the second marriage after
giving the wife sufficient time and opportunity to rejoin him and since he
had offered to take her back even after the second marriage. Insofar as the
child was concerned the Sessions Judge granted maintenance at Rs.100
per month.
• The wife, then, made a Petition to the High Court under Section 482 of
the Code of Criminal Procedure, 1973 for grant of maintenance to her and
for enhancing the maintenance awarded to the child. The High Court
declined to interfere on the ground that the concurrent findings of the
courts below precluded the wife from agitating her claim any further.
• The wife, then, appealed before the Supreme Court by a Special leave
petition under Article 136 of the Constitution of India.
LEGAL REASONING: 1. Whether the husband’s second marriage
confers a right upon the first wife to live separately and claim
maintenance?
Justice Natarjan observed: “...the Explanation [to the second proviso to
Section 125(3)] contemplates two kinds of matrimonial injury to a wife
viz. by the husband either marrying again or taking a mistress. The
Explanation places a second wife and a mistress on the same footing and
does not make any differentiation between them on the basis of their status
under matrimonial law...It will undoubtedly lead to a strange situation if it
were to be held that a wife will be entitled to refuse to live with her
husband if he has taken a mistress but she cannot refuse likewise if he has
married a second wife.
The Explanation has to be construed from the point of view of the injury
to the matrimonial rights of the wife and not with reference to the
husband's right to marry again.
The Explanation has, therefore, to be seen in its full perspective and not
disjunctively. Otherwise it will lead to discriminatory treatment between
wives whose husbands have lawfully married again and wives whose
husbands have taken mistresses...it matters not whether the woman chosen
by the husband to replace the first wife is a legally married wife or
mistress. Therefore, the husband’s contention that taking another wife will
not entitle the first wife to claim separate residence and maintenance
cannot be sustained.”
An excerpt from David Pearl and Werner Menski’s book reads as, ‘From
the point of view of the neglected wife... it will make no difference
whether the woman intruding into her matrimonial life and taking her
place in the matrimonial bed is another wife permitted by law and not
mistress. The legal status of a woman to whom a husband has transferred
his affections cannot lessen her distress or her feelings of neglect.’
The Courts have thus, rightly interpreted the right to the wife conferred
under Explanation to Section 125 to live separately and claim maintenance
from the husband if he marries another woman or keeps a mistress.
2. Whether the first wife’s rights stand curtailed in any manner because of
the personal law governing the parties permitting a husband to marry more
than one wife?
On Explanation to Section 125, Justice Natarajan observed: “...We need
not resort to a comparison of Muslim wives with Hindu wives or Christian
wives but can restrict the comparison to Muslim wives themselves who
stand affected under one or the other of the two contingencies envisaged in
the Explanation and notice the discrimination...
The Explanation is of uniform application to all wives including Muslim
wives whose husbands were either married another wife or taken a
mistress.
” The judges also affirmed with the principle laid down in Mohd. A Kban
v Shah Bano Begum that Section 125 overrides personal law in case of
conflict between the two.
3. Whether, even, if the husband is liable to pay maintenance, he stands
absolved of his liability after his offer to take back the first wife and
maintain her?
Justice Natrajan observed: “...As has been pointed out in Chand Begum
v. Hyderbaig (supra) a husband, who marries again cannot compel the
first wife to share the conjugal home with the co-wife and as such unless
he offers to set up a separate residence for the first wife, any offer to take
her back cannot be considered to be a bona fide offer. It is, therefore,
obvious that the offer was only a make-believe one and not a genuine and
sincere offer. On the basis of such an insincere offer the wife's rights
cannot be negated or defeated.” (Pg 782, Para 1) The judges also pointed
out the error in the decision of the Sessions Judge and the High Court in
declining to grant maintenance to the wife in spite of her case falling
squarely under the Explanation.
Conclusion
The judges concluded that the husband’s second marriage does confer a
right upon the first wife to live separately and claim maintenance
notwithstanding the personal laws of Muslims and the husband,thus, is
Landmark Precedents liable to pay maintenance to his wife.
On the scope and effect of Explanation to Section 125 of Code of
Criminal Procedure, 1973
1. In the following cases it was held that the second marriage of the
husband entitled the wife to an order of maintenance under Section 488 of
the Old Code:
-Bayanna v. Devamma
-Kundaswami v. Nachammal
-Syed Ahmad v. N.P. Taj Begum
-Shambu v. Ghalamma
-Teja Bai v. Shankarrao
-Mohammad Haneefa v. Mariam Bi
Justice Natarajan affirmed the principle laid down in the aforementioned
cases when deciding if the second marriage of the husband conferred a
right upon the wife to live separately and claim maintenance. Only two of
the cases mentioned above involved Muslims as parties to the suit.
2. In the following cases a contrary view was taken holding that the mere
fact that a husband has contracted marriage with another wife or keeps a
mistress cannot be said to amount to neglect or refusal on the part of the
husband to maintain his wife within the meaning of Section 488(1):
-Bela Rani v. Bhupal Chandra
-Rupchand v. Charubala
-Ishar v. Soma Devi
-Dhan Kaur v. Niranjan Singh
The judges overruled the principle laid down in the above mentioned cases
and held that the second marriage of the husband does confer a right upon
the wife to live separately and claim maintenance.
3. A third line of view was adopted in Ramji Malviya v Munni Devi,
where the principle upheld was “...ordinarily remarriage will be a
sufficient ground for refusing to live with the husband but if remarriage
had been occasioned by the wife’s unjust refusal to live with her husband,
she cannot take advantage of her own wrong and claim maintenance.”
On maintenance action brought by Muslim wives whose husbands had
married again:
4. Sahulameedu v Subaida Beevi
Justice V R Krishna Iyer observed: “It behoves the Courts in India to
enforce Section 488(3) of the Code of Criminal Procedure in favour of
Indian women, Hindu, Muslim or other. I will be failing in my duty if I
accede to the argument of the Petitioner that Muslim women should be
denied the advantage of para 2 of the proviso to Section 488(3).”
The above mentioned principle has been re-affirmed in the present case as
Justice Natarajan is of the opinion that the proviso is applicable to all
wives including Muslim wives.
5. Chand Begum v. Hyderbaig
Justice Chinnappa Reddy observed: “...a husband who married again
cannot expect the court to come to his rescue if he wants the first wife to
share the conjugal home with a co-wife. If she decides to live separately
he is bound to provide a home for her and maintain her. If he does not do
that, he neglects or refuses to maintain her within the meaning of Section
488(1) Code of Criminal Procedure (Old Code). Thus the offer of a
husband who has taken a second wife, to maintain the first wife on
condition of her living with him cannot be considered to be a bona fide
offer and the husband will be considered to have neglected or refused to
maintain the wife.”
The Judges have affirmed the above mentioned principle in the present
case and that on the basis of an insincere offer; the wife’s rights cannot be
defeated or negated.
On the right of divorced Muslim wives to claim maintenance under
Section 125:
6. Mohd. A Kban v Shah Bano Begum
In this landmark judgment, the Court observed: “the right conferred by
Section 125 of the Code can be exercised irrespective of the personal law
of the parties is fortified, especially in regard to Muslims, by the provision
contained in the Explanation to the second proviso to Section 125(3) of
the Code. It shows, unmistakably, that Section 125 overrides the personal
law, if there is any conflict between the two”.
The Judges in the present case have affirmed the above mentioned
principle stating that the Explanation is of uniform application to all wives
including Muslim wives, whose husband have either remarried or taken a
mistress.
JUDGEMENT
1. It is intended to ensure the means of subsistence for three categories of
dependents viz. children. wives and parents who are unable to maintain
themselves.
2. Before an order of maintenance can be passed the three essential
requisites to be satisfied are that: (1) the person liable to provide
maintenance has sufficient means; (2) that he has neglected or refused
to maintain; and (3) the dependent/dependents is/are unable to maintain
himself/herself/themselves as the case may be.
3. Correspondingly a right has been conferred on the wife under the
Explanation to live separately and claim maintenance from the husband
if he breaks his vows of fidelity and marries another woman or takes a
mistress. It matters not whether the woman chosen by the husband to
replace the wife is a legally married wife or a mistress.
4. Default in payment of future maintenance or any instalments of the
arrears will entitle the appellant to levy execution against the respond-
ent under Section 125(3) of the Code and realise the amount.
The appeal will stand allowed accordingly.
Commentary
In the present case, the Court affirmed that the CrPC provisions treating
bigamy on part of the husband as a just ground for claiming separate
maintenance does apply to Muslim wives as well.
This case involves more directly the problem of an attempt to force
reunion on the wife, through a sequel to a maintenance suit under S.
125(3) of the New Code.
The case is significant as a judicial step towards liberating the wife from
male dominance via law. Restitution of conjugal rights is a civil remedy
and as such the state cannot allow it to be vehicle of persecution. The
Supreme Court has rightly accorded recognition to the wife’s
constitutional right to personal liberty. She can claim that her most
intimate relationship with her husband should be en-consed in absolute
privacy and no one else should interpolate into this privacy.
An anti vagrancy provision incorporated in S. 488 of the Old Code
empowered the magistrates to pass orders for maintenance in favor of
wives and some other relations, and therefore, the courts applied it also to
Muslim wives. The provision was retained with some changes under
S.125-128 of the New Code. The Court can also order payment of
separate maintenance if the wife refuses to live with the husband on a just
ground-including bigamy or concubinage on part of the husband. The
legal relief provided for by the CrPC provisions has been and remains
available in entirety, also to the Muslim wives. The courts have held that
the ground for claiming separate maintenance under CrPC need not be a
ground for divorce under Muslim law. The Courts’ tendency to ignore this
fact and treat the CrPC provisions as a substantive law has dragged it into
unnecessary controversies. It is necessary to keep it within its statutory
limits and use it in proper perspective.
The Muslim Women (Protection of Rights on Divorce) Act, 1986 has
nothing to do with it, and does not affect in the least, the maintenance
rights of Muslim wives either under Muslim law or under the CrPC. Such
women can still claim maintenance, both through the civil courts under the
Muslim law and also as transitory remedy through the Magistrate's Court
under the CrPC.
Till 1973, it was a common practice for the Muslim husbands whose
wives sought maintenance orders under the Old CrPC, 1898 to claim that
they had since divorced the claimant; and this would defeat the claim. The
new CrPC, 1973 put a check on this trend by extending the relief also to
divorced wives.
One needs to refer to the Shah Bano case, a leading case on this matter.
Briefly stated, it decided that in S.125 of the New Code, ‘wife’ includes
also a divorced Muslim woman so long as she has not married and that the
‘section overrides personal law, if there is any conflict between the two.’
The provision in Constitution of India regarding a uniform civil code (Art.
44) was also called in support.
This case says little about polygamy, but it confirms the willingness of
Indian Supreme Court to come to the aid of Muslim women whose
legitimate matrimonial rights have been denied by an unscrupulous
husband. The current position in Indian law is, therefore, that a wife who
is an unwilling party to a polygamous marriage can approach the Courts
for various remedies, but she cannot legally challenge the right of the
husband to make polygamous arrangements, whether with a wife or a
mistress.
The legal relief, thus, is extended to all wives, including Muslim wives.

ii) Kapore Chand V Kidar Nissa AIR 1953 SC 413

IN THE SUPREME COURT OF INDIA (HYDERABAD)
PETITIONER: KAPORE CHAND Vs.
RESPONDENT: KADAR UNNISA BEGUM AND OTHERS
DATE OF JUDGMENT: 12/10/1950
BENCH: Siddiqui Khaliluzzaman J. Mahajan, Mehr Chand Naik R.S.

ACT: Muhammadan Law--Dower--Widow in possession of husband's

estate in lieu of dower--Whether entitled to priority over creditors-Nature
of widow's lien for dower.
Facts:
The case Kapore Chand vs Kadar Unnisa begum is a decisive case where a
Muslim woman(widow) claims to have secured possession over the
property of her deceased husband in a lieu of dower as against all
unsecured creditors.
Kapore Chand is the appellant who has a money decree against one Mir
Hamid Ali khan, the husband of the respondent Kadar Unnisa. On the
execution of the decree, the property (house) of the deceased was attached.
Now, his wife claims an objection that she has possession over the
property on the basis of the outstanding dower and she could not be
dispossessed until her claims were satisfied.
To this, the court accepts the objection by the respondent and it was
ordered that the house be sold subject to the respondent’s claim. The
decree-holder will be entitled to the surplus from the sale proceeds.
Secondly, the court observed that the amount in the execution sale is not
much to fetch house as against the amount due on dower. Therefore, the
court decided that the dower has priority over all the debts incurred to
other unsecured creditors and the respondent (widow) is similar to a
secured creditor.
Henceforth, this judgement by the high court is appealed in Supreme
Court.
(** dower here is the part of deceased husband’s property provided to his
widow, usually in the form of a life estate)
Issue:
1. Whether the widow in possession of her husband’s property (house) in
the light of her claim of dower with the consent of other heirs or
otherwise is entitled to priority as against other unsecured creditors.
2. Whether widow is preferable in case of conditional will or contract.
Rule:
1. Tyabji’s Muhammadan law:
(a) A widow by her lien does not have any priority over other creditors.
(b) Mehr (dower) has priority over other heirs’ claim to have the property
distributed among them.
According to Hanafi law, if a specified dower is fixed by the husband
then the wife after his death can claim the whole dower specified.
1. The text in Surai-Nissa suggests the preference of dower over wills and
inheritance but it is silent about the priority over debts. (similar in
Mubsoot Sarkhasi, vol 29 and Kitabul Faiaiz page -137)
2. Ameer Ali in his book on Muhammadan law pointed out that in
ancient times husbands use to pay their wives as support and security
over their arbitrary exercise of the power of divorce.
3. Mr Mulla in his book on Muhammadan law has prompted the view
that dower is considered as debt and it is equivalent along with all other
creditors. There is no distinction about the dower of a widow being
greater than any of the creditors.
Supreme Court analysed deliberate facts that there are no provisions to
prioritise widow’s dower claims over unsecured creditors.
The Quranic texts as pointed out in Surai Nissa, proclaims that the
husband should pay the claims of his wife but nowhere speaks about
absolute protection as a secured creditor.
Here, the deceased husband has neither charged nor mortgaged the house
in favour of the wife nor any of the creditors. If the house was in favour of
the wife, there would have been no doubt over the secured possession. (As
per rule 2 with respect to Hanafi law)
Prominently, Tyabji’s Muhammadan law points out that a widow by her
lien does not have priority over other creditors and a dower has priority
over other heirs claim. This rule is not affected by the mere issue that
whether the widow is in possession of the house or not. In any way, unless
the husband has placed his wife in a favourable position, her claim for
dower is of similar rank as that of other unsecured creditors.
Moreover, it was said that the dower is the consideration paid by the
husband due to marriage and is not a voluntary debt acquired by the
husband. The concept of dower has no reference to the price paid to the
bride’s father under some systems of law. The dower of a Muslim woman
is a favour made to her prior to marriage which is somewhat obligatory in
nature and is presumed to exist as a proper reasonable amount.
Basically, the dower is merely for settlement purposes between two
parties. Muhammadan law provides no specific rule where it favours
widow dower over unsecured creditors. In general, Quranic verses
proclaims favourable and equal treatment.
Further, the judgement of the Supreme Court is provided with a number of
cases that are either referred or disapproved.

Referred cases:
In Ameer Ammal v. Shankaranarayan Chetty, it was held by the bench
of madras high court that a claim for dower (unpaid) is equivalent to debt
incurred to unsecured creditors. There is no preferential basis to consider a
widow with a dower claim to be a secured creditor.
Similarly, in Meer Meher Ally v. Mst. Amanee, Hamira bibi v.
Zubeida bibi and Imitiaz begum v. Abdul Harim khan, it was held that
the widow’s right is no greater than that of any other unsecured creditors.
(As conferred by Mr Mulla in his book of Muhammadan law).

Predominantly addressing the major issue in the case, the bench went on
to explain Maina Bibi v. Chaudhari Vakil Ahmad.
It was held that the widow who is not in the position of a secured creditor
and otherwise holds possession on her husband’s estate with the consent
of other heirs, then she is entitled to possession till her dower claim is
satisfied. It was observed by Supreme Court that the right to possession of
a widow as a security to a strict sense of the term is unnecessary to
interpret. A widow can rightfully and legally hold the estate of her
husband as a creditor as long as she and her dower are not satisfied but
that does not put her in higher precedence as compared to other unsecured
creditors. She is similarly ranked to other creditors.
(Similar view passed in Maina Bibi v. Wasi Ahmad)
On the other hand, some of the cases levelled by the respondent were
disapproved.
In Kulsum bibi v Shiam sunder lal, it was held that the widow who is in
possession of her deceased husband estate is entitled to hold his
possession as against all other heirs and as against creditors till her claim
of dower is satisfied.
Similarly, in Mst. ghafooran v. ram Chandra das and Mohamed
Turabudin v Yasin, a widow was prioritised over other creditors and
inferred as a secured creditor.
Critically interpreting case laws, consensual opinion was formed which
gave equivalent rights to widows with dower debt and other unsecured
creditors.
Kapore Chand v Kadar Unnisa begum brought forward an important
interpretation regarding the distribution of equivalent rights among
similarly placed creditors and widows. As mentioned earlier there are no
provisions under Muhammadan law or under any Quranic texts which
unequally favours widow as against other creditors.
As per the analysis with respect to the issues mentioned, we can
conclude that:
Issue 1: dower debt equivalent to debt incurred to creditors.
Issue 2: widow is dominant in case of contractual bond or will.
The court decided to take into consideration the rules laid down in Ameer
Ammal v. Shankaranarayan Chetty and dismissed the case laws of
Allahabad high court as cited by the respondent.
For all of the reasons mentioned above and analysing reasonable facts, it
can be concluded that there is no substantial reasonable argument to allow
widows to take grants of possession against unsecured creditors.
Preferably, the decision was made on the basis of customs followed
codified law and religious texts.
Henceforth, as a result, the appeal was allowed and the previous
judgements were set aside. The executing court was directed to proceed
with the execution in accordance with the observation made by the
Supreme Court.
Judgement:
For the reasons given above we hold that the objection raised by the
widow had no substance in it and the executing court should have directed
the property to be sold and the sale proceeds distributed rateably amongst
the decreeholders and the widow.
In the result we allow this appeal, set aside the judgments of the two
courts below and direct the executing court to proceed with the execution
in accordance with the observations made herein. In the circumstances we
will make no order as to costs of these proceedings.
Appeal allowed the respondent is found guilty of he offence under section
138 of the Negotiable Instruement Act and convicted for the same.

iii) Syed Sabir Husain V Farzand Hasan AIR 1938 PC 80

Bombay High Court
PETITIONER: (Syed) Sabir Husain
vs RESPONDENT: S. Farzand Hasan
Date of Judgement: 16 December, 1937
JUDGMENT: Macmillan, Shadi Lal and George Rankin, JJ.

1. This appeal is brought by the plaintiffs from a decree of the High Court
at Allahabad dated October 31, 1933, affirming a decree of the
Subordinate Judge at Moradabad dated January 22, 1930. The appellants
are the father and mother of one Musammat Ejaz Fatma, who died on
March 19, 1926, aged about twenty-one years. On August 17, 1914, she
had been married at the age of nine to the infant son of one Sibti Hasan.
The husband's name was Farzand Hasan (defendant No. 1). At the time of
the marriage he was only nine or ten years old. The amount of dower
agreed upon at the time of the marriage was Rs. 25,000 : it is evidenced by
the entry in the register of Ali Husain, the qasi who solemnised the
marriage, and is not in dispute. Husband and wife lived together from
1921 till the wife's death in 1926. The appellants by their suit, which was
brought on March 16, 1929, after the death of Sibti Hasan, claimed as
heirs of Ejaz Fatma, their daughter, entitled between them to a one-third
share of her estate. They impleaded her husband, Farzand Hasan, his
mother, brother and sisters, and claimed from them as the heirs of Sibti
Hasan, deceased, a one-third share (Rs. 8,333-5-4) of the dower due to
Ejaz Fatma, alleging that "this alliance was made at the desire of Saiyed
Sibti Hasan and he had himself taken the personal liability of payment of
the dower debt."
2. At the trial the appellants sought to prove that Sibti Hasan had at the
time of the marriage made an express promise to become liable for the
dower as a surety for his son. This was disbelieved by the trial Judge,
whose finding on the point was not impugned in the High Court. The
respondents, on the other hand, denied that Sibti Hasan had been present at
the marriage or had acted therein as the guardian of his son. This denial
has been disbelieved by both Courts in India, and before the Board it is not
in dispute that the marriage was entered into by authority of Sibti Hasan as
father of the infant bridegroom and of the appellant Sabir Hasan as father
of the infant bride. These two men indeed were relatives, and on the same
day the appellants' son was married to Sibti Hasan's daughter (defendant
No. 3).
3. Now the parties are Shias; and before the Courts in India and before the
Board the appellants have contended that, according to the Mahomedan
law applicable to Shias, Sibti Hasan became liable to pay the dower of
Ejaz Fatma by reason of the fact that his infant son Farzand Hasan had no
means of his own at the time Sibti Hasan married him to Ejaz Fatma. For
this proposition of law the appellants vouch the authority of the Suraya
(Shuraya-ool-Islam). In Book I, which treats of Nikah or Marriage, the
fifth chapter treats of Mtihr or Dower. Of this chapter the third section,
headed " the laws of dower," deals with fifteen " cases " giving a statement
of the law applicable to each. This is followed by five further cases
described as " branches from the preceding " and of these the fourth is as
follows :-
Fourth : " If one should contract his infant son in marriage, and the child
has independent means of his own, he is liable for the dower. If the child
is poor, the obligation rests entirely on the father, and in the event of his
death, must be discharged out of the whole of his property, whether the
child should arrive at maturity and become wealthy, or die before it. If,
therefore, the father should have paid the dower, and the youth should
come to maturity and then divorce his wife before coition, the son and not
the father has a right to reclaim half the dower, the payment by the father
being considered in the light of the law, as a gift to the son.
4. The learned Judges of the High Court (Niamat Ullah and Collister JJ.)
state that the Sharah Loma gives the same rules, and that they have not
been able to find any book of authority on Shia law which conflicts with
these authorities upon the point. On this footing it would seem to follow
from the well known principle established by the Board's decision in
Rajah Deedar Hossein v. Ranee Zuhoor-oon-Nissa (1841) 2 M.I.A. 441,
447 that the doctrine of the Suraya should be applied to the present case.
Both Courts in India have, however, refused to apply it. The teamed trial
Judge considered that it was not consonant with justice, equity and good
conscience. The High Court rightly noticed that if it be deemed to be a
rule regarding " marriage" or " any religious usage or institution", then
Section 37 of the Bengal, Agra and Assam Civil Courts Act (XII of 1887)
applies the Mahomedan law as such. But they did not think that the phrase
" any religious usage or institution" covered the present case nor that the
rule relied upon was a convenient or equitable rule, particularly in view of
the practice prevalent in the province to stipulate for excessive sums as
dower. They observed :-
The only contention which, in our opinion, can be put forward is that the
question arising in this case is one ' regarding marriage' : but it seems to us
that the rule laid down in Shuraya-ul-Islam is no more than a canon of
interpretation. The author is of opinion that where a guardian for marriage
agreed, on behalf of his minor ward, to pay a certain amount of dower,
there is an implication, that. in case the minor has no means to pay, the
guardian would be deemed to be a surety for due payment. The Sunni
doctors, on the other hand, do not construe such an agreement as implying
a personal undertaking. The rule may also be Considered as a rule of
evidence in so far that a personal undertaking by the guardian to pay
dower, in case the minor is found to have no means of paying it, should be
presumed. In any view of the matter, the vicarious liability of the father
arises not from any substantive rule of Shia law relating to marriage but is
the result of deduction from given circumstances, and as such British
Indian Courts are to be guided not by Muhammadan law but by rules of
construction generally applicable or by the Indian Evidence Act. We
entertain no doubt that a Shia father entering into any other contract, as
guardian of his minor son, involving a pecuniary obligation cannot be
saddled with personal liability by British Indian Courts. The agreement to
pay dower in the same circumstances cannot be placed on a different
footing. The liability, if it exists, arises from a civil contract and should be
determined by the law applicable to contracts made by an authorised
guardian.
There is no rule of general law in force in this province which justifies an
inference that a guardian, entering into a contract on behalf of his minor
son, renders himself liable as surety in the absence of an express contract
to that effect nor is there anything in the Indian Evidence Act which
justifies a presumption from the circumstances of such a case that a
guardian makes himself personally liable.
5. This decision of the High Court does not proceed upon the view that the
question concerning dower in the present case is not one " regarding
marriage " ; nor do they in the end dispute that the substantive law
applicable to questions of dower under the Act of 1887, is the Mahomedan
law of the school or sect to which the parties belong. This has, however,
been disputed before the Board and their Lordships think it necessary to
examine the matter with some care.
6. In the provinces of Oudh, the Punjab, the Central Provinces, the North-
West Frontier Province, and Ajmere Merwara, " dower " is one of the
topics expressly mentioned by the Act which regulates the civil Courts as
subject-matters to which, in cases where the parties are Mahomedans, the
Maho-medari law is to be applied as' the rule of decision. Whether the
position is in any way different in the provinces of Bengal, Bihar, Agra,
Assam, under the Act of 1887, or in Madras under the similar language of
Act III of 1873, is the question at issue. The phrase used in these Acts is "
any question regarding succession, inheritance, marriage or caste or any
religious usage or institutiou." The topics of divorce, dower, betrothal,
family relations, are not particularised as in the enactments of other
provinces, but in their Lordships' view this does not import an intention
that the social and family life of Muslims should be differently regarded
from province to province; or that in Bengal, Agra or Madras Muslims are
not to be governed in such matters by their own personal law. The terms
of Section 37 of the Act of 1887 merely repeat those of Section 24 of Act
VI of 1871, which in turn reproduce those of Section 15 of Bengal
Regulation IV of 1793, to which the Company's Courts had always given a
wide interpretation and to which indeed they had in practice added
(Zohorooddeen v. Baharoolah Sircar (1864) W.R. (Gap. No.) 185). This
Board in Moonshee Buzloor Ruheem v. Shumsoonnissa Begum (1867) 11
M.I.A. 551 and the full bench of the Allahabad High Court in Abdul Kadir
v. Salima (1886) I.L.R. 8 All. 149, F.B. have in no uncertain terms
accepted these enactments as securing to the Mahomedan community the
application of their own law to their domestic relations. The right of the
wife to her dower is a fundamental feature of the marriage contract : it has
a pivotal place in the scheme of the domestic relations affecting the mutual
rights of the spouses at more than one point. " The marriage contract is
easily dissoluble and the freedom of divorce and the rule of polygamy
place a power in the hands of the husband which the Law-giver intended
to restrain by rendering the rules as to payments of dower stringent upon
the husband " (per Mahmood J. in Abdul Kadir v. Salima, supra, at p.
158). The period which had elapsed since the Regulation of 1793 and the
area to which its language has been applied are too great to permit of
much doubt remaining as to the substantive law of dower among
Mahomedans in British India. A review of the cases upon dower decided
under the Act of 1887 or its predecessors shows that while by Mahomedan
law marriage itself is viewed as a civil contract and " the agreement to pay
a certain amount of dower is a part of the contract of marriage " (Qasim
Husain Beg v. Kaniz Sakina (1932) I.L.R. 54 All. 806, 809) the mere
principles of the law of contract as embodied in the Indian Contract Act
are insufficient of themselves to account for the main features of the law
of dower. A summary of the results of many decisions was given by Lord
Parker of Waddington when delivering the judgment of the Board in
Hamira Bibi v. Zubaida Bibi (1916) L.R. 43 I.A. 294 : s.c. 18 Bom. L.R.
999-an appeal from a full bench decision of the High Court at Allahabad
(p. 300) :-
Dower is an essential incident under the Mussulman law to the status of
marriage; to such an extent this is so that when it is unspecified at the time
the marriage is contracted the law declares that it must be adjudged on
definite principles. Regarded as a consideration for the marriage, it is, in
theory, payable before consummation ; but the law allows its division into
two parts, one of which is called ' prompt', payable before the wife can be
called upon to enter the conjugal domicil; the other ' deferred', payable on
the dissolution of the contract by the death of either of the parties or by
divorce... But the dower ranks as a debt, and the wife is entitled, along
with other creditors, to have it satisfied on the death of the husband out of
his estate. Her right, however, is no greater than that of any other
unsecured creditor, except that if she lawfully, with the express or implied
consent of the husband, or his other heirs, obtains possession of the whole
or part of his estate, to satisfy her claim with the rents and issues accruing
therefrom, she is entitled to retain such possession until it is satisfied. This
is called the widow's Hen for dower, and this is the only creditor's lien of
the Mussulman law which has received recognition in the British Indian
Courts and at this Board.
7. This passage illustrates how Mahomedan texts and the principles of
Mahomedan law have been applied to determine every facet of the law of
dower among Mahomedans-whether dower is payable apart from express
agreement ; what principles determine its amount if unspecified ; whether
it can be agreed or added to after marriage ; whether in whole or in part it
is to be deemed to be " prompt" or " deferred" ; whether prompt dower is
payable on demand or otherwise ; whether non-payment of prompt dower
is a defence to a husband's suit for conjugal rights before consummation;
or after consummation ; whether the promise of an excessive sum as
dower can be enforced ; whether the wife is a mere unsecured creditor for
dower; whether a widow having obtained possession of her husband's
estate in lieu of dower has a right to retain possession until the debt is
satisfied. On all these matters, as is well known, the Courts will apply the
Mahomedan law in Bengal, Bihar, Agra, and Madras, as well as in the
other provinces. Not is it reasonable to suppose that any other law could
be applied to determine whether dower can be remitted by the wife's father
; or by the wife herself; what is the effect upon the wife's right to dower of
her exercising her " option of puberty "; of her being divorced before
consummation; of her husband dying before consummation. In
Muhammad Siddiq v. Shahab-ud-din (1927) I.L.R. 49 All. 557, the
parties were Sunnis and the High Court of Allahabad were not satisfied
that the father became liable by the Hanafi law as a surety for his son by
reason of his arranging the marriage. But their Lordships do not gather
that the division bench in that case doubted that the matter fell to be
decided by the appropriate Mahomedan law, and in their Lordships'
opinion there is no room for doubt upon the point.
8. Their Lordships desire to advert particularly to the circumstances of the
marriage contract in the present case. Although the Indian Majority Act
(IX of 1875) does not affect the capacity of any person to act in the matter
of marriage or dower (s. 2), the husband in the present case was by his
own personal law a minor at the time of his marriage. He was married by
his father in the exercise of a father's right so to do (the right of jabr).
What law, save the Mahomedan law, makes any contract to pay dower
binding upon the minor?
In Waghela Rajsanji v. Shekh Masludin (1887) L.R. 14 I.A. 89, 96 Lord
Hobhouse pointed out that according to the general law of India there is no
rule which gives a guardian power to bind his infant ward by a personal
covenant. The father's power as natural guardian to do so in respect: of
dower is the creature of the Mahomedan law of marriage, and the learned
Judges of the High Court invert the true position when they proceed upon
the view that there is no rule of general law which makes a guardian liable
as surety when he enters into a contract on behalf of his minor son. If the
general law is to control the matter the question will not arise. It is
difficult to see. why this particular doctrine of the Mahomedan law should
be required to conform to a particular feature of the general law or should
be interpreted in the light of it.
9. It remains, therefore, to consider the distinction drawn by the learned
Judges in the present case between " a substantive rule of the Shia law
relating to marriage " and what is variously called a " canon of
interpretation," a " rule of construction" and a " rule of evidence." Even
where Mahomedan law applies to the subject-matter, the Courts in British
India are governed by their own methods and procedure and do not apply
those rules of the Mahomedan law which Mahmood J. in the case of Jafri
Begam v. Amir Muhammad Khan (1885) I.L.R. 7 All. 822, 841, F.B.
described as "provisions which go only to the remedy, ad litis
ordinationem, being matters purely of procedure as to array of parties,
production of evidence, res judicata, and review of judgment, etc."
10. Their Lordships cannot agree, however, that the passage from the
Suraya upon which the appellants rely expresses anything less than
substantive rule of law or that it can be described as a canon of
interpretation or construction or a rule of evidence. The passage itself and
its context are alike against this suggestion. To a doctrine which enlarges
the right of the wife or improves her security in respect of dower an
important purpose must be attributed; and in their Lordships' view it
would only mutilate the substantive law laid down by the Suraya if its rule
as to the liability of the husband's father were to be ignored.
11. The learned Judges of the High Court interpret the rule as follows :-
According to the rule laid down in Shuraya the father makes himself a
surety for the due payment of dower in case his minor son has no means of
paying it. The underlying principle is that the son's inability to pay must
have been known to the father and if in spite of such knowledge he agreed
on behalf of his indigent son to pay what was beyond the latter's means he
should be deemed to have guaranteed the payment of the stipulated dower.
Their Lordships are not called upon in the present case to say whether this
interpretation of the rule is in all respects correct. The matter was not fully
argued at the bar, and no materials to illuminate the meaning of the text
have been laid before the Board. Their Lordships are only prepared to hold
that the appellants should recover against the heirs of Sibti Hasan on the
footing that the decree of the trial Judge against Farzand Hasan is set
aside. No point was taken in the Courts in India or at the hearing of this
appeal upon the maintenance deed which Sibti Hasan executed on August
15, 1914, or on the omission of the plaintiffs to implead the other heirs of
Ejaz Fatma. In their Lordships' view the proper form of decree is against
each of the heirs of Sibti Hasan for that proportion of the appellants' joint
claim which corresponds to the share of each heir in the estate of Sibti
Hasan The decree will only be enforceable against each heir to the extent
of assets come to his or her hands in accordance with Section 52 of the
Civil Procedure Code. As materials for ascertaining the share of each
defendant are not before their Lordships, the exact terms of the decree
must be framed by the High Court on receipt of His Majesty's order as to
this appeal, unless the terms are settled by agreement at an earlier stage.
Their Lordships do not consider that in this case the appellants have
shown any right to an order for interest for the period prior to decree; and
they find it unnecessary to consider whether in view of the Board's
decision in Hamira Bibi v. Zubaidu Bibi (supra) interest could in any
circumstances be awarded in such a case as the present where the wife was
never in possession of her husband's property in lieu of dower. The
ultimate decree, however, will carry interest at six per centum from the
date of the Order in Council as to this appeal.
12. Their Lordships' conclusion is that this appeal should be allowed, that
the decrees of the Courts in India should be set aside, and that in lieu
thereof there should be a decree in favour of the appellants against each
defendant, payable out of the assets of Sibti Hasan, come to the hands of
such defendant for such fraction of Rs. 8,333-5-4 as corresponds to the
share of such defendant in the estate of Sibti Hasan. The defendants must
pay the appellants' costs throughout. Interest on the total sum decreed will
ran from the date of the Order in Council at six per centum per annum.
Tiieir Lordships will humbly advise His Majesty accordingly.
Judgement:
In the case Sayed Sabir Hussain v. Farsand Hussain[5] the court
concluded that the dower paid by the husband to wife is the legal
responsibility of the husband. Further, it was observed in the case of Anis
Begam v. Mohd. Istafa it was held that under Muslim law it could not be
treated purely as the sale of the person by the wife in consideration for the
payment of dower.
The dower is used as a real settlement in favor of the wife, and to recheck
whether any disproportionate power rests with the husband in relation to
the divorce.[7] In what form dower should be paid, does not create any
legal difference; it is the only compulsion to one party that makes a
difference. But in reality, it cannot be seen in today society, in most of the
cases it is seen that the dower which was specified during the marriage
were due and which were unspecified that is remains unpaid lifelong.

iv) Maina Bibi V Ch.Vakil Ahmad (1924) 52 1A 145

 Bombay High Court
PETITIONER: Maina Bibi vs
RESPONDENT: Chaudhri Vakil Ahmed
Date: 11 December, 1924
JUDGMENT:Atkinson, J.
Introduction:
One Muinuddin died in 1890 possessed of immovable property leaving
him surviving his widow Maina Bibi, who entered into possession. In1902
some of the heirs filed a suit to recover possession of their share of the
property. The widow pleaded that the estate was a gift to her, or
alternatively that she was entitled to possession until her dower was paid.
In 1903 the trial judge made a decree for possession in favor of the
plaintiffs on condition that the plaintiffs paid a certain sum by way of
dower and interest to the widow within six months. This sum was not
paid, however, and the widow remained in possession, in 1907 Maina Bibi
purported to make a gift of the whole of her property to certain persons.
The original plaintiffs challenged this gift and the Privy Council held that
the widow had no power to make a gift of the properties, and could not
convey the share of the heirs to the donees.
Their lordships, in discussing the nature of a widow’s right of retention,
said that ‘the possession of the property being once peaceably and
lawfully acquired, the right of the widow to retain it till her dower-debt is
paid is conferred upon her by Mahomedan Law They further said that it is
not exactly a lien, nor a mortgage, usufructuary or other. ‘The widow who
holds possession of her husband’s property until she has been paid her
dower has no estate or interest in the property as a mortgagee under an
ordinary mortgage’.
Thus, in essence, it is a personal right given by Muhammadan Law to
safeguard the position of the widow.
The Supreme Court has laid down that a Muslim widow in possession of
her deceased husband’s estate in lieu of her claims for dower, whether
with the consent of the heirs or otherwise, is not entitled to priority as
against his unsecured creditors.
There is a conflict of opinion whether in order to retain possession the
consent, express or implied, of the husband or his heirs is necessary. Some
judges are of opinion that such consent is necessary; others, that it is not. It
is submitted with great respect, that on first principles, having regard to
the nature of the right, the consent of the husband or his heirs is
immaterial. Muhammadan law casts a special obligation on every debtor
to pay his debt, and the right of the widow for her dower is a debt for
which the widow has a good safeguard. Thus, the question of consent
appears to be immaterial. The right to retention does not confer on the
widow any title to the property. Her rights are twofold: one, as heir of the
deceased and two, as widow entitled to her dower and, if necessary, to
retain possession of the estate until her mahr has been paid. The right to
hold possession must, therefore, be sharply distinguished from her right as
an heir. The widow, in these circumstances, has the right to have the
property administered, her just debts satisfied and her share of the
inheritance ascertained and paid. She has no right to alienate the property
by sale, mortgage, gift or otherwise, and if she attempts to do so, she loses
her right of mahr.
There are two other major questions on which the law is still unsettled.
Can the widow transfer her right of retention? And is this right of retention
heritable?
In Maina Bibi v. Chaudhari Vakil Ahmad their lordships expressed a
doubt whether a widow could transfer the dower debt or the right to retain
the estate until the mahr was paid. Following that case there has been
much conflict of judicial opinion on the questions as to the heritability and
transferability of this right.
Privy Council in Maina Bibi v. Chaudhri Vakil Ahmad, One Muinuddin
died in 1890 possessed of immovable property leaving him surviving his
widow Maina Bibi, who entered into possession. In 1902 some of the heirs
filed a suit to recover possession of their share of the property. The widow
pleaded that the estate was a gift to her, or alternatively that she was
entitled to possession until her dower was paid.
In 1903 the trial judge made a decree for possession in favor of the
plaintiffs on condition that the plaintiffs paid a certain sum by way of
dower and interest to the widow within six months.
This sum was not paid, however, and the widow remained in possession,
meanwhile Maina Bibi purported to make a gift of the whole of her
property to certain persons.
Judgement: The original plaintiffs challenged this gift and the Privy
Council held that the widow had no power to make a gift of the properties,
and could not convey the share of the heirs to the donees.

UNIT-IV
Salient Features of the Family Courts Act 1984 including their
composition,
Salient features of family Courts Act, 1984
Family courts are a specialized form of the court responsible for handling
matters involving family-related conflicts. These family courts handle
disputes about marriage, divorce, maintenance, guardianship, and the
couples’ property.
Family court settings are anticipated to differ from conventional court
settings. The environment should be calm, easygoing, and laid back.
Additionally, judges are not required to dress in robes or stand on an
elevated platform.
To ensure that people are committed to the need to protect and preserve
the institution of marriage, the Family Court was established. Its
jurisdiction and powers are used to make decisions about the legality of
marriages and other matrimonial matters, as well as to advance family
welfare.
Family courts are not a novel idea, but they do exist in some Western
nations. India’s judiciary is already overburdened with cases that have
been lingering for years. Therefore, it was imperative that family issues—
including divorce and child custody—be considered social therapeutic
issues.
Definition of Family Court Act, 1984
Family Court” means a Family Court established under section 3. Family
courts are specialized type of of court entrusted with the disposal of the
cases concerning disputes relating to the family. These family courts deals
with the litigation concerning marriage, divorce, maintenance,
guardianship and the property of the spouses.
The environment of family courts expected to be different from regular
courts. The atmosphere is supposed to be quiet informal and relaxed. And
the judges need not put on robes and judges need not set on raised
platform.
Origin & establishment of family court in India
The need to establish the family courts was first emphasized in India by
the late smt. Durgabal Deshmukh after a tour of China in 1953, where she
had an occasion to study the working of family courts. She discussed the
subject with certain judge’s eagle experts and then made a proposal to set
up a family court in India to Prime Minister Jawaharlal Nehru.
Thereafter, the Law commission in its report as early as 1973 (54th report
of the code of civil procedure), strongly recommended the need for special
handling of matters pertaining to divorce.
The code of civil procedure was amended to provide for a special
procedure to be adopted in suits or proceedings relating to matters
concerning the family.
The need was therefore, felt in the public interest to establish family
courts for speedy settlement of family disputes.
After a lot of debate and discussion the family courts Act came into force
on 14 September, 1984.
The whole idea behind the Act is to ensure Speedy and inexperience relief
with least formality and technicalities
In India first and foremost the family court was established in the state of
Rajasthan 19 November, 1985.
In M.P. Gangadhara V/S State of Kerala (2006 SC) , the supreme Court
has held that family court should be established not only because it is
provided in the Act but the state must be alive to the situation that it has a
duty to provide all infrastructure to the forum of dispute resolution.
There are two main pillars on which the whole structure of family courts is
built are as following-
Counselling
Conciliation
Aims & Objectives of the family courts act, 1984
To make obligatory on the state to establish number of Family courts.
To provide jurisdiction to the family courts on nullity of Marriage,
divorce, judicial separation, restitution of Conjugal rights, validity of
marriage, property disputes between members of family, legitimacy of the
child, Guardianship, custody of children and maintenance etc.
To make mandatory of conciliation proceedings on Family courts.
To settle family disputes through conciliation.
Reconciliation and settlement.
To provide social and medical assistance to assist the
Parties to settle their disputes by conciliation.
To prevent legal practitioners except as amicus curiae.
To simplify the rules of evidence.
Objectives of Family Courts
1. This forward-thinking legislation’s primary goal was to expedite family
law trials and resolutions. Conciliation, negotiation, or mediation can
also lead to a resolution.
2. To grant the family courts jurisdiction over matters such as judicial
separation, divorce, restitution of conjugal rights, the legality of
marriage, property conflicts between family members, child legitimacy,
guardianship, custody of children, and maintenance, among other
things.
3. Making family court conciliation proceedings a requirement and using
conciliation and settlement to resolve family conflicts.
4. To help parties agree to mediate their differences.
Family Courts – Provisions
 The Family Courts Act was enacted in 1984 which provided for the

establishment of family courts with the goal of providing conciliation

and ensuring the prompt resolution of marriage and family disputes.
 It contains 6 chapters and 23 sections.

 The Act provided to establish a Specialized Court that will solely deal

with family matters, in order for such a court to have the necessary
expertise to deal with these cases expeditiously.
 If the Family Court so desires, and if either party so desires, the family

Court proceedings may be held in camera.

 Section 3 of this act states that the State government, after consulting
with the High Court, shall establish the Family Court in every area of
the state with a population of more than one million people or in any
other area where the State government deems it necessary.
 Section 4 of the Family Courts Act of 1984 deals with the provisions

governing the appointment of judges in the Family Court.

 Section 7 of this act grants the family courts the same powers and

jurisdiction as the District Court or Subordinate Civil Courts in their

suits and proceedings.
 Section 7(2) gives the family courts the authority to exercise the same

jurisdiction as a Magistrate of the First Class under Chapter IX of the

Code of Criminal Procedure, 1973, as well as any other jurisdiction
provided by law.
Family Courts – Significance
 It attemptsto effect reconciliation or a settlement between the parties to

a family dispute.
 During the conciliation stage, it provides for the association of social

welfare agencies, counsellors, and so on, as well as the service of

medical and welfare experts.
 The parties to a dispute before a Family Court are not entitled to be

represented by a legal practitioner as a matter of right. However, in the

interest of justice, the Court may seek the assistance of a legal expert as
an amicus curiae.
 The rules of evidence and procedure are simplifiedso that adispute is

dealt witheffectively.
 Only one right of appeal is providedwhich is to the High Court.

 In order to reduce and simplify legal formalities, they take a

multidisciplinary approach to ensure a fair trial and the expeditious

resolution of cases at a low cost.
 In order to simplify proceedings, family courts have the authority to

establish their own procedures for settlement through rules developed in

consultation with the High Courts.
 Thus, expertise and expeditious disposition are two major factors for

establishing such a court.

 It also aimed to provide an inexpensive remedy and to have flexibility
and an informal atmosphere in the conduct of proceedings.
Criticism
Family Courts – Criticism
 The term "family," has not been defined in the Act, and a result of

which matters arising from economic consequences that affect the

family in various ways are not covered by the family court.
 The family court only hears cases involving marriage, maintenance, and

divorce.
 When the counselors and other authorities kept changing, the situation

deteriorated.
 If a suit lasted a long time and the counselor was changed in the middle

of it, it became difficult for the parties, particularly women, to convey

their problems again.
 Despite the fact that it is mandatory for state governments to establish

family courts in cities with populations of over a million people in

consultation with the High Court, only a few states have done so.
 Since the family court follows the provisions of the Code of Civil

Procedure in suits or proceedings, it makes it difficult for the average

person to understand the complex law.
 The act did not create any simplified rules that a layperson could

understand.
 The act also prohibits the presence of lawyers in a family court suit or

proceeding, making it difficult for the average person to understand the

court's procedure and formalities.
 In such cases, the parties to a suit must rely on the clerks and peons of

the court.
 The act was enacted to establish family courts across the country with a

conciliatory approach to ensure quick relief to the parties, but it failed to

ensure gender justice and equality due to judges' orthodox thinking and
counselors' patriarchal attitudes.
Reconciliation between the parties by the Court
Section 9 of this act prescribes the duty of the family court to make efforts
to promote reconciliation between the parties. As, per Section 9(1), in the
first instance, the family court, in every suit or proceeding, shall make
efforts to convince the parties to settle the dispute with an agreement and
for this purpose, the family court may follow the rules prescribed by the
High Court or follow such rules or procedure as the family court may
deem fit.
A suit or proceeding for the decree of nullity of marriage, or restitution of
conjugal rights, or for the dissolution of the marriage between the parties;
A suit or proceeding for determining the validity of a marriage or
matrimonial status of a person;
A suit or proceeding in the matter related to the properties between the
parties to a marriage;
A suit or proceeding for an injunction or order arising out of a marriage;
A suit or proceeding for declaring the legitimacy of a person;
A suit or proceeding for maintenance;
A suit or proceeding for the guardianship of the person, or custody of any
minor.
Under Section 7(2), the family courts have also the power to exercise a
jurisdiction which is exercised by a Magistrate of the first class under
Chapter IX of the Code of Criminal Procedure, 1973 and such other
jurisdiction as provided by any other enactment.
Other Features of Family Courts
1. This Act’s provisions shall take precedence over any other provision of
any other law currently in force or any provision of any instrument
having effect pursuant to any other law other than this Act. This is one
of the important features of this Act.
2. The High Court may make rules as necessary via gazette notifications,
per Section 21 of this Act.
3. The Central Government’s Rule-Making Authority: Section 22 of the
Constitution of India states that the Central Government may, with the
Chief Justice of India’s approval, issue rules for the appointment of
judges by a gazette notification.
4. The State Government’s Power to Create Regulations: Section 23 of the
Act also grants the State Government the right to create regulations in
conjunction with the High Court by publishing a gazette notice.
Family Courts Power over Evidence
Regardless of whether or not the evidence is admissible under the Indian
Evidence Act of 1872, the Family Court is permitted to take it into account
if it helps resolve a disagreement.
1. In family court, a judge can order the oral testimony of a witness to be
recorded.
2. The Family Court judge may summon and cross-examine any person
mentioned in an affidavit presented as evidence in court.
Appeal
Within 30 days after the date of the verdict, a High Court appeal may be
lodged in opposition to the Family Court’s ruling.
Reconciliation between the parties by the Court
Section 9 of this act prescribes the duty of the family court to make efforts
to promote reconciliation between the parties. As, per Section 9(1), in the
first instance, the family court, in every suit or proceeding, shall make
efforts to convince the parties to settle the dispute with an agreement and
for this purpose, the family court may follow the rules prescribed by the
High Court or follow such rules or procedure as the family court may
deem fit.
According to Section 9(2), if the family court finds that at any stage of the
proceeding there is a reasonable probability of settlement between the
parties, the court has the power to adjourn the proceedings until the
settlement is reached. And as per Section 9(3), the power prescribed under
sub-section 2 is an addition to the powers of the family court.
Dissolution of marriage
Given that India has one of the highest populations in the world, there are
a lot of married couples there. A high number of married couples may lead
to increased conflicts with families. And they will undoubtedly go to court
to seek redress.
Child Custody
According to Section 7(1), the family court has the authority to appoint a
suitable individual as the guardian of a minor and to provide them custody
of the kid. The family court where the child typically dwells hears cases
involving the child’s custody.
Security orders- Domestic Violence
Family court legislation doesn’t explicitly address the court’s authority on
domestic abuse. And this is where family courts fall short. Despite this,
the statute has no provisions addressing domestic violence-related issues.
However, the Protection of Women from Domestic Abuse Act of 2005
(hereafter referred to as the “DV Act”) contains a clause that allows the
family court to hear cases involving domestic abuse.
Maintenance
The family courts have jurisdiction over lawsuits or actions involving
maintenance, according to the family court act’s explanation (f) of Section
7(1).
Property Disputes
The family court has jurisdiction over issues involving the property of the
parties to the marriage, in accordance with Section 7(1)(c) of the Family
Courts Act. Marital disputes typically occur after the grant of divorce.
Conclusion
The uniformity is so less regarding the rules laid down by different states
also leads to vagueness in the proper application of the Act. Though the
Act was aimed at removing the gender biasness in Statuary legislation.
The goal is yet to be achieved. The frequent changing of marriage
counselors each time. The family courts need to adopt various dynamic
steps for the smooth and proper functioning of the family court.

Jurisdiction and procedure of adjudication,

Jurisdiction
Matters relating to the following areexclusively placedwithin the
jurisdiction of the Family Courts:
Dissolution of Marriage
 When someone wishes to terminate their marriage, they can file a case

in family court and get a court order. Divorce and annulment processes
may be used to end a marriage.
 The court can also issue a separation in which the parties remain legally

married but receive property, alimony, and child custody orders.

Child Custody and Parental Rights
 If a guy is required to be proclaimed the child's father, any parent can
file a paternity case in family court.
 It establishes the child's paternity for all time. The court can determine

legal custody, visiting schedules, physical custody, and child support for
unmarried parents.
Domestic Violence Protection Orders
Domestic abuse victims can obtain protection orders from the family court
to keep their assailant at bay.
Name changes
A name change case in family court may allow a child or adult to legally
change their name.
Guardianship
Guardianship is the process of selecting who will be in charge of a child or
an adult who is unable to make medical, personal, or financial choices for
themselves.
Adoptions and parental rights termination
A parent's rights may be terminated by the family court if there are
compelling grounds why that parent should no longer have parental
contact with that kid (such as abandonment, neglect, or abuse). A family
court can grant an adoption if someone else wishes to be a child's legal
parent, establishing a legal parent-child connection.
Cases involving children
All matters involving allegations of child abuse, neglect, or juveniles
suspected of criminal behaviour are handled in family court. The District
Attorney's Juvenile Division handles the majority of these cases. Work
permits for kids under the age of 14 can also be granted by the family
court.
A suit or proceeding for the decree of nullity of marriage, or restitution of
conjugal rights, or for the dissolution of the marriage between the parties;
A suit or proceeding for determining the validity of a marriage or
matrimonial status of a person;
A suit or proceeding in the matter related to the properties between the
parties to a marriage;
A suit or proceeding for an injunction or order arising out of a marriage;
A suit or proceeding for declaring the legitimacy of a person;
A suit or proceeding for maintenance;
A suit or proceeding for the guardianship of the person, or custody of any
minor.
The family courts now have the authority and jurisdiction that the District
Court or Subordinate Civil Courts formerly exercised in their lawsuits and
processes, according to Section 7 of this Act. The following are the types
of lawsuits and proceedings described in this section’s explanation:
1. A suit or proceeding for the decree of nullity of marriage, or restitution
of conjugal rights, or for the dissolution of the marriage between the
parties;
2. A suit or proceeding for determining the validity of a marriage or
matrimonial status of a person;
3. A suit or proceeding in the matter related to the properties between the
parties to a marriage;
4. A suit or proceeding for an injunction or order arising out of a marriage;
5. A suit or proceeding for declaring the legitimacy of a person;
6. A suit or proceeding for maintenance;
7. A suit or proceeding for the guardianship of the person, or custody of
any minor.
Under Section 7(2), the family courts have also the power to exercise a
jurisdiction which is exercised by a Magistrate of the first class under
Chapter IX of the Code of Criminal Procedure, 1973 and such other
jurisdiction as provided by any other enactment.
Procedure of Adjunction:
Procedures followed by the family courts
The family court’s procedure is rather informal because there aren’t many
drawn-out formalities. The primary reason for creating the family court
was to quickly bring relief to the parties through a resolution.
Section 10
The general procedure used by the family courts is given out in Section 10
of the Family Courts Act of 1984. According to Section 10(1), the family
court is considered to be a civil court with all of that court’s rights and
privileges when the Code of Civil Procedure, 1908, is applied to its
lawsuits or other procedures. In order to reach a settlement, the family
court is empowered under Section 10(3) to establish its own procedure
based on the specifics of the lawsuit or action or the reality of the
allegations made by one party and rejected by the other.
Section 11
The family court can allow cameras to record its proceedings. In
accordance with Section 11 of the act, the family court’s proceedings may
be conducted in secret if the judge determines it is appropriate or if a party
requests it.
Section 14
Family courts follow informal procedures and only record relevant
testimony, excluding lengthy witness statements. Any report, statement, or
document connected to the subject is admissible under the Indian
Evidence Act of 1872, according to Section 14 of the act.
Section 15
Additionally, in accordance with Section 15 of the Act, only the portion of
a witness’s testimony that is pertinent to the lawsuit or proceeding needs
to be recorded by a family court, and both the judge and the witness must
sign the document.

Case Law
M.P. Gangadharan v/s. State of Kerala
The Supreme Court ruled in M.P. Gangadharan v. State of Kerala that
family courts should be formed not only because they are required by the
Act but also because the state must be aware that it is required to provide
the necessary infrastructure for the venue for dispute settlement.
Shyni v/s. George
According to the court’s ruling in the case of Shyni v. George, a wife can
impale a close cousin of her husband or even an unrelated third party on
the grounds that the husband gave the property to them in a suit to reclaim
the property. The Family Courts would have authority over this.
K.A. Abdul Jaleel v/s. T.A. Sahida
In the case of K.A. Abdul Jaleel v. T.A. Sahida, the court determined that
a divorced wife was considered one of the “parties to the marriage” and
that her petition to declare and divide any property they had accumulated
together would be maintainable.
Ques. Discuss the jurisdiction, procedure and other salient features of
family courts under act, 1984. Or The jurisdiction of family courts.
Introduction:- The establishment of the Family court for the purposes of
exercising the jurisdiction and the powers to ensure that persons
committed to the need to protect and preserve the institution of marriage,
declaration as to the validity of a marriage or as to the matrimonial status
of any person and to promote the welfare of the family.
Definition of Family Court:- Family Courts with a view to promote
conciliation in and secure speedy settlement of disputes relating to
marriage and family affairs and matters connected therewith.
Jurisdiction of Family Court:- The complete detail in respect of the
jurisdiction of the Family Court under Family Courts Act, 1984 is as
under:-
1. The family courts may exercise the entire jurisdiction exercisable by
and District Court or any subordinate civil court under any law for the
time being in force.
2. The Family Courts have the jurisdiction to accept a suit for proceeding
between the parties to a marriage with respect to the property of the parties
of either of them.
3.Family Court has the jurisdiction to suit for proceeding between the
parties to a marriage for a decree of nullity of marriage(declaring the
marriage to be null &void or as the case may be annulling the marriage) or
restitution of conjugal rights or judicial separation or dissolution of
marriage.
4. Family Court may accept the suit or proceeding for a declaration as to
the validity of a marriage or as to the matrimonial status of any person.
5. The Family Court may commence a suit or proceeding for an order or
injunction in circumstances arising out of a marital relationship.
6. Proceeding for declaration about the legitimacy of any person is
accepted by the Family Court.
7. The family court has the jurisdiction to suit or proceeding for
maintenance and in relation to the guardianship of the person or the
custody of, or access to any minor.
PROCEDURE:-
Section 9 of Family Courts Act, 1984, laid down the following
procedures:-
1. Duty of Family courts to make efforts for settlement:- Every suit or
proceeding endeavour shall be made by the Family Court in the first
instance, with the nature of circumstances of the case to assist and
persuade the parties in arriving at a settlement and follow those rules
framed by High Court as deemed fit.
2. Family Court may Adjourn:- If any suit or proceeding at any stage
seems to be that there is a reasonable possibility of a settlement between
the parties, the Family Court may adjourn the proceedings for such period
as it thinks fit to enable attempts to be made to effect such a settlement.
3. The power to adjourn: - conferred by sub-sec.2 shall be in addition to
and not in derogation of any other Power of the Family Court to adjourn
the proceedings.
Procedure Generally
1. Sec.10 of Family Courts Act also provides subject to other provisions of
this act and the rules of provisions of the Code of Civil Procedure and of
any law for the time being in force shall apply to such proceedings under
criminal procedure code.
Family Courts shall deem to be a civil court and shall have all the powers
of such court.
2.Provisions shall prevent a family Court from laying down its own
procedure with a view to arrive at a settlement in respect of the subject
matter of the suit or proceedings or at the truth of the facts alleged by the
one party and denied by the other. Under section 10(2).
3. Proceedings to be held in Camera:- In every suit or proceeding to
which this act applies, the proceedings may be held in camera if the
Family Courts so desires and shall be so held if either party so desires
u/sec.11.
3. Assistant of Medical & welfare:- Under sec. 12 of the Act, every suit
or proceedings, it shall be open to family court to secure the services of a
medical expert or such person (preferable a woman where available) for
the purpose of assistance in discharging the functions imposed by this act.
4. Record of oral evidence:- In suits or proceedings before a family court
it shall not be necessary to record the evidence of witnesses at length but
the judge as the examination of each witness proceeds shall record or
cause to be recorded a memorandum shall be signed by the witness.
OTHER SALIENT FEATURES OF FAMILY COURTS UNDER
ACT, 1984:-
1.Act to have overriding effect:- One of the salient feature that the
provisions of this act that this act shall have the effect notwithstanding
anything inconsistent there with contained to any other law for the time
being in force or in any instrument having effected by virtue of any law
other than this act.
2. Power of High Courts to make rules: - sec.21 of this act provides
High court may make such rules may deem necessary by gazette
notifications.
3. Power of Central Govt. To make rules: - Sec.22 provides that the
central govt. May with the concurrence of the Chief Justice of India make
rules for appointment of Judges by gazette notification.
4. Power of State Govt. To make rules:- Sec.23 of the act also provides
that the State Govt. By issue of gazette notification to make rules with the
consultation with High Court.
5 Preference shall be given to women.
Ques. Discuss the function of Social Welfare Agencies in settlement of
family disputes.
Introduction:-The State government shall in consultation with the High
Court to determine the number and categories of councillor, officers and
other employees required to assist the Family Court in discharge of its
function and provide the Family Court with such councillors, officer and
other employees as it may think fit.
Association of social welfare agencies:- The state government may with
the consultation the High Court, provide by rules for the association in
such a manners and for the purpose and subject to such conditions as may
be specified in the rules with a Family Court.
1.Institution or organisation engaged in Social Welfare or the
representative thereof:-
Different Institutions or organisation who are actively engaged with the
society for the welfare of the Family and are also helping the courts in
settlement of the family disputes may also be welcomed and to consider
their counselling’s.
2. Persons working in the fields of social welfare of the Family:- Persons
working in the field of Social welfare and making their sincere efforts for
developing the mentality of the members of the society for the early and
better settlement of the family disputes may also be honoured by the
society so that they take more active part and interest in this field.
3. Any other people who association with a Family Court would enable
into exercise its jurisdiction mare effectively in accordance with the
purpose of the act.
4. Person professionally engaged in promoting the welfare of the family:-
Such persons who are professionally involves in promoting and doing
efforts for the welfare of the families be encouraged by appreciating their
work by the government and must be rewarded.
5. Terms and conditions: The terms and conditions of the association of
the councillors and the services to be rendered by the officers and other
employees shall be such, as specified by rules made by government.
CONCLUSION:- On the nut- shell it is stated that the family courts have
been established for the speedy disposal of the cases related to family
disputes. These family courts have come into force on the date as the
government has notified the provisions in the govt. Gazette, by including
the persons working in the field of social welfare of the family. However
in the provisions it is also provided that any other person whose
association with family court would make the courts enables to exercise its
jurisdiction more effectively in accordance with the purpose of this act.

Civil Marriage Law,

The Special Marriage Act, 1954 is an Act of the Parliament of India
with provision for civil marriage (or "registered marriage") for people of
India and all Indian nationals in foreign countries, irrelevant of the religion
or faith followed by either party. The Act originated from a piece of
legislation proposed during the late 19th century. Marriages solemnized
under Special Marriage Act are not governed by personal laws.
Under the present legal system of India citizens have a choice between
their respective religion-based and community-specific marriage laws on
the one hand and, on the other hand, the general and common law of civil
marriages. Special Marriage Act is a central legislation made to validate
and register inters religious and inter-caste marriages in India. It
allows two individuals to solemnize their marriage through a civil
contract. No religious formalities are needed to be carried out under the
Act.Under the present legal system of India citizens have a choice between
their respective.
In a revolutionary event, HS Maine Act III authorized dissenters to
choose their matrimonial partner and legalized their marriage under
the Civil Marriage Law of 1872. Society did not approve the Act and
opposed its enactment. Additionally, the incompetence of the Civil
Marriage Law created the Special Marriage Act 1872. They could marry
without any religious ceremonies or converting their religion. After that,
the Parliament came up with a special Act that ensured the dissenters
marrying under the ambit of the Act would get safeguarded by providing
the following legal provisions:
1. A specialized form of marriage.
2. Compulsory registration of marriages.
3. Procedure for Divorce.
A marriage under the Special Marriage Act, 1954 allows people from two
different religious backgrounds to come together in the bond of marriage.
The Special Marriage Act, 1954 lays down the procedure for both
solemnization and registration of marriage, where either of the husband or
wife or both are not Hindus, Buddhists, Jains, or Sikhs.
The Act completely transformed the outlook of society on inter-caste and
inter-faith marriages in the following manner:
Applicability
The Act, unlike other marriage acts, takes into its ambit citizens of India
irrespective of their religion and caste. Hence, any individual desirous of
marrying another individual could get married under the said Act.
Rites and Ceremonies
The Act perceives marriage as a civil contract, so there are no rites and
ceremonies performed. The Court Marriage gets performed under the act.
Void Marriages
The marriages solemnized under the said act would be rendered void if
any of the conditions laid down in Section 6 are left. Either party to the
marriage could file a petition for declaring the marriage void.
According to Section 24, the impotence of the respondent could also be
the ground for rendering the marriage void.
Voidable Marriages
As per Section 25, marriage under the said act would be rendered voidable
under the following situations:
Non-consummation of Marriage
If the respondent refuses to consummate the marriage, the
CourtourtCourtrt could grant decree upon the fulfilment of the following
conditions:
1. Petitioner did not know respondents’ conditions at the time of
marriage.
2. Initiation of proceedings within a year of marriage.
3. Lack of marital intercourse since the revelation of respondent’s
condition.
Judicial Review
Supriyo v. Union of India
Main article: Supriyo v. Union of India
The petition requested the Supreme Court to recognise the marriage
between any two persons, regardless of gender identity and sexual
orientation, and declare the notice and objection provisions as void, by
enforcing the fundamental rights guaranteed under Articles 14, 15, 19 and
21 of the Indian Constitution.
Nikesh P.P. & Sonu M.S filed a petition with Kerala High Court on 24
January 2020. Dr Kavita Arora & Ankita Khanna filed a petition with
Delhi High Court on 8 October 2020 and they were joined by other
petitioners over the course of time. On 6 January 2023, their petitions were
transferred to Supreme Court to be heard along with Supriyo v. Union of
India (2023). Additionally, most of the petitioners challenged the notice
and objection provisions of the Special Marriage Act and the Foreign
Marriage Act of 1969 which hurt vulnerable minorities.

Especially the Special Marriage Act, 1954 including essential

requirements for solemnization and/or
Essential Conditions of Marriage under Special Marriage Act
The Act observes the procedure of Court Marriage for any marriage under
the said Act. The various provisions of the Act in said regard are:
Prerequisites for valid Marriage
Section 4 of the Special Marriage Act, 1954 addresses the numerous
requirements for a lawful marriage. It specifies four basic requirements for
a legitimate marriage. These are:
1. No living spouse: The Act mandates that at the time of marriage,
neither party should have a living spouse. Hence, their first marriage
has to get revoked either through divorce or spouse’s death or any other
manner that ends the marriage. Each party involved should have no
other subsisting valid marriage. In other words, the resulting marriage
should be monogamous for both parties. It forbids polygamy and
declares a marriage null and void if neither party had a spouse living at
the time of the marriage.
2. Valid Consent: Essentially, the parties should be able to give valid
consent. Neither of them should be of unsound mind or liable to get a
recurring insanity act. Even if not insane, unfit for marriage or inability
to procreate, children render them unfit for the marriage under this
section.
3. The married partners must be in a sound state of mind. The parties must
be able to make their own decisions and be sane at the moment of
marriage. The parties should be competent in regard to their mental
capacity to the extent that they are able to give valid consent for the
marriage.
4. Age: Any male who is 21 years of age or female who is 18 could marry
as per the Act. Both parties to the marriage must have reached the legal
 age of majority. The female party must be at least eighteen years old at
the time of marriage application, and the male party must be at least
twenty-one years old.
5. The parties going into marriage should not be in close proximity to one
another and should not be in a forbidden connection with each other.
The parties should not fall within the degree of prohibited relationship.
6. Fall within degrees of Prohibited Relationship
The parties must not fall within prohibited relationships degrees. Where
the custom allows such marriage, the act would not bar it. Any couple
wishing to avail the fruits of this Act is required to issue a notice in
writing to the “Marriage Officer” of the district where at least one of the
parties to the marriage has been residing for the last thirty days. The
marriage is generally scheduled within three months from the date of issue
of notice. The notice so received will be published in the office of the
Marriage Officer by displaying it in a conspicuous place. A copy of the
same must also be attached to a “Marriage Notice Book,” which could be
inspected by anyone.
Any objections to the marriage, with respect to age, capacity to consent,
incest, etc, may be addressed to the Marriage Officer within 30 days of the
publication of the notice. In case of any objections, the Marriage Officer is
mandated to conduct an inquiry into its validity within a window of 30
days, during which the marriage cannot be solemnized. If the Marriage
Officer discovers that the objection is valid and decides against the
marriage of the concerned parties, the bride or groom may appeal to the
district court within thirty days of such refusal. If all the concerned
objections are dealt with, the bride, groom, and any three witnesses need
to sign a declaration in the presence of the Marriage Officer, who would
then countersign it. In the absence of any objections, the marriage will be
solemnized upon the cessation of the objection period.
Power of Enquiry
In receiving an objection, marriage officers are granted the following
rights:
1. Summoning and enforcing witnesses’ attendance.
2. Examining the witnesses on oath.
 3. Demanding documents to produce.
4. Demanding the evidence on affidavits.
5. Issue of commissions for the witness scrutiny.

Registration of marriage
Registration of Marriage under the Special Marriage Act in India
In India, all marriages can be registered either under their respective
personal laws (Hindu Marriage Act, 1955/Muslim Marriage Act, 1954) or
under the Special Marriage Act, 1954. A marriage under the Special
Marriage Act, 1954 enables people from two distinct religious
backgrounds to unite in the marriage bond. Unlike personal laws, the
Special Marriage Act’s applicability extends to all Indian citizens
regardless of their religion. Although marriage laws allow only the
registration of an already solemnized marriage under personal laws, the
Special Marriage Act provides for both solemnizations and legal
registration. The Special Marriage Act has designed a simple means of
legally registering a marriage between two people of different religions,
but even if both the concerned parties belong to the same religion, they
may choose to register the marriage under this Act. This is a step-by-step
procedure to apply in India for a Special Marriage Act.
Step-1: Eligibility Check
A marriage between any two persons will be solemnized in this Act under
Section 4, if at the time of the marriage the following conditions are
fulfilled:-
 Neither party has a living spouse;

 Neither party is of unsound mind or is suffering from mental disorder

which makes him unfit for marriage and procreation of children or

has been subject to recurrent attacks of insanity.
 The male has completed the age of 21 years and the female the age of

18 years; and
 The parties are not within the degrees of prohibited relationship.

Registration is required for Valid Marriage

 The procedure of registration begins when the pirates submit the duly

signed application to the Marriage Officer.

  He then releases a public notice after thirty days.
 Any objections to such a marriage shall get heard within these thirty
days.
 After that, fulfilling all the necessary conditions of section 15, he
might enter the certificate of the marriage in the Marriage
Certificate Book in the prescribed manner.
 Then this certificate should be signed by the parties to the marriage
and any three witnesses.

All the given eligibility criteria should meet before applying for the
Special Marriage Act:
1. Both the intending parties must be Indian citizens.
2. At the time of the marriage, neither of the parties must have a living
spouse. Where either or both of the parties have been involved in an
earlier marriage, it is essential that the earlier marriage is dissolved
legally before applying under this Act.
3. Both parties must be in a position to grant free and full consent to the
marriage.
4. The intending parties shall adhere to the age limit laid down in this
Act. At the time of applying for marriage, the female should be at
least eighteen years old, and the male must have completed the age of
twenty-one.
5. The Act prohibits marriage solemnization if the intending parties fall
within the degree of prohibited relationships as per the customs
governing any of the parties. The degrees of prohibited relationship
vary from custom to custom. The Act’s First Schedule provides for a
comprehensive list of relationships that may be considered
prohibited. However, the rule is that it may be solemnized if a custom
governing at least one of the parties allows marriage as intended.
Step-2: Reach out to the concerned Marriage Officer
The district jurisdiction may be invoked in which either of the two parties
has a permanent residence (must live there for at least 30 days prior to the
notice being submitted). To apply, reach the chosen district marriage
officer (either the intending husband or the intending wife resides). The
application should be written in accordance with the format set out in the
Second Schedule.
Step-3: Public Notice and Objections
Once such an application has been received by the marriage officer, duly
signed by both parties, the officer shall then issue a thirty-day public
notice to raise objections to the intended marriage if any. The objections
generally relate to non-compliance with the conditions referred to in
Section 4 of the Act (also referred to in Step 1). If the conditions are duly
met and no such objections are raised, a marriage certificate should be
entered in the Marriage Certificate Book. Here, both the intending parties
and the witnesses are required to sign.
The marriage under this Act can be said to be duly solemnized and
registered after having completed all of the above steps. Please note that
you may also need certain documents along with three witnesses on the
day of solemnization. An illustrative list has been provided here:
1. Proof of Age
2. Address Proof
3. Affidavit with regard to Marital Status
4. Non-Relationship between the parties within the degree of
prohibition.
5. Passport size Photos.
Notice of Proposed Marriage
Any couple wishing to make use of the fruits of this Act is required to
issue a written notice to the district’s “Marriage Officer” where for the last
thirty days at least one of the parties to the marriage has resided. The
marriage is usually scheduled to take place within three months from the
date of issue of notice. The notice thus received will be published by
displaying it in a noticeable place in the office of the Marriage Officer. A
copy of the notice must also be attached to a “Marriage Notice Book” that
anyone can inspect.

Consequences of Marriage under the Act as mended upto date,

Section 19. Effect of marriage on member of undivided family.―The
marriage solemnized under this Act of any member of an undivided family
who professes the Hindu, Buddhist, Sikh or Jaina religions shall be
deemed to affect his severance from such family.
Explaination
Imagine a woman named Priya who is a Hindu and part of an undivided
Hindu family. She falls in love with John, who is a Christian. They decide
to get married under The Special Marriage Act, 1954, rather than
undergoing a religious ceremony. By choosing this secular form of
marriage, as per Section 19 of the Act, Priya's marriage to John would
automatically result in her legal separation from the joint family property
and rights. This means that Priya would no longer have a share in the
ancestral property or be a part of the joint Hindu family in the eyes of the
law.
Section 20. Rights and disabilities not affected by Act.―Subject to the
provisions of section 19, any person whose marriage is solemnized under
this Act shall have the same rights and shall be subject to the same
disabilities in regard to the right of succession to any property as a person
to whom the Caste Disabilities Removal Act, 1850 (21 of 1850), applies.
If you get married under the Special Marriage Act of 1954, then, keeping
in mind what is said in Section 19, you have the same rights and
restrictions when it comes to inheriting property as someone who is
covered by the Caste Disabilities Removal Act of 1850.
Explanation using Example
Imagine a couple, Ravi and Mei, who come from different religious
backgrounds. They decide to get married under the Special Marriage Act,
1954, to avoid religious ceremonies and formalities. After their marriage,
Ravi inherits property from his late uncle. In this scenario, due to Section
20 of the Special Marriage Act, Ravi's marriage through this Act does not
affect his rights of succession to the inherited property. He would have the
same rights to the property as he would have had if he had married within
his caste or religion, thanks to the elimination of disabilities pertaining to
caste or religious differences as outlined in the Caste Disabilities Removal
Act, 1850.
Section 21. Succession to property of parties married under Act:
Notwithstanding any restrictions contained in the Indian Succession Act,
1925 (39 of 1925), with respect to its application to members of certain
communities, succession to the property or any person whose marriage is
solemnized under this Act and to the property of the issue of such
marriage shall be regulated by the provisions of the said Act and for the
purposes of this Act shall have effect as if Chapter III of Part V (Special
Rules for Parsi Intestates) had been omitted therefrom.
Even though there are rules in the Indian Succession Act, 1925 that
usually don't apply to certain communities, when it comes to people who
got married under the Special Marriage Act, 1954, these rules will be
used to decide who gets their property when they die without a will. This
also applies to the property of their children from this marriage. It's as if
the special rules for Parsi people who die without a will don't exist for
these cases.
Explanation using Example
Imagine a couple, Ravi and Sophie, who come from different religious
backgrounds. They decide to get married under the Special Marriage Act,
1954, which allows for a civil marriage irrespective of the couple's
religion. After several years of marriage, Ravi passes away without
leaving a will. Normally, succession laws can be specific to different
religious communities, but because their marriage was solemnized under
the Special Marriage Act, the succession to Ravi's property will be
governed by the Indian Succession Act, 1925. This means Sophie and
their children will inherit Ravi's property according to the rules laid out in
the Indian Succession Act, unaffected by the specific religious or
community-based succession laws that would have applied if their
marriage had been conducted under their respective personal laws.

Section 21A. Special provision in certain cases.―Where the marriage is

solemnized under this Act of any person who professes the Hindu,
Buddhist, Sikh or Jaina religion with a person who professes the Hindu,
Buddhist, Sikh or Jaina religion, section 19 and section 21 shall not apply
and so much of section 20 as creates a disability shall also not apply.
Simplified Explanation of Section 21A - Special Marriage Act, 1954:
If two people who both follow Hinduism, Buddhism, Sikhism, or Jainism
get married under this law, certain rules (specifically section 19 and
section 21) do not apply to them. Also, any part of section 20 that might
prevent them from doing something is not applicable either.
Explanation using Example
Imagine Ravi, a Hindu man, decides to marry Priya, a Sikh woman. They
choose to get married under The Special Marriage Act, 1954, which
allows for inter-religious marriages. According to Section 21A of this Act,
because both Ravi and Priya belong to religions that are specified in the
Act (Hindu and Sikh respectively), certain provisions that normally apply
to marriages under this Act are not applicable to them.
For instance, Section 19 deals with the legitimacy of children from certain
marriages and Section 21 deals with penalties for making false
declarations in connection with the requirements for marriage under this
Act. Section 20 imposes disabilities in certain cases. However, because
both individuals are from the religions mentioned in Section 21A, these
sections (19, 21, and part of 20) do not apply to their marriage. This means
that their marriage is free from the disabilities and penalties that might
otherwise affect couples not covered by Section 21A.
Q9. Discuss the concept of legitimacy under Muslim Law. Mention the
conditions of a valid acknowledgment.
Introduction:- Muslim law insist on the existence of a valid marriage
between the begetter and the bearer of the child at the time of its
conception. A person born in lawful wedlock is said to be the legitimate
child of the spouses. The main point in the case of legitimacy of a child is
marriage between its parents. In the case of Habibur Rahman Choudhari
v/s Altaf Alii Choudhary: It was held that the term wife necessarily
connotes marriage, but as marriage may be constituted without any
ceremony the existence of a marriage in any particular case may be an
open question. Direct proof may be available but if there be no such proof
indirect proof may be suffice.
Muslim Law does not recognize the institution of adoption which is
recognized by other systems. Under Hindu Law adoption is intimately
connected with religion having relation to the repose of the souls of the
departed and the preservation of the house hold divinities. Amir Ali
explained that in fuller terms that adoption similar to what was practised in
the ‘Days of Ignorance’ created no such tie between the adopted and the
adopting as resulted from blood relationship.
On the one hand Muslim Law recognizes the institution of ‘iris or
acknowledgment on the other hand it disapproves legitimating.
The doctrine of acknowledgment relates only to cases where either the fact
of marriage itself or the exact time of occurrence with reference to the
legitimacy of the acknowledged child is not proved in the sense of the law
as distinguished from disproved. In a case of Mohammad Khan v/s Ali
Khan-1981.
ESSENTIALS OF LEGITIMACY
When there is a direct proof of marriage or there are circumstances from
which marriage may be presumed the question of acknowledgment of
legitimacy does not arise because in such cases the legitimacy is ‘ipso
facto’ established or presumed to be established.
If there is no such direct proof of legitimacy indirect proof may suffice
and one of the ways of indirect proof is by acknowledgment of legitimacy
by father (not mother) in favour of a son.
In other words the doctrine applies only to cases of uncertainty as to
legitimacy and in such cases acknowledgment has its effect but that effect
always proceeds upon the assumption of a lawful union between the
parents of the acknowledgment child.
In the case of a good acknowledgment of legitimacy the marriage between
the parents of the child acknowledged will be held proved and this
legitimacy established unless the marriage is disproved as held in the case
of Mohammad sadiq v/s Mohammad Hassan- 1943.
In case the marriage between the parents of the child could not be proved
the acknowledgment shall carry no force in the eyes of law. The
acknowledger must acknowledge the child specifically as held in a case of
Haribur Rahman v/s Altaf Ali-1921.
EXPRESS OR IMPLIED ACKNOWLEDGMENT
It is not necessary that an acknowledgment should be express it may also
be implied as was held in the case of Mohammad Amin v/s Valil
Ahmad- 1952: where a person habitually and openly treat another as his
legitimate child this fact may give rise to a valid presumption of
legitimacy.
The acknowledgment may be of son or of daughter but it must be made
the father. The acknowledgment of the child must not be casual. In a case
of Mohabat Ali v/s Mohammad Ibrahim-1929: The father made the
acknowledgment of the child in a casual manner. He never intended that
his acknowledgment should have serious effects. It was held that the act of
the father is not sufficient to confer the status of legitimacy.
Conditions:-
1.When a man expressly or impliedly acknowledges another as his lawful
child the paternity of the child will be established in the man provided the
following conditions are fulfilled:-
a. Intention to Confer Legitimacy: The acknowledgment must be made
in such a way that it shows that the acknowledger is to accept the other
not only as his son but as his legitimate son as held in Habibur Rahman
v/s Altaf Ali-1921.
b. Age of the Acknowledger:- The age of the parties must be such that it
is possible that they may be father and son.
c. Child of Others: - The child so acknowledged must not be known to be
the child of another.
d. Person Acknowledged should confirm acknowledgment:- The child,
if adult, must confirm, or acquiesce in acknowledgment. It is very
important that the acknowledged child should verify acknowledgment.
e. Legal Marriage possible between Parents of the child
acknowledged:- The acknowledger and the mother of the child must
have been lawfully joined in marriage at the time when the child was
begotten. It is essential to show that a lawful marriage is possible
between the acknowledger and child’s mother because the child is not
the fruit of an adulterous intercourse.
f. Competency of the Acknowledger:- The acknowledger must be
competent to make a contract, that is, he should be adult and sane.
g. Offspring of ‘Zina’:- An offspring Zina is one who is born either
without marriage, or of a mother who was the married wife of another,
 or of a void marriage.
h. An acknowledgment once made cannot be revoked:- In a case of
Ashrfod Dowlah v/s Hyder Hussain-1886: It was held that
acknowledgment of paternity is a recognition not simply of son-ship but
of legitimacy as a son.
Rules of legitimating:- depends on the assumption of legitimacy and its
establishment by avoidance of the hypothesis of unlawful relationship
between the parents. Refer the case of Nazibunnissa Bibi-1864.
This rule is based on contractual form of marriage under Muslim Law.
• No ceremony is prescribed for a valid marriage.
• It is also not necessary that the marriage should be published.
• Muslim Law does not recognize western concept of legit effects of
acknowledgmrnt:-Acknowledgment of paternity raises a two-fold
presumption.
B) One in the favour of son-claimant.
C) The other in favour of the wife claimant i.e. mother of the
acknowledge.
D) It produces all the legal effect of natural paternity and vests in the child
right of inheriting from the acknowledger in case of a son.
E) The mother of the acknowledged son gets the status of legal wife and
hence the right of inheritance.

Relevant provisions of the Indian Succession Act, 1925

pertaining to wills and
Key provisions of the Indian Succession Act 1925
The key provisions of the Indian Succession Act 1925 are as follows:
1. Testamentary Succession: The Act provides for testamentary
succession, which means that a person can create a will and distribute
his/her property as per his/her wishes.
2. Intestate Succession: If a person dies without leaving a will, the Act
provides for intestate succession, which means that the property will be
distributed among the legal heirs as per the rules laid down in the Act.
3. Executor: The Act allows a person to appoint an executor who will be
responsible for executing the will and distributing the assets.
4. Probate: The Act provides for probate, which is a legal process that
confirms the validity of the will.
5. Revocation of Will: The Act provides for the revocation of a will,
which means that a person can cancel or revoke his/her will at any time.
A legal declaration of a person’s intention to give his/her property to
another person who may be or may not be a legal heir is called a will. A
will takes effect after the death of a person. It is in a document form. At
the time when the maker is competent to dispose of his property, a will
can be altered or revoked.
The provisions under the Indian Succession Act, 1925 deals with a will
made by any Hindu, Buddhist, Sikh or Jain in India. Muslims are not
bound by this act; disposing of their properties takes place by the Muslim
Law only.
Eligibility to make a will
A person can make his/her will only if he/she is:
 Sound mind

 Not a minor

A deaf and dumb person can make a will only if he/she can understand the
meaning and purpose of a will.
An ordinarily insane person can make a will during that interval of time
when he/she was of sound minds.
Any person, who is not in a state of soundness caused by either illnesses
intoxication or anything, cannot make a will.
Execution of a will
A will can be executed by any person who is not a soldier, and not an
expedition or not engaged in warfare, or not an airman so employed or
engaged, or not a marine at sea.
The process to execute a will
 The maker of the will have to sign the document or fix his mark, or it

can be signed by another person to whom the authority is given, in the

presence and direction of the will-maker.
 The mark or the signature should be placed clearly, as it should show

the intention of the doer to give effect to the writing as a will.

 The will have to be attested by at least two or more witnesses. Each of
the witnesses should be among the people who were present at the time
of signing, making a mark of the will, by either the maker or the person
to whom the authority has been given.
 There is no particular form of attestation of witnesses. But, all the

witnesses will sign the will in the presence of a testator—however, it

not a compulsion for all witnesses to sign and be present at the same
time.
Declaration of a will
Kind of property that can be disposed of by a will
Any kind of movable property can be disposed of by a will.
The beneficiary of a will
Any person can be a devisee of a will, be it a minor, a lunatic, a
corporation, a Hindu deity or any other juristic person.
Restrictions of a will
Certain restrictions have been imposed in the Indian Succession Act, 1925
to make a will. They are:
 Any property of a will-maker cannot be transferred to any person by

any particular description, who was not into existence at the time of the
testator’s death. At the time when a bequest (property given by a will) is
made to a particular description, it is a must for him/her to be in
existence at the time of the testator’s death. In a condition, where it does
not happen, the bequest will be void.
It is noteworthy that bequest to a person who was not in existence at the
time of the testator’s death, subjects to a prior transfer of property. As
mentioned, in a condition when the descriptive person does not exist at the
time of testator’s death, the bequest will be void. However, it will not be
void unless the bequest compromises the whole of the remaining interest
of the testator in the thing is bequeathed.
 Another restriction that imposed on a will by the Indian Succession Act,

1925 is that if the bequest is done to create perpetuity. No bequest is

valid whereby the vesting of the thing bequeathed may be delayed
beyond the lifetime of one or more persons living at the testator’s death
and the minority of some person who shall be in existence at the
 expiration of that period, and to whom, if he attains full age, the thing
bequeathed is to belong.
 One more restriction on a bequest by the Indian Succession Act, 1925 is

that any kind of transfer cannot be done to any class of people who
comes under above-described rules.
 Any bequest done after a failure of the bequest done in the way

mentioned in the above restrictions is also restricted in the Indian

Succession Act, 1925.
 Another restriction on a bequest of a property has been imposed if the

effect of the same occurs for the direction of accumulation. If in a will,

it is directed that the income-generating from any kind of property shall
be accumulated, wholly or in part during longer than a period of
eighteen years from the death of the testator, such kind of direction shall
be implied as void to the extent to which the accumulated period is
directed to aforesaid period. Also, at the end of eighteen years period,
the income and the property will be disposed of as if the accumulation
period has been directed to make has elapsed.
However, the restriction will not be applicable to the accumulation is done
for the purpose of:
1. Debt’s payment of the testator or any other person who has been taking
any kind of interest under the will
2. Portion’s provision for children or the testator’s remote issue, any other
person who has been taking any kind of interest under the will
3. The maintenance or preservation of any property that has been
bequeathed and direction is made accordingly. This rule implies that the
accumulation of income obtaining from any property bequeathed has to
come to an end or to be determinable on the beneficiaries, who are
within the perpetuity period attaining vested interests. In case the will’s
direction for accumulation exceeds 18 years, it will make the direction
void, to the extent of 18 years’ period. As per the directions of the will,
the property and the income will be payable at the end of 18 years. This
rule is also not applicable in cases where a will’s direction is for
payment purpose of testator’s debts or of any person taking interest
 under the will, or for any child/children’s raising portion or for
maintaining and preserving and testament’s houses and charities.
Revocation of a will
In these following manners, a will can be revoked:
 Revocation by the execution of a subsequent will

 Revocation by a writing declaration with an intention to withdraw the

will
 Revocation by burning the will papers

 Revocation by tearing the will papers

 Revocation by otherwise destroying the will papers

It is noteworthy that once a will is revoked by any of the means, it will

become non-operational.
Loss of a will
 In case a will is lost, it will be considered to be revoked.

 In case the will was last seen with the testator, and after his/her death,

it could not be found, it will be.

Registration of a will
The registration of a will is not a compulsion. Nevertheless, it is the will of
the testator to get it registered or deposit to the registrar with a sealed
cover. There is no particular time limit given for the registration of a will.

Legacies including probate and letters of administration

LEGACY –DEFINITION: A gift of money or of personal property, title
to which is passed under the terms of a will.
A bequest or gift of goods or chattels by testament. This word, though
properly applicable to bequests of personal estate only, has nevertheless
been extended to property not technicallywithin its import, in order to
effectuate the intention of the testator, so as to include real property and
annuities.
Revise is the term more properly applied to gifts of real
estate. the testator 1s intention, if uncertain, is to be sought, and any words
which manifest the intention to give or create a legacy are sufficient as to
the interest given, legacies may beconsidered as absolute for life, or in
remainder. A legacy is absolute when it is given withoutcondition and is to
vest immediately. A legacy for life is sometimes given with an executory
limitation after the death of thetenant for life to another person in this case,
the tenant for life is entitled to the possession of thelegacy, but when it is
of specific article1s, the first legatee must sign and deliver to the second,
aninventory of the chattels expressing that they are in his custody for life
only and that afterwardsthey are to be delivered and remain to the use and
benefit of the second legatee. A bequest for life, if of specific things, is a
gift of the property. In personal property there cannot be a remainder in
the strict sense of the word andtherefore every future bequest of personal
property, whether it be preceded or not by any particular bequest or
limited on a certain or uncertain event, is an executory bequest and
fallsunder the rules by which that mode of limitation is regulated. An
executory bequest cannot be prevented or destroyed by any alteration
whatsoever, in the estate, out of which or after which it is limited and this
privilege of e xecutory bequests, which e xempts them from being barred
or destroyed, is the foundation of an invariable rule that the event on
which an interest of this sortis permitted to ta&e effect, is such as must
happen within a life and twenty one years. As to the right acquired by the
legatee, legacies may be considered as vested and contingent. Avested
legacy is one by which a certain interest, either present or future in
possession, passes tothe legatee. !. a contingent legacy is one which is so
given to a person, that it is uncertainwhether any interest will ever vest in
him.
A legacy may be lost by abatement, ademption and lapse. When the
legatee dies before thetestator or before the condition upon which the
legacy is given be performed or before the time atwhich it is directed to
vest in interest have arrived, the legacy is lapsed or e/tinguished. As to the
payment of legacies, it is proper to consider out of what fund they are to
be paid at what time and to whom. It is a general rule that the personal
estate is the primary fund for the payment of legacies. When the real estate
is merely charged with those demands, the personalassets are to be applied
in the first place towards their liquidation. When legacies are given
generally to persons under no disability to receive them the payments
ought to be made at the end of a year next after the testator1s decease. The
executor isnot obliged to pay them sooner although the testator may have
directed them to be dischargedwithin six months after his death, because
the law allows the executor one year from the demiseof the testator, to
ascertain and settle his testator’s affairs and it presumes that at the
expiration of that period and not before, all debts due by the estate have
been satisfied and the executor to bethen able, properly, to apply the
residue among the legatees according to their several rights
andinterests. The legacy under an universal title is that by which a testator
bequeaths a certain proportionof the effects of which the law permits him
to dispose e.g., a half, a third, all his immovables or all his movables, or a
fixed proportion of all his immovables or of all his movables. A very
legacy not included in the definition given of universal legacies and
legacies under a universal title is alegacy under a particular title.
KINDS OF LEGACIES
Legacies are of three Kinds (1) General Legacy (2) Specific Legacy (3)
Demonstrative Legacy.
(1) General Legacy
1. General Legacy has not been defined under the Indian Succession Act.
General Legacy is a legacy not of any particular or specific things. It is a
legacy of something which is to be provided out of the general estate of
the testator. General legacy is directed to be paid out of the general funds
of the deceased. Section 148 of the Indian Succession Act providesthat
where property comprised in a bequest to two or more persons in
succession is notspecifically bequeathed, it shall, in the absence of any
direction to the country, be sold, and the proceeds of the sale shall be
invested in such securities as the High court may by any general rule
authorise or direct, and the fund thus constituted shall be enjoyed by the
successive legatees according to the terms of the will.
Illustration
A having a lease for a term of years, bequeaths all his property to B for
life, and after B’s death to C. The lease must be sold, the proceeds
invested as stated in this section and the annual income arising from the
fund is to be paid to B for life. At B’s death the capital of the fund is to be
paid to C.
(2) Specific Legacy
Where a testator bequeaths to any person a specified part of his property,
which is distinguished from all other parts of his property, the legacy is
said to be specific.(Sec.142)
Illustrations (i) A bequeaths to B- "the diamond ring presented to me by
"C "my golden chain".
"all my households goods which shall be in or about my dwelling house in
M. Street in Calcutta, at time of my death"; “my promissory notes of the
Central Government for 10,000 rupees in their 4 per cent loan";
Each of the above legacies is specific. (ii) A, having property at Beneares
and also in other places, bequeaths to B all his property at Beneares. The
legacy is specific.
(3) Demonstrative Legacy:
Where a testator bequeaths a certain sum of money, or a certain quantity
of any other commodity, and refers to a particular fund or stoc& so as to
constitute thesame the primary fund or stoc& out of which payment is to
be made, the legacy is said to bedemonstrative. (Sec.150)
Explanation:- The distinction between a specific legacy and a
demonstrative legacy consists in this, that - Where specified property is
given to the legatee, the legacy is specific. Where the legacy is directed to
be paid out of specified property, it is demonstrative.
Illustrations:
(i) A bequeaths to B 10,000 rupees, being part of a debt due to him from
W. He also bequeaths to C 1,000 rupees to be paid out of the debt due to
him from W. The legacy to B is specific, the legacy to C is demonstrative.
(ii) A bequeaths to B- "ten bushels of the corn which shall grow in my
field of Green Acre"."10,000 rupees out of my five per cent promissory
notes of the Central government".

LAPSING OF A LEGACY:
If the legatee does not survive the testator, the legacy cannot ta&e effect,
but shall lapse and form part of the residue of the testator1s property
unless it appears from the will that the testator intended that it should go to
some other person.In order to entitle the representatives of the legatee to
receive the legacy, it must be proved that he/her (i.e. legatee) survived the
testator. Lapsing of legacy, therefore, is failure of testamentary gift owing
to the death of the legatee before the death of the testator. As the will is
operative fromthe date of the death of the testator, the person who claims
the legacy must be a person who hassurvived the testator.
If a legacy is given to more than one legatee which show that the testator
intended to give themdistinct shares of it, then if any legatee dies before
the testator so much of the legacy as wasintended for him shall fall into the
residue of the testator’s property.
However, where a legacy is given jointly to two persons by way of joint
tenancy on the death of one of them, the surviving legatee will get the
property.
However, to the rule of lapsing there is an important exception where a
bequest has been made toany child or lineal descendant of the testator, and
the lineal descendant of him survives the testator, the bequest shall not
lapse but shall take effect as if the death of the legatee had happened
immediately after the death of the testator, unless a contrary intention
appears from the will.
VESTING OF LEGACIES
Aesting means the Process by which authority, benefit, or privilege, or
rights to or interest in anasset or property, passes unconditionally to a
particular entity and legacy means gift of personal property or money to a
beneficiary (legatee) of a will. While technically, legacy does not include
realproperty (which is a "devise"), legacy usually refers to any gift from
the estate of one who has died. It is synonymous withthe word "bequest"
(will, beneficiary, bequest, legatee).

Probate of will
According to Section 2 of the Indian Succession Act, 1925, Probate means
"the copy of a Will certified under the seal of a court of competent
jurisdiction with a grant of administration of the estate of the testator". It is
nothing but a decree passed by a competent court declaring the
legality/correctness and genuineness of the Will of the deceased.
Probate’ means a copy of a will certified by the court granting the
administration of the property of the testator. In case of Parsi dying after
the commencement of the Act, probate is mandatory, if the will is made or
the immovable property to be devolved under the will is situated within
the jurisdiction of three presidencies; Calcutta, Madras, and Bombay. On
the other hand, a Christian does not need to obtain Probate for his will.
The will alone would suffice.
Necessary to Probate a Will
Under Section 219 of the Indian Succession Act, 1925, if the deceased has
died intestate and was not a person belonging to any of the classes referred
to in Section 218 (i.e, Hindu, Mohammedan, Buddhist, Sikh or Jain or an
exempted person), those who are connected with him either by marriage or
by consanguinity are entitled to obtain Letters of Administration of his
estate and effects in the order and according to the rules framed in this
section.
Under Section 212(2) of the Indian Succession Act, 1925, Hindus,
Muslims, etc. is not bound to apply for letters of administration (Probate).
It is optional and not mandatory for these persons to seek probate of the
Will.
Advantages of a Probated Will
Ans:- Probate of a Will when granted, establishes the genuineness of Will
from the death of the testator and renders valid all intermediate acts of the
Executor as such.
Legal consequences if the Will is not Probated
Ans:- If the Will which is required to be probated, under the Act, if not
probated, has no legal sanctity and binding force.
The time frame within which a Will is to be Probated
Ans:- There is no limitation for grant of letters of administration or
probate. Where the estate is in the possession of administrator there is no
question of the Probate Court delivering the possession to him but the
probate will be decisive only with regard to the genuineness of the Will
propounded and the right of the executor to represent the estate.
He appropriate Court to file the suit for the Probate of a Will
Ans:- Principal Court of Original Jurisdiction as per the local City Civil
Court Act. The High Court also enjoys concurrent jurisdiction to grant
probate of the Will.
Apply for the Probate of a Will
Ans:- According to Section 222 of the Indian Succession Act, 1926,
Probate shall be granted only to an Executor appointed by the Will. The
appointment may be expressed or by necessary implication. In the absence
of the Executor being named in the Will, the Legatees or the Beneficiaries
under the Will could also seek probate of the Will.
Procedure for obtaining a Probate
Ans:- A petition has to be filed before the Principal Court of Original
Jurisdiction or before the Hon'ble High Court under Section 374 of the
Indian Succession Act. The Court in question will issue the court notices
at the initial stage and a paper publication will be caused besides a Gazette
publication as well. In case such a petition is contested, it will be
converted into a regular suit and upon contest the same will be disposed
of, by delivering the judgment and decree, in accordance with law.
Effect of probate:
Probate has the effect of validating all intermediate acts of the executor as
willed by the testator through the Will.
The Delhi High Court reiterated that “on grant of probate Section 227
renders valid all the intermediate acts done by the executor. However, the
intermediary acts are not validated on the grant of letters of
administration.”
Revocation of probates and letter of administration:
The revocation of Will differs from the revocation of probate and letter of
administration. In the revocation of Will, there was no involvement of the
court. However, in revoking probate and letters of administration the
district judge under whose jurisdiction such probate/ letter of
administration falls has the power to pass an order for revocation.
However, if the probate/letter of administration is beyond the limits as
specified in Section 57 of the Act, no district judge can accept the
applications for revocation until and unless the state government vide a
notification authorizes them to do so.
Letters of administration
Letter of Administration is often confused with terms like Probate and
Succession Certificate. Probate in simpler terms is a copy of the will that
is certified by the seal of court. Only the executor nominated in the Will
can apply for probate. A Succession Certificate is issued for the purpose of
movable assets like debts and securities of a deceased person whereas
Letter of Administration grants the right to administer the estate of a
deceased person.
LOA (Letter of Administration) is an official court document issued for
the purpose of giving authority to a person (it is granted) to administer all
the estate of a deceased person. It is issued in case when a person dies
intestate (without leaving a Will). Letter of administration gives legal right
to the person to administer the estate of a deceased person. In cases when
there is not any executor of Will then the beneficiary can apply for a letter
of administration in the court.
For instance, there are three types of people attached with inheritance of
property: one is the estater (Owner of Will), second is executor (who helps
in executing the will), and the third one is a beneficiary.
We first need to understand the situations where a petition for LOA can be
filed. In the later part, we will see the laws governing the same in our
Constitution.
When to Apply?
Under the following circumstances, a request for a Letter of
Administration (LOA) can be made:
1. When there is no Will;
2. When Executor declines or fails to accept executorship within the
prescribed time period;
3. When no executive of the will is appointed in the Will;
4. When executor refuse to act or is legally incapable to do so;
5. When the executor dies prior to administration of the estate.
Where to Apply?
The District Judge, within whose jurisdiction any property, movable or
immovable, is situated or the deceased resided, immediately, before his
death, shall be having the jurisdiction to try and entertain the Petition.
What are the Laws that govern this?
Indian Succession Act 1925 governs all the laws related to letter of
administration and probate in India. Under the Indian Succession Act,
1925:
1. Section 234 deals with the grant of administration in cases where no
executor, nor residuary legatee, nor representative of such legatee exist
or declines, is incapable of acting or cannot be found,then the
beneficiary would have been entitled to file an application for the Letter
of Administration.
2. Section 223 deals with the person to whom probate or letter of
administration cannot be granted. It cannot be granted to a person who
is a minor or is of unsound mind. It cannot be even granted to any
associations of individuals unless it is a company which satisfies the
conditions prescribed in the rules.
3. Section 290 deals with the grant of letters of administration when it
appears to the district judge or district delegate.
4. Section 215 deals with grant of probate or letters of administration in
respect of an estate shall be deemed to supersede any certificate
previously granted under Part X or under the Succession Certificate
Act, 1889 (7 of 1889), or Bombay Regulation No.VIII of 1827, in
respect of any debts or securities included in the estate.
Documents needed for Letter of Administration
While filing the petition for the Letter of Administration, there is certain
documentation needed to attach along with the petition. All those
documents that are required at the time of letter of administration are
stated below:
 Death Certificate of the testator/deceased.

 Aadhar Card of the testator/deceased.

 Ration Card of testator/deceased.

 Original Will in case of letter of administration without Will.

 List of Legal heirs.

 Documentary proof of the properties testator/deceased. If there is Will

then documentary proof of the properties mentioned in the Will.

Procedure for Letter of Administration
After understanding eligibility, documentation, and fee structure for the
letter of administration, you are all set to completely understand its
procedure.However, you already would have noticed its importance and
how many complications it consists of. That’s why to ease your process,
we at Litem provide you with experienced and qualified advocates to
handle your case and provide you with a Letter of Administration with as
much ease as possible.
 Petition for Letter of Administration: The foremost step while filing

a petition is to know about the documentation it requires and have them

with you. We already have discussed the documents you will need
while filing the petition. You just need to attach them along with the
petition. Additionally, the amount of assets that are likely to come in the
petitioner's hand is to be mentioned in the petition as well.
 Court Fees for LOA: Evaluation of property is done in the next step in

the procedure for the grant of a letter of administration. The court fees
depend on the amount/value of assets the court is dealing with. Details
related to the fees for letter of administration are mentioned above in
detail. The estimation of the estate is based on the current market value
of the assets.
 Notification to all Legal Heirs: After receiving the application for a

letter of administration, a notification is sent to all the heirs of the

property, for objections with the grant of letter of administration.
Alternatively the court can issue the notice in the newspaper as well for
any objections related to grant of LOA, if any.
 Grant of Letter of Administration: If no one raises any objection then

the court will approve your petition and the court passes the order in
favor of the petitioner.
Difference between Succession Certificate and Letter of
Administration
Succession Certificate Letter of Administration
Issued by a court to the legal heirs Granted by a court when a person dies
of a deceased person, confirming intestate (without leaving a valid will),
their entitlement to inherit assets authorizing an administrator to
like debts, securities, and other manage and distribute the deceased's
Succession Certificate Letter of Administration
movable properties. estate to rightful heirs.
Issued specifically when there's no
Generally issued when there's no will or when a will exists but doesn't
will or when the will doesn't cover appoint an executor, or when the
all properties. named executor refuses to act or is
incapable.
Covers both movable and immovable
Primarily concerns movable assets
assets, encompassing the entire estate
like bank accounts and securities.
of the deceased.
How to get Letter of Administration in India with Litem?
Rights to the estate of the deceased are granted through probate, letter of
administration, and succession certificate documents. It is through probate
and letters of administration that administrative rights pertaining to a
deceased person's estate are validatedAs compared to the other two
documents, the role of the Succession Certificate is very limited.
Succession Certificates can be used to acquire debts and securities, but
they cannot be used to acquire rights to movable property or assets of
significant value. But filing a petition and acquiring all the documentation
related to the letter of administration should be done accurately. Even a
small mistake can lead to decline or rejection of a petition by the court.
With experienced advocates and lawyers like Litem, this process can be
simplified. All you need to do is just follow these 3 basic and simple steps
to have the letter of administration with you.

i)Lily Thomas V Union of India (2000) 6 SCC 224

Supreme Court of India
PETITIONER: Lily Thomas, Etc. Etc. vs
RESPONDENT: Union Of India & Ors.
Date: 5 April, 2000
FACTS: The case is related to bigamy and conversion to another religion
to solemnize second marriage.
 Sushmita Ghosh filed a petition before the Supreme Court
mentioning about her marriage with Mr. G C Ghosh as per Hindu
 rituals in1984.
 She further stated that her husband said that she should agree to give

him divorce by mutual consent.

 And since Hindu Marriage Act, 1955 does not allow bigamy, he

converted to Islam to re-marry a woman named Ms. Vinita Gupta.

o He also produced a Certificate issued by office of the Shahi Qazi

certifying he had embraced Islam.

 During the period of 2002 and past several years, it became

increasingly common among Hindu males who were unable to

secure a divorce from their first wives to convert to the Muslim
religion specifically for marriage purposes.
o This practice was consistently adopted by those husbands who

erred in embracing Islam for their second marriage.

 However, they subsequently reverted to their original religion under

their original name and religious affiliation to maintain their rights

in properties, continue their services, and conduct all other business.
Issues Involved
 Whether a non-Muslim gets converted to the ‘Muslim’ faith with no

actual change or belief and merely with a view to avoid an earlier

marriage or to enter a second marriage, whether the marriage entered
by him after such conversion would be void?
 Whether the Respondent would be liable for bigamy under Section

494 of IPC?
 Whether it was desirable to have a Uniform Civil Code?

Observation
 The Court said that if a Hindu man converts to another religion just to

marry again without facing legal consequences, it is not an honest

conversion for faith.
 The Court emphasized that changing religion doesn't automatically

end a marriage. If a husband converts to Islam while still married, he

could face legal consequences under 494 of Indian Penal Code,
1860 (IPC).
 Unlike some countries, in India, there's no Uniform Civil Code

(UCC) governing marriages. Instead, people follow their own

 personal laws.
o However, the Court clarified that if someone misuses their

personal law to do something wrong, like marrying again

without proper grounds, that is punishable.
 While considering the question of UCC the court said that in a

diverse country like India, where people follow different religions

and beliefs, the framers of the Constitution faced the challenge of
bringing together individuals from various faiths, castes, genders, and
linguistic backgrounds.
o The directive principles of the Constitution recognize and

respect this diversity, striving to promote unity among people of

different faiths.
o While a uniform law is desirable, enacting it all at once could

potentially harm the nation's unity.

o It would be impractical and incorrect to assume that all laws

must apply uniformly to everyone immediately.

o Instead, laws should evolve over time, addressing specific

problems gradually through the legal process.

Conclusion
 In this case, the Court held in favour of wife and made it illegal to

convert to Islam just to marry someone else while still being married
to the first wife.
Principle/ Ratio Decidendi:
Regarding question (1), it was clearly contended in the appellant’s petition
that the respondent had not really converted to the ‘Muslim’ faith, but had
only feigned conversion to solemnize a second marriage.
Further, it was also stated that though freedom of religion is a matter of
faith, the said freedom cannot be used as a garb for evading other laws
where the spouse becomes a convert to ‘Islam’ to avoid the first marriage.
The respondent does not practice the Muslim rites as prescribed nor has he
changed his name or religion and other official documents, proving that
the said conversion was not a matter of having faith in the Muslim religion
but only to get rid of first marriage.
Since under the Hindu Marriage Act, a bigamous marriage is
prohibited and has been constituted as an offence under Section 17 of
the Act, any marriage solemnized by the husband during the subsistence
of that marriage, despite his conversion to another religion, would be an
offence triable under Section 17 of the Hindu Marriage Act, 1955 read
with Section 494 of IPC.
Any marriage solemnized between two Hindus is said to be void if the
following conditions are satisfied:
i. If the marriage is solemnised after the commencement of the Act,
ii. If at the date of such marriage, either party had a spouse living.
Thus, in view of question (2), if a person contracts a second marriage
during the subsistence of his earlier marriage, such marriage apart from
being void under Section 11 & 17 of the Hindu Marriage Act would
also constitute an offence and that person could be liable to be
prosecuted under Section 494 of IPC.
Reference of the case: Robasa Khanum V. Khodadad Irani was also
drawn wherein the learned Judge held that the conduct of a spouse who
converts to Islam has to be judged based on the rule of justice and right or
equity and good conscience.
If looked at from a second angle, the second marriage of a Hindu husband
after embracing Islam, violate justice, equity, and a good conscience and
would be void as it would render the status of the second wife as that of a
concubine and children born of that wedlock as illegitimate. In addition, it
would also attract Section 494.
The foremost important issue brought by the instant petition was the
implementation of a Uniform Civil Code as envisaged by Article 44 of the
Indian Constitution.
In Maharshi Avadhesh v. Union of India 1994, the Court specifically
declined to issue a writ directing the respondents to consider the question
of enacting a common Civil Code for all citizens of India holding that the
issue rose to be a matter of policy, it was for the Legislature to take
effective steps as the Court cannot legislate.
A uniform law, though, is highly desirable; enactment thereof in one go
perhaps may be counterproductive to the unity and integrity of the nation.
In a democracy governed by the rule of law, it should bring gradually
progressive change and order. Therefore, it would be inexpedient and
incorrect to think that all laws be made uniform in one go, but the process
of law can remedy the mischief or defect which is at stages.
On the question of Uniform Civil Code R.M. Sahai, J. the other Honorable
Judge constituting the Bench suggested some measures which could be
undertaken by the Government to check the abuse of religion by
unscrupulous persons, who under the cloak of conversion were found to be
otherwise guilty of polygamy.
 Section 494 of IPC: Marrying again during lifetime of husband or
wife -
o According to section 494 of Indian penal code, whoever, having a

husband or wife living, marries in any case in which such marriage is

void by reason of its taking place during the life of such husband or
wife, shall be punished with imprisonment of either description for a
term which may extend to seven years, and shall also be liable to fine.
It’s a non-cognizable bailable offence.
 Section 11 of HMA: Void Marriages -

o It says any marriage solemnised after the commencement of this Act

shall be null and void and may, on a petition presented by either party
thereto [against the other party], be so declared by a decree of nullity if
it contravenes any one of the conditions specified in Clauses- (i), (iv)
and (v) of Section 5.
 Section 17 of the HMA -

o Any marriage between two Hindus solemnized after the

commencement of this Act is void if at the date of such marriage either
party had a husband or wife living and the provisions of sections 494
and 495 of the IPC, shall apply accordingly.
Supreme Court Judgment
The Apex Court’s bench consisting of R.P. Sethi and S.S. Ahmed held the
following:
 If a Hindu spouse converts their religion to remarry with no intention to

practice such religion but only to achieve an ulterior motive, then the
 second marriage will be declared void. It is violative of Article 21 of the
Indian constitution.
 The Court held that when a second marriage is contracted by a Hindu

husband after conversion, he does not do so because of his conscience

and that such a conversion is manifestly fraudulent and is feigned in
order to achieve an ulterior motive (which is to contract a second
marriage without getting prosecuted for the same)
 The first marriage does not dissolve merely upon the conversion of the

religion by either party. When the first marriage survives, such a type of
action will result in the offense of bigamy under section 17 of the Hindu
Marriage Act. It will invite the provision of sections 494 and 495 of the
Indian Penal Code.
 In India, the marriage is Convened according to the provision of

personal laws applicable to the parties. Hence, it is not feasible to

uniformly codify them and apply the Uniform Civil Code. The wrong
acts conducted under personal law shall always be subject to the
appropriate Penal measures as they could be directed or prescribed by
law.
In summary, the answers provided by the apex court in Lily Thomas Case
to the issues raised are as follows:
 There has been no violation of the fundamental rights under Article 21

of the constitution in this case.

 Mr. Gosh’s religious conversion is not in accordance with Muslim Law.

 The second marriage conducted by Mr. Gosh is considered void under

Section 11 of the Hindu Marriage Act because Mr. Gosh did not adhere
to the requirements of Muslim Law.
 Sections 494 and 495 of the Indian Penal Code (Code 45 of 1860)

mentioned in Section 17 of the Hindu Marriage Act, 1955, are

applicable.
ii)Sarla Mudgal V Union of India AIR 1995 SC 1531
 PETITIONER: Smt. Sarla Mudgal, President, Kalyani & Ors. Vs.
RESPONDENT: Union Of India & Ors.
DATE OF JUDGMENT10/05/1995
BENCH: Kuldip Singh (J), R.M. Sahai (J)
INTRODUCTION TO THE CASE
This case study deals with one of the landmark judgments in the field of
family law. This case study tries to answer the questions which were
prevalent in the late 20th century. The questions were that-
a. Whether a Hindu husband, married under Hindu law, by embracing
Islam, can solemnize a second marriage?
b. Whether such marriage is a valid marriage even though the first
marriage is not dissolved?
c. Whether such husband is guilty under Section 494 of the Indian Penal
Code (IPC)?
All these questions were answered by the Hon’ble Supreme Court in the
landmark judgment of Sarla Mudgal in 1995 and this paper will travel
through all the aspects related to that case.
FACTS OF THE CASE
1. Four writ petitions were filed before the Hon’ble Supreme Court of
India under Article 32 of the Constitution of India.
2. There were two petitioners in a single writ petition and one petitioner
each in rest of the three petitions.
3. The first petitioner was the Smt. Sarla Mudgal (P1) who was the
‘President of Kalyani’, an organization which works for the welfare of the
distress women.
4. The second petitioner was Meera Mathur (P2) who married to Jitendra
Mathur. They had three children. In 1988, petitioner’s husband married to
Sunita Narula @ Fathima by embracing the Islam and they had one child.
5. The third petitioner was the Sunita Narula @ Fathima (P3) who alleged
that her husband under the influence of his first wife re-converted himself
back to Hinduism but she continues to be Muslim and her husband refused
to maintain her and she had also no protection under either of the personal
laws.
6. The fourth petitioner was the Geeta Rani (P4) who alleged that her
husband, Pradeep Kumar, ran with one Deepa and after converting to
Islam married her.
7. The fifth petitioner was the Sushmita Ghosh (P5) who was married to
G.C. Ghosh. In 1992, her husband told her that he did not want to live
with her and he also embraced Islam and going to married with one Vinita
Gupta.
8. All of them filed the writ petition before the Hon’ble Supreme Court of
India for seeking relief in their matters.
ISSUES RAISED IN THE CASE
There were basically three issues raised before the Hon’ble Supreme Court
of India.
a) Whether a Hindu husband, married under Hindu law, by embracing
Islam, can solemnize second marriage?
b) Whether such a marriage without having the first marriage dissolved
under the law, would be a valid marriage qua the first wife continues to be
Hindu?
c) Whether the apostate husband would be guilty of the offence under
section 494 of the Indian Penal Code?
JUGDMENT OF THE CASE
The judgment of the case was delivered by the Hon’ble Justice Kuldeep
Singh while the Hon’ble Justice R.M. Sahai delivered a concurring
judgment.
1. The Hon’ble Supreme Court dealing with the first issue referred to the
doctrine of indissolubility of the marriage. The Court stated that the
conversion to another religion by one or both the Hindu spouses did not
dissolve the first marriage. The Court held that the marriage celebrated
under a particular statute and according to one personal law cannot be
dissolved according to another personal law, simply because one of the
parties changed his or her religion.
The Hon’ble Supreme Court of India held that a Hindu husband married
under Hindu law, by embracing Islam, can’t solemnize second marriage.
Parties who have solemnized the marriage under the Act remain married
even when the husband embraces Islam in pursuit of another wife. A
second marriage by an apostate under the shelter of conversion to Islam
would nevertheless be a marriage in violation of the provisions of the Act
by which he would be continuing to be governed so far as his first
marriage under the Act is concerned despite his conversion to Islam. The
second marriage of an apostate would, therefore, be illegal marriage qua
his wife who married him under the Act and continues to be a Hindu
2. The Hon’ble Supreme Court of India while dealing with the second
issue refer to the Section 15 of the Hindu Marriage Act, 1955.
15. Divorced persons when may marry again. - When a marriage has been
dissolved by a decree of divorce and either there is no right of appeal
against the decree or, if there is such a right of appeal, the time for
appealing has expired without an appeal having been presented, or an
appeal has been presented but has been dismissed, it shall be lawful for
either party to the marriage to marry again.
The Court held that a Hindu can marry again when his or her first
marriage is dissolved by the decree of divorce in accordance with the
provision contained in the Act. In all of the above writ petition, the
husband of all the petitioner solemnized the second marriage by
embracing Islam while their first marriage is not dissolved as the decree of
divorce is not granted.
The Court answering the second issue held that a Hindu marriage
solemnized under the Act can only be dissolved on any of the grounds
specified under the Act. Till the time a Hindu marriage is dissolved under
the Act none of the spouses can contract second marriage. Conversion to
Islam and marrying again would not, by itself, dissolve the Hindu
marriage under the Act. The second marriage by a convert would therefore
be in violation of the Act and as such void in terms of Section 494, IPC.
Any act which is in violation of mandatory provisions of law is per-se
void.
3. The Hon’ble Court while answering the third issue referred to the
provision of Section 494 of the Indian Penal Code
494. Marrying again during lifetime of husband or wife. — Whoever,
having a husband or wife living, marries in any case in which such
marriage is void by reason of its taking place during the life of such
husband or wife, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be
liable to fine.
There are four ingredients in the offence of bigamy provided under
Section 494 of the IPC-
1. Has a husband or wife living
2. Marries again
3. Second marriage is void
4. The reason of voidness is that because its takes place during the life of
such husband or wife
The Court held that all the four ingredients of Section 494 IPC are
satisfied in the case of a Hindu husband who marries for the second time
after conversion to Islam. He has a wife living, he marries again. The said
marriage is void by reason of its taking place during the life of the first
wife. The apostate husband shall be guilty of offence under Section. 494
of the IPC.
ORDER OF COURT
The Hon’ble Court ordered that though the answers to the issues are given
in separate but concurring judgment the writ petitions are allowed in terms
of the answers to the issue posed in the opinion of Hon’ble Justice
Kuldeep Singh.
The Court allowed the petitioners to seek any remedy available to them by
virtue of this judgment.
Analysis of the Judgment
The Supreme Court of India in Sarla Mudgal V. Union of India has
rightly stated that the apostate husband is not allowed to marry another
woman without dissolving his first marriage. The first marriage is
solemnized under a particular personal law, and solemnizing the second
marriage without dissolving the first marriage violates the rights of the
partner who continues to believe in the same religion and is reluctant to
change one's religious faith.
It is also against natural justice because it allows a married person who
wants to desert his spouse to circumvent the provision of section 494 of
the Indian Penal Code. If one of the spouses embraces Islam and wants to
marry another person after converting their religious faith they need to
dissolve their first marriage according to the procedure established by law.
The Supreme Court of India emphasizes the implementation of the
Uniform Civil Code to deal with matrimonial issues such as divorce, child
adoption, marriage, custody of children, and so on. Implementation of the
Uniform Civil Code (UCC) regulates all personal laws under the ambit of
unified law. No one should be allowed to convert one's religion and
solemnize second marriage during the lifetime of his or her first wife or
husband.
Conclusion
The judgment of this case in its simplest terms puts out the need for the
implementation of Uniform Civil Code given under Article 44 of the
Constitution of India. The Hon’ble Court under para 8 held that till the
time we achieve the goal – Uniform Civil Code for all the citizens of the
India – there is a open inducement to Hindu husband, who wants to enter
into a second marriage while the first marriage is subsisting, to become a
Muslim.
The Court also explained the relationship between Article 44 and Article
25 of the Constitution of India. The Court expressed that the concept of
Article 44 is that there is no necessary connection between religion and
personal law in civilized society. It was held that Article 25 guarantees
religious freedom while Article 44 seeks to divest religion from social
relation and personal laws. The Court also held that the it is judicially
acclaimed in the United States that the practice of polygamy is injurious to
the public morals.
In the concluding words, if the Parliament enacts the Uniform Civil Code
by not violating the basic structure of the Constitution of India, then it will
pave the way for India to be a developed country as well as the largest
economy of the world.

iii)Gurdial Kaur V Mangal Singh AIR 1968 P& H 396

Punjab-Haryana High Court
PETITIONER: Gurdial Kaur vs
RESPONDENT: Mangal Singh on 11 March, 1968
JUDGMENT: Narula, J.
1. One Sadhu son of Bishna, a Jat of village Udha, tehsil Nabha, district
Patiala, an unmarried young man, died on May 5, 1956, leaving behind
land measuring 190 Bighas 16 Biswas in his village. Mangal Singh
defendant-respondent, a distant collateral of the deceased took possession
of the land. Mst. Gurdial Kaur plaintiff-appellant, the widowed mother of
the deceased, filed a suit on March 8, 1958, for possession of the land left
by her ion as his sole heir. In order to invoke the benefits of the Hindu
Succession Act, she claimed that Sadhu had died in June, 1956. But the
parties agree that on account of the concurrent findings of fact recorded by
both the Courts below about the date of Sadhu's death being May 5, 1956
the provisions of Hindu Succession Act would not apply to this case and
the question relating to the estate of the deceased shall have to be decided
according to the usage by which the parties were governed. It is further not
in dispute that according to the said usage the plaintiff-appellant would be
entitled to the estate of her son to the exclusion of the defendant-
respondent if the plaintiff had not remarried. The factum of the usage
governing the parties about a mother losing her right to inherit the estate
of her son on her getting remarried as she does not inherit the estate as the
mother of the deceased, but as the widow of the father of the deceased has
also not been disputed before us.
As a result of contest by the defendant, following five issues were framed
bv the trial Court:--
"1. Whether the parties are governed by custom in matters of marriage and
succession?
2. Whether Sadhu died in June, 1956?
3. Whether the plaintiff has remarried and if so its effect?
4. Whether the principle of res judicata applies to the case and if so its
effect?
5. Relief"
The plaintiff-appellant did not contest the first issue. The trial Court by its
judgment, dated July 31, 1959, accordingly held that the parties were
governed by custom in matters of marriage and succession, that Sadhu had
died on May 5, 1956, and not In June, 1956, that the evidence led by the
parties did not prove that the plaintiff had remarried, and that no evidence
was produced to support the plea of res judicata. As a result of the above
said findings, the suit of the plaintiff-appellant was decreed with costs.
The only question that was argued in the defendant's first appeal before
the District Judge, Patiala, related to issue No. 3.
Shri H. S. Bhandari the learned District Judge by his judgment, dated
December 14, 1959, reversed the finding of the trial Court on that issue
and held that the documentary and oral evidence produced on the record
conclusively established that the plaintiff-appellant had remarried one
Jnder Singh, and that, therefore, according to the admitted custom which
governed the rights of the parties, she had lost all claims to succeed to her
son in respect of the property in dispute. In view of his said finding, the
learned District Judge accepted the defendant's appeal set aside the order
of the trial Court, and dismissed the plaintiff's suit with costs throughout.
2. In this regular second appeal Mr. M. R. Sharma, the learned counsel for
the plaintiff-appellant has firstly contested the finding of the trial Court on
issue No. 3. He concedes that prima facie the subject-matter of the issue
relates to a pure question of fact and that normally he would not be
entitled to question the finding of the first appellate Court on such a point.
He has, however, contended that in the absence of any definite evidence of
Karewa. the learned District Judge could not have held the marriage to be
proved as the living of the plaintiff-appellant with Inder Singh should be
consistent with her leading an unchaste life and not necessarily with
marriage with Inder Singh, and that in case of mere unchastity she was not
liable to be disinherited. Not only was no such plea taken in any of the
Courts below and not only would such a plea be inconsistent with the
stand taken by the plaintiff-appellant in both the Courts below denying her
living with Inder Singh and denying having had any children from Inder
Singh, but in fact this plea is unsustainable on the evidence on record
through which we have been carefully taken by the learned counsel for
both sides.
It has been proved from the evidence on record of this case that Waryam
Singh and Inder Singh were real brothers, that Waryam Singh was married
to one Tejo, that Gurdial Kaur plaintiff who was the real sister of Tejo had
been living with Inder Singh for more than 15 years, that Waryam Singh
and Inder Singh were living separately, and that Inder Singh had at least
one son from the plaintiff whose birth entry Exhibit D. E. has been duly
proved. Some half-hearted attempt -vas made by Mr. Sharma to argue that
prope; mode of proof of Exhibit D. E., was not adopted in the trial Court.
He soon realised that no such argument was open to him in view of the
[act that no objection to Exhibit D. E.. being tendered in evidence had
been taken on behali of his client in the trial Court. The parentage of Inder
Singh has been given in the entry Puran Lam-bardar at whose instance the
entry purports to have been made in the police station has himself
appeared ai a witness and has deposed to the relevant facts. His testimony
has not been shaken in cross-examination in any manner, Mst. Gurdial
Kaur was living with Inder Singh in village Khurrana at a substantial
distance from village Udha. The name of Mst. Gurdial Kaur is also entered
in the voters list Exhibit D. D., against the house in which Inder Singh was
living and she is shown therein as the wife of Inder Singh.
Exhibit D. F., the report of the process-server dated April 9, 1958, on
summons issued to Mst. Gurdial Kaur at Inder Singh's address in village
Khurrana about her having refused to accept service of the summons, is
also significant. Besides the oral evidence led by the defendant in support
of his plea about the plaintiff's remarriage which is cogent and consistent
and which has been rightly believed by the Court below, it is significant
that neither Inder Singh nor Gurdial Kaur plaintiff herself dared to enter
the witness-box and to deny that they were living as husband and wife or
that they were married or that they had children from each other. Even
Mst. Gurdial Kaur's lister Tejo or her husband Waryam Singh has not been
produced. The Court below was correct in inferring from the above facts
and other evidence on record that there was nothing to rebut the legal
presumption in favour of marriage when a man and a woman have been
proved to have been living together continuously for a number of years
and having cohabited and got children. In this view of me matter it is
impossible to disturb the pure finding of fact recorded by the learned
District Judge on issue No. 3.
The law laid down by a Full Bench of the Lahore High Court in
Mussammat Desi v. Lehna Singh, 46 PR 1891 (page 246), to the effect
that a mother was not entitled to succeed according to custom as a mother
but only as the widow of the father of the deceased, and that according to
custom she is no longer the widow of the father of the deceased if she has
remarried, and has, therefore, no title to the estate of her son against the
reversioners, has all along been followed by the Lahore High Court and
subsequently by this Court, and no Judgment to the contrary has been
brought to our notice. Nor has Mr. Sharma been able to contest the
correctness of this decision.
3. Mr. Sharma then submitted that he should be permitted to argue a new
ground of appeal which raises a pure question of law. This relates to
questioning the validity, legality and enforceability of the custom in
question on the ground that the usage based on the said custom is violative
of Article 15 of the Constitution. Tn view of the law laid down by their
Lordships of the Supreme Court in Yeshwant Deorao v. Walchand
Ramchand, AIB 1951 SC 16, and M. K. Ranganathan v. Government of
Madras, AIR 1955 SC 604, we permitted Mr. Sharma to argue this new
point though it was neither raised by him in any of the Courts below nor
raised even in the grounds of this second appeal.
4. The argument of the plaintiff-appellant is that usage is as good as a
statutory law as both have been equated in the definition of "law"
contained in Article 13(3)(a) of the Constitution, and that in so far as the
usage in question discriminates against fate as compared to other Hindus
governed by their personal law, the usage discriminates merely on the g
round of caste or race; and in so far as this law disinherits a mother on
remarriage as compared with a father who continues to be an heir of the
estate of his predeceased son in spite of remarrying, it discriminates
against females merely on the ground of sex; and that on both these
counts, the fundamental rights of the plaintiff-appellant guaranteed to her
under Article 15 of the Constitution have been violated.
The argument appears to be wholly misconceived. According to the
provisions of Section 5 of the Punjab Laws Act (4 of 1872) in questions
regarding succession, marriage etc., the rule of decision has to be custom
applicable to the parties concerned only if the custom is not contrary to
justice, equity and good conscience, and if the same has not been altered
or abolished by statute or not declared void by any competent authority.
The law based on the custom in question has no doubt been abolished after
the coming into force of the Hindu Succession Act, but as already
observed, succession in the instant case having opened before the Act
came into force, this case will have to be decided according to custom. It
is not disputed that the custom in question has not been altered or
abolished in any other manner nor has the same been declared to be void
by any competent authority. The law based on the custom in question is,
therefore, pre-Constitu-tion law.
Article 13(2) of the Constitution prohibits only the State from making any
laws which take away or abridge the rights conferred by Part III of the
Constitution. Mr. Sharma submitted that though the law based on the
custom in question has not been made by the State, judiciary is a part of
the State according to the decision of the Supreme Court in Jayanti-lal
Amratlal Shodhan v. F N. Rana, AIR 1964 SC 648, and that, therefore, the
judgment of the learned District Judge is liable to be set aside as it has
given effect to a law which contravenes Article 15. This argument is
wholly fallacious as the definition of "the State" in Article 12 of the
Constitution does not include a Court of law If the argument ot
discrimination based on caste or race could be valid, it would be
impossible to have different personal laws in this country, and the Court
will have to go to the length of holding that only one uniform Code of
laws relating to all matters covering all castes, creeds and communities
can be constitutional. To suggest such an argument is to reject it. Nor is
there anything in the alleged discrimination on the ground of sex because
rights of succession varying between different heirs belonging to different
sexes have to be determined according to the personal law or the usages
by which a party is governed and it ts too much to suggest that all heirs
belonging to any sex must have the same rights of inheritance. We have,
therefore, no hesitation in rejecting this ingenious argument of Mr. Sharma
and in holding that the usage in question does not infringe Article 15 of
the Constitution.
5. The last submission of Mr. Sharma was that no custom can be enforced
if it is contrary to some statute or contrary to public policy. There is no
quarrel with this proposition of law, but when asked to show in whal
manner the custom in question was opposed to public policy, Mr. Sharma
was again driven to his philosophy of the usage in question being violative
of Article 15 of the Constitution. That argument has already been rejected
by us. He then referred to the judgment of a Division Bench of the Lahore
High Court in Fateh All Shah v. Muhammad Bakhsh, AIR 1928 Lah 516,
and argued that as the Lahore High Court has held in that case that a
custom among the prostitutes that if one of them contracts a marriage she
forfeits all rights in her original family, was held to be opposed to public
policy and immoral and consequently unenforceable, we should hold that
the custom disinheriting a mother on remarriage is also opposed to public
policy. It is a matter of regret that the learned counsel has thought it fit to
equate the position of a mother to that of a prostitute There is no analogy
between the two usages, and whereas it may be abhorrent to judicial sense
that a prostitute should be penalised for giving up her profession and
starting a married life, it is certainly not so in the case of a widowed
mother remarrying. Moreover, as already observed, the usage in question
was recognised as a valid one as long ago as in 1891 and has stood the test
of time ever thereafter. We do not, therefore, find any force even in this
argument of Mr. Sharma.
6. No other point having been argued before us in this case, the appeal
falls and is dismissed though without any order as to costs.
Mehar Singh, C.J.
7. I agree.