Chanderprabhu Jain College of Higher Studies & School of Law

Plot No. OCF, Sector A-8, Narela, New Delhi – 110040

(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

Semester:
Semester: BALLB/BBALLB
BALLB/BBALLB 33rdrd SEM
SEM

Name
Name of
of the
the Subject:
Subject: Family
Family Law-I
Law-I
Unit-II
Unit-II

FACULTY NAME: Mr. Raman Bhardwaj

Assistant Professor (Law)
 Introduction

In India, Muslim personal laws are governed by the Shariat Law (by the
provision of the Quran and the teachings of Prophet Mohammad) due to
Art. 25 of the Constitution of India which incorporates the Right to
Religion. While most Islamic countries in the world have chosen to modify
and incorporate a modernized version of the Shariyat laws, India is still
battling to do the same in the personal law governing marriage, divorce,
inheritance, maintenance, etc.
Personal laws are those which have been witnessed to be beyond the
concept of the legislature, as they are very much identified with religion,
customs or their beliefs.
Shariat is law in the wider sense which means the totality of Allah’s
commandment. Each of such commandments are called Hukum. It is the
doctrine of duties. Thus the Shariat is totalitarian; human activity is
embraced in its sovereign domain.
Who is a Muslim:

• Muslims are people who follow or practice Islam, Quran, their holy book,
to be the verbatim, (word of God), revealed to the Islamic prophet and
messenger Muhammad. The majority of Muslims also follows the
teachings and practices of Muhammad (sunnah) as recorded in traditional
accounts. (hadith) "Muslim" is an Arabic word meaning "submitter" (to
God).
• Muslim law in India means “that portion of Islamic Civil Law which is
applied to Muslims as a personal law”. It consists of the injunctions of the
Quran, of the traditions introduced by the ‘practice’ of the Prophet of the
common opinion of the jurists of the analogical deductions of these three
(Qiyas) and of the pre Islamic customs not abrogated by the Prophet
Mohammed.
• The Shariat Act,1937
This is the most important enactment dealing with the application of
Muslim Law.It is applicable to every Muslim regardless of the school he
belongs to.

• Sources Of Muslim Law

It may be divided into two categories:
• The Primary ( Shariah) Sources- These are those which the prophet
himself directed to be the sources of Law.
These are (i) The Quran, (ii) Sunnah or Hadith, (iii) Ijma and (iv) Qiyas

• The Secondary Sources- These are those sources which are

developments on the foundation laid down by the primary sources.
These are (i) Customs(Urf), (ii) Judicial Precedents, (iii) Legislation and
(iv) Justice, equity and Good Conscience.
 Primary Sources

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 word Quran which is the a 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.
2. Sunnat

• The word sunna means the trodden path & as this meaning shows it

denotes some kind of practices and precedent. It is belief of Muslim that
revelations were two kinds- manifest (zahir) and internal (batin). 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.
3. Ijma

• It means the consensus of the companions and followers of the Prophet.

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.
4) Qiyas

• This is a last primary source of Muslim law. Qiyas means reasoning by

analogy from above 3 sources i.e., Quran, Sunna and Ijma. In Qiyas rules
are deduced by the exercise of reason.
• Qiyas may be defined as a process of deduction by which the law of the
text is applied to cases, which though not covered by the languages are
governed by reason of text. Thus, it should be noted that Qiyas does not
purport to create a new law, but merely to apply old established principles
to new circumstances.
Secondary Sources
• Customs
• Judicial Decisions
• Legislations
• Justice, Equity and Good Conscience
 Schools of Muslim Law
During the lifetime of Prophet Mohammed, there were no schools of
Muslim Law and the Principles of Muslim Law were uniform at that time.
After the death of the Prophet Mohammed, the question of succession to
prophet arose. There were two conflicting views/opinions among Arabs.
One group supported election method/principle, while the other group
supported the principle of inheritance. According to the first view (i.e.,
election method) , the successor to Prophet Mohammed should be elected
by the Muslim Community. The other view (i.e., the principle of
inheritance) the legal heir of the Prophet Mohammed should succeed. The
members of the first group, who supported the Election principle/method
came to be known as ‘Sunnis’. While the other group, who supported the
principle of inheritance came to be known as ‘Shias’.
Thus, there are two main Schools of Muslim Law namely –i) Sunni
School, and ii) Shia School. Both sects are subdivided into various schools.
• The Sunni Schools were developed during the reign of the Abbadids.
They are sub-divided into four as stated below;
i) Hanafi School;
ii) The Maliki School;
iii) Shafei School; and
iv) Hanabali School

• Imam Jafar as Sadik, the Sixth Imam of Imamias founded the Shia School
and hence, the Shia School is earlier than the Sunni School). After the
Sunnis, the Shias consist of the next largest group of Muslims in India. The
Shias do no accept any tradition. According to them, the Imam is the final
interpreter of the law. The Shia Schools are sub-divided into three as
follows:
• i) The Ismailias
• ii) Athna Asharias or Immamia; and
• iii) The Zaidia.
 Nikah (Muslim Marriage)

• The Arabic word ‘Nikah’ (marriage) means “the union of sexes” and in law,
this means “marriage”. The term Nikah has been used for marriage under
Muslim law. ‘Nikah’ literally means, “to tie up together”. It implies a
particular contract for the purpose of legalizing generation. Nikah in its
primitive sense means carnal conjugation. It is a matrimonial contract as well
as an institution that gives the women a particular and high status in the
society. Nikah was to ensure stability in married life as it bound both the
partners together for an indefinite period and also required the woman to be
honoured with the Mahr.

• Hedaya : - Marriage is a legal process by which the several process and

procreation and legitimation of children between man and women is perfectly
lawful and valid.
• Abdur Rahim :- The Mohomedan priests regard the institution of marriage as
par taking both the nature of Ibadat or devotional arts and Muamlat or
dealings among men.
• Under Section 2 of Muslim Women (Protection of Rights on Divorce) Act,
1986 Marriage or Nikah among Muslims is a ‘Solemn Pact’ or ‘Mithaq-e-
ghalid’ between a man & a woman.

Muslim Marriage a Civil Contract or Sacramental tie:

According to the Mohommedan law, marriage is a not a Sacrament but a

Civil Contract. All rights and obligations it creates arise immediately, and are
not dependent on any condition precedent such as the payment of dower by
husband to wife.
Marriage according to Muslim law is a contract for the purpose of
legislation for intercourse, procreation of children and regulation of social
life in the interest of society by creating:
• the rights and duties between the parties themselves, and
• between each of them and the children born from union

Justice Mahmood observed:

Marriage among Mohammedans is not a Sacrament, but purely a civil
contract; and though it is solemnized generally with the recitation of
certain verses from the Quran, yet the Mohammedan law doesn’t positively
prescribe any service peculiar to the occasion.
He described that Muslims marriage dependent upon declaration or
proposal of the one and the consent or the acceptance of the other of the
contracting parties.
 Lawfully, a Muslim marriage is considered as a contract; because the
aspects which constitute a marriage and the manner in which it is
completed, is almost similar to that of a civil contract. The contractual
nature of a Muslim marriage is explained on the basis of the following
elements:

• The parties to the marriage also must be competent.

• The marriage is not complete without offer, acceptance and free consent of
the parties or guardians.
• The terms of marriage contract within legal limits may be settled by the
parties themselves.
• Just as there are rules for governing the rights and duties of the parties
upon the breach of a contract, there are also provisions for various rights
and duties of husband and wife on divorce or dissolution of marriage.
 Essentials of a Valid Marriage
• Competency/ Capacity of the Parties:

(a) Age of Puberty

(b) Sound Mind
(c) Muslims
( Refer Ghulam Bibi v. Mohammad Shafi, AIR 1940 Pesh 4)

• Free Consent of Parties:

• No Compulsion, Fraud and Mistake of Fact
• Formalities and Ceremonies are duly Completed-
• Offer(Ijab) and Acceptance (Qabool) must be there.
• Absence of Prohibition and Impediment
 Absence of Prohibition and Impediment
• Absolute Prohibitions: A marriage contracted in violation of any of the
absolute prohibitions is null and void under all the schools of Muslim law.
For a valid marriage, therefore, there must be absence of prohibited
relationship between the parties. There is an absolute prohibition for a
Muslim to marry a person who is within his or her prohibited relationship
if they are related to each other by:
• Affinity( Relation by Marriage):Affinity means nearness. It is created
through marriage. On the basis of affinity one cannot marry with any of the
following relations:
a. his wife’s mother or grandmother how highsoever;
b. his wife’s daughter or granddaughter how lowsoever;
c. the wife of his father or paternal grandfather how highsoever; and
d. the wife of his son, of his son’s son or daughter’s son how lowsoever,
A marriage with a woman prohibited by reason of affinity is void.
• Fosterage: Where a child, under the age of two years, has sucked the milk
of any woman (other than its own mother) such a woman is called the
foster-mother of that child, although there is no blood-relationship between
that woman and the child yet, she is treated as the real mother of that child
for purposes of prohibitions in the marriage.

• Consanguinity ( Relation by blood): Under Consanguinity or blood

relationship, a Muslim cannot marry with any of his or her following
relations:
(a) Ones own descendants or ascendants, how highsoever
(b) Descendants of ones father and mother how lowsoever
(c) Brothers or sisters of ones ascendants how highsoever
 Relative Prohibitions
• Relative prohibitions are those prohibitions the compliance of which is not
mandatory (must) but their presence is deemed to be unjust. Therefore, a
marriage contracted in violation of these prohibitions is merely irregular
but not void. As a matter of fact, these violations of any relative prohibition
in marriage is because of some small irregularity. As soon as that
irregularity is removed, the marriage becomes perfectly valid. Under Shia
law, which does not recognize an irregular marriage, a marriage against
any of these prohibitions is either void or perfectly valid.

The relative prohibitions are given below:

i. Marriage with Fifth Wife:
ii. Marriage without Witnesses
iii. Unlawful conjunctions
iv. Marriage with Non-Muslim
v. Marriage during Iddat
 Miscellaneous Prohibitions

1. Marriage during Pilgrimage

2. Rule of Equality
3. Re-marriage between divorced couple
4. Polyandry

Presumption of Marriage:
Under Muslim Personal law, a marriage can be proved directly or
indirectly evidences. In direct evidences, a marriage has to be proved by
calling witnesses present at the time of marriage or showing the
Nikahnama, whereas in the case of absence of direct evidence, the
marriage may be inferred from circumstances. This is called presumption
of marriage. Presumption of a valid marriage arises even though there is
lack of some formalities of a marriage.
A valid marriage is presumed in the following cases:

• When there is consummation of marriage which is presumed from a valid

retirement.
• When a man acknowledges a child of a woman as his legitimate child, a
presumption of a valid marriage between the man and the mother of the
child arises.
• When a man acknowledges that a woman is his wife.
• When there is a continuous and a prolonged cohabitation of a man and a
woman.
 Classification of Marriage

All the schools of the Sunnis classify marriage into:

• Sahih (Valid)
• Batil(Void)
• Fasid (Irregular)

The Ithna Ashari School of the Shias does not recognize the irregular
marriage; and therefore, among them, marriages are either valid or void

( i) Sahih (Valid) Marriage

Under all the schools of Muslim law, a valid marriage is that which has
been constituted in accordance with the essential conditions prescribed
under the law. That is to say, a marriage is valid only where-
• The parties must be competent;
• The consent must be free;
• There must be proper offer and acceptance according to law
• Proposal and acceptance must have taken place at one meeting and before
two witnesses.

Legal Effects of a Valid Marriage

• Mutual Rights and Obligations between the parties.
• Prohibited degree of relationships would be created between the parties.
• Sexual intercourse and the procreation of child is legalised
• Wife becomes entitled to her Dower

Batil ( Void) Marriage

When a marriage is performed in violation of absolute impediments or
perpetual impediments, the marriage is Batil, null and void and void ab
initio. A void marriage is no marriage and no legal consequences flow from
 it. Neither it confers the status of legitimacy on the children, nor mutual
rights and obligations arise from such marriage. It is called a marriage
because two persons have undergone the necessary formalities of marriage.
But since they totally lack capacity to marry, marriage cannot come into
existence between the two.

Under Shia Law following marriage are Void:

• Marriage in violation of absolute in capacity.
• Marriage with any non-Muslim.
• Marriage with fifth wife.
• Marriage during pilgrimage.
• Marriage with the woman undergoing Iddat.

Case Law:
Chand Patel v. Bismillah Begum, (2008) 4 SCC 774
Fasid ( Irregular or Invalid) Marriage

• In Muslim law, there are some marriages which are not valid but which are
not wholly void. Marriages of this kind are defective or irregular but are
not entirely without any effect. Irregular marriage is one which may be
regularized by certain attempts or which becomes regular (lawful) after
lapse of time.
• Irregular marriages are recognized only under Sunni law. Irregular
marriage is an incomplete marriage. Only the observance of formalities is
the basis of determining whether a marriage is valid or not. It is possible
that in some cases, only minor formalities were not observed. Under such
circumstances, the marriage may not be void but only irregular. The Ithna
Ashari School of Shias does not recognize the irregular form of marriages.
Legal Effects of Irregular Marriage

• Marriage against unlawful Conjunctions.

• Marriage with the fifth wife.
• Marriage without two competent witnesses.
• Marriage with a woman undergoing iddat.
• Marriage with two sisters at the same time.
 Muta Marriage
In Pre-Islamic Arabia, there was a custom whereby the Arab women used
to entertain men in their tents. The man entering the tent had to pay some
consideration as the entrance fees. There were no mutual rights and
obligations between the parties. Any one of them could terminate the union
at any time. The children born out of the union belonged to the woman. In
fact, it was prostitution and nothing else. The practice was found
convenient by the Pre-Islamic Arabs particularly during long travels.
Slowly, this union got some changes and the fixation of the term of union
for some amount to be given to the woman, was made compulsory which
attained the name of Muta. The literal meaning of the Arabic word Muta is
“enjoyment” or “use”. In original Quranic text, Arabic word “Tamtaa
Turn” has been used. “To enjoy” means, in Arabic “istamta-a”. It was also
be regarded as ‘marriage for pleasure’.
It is a kind of temporary marriage recognized in the Ithna Asharis of Shia
School, but according to the Sunnis, such marriages are void
Conditions of Muta Marriage:

• In the contract of Muta, the term and duration denotes a period of

cohabitation. If the period would be specified, the marriage become Muta.
• Dower must be specified.
• If the period of cohabitation is not fixed, but dower is specified, then it will
be regarded as permanent marriage.
• If the term or duration is fixed but dower is not specified, the Muta
marriage will be void.
• The period for which, the Muta is being contracted, must be clearly
specified. It would be for few hours, few days, a few weeks or a few
months or few years.
A Muta without any stated period is to be treated as a permanent marriage.
Even supposing, the word Muta was used, but since the term was not
specified, the marriage was considered as permanent marriage.
Legal Effects of Muta Marriage:

• The cohabitation between the parties lawful.

• The period for which a Muta is contracted, need not commence
immediately from the time when the contract for marriage is concluded.
• The children are legitimate and have rights to inherit in the properties of
both the parents.
• The wife under is not entitled to any maintenance under Shia Law.
• The husband can also terminate the contract after making Zihar.
• The parties may also terminate the contract by mutual consent.
• Muslim wife in a Muta marriage is required to observe Iddat in case of
death of her husband, for a period of four months and ten days. In case of
pregnancy, this period is extended till delivery.
 CONCEPT OF TALAQ UNDER MUSLIM LAW
• Divorce means the legal dissolution of the marital union between a man
and a woman. In India, divorce law and procedures generally varies
depending upon the community to which the couple abelongs. Among
Muslims in Pre-Islam Arabs, the powers of divorce fascinated by the
husband were unlimited. They could divorce their wives at any time, for
any reason or without any reason.

• Talaq is originated from Urdu word and its literal meaning is to ‘release’,
which is used for divorce. Under Muslim law, the divorce is considered to
be the absolute power of husband to obtain or may pronounce it at his
pleasure through express words or implied acts. However, the theory of
divorce in the Islamic world have varied according to time and place.

• The Prophet Mohammad pronounced Talaq to be the most detestable

before God of all permitted things.
 Conditions for a Valid Talaq

1. Capacity - All Muslim husbands of sound mind and attained the age of
puberty is competence to pronounce a Talaq. No guardian can pronounce
Talaq on behalf of the minor husband, Talaq which is pronounced against a
minor or insane wife is void.

2. Free Consent - The consent of the husband pronouncing the Talaq should
be free as per Hanafi law, also Talaq pronounced under coercion, undue
influence, fraud, compulsion and voluntary intoxication etc. is valid and
dissolve the marriage.

3. Express Words - The pronouncement must be expressed, the words of

Talaq must clearly indicate the husband’s intention to dissolve marriage.
4. Formalities of Talaq

Case Laws:
• Shamim Ara v. State of U.P , (2002) 7 SCC 518.
• Masroor Ahmad v. State , (2008) (103) DRJ 137 .
 Kinds of Talaq

Extra Judicial
From the point of view of Mode of pronouncement and effect, there are
two kinds of Talaq:
1. Talaq-ul- Sunnat or revocable Talaq
2. Talaq-ul-Biddat or irrevocable Talaq

Talaq by Husband:

• Talaq-ul-Sunnat - The approved form of Talaq.There is a possibility of

compromise and reconciliation between husband and wife so it is also
called as Talaq-ul-Raje, followed by shia and sunnis and it may be
pronounced either in Ahsan or Hasan form.
1. Talaq Ahsan ( Most Proper)

The most proper form of repudiation of marriage because there is

possibility of revoking the pronouncement before the expiry of the Iddat
period and the evil words of Talaq are to be uttered only once. There is
only a single declaration during the period of purity followed by no
revocation by husband for three successive periods of purity.
In this form, the following formalities are required:

• The Husband has to make a single pronouncement of Talaq during the Tuhr
of the Wife.
• After this pronouncement, Wife has to observe iddat of three monthly
courses.
2. Talaq Hasan ( Proper)

This is also regard as proper and approved form of Talaq, there is also
provision of revocation but it is not the best mode because the evil words
of Talaq are to be pronounced three times in the successive Tuhr/s. The
husband has to make a single declaration of Talaq in a period of Tuhr/s.

3. Talaq-ul- Biddat ( Disapproved)

Biddat means sinfulThis is the disapproved mode of divorce. This

becomes effective as soon as the words are pronounced and there is no
possibility of reconciliation between the parties so it is also called Tlaq-ul-
Bain. This mode of Talaq was introduced by the Omayyad Kings. It is
practice under Sunni Muslims, under Shia law irrevocable Talaq is not
recognized.
 Constructive Divorce (Ila and Zihar)
Besides Talaq, a Muslim Husband can repudiate his marriage by two other
modes Ila and Zehar, though no practical importance as virtually non
existent in India.Under this Husband does not expressly repudiate the
marriage but through his conduct he intends to dissolve the marriage

Ila
Husband takes an oath not to have sexual intercourse with the Wife. After
this oath if for four months no consummation takes place then the marriage
stands as dissolved.

Zihar(Injurious Comparison)
In this the Husbans compares his wife with a woman within his prohibited
relationship.
If for four months then marriage dissolved.
 Divorce at Wife’s Instance

Muslim Wife has no independent right of divorce, she cannot divorce her
husband whenever she likes, as her husband may do. She cannot do so
without her husbands consent or without judicial decree.

• Following are the forms of divorce at the instance of Wife:

a. Talag-e Tafweez( Delegated Divorce)- Where the husband delegates to

the wife the right of Talaq.
b. Where she is a party to divorce by Mutual Consent ( Khula and
Mubarat)
c. Where she wants to dissolve the marriage under the Dissolution of
Muslim Marriage Act, 1939
 Divorce by Mutual Consent ( Khula and Mubarat)
• Khula
In this form wife does not want to continue with marital tie.It literally
means to lay down. Generally the wife offers to give up her claim to
Dower.

• Essentials:
1. Competence of Parties
2. Free Consent
3. Formalities
4. Consideration
• Mubarat
Under this the offer may come either from husband or from wife.
Essential is willingness of both parties to get rid of each other.

• Lian ( False charge of Adultery)

Wife is entitled to sue for divorce on the ground that her husband falsely
charged her with Adultery.

Features of Lian:
1. Husband chardeg with adultery
2. This charge is false
3. Does not ipso fact dissolve marriage
4. She files regular suit for dissolution of marriage
 Judicial divorce (Faskh)
The Dissolution of Muslim Marriage Act
The Act now lays down several other grounds on the basis of any one of
which, a Muslim wife may get her marriage dissolved by an order of the
court. Now according to this Act, a Muslim wife can claim a Judicial
divorce from her husband under any of the following grounds mentioned
u/s 2 of the said Act;
• Failure to perform marital obligations
• Impotency of Husband
• Insanity
• Option of Puberty
• Cruelty; Husband treats wife with cruelty
• Absence of Husband
• Neglected to Maintain
• Other grounds