FAMILY LAW -II – UNIT I

Muslim Law – Prescribed Books

1. Mulla, Principles of Mohammedan law
2. R.K. Sinha- Muslim Law
3. Paras Diwan – Family Law
4. Fyzee, outlines of Mohammedan Law
5. Tahir Mohamood- The Muslim Law of India
MUSLIM LAW
• Muslim law is that branch of civil law which regulates the family matters
of the Muslims.
WHO IS A MUSLIM?
• Muslim is a person whose religion is Islam. ISLAM means “submission to
the will of God”.
• Muslim is a person who has faith in “LA ILAHA ILL ALLAH
MUHAMMADUR RASOOL ULLAH” means there is only one god Allah
and Muhammad is the messenger (Rasool) of Allah”. This is the basic
principle of Islam.
Person may be Muslim either by birth or by conversion.
Person may be Muslim either
1. by birth or
2. by conversion.
Muslim by Birth.
1. Both the parents are Muslims at the time of birth
2. According to Hedaya (Commentary on Quran) - one of the parents must
be Muslims at the time of birth.
3. According to Indian courts - one of the parents must be Muslim and child
must be brought up as a Muslim.
Muslim by Conversion
Any person of any religion who is of sound mind and has attained the age of
majority can become the follower of Islam after renouncing his original religion
who is known as converted Muslim.
Conversion to Islam may take place in two ways:
1. By public declaration that he believes in the principle of Islam (there is
only one god Allah and Muhammad is the messenger (Rasool) of Allah.
2. Through religious ceremonies:
a. Person will go to a mosque.
b. Imam may ask him to read a Kalma and
c. Imam will give him a Muslim name.
• Pre-Islamic Arabian Society
• People were very poor and starvation was common. There was no
settled form of government. Traders and desert nomads (Bedouin)used
stay.
• Tribe was the principal unit. Tribal chief Caliph or Khalifa used to enjoy
greater power. Social structure was peculiar. Most of the customs were
unreasonable and inhuman.
• Examples:
1. To bury alive an unwanted female child.
2. Slaves were treated as property.
3. Girl could be sold and married to anyone. Megian
4. No restriction as to the number of wives and husband had unrestricted
right to divorce.
5. Punishment was deterrent
Prophet Muhammad and Basic Principles of Islam.
Muḥammad ibn ʿAbdullāh
 Born at Mecca at 570 AD. He was a posthumous child
 Father- Abdullah
  Mother – Amina
 Mother died when he was six year old.
 Later brought up by Grandfather Abdul Muttalib and then by uncle Abu
Talib.
 As a boy of 13 he joined his uncle in his business.
 At the age of 25 he was employed by a rich lady Khadijah and later he
married her. Had 2 sons and 4 daughters. Daughter Fatima survived him.
Fatima married to Ali.
 Later he marred other women but no issues. Fourth wife was Ayesha
Begum who was the daughter of his friend Abu Bakr. (13 wives)
• In 610 A.D. in the month was Ramzan when he was meditating in the
cave “HIRA” he heard a voice from Angel Gabriel who was sent to him
by God. He received the first message (Wahi) of God.
• Quran is a collection of all such divine messages revealed to the Prophet
from time to time. There were many topics which were not dealt in
Quran. Such matters were decided by Prophet called Ahadis/Hadith .
• Prophet laid down 5 commandments
1. Kalma
2. Namaz- 5 times prayer in a day
3. Roza- fasting during Ramzan
4. Zakat- alms or aids to poor
5. Haj- pilgrimage to Mecca and Medina
Finding it difficult to preach in Mecca, Prophet left Mecca and went to Medina
in 622 A.D. This journey was taken to be a holy mission Hejarat. From this Hijri
year started and Hejira era begins with Muslim calendar. He died in 632 A.D. in
Medina

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HISTORICAL DEVELOPMENT OF
MUSLIM LAW
1. The First period- 622-632 A.D.
 This period is also called as Legislative period.
 Important laws were laid down either through the words of God or
Prophet’s own words.
o Quran- direct revelations
o Ahadis/Sunna- indirect revelations
• 2. The Second Period- 632-661 A.D.
 This period is also called as Caliphate
 Period of first four caliphs of Islam.
 On the death of prophet dispute arose as to the right to succession.
 Majority of the people agreed to the election and Abu Bakr was elected
as Caliph. They are Sunnis.
 Minority including Fatima separated themselves from majority and Ali
became their Caliph. They are Shias.
The Second Period- 632-661 A.D. (Caliphate)
 Abu Bakr died in 634 A.D. Next Omar became the Caliph and was
assassinated in 644 A.D. Then Next Osman became the Caliph and was
assassinated in 656 A.D. Ali became the fourth Caliph and he was also
assassinated in 661 A.D. they were called as “Khulfai-i-Rashidin” means
rightly guided caliphs.
 The first collection of Quran was made by Zaid during the rule was Abu
Bakr. Osman revised the same.
 Quran and Sunnah were the sources of law during this period.
The Third Period – 661-900 A..D.- introduction to Immamat
 Ali had 2 sons - Hassan  and Husain
 Fourth Caliph Ali’s sons were killed by Muavia of Ommayyad dynasty.
Muavia became the next caliph.
 Office of caliph became hereditary.
 During 750 A.D. Ommayyad dynasty was overthrown by Abbasids made
their capital at Baghdad.
 Formation of different schools of Sunnis and Shias
 Schools of Muslim Law
 Sources of law
1. Quran
2. Sunnah
3. Ijma- consensus opinion of the jurists
4. Qiyas- analogical deduction

The fourth period 900-1924 A.D.

 Abbasids for the first time used the title Imam means the supreme
leader.
 According Sunnis Imam is their leader but he is the servant of law.
  According to Shias he is the supreme law giver. They believe Immamate
descends in the direct male line of the Prophet. They consider Ali as the
first Imam. Acc. to shias Ali to Mehadi Akhiruzzma all 12 are Imams.
Shias are also called as “Twelvers”.

5. The fifth period- 1924 to present

• Muslims were governed by the individual countries according to their
laws- No more Caliph
 Shariat Act 1937 has clarified the application of Muslim law in India.
 Many relevant laws were laid down.
 Dissolution of Muslim Marriages Act. 1939
 Muslim Women (Protection of Rights on Divorce) Act 1986
 Wakf Act
 SOURCES OF MUSLIM LAW
Primary sources or formal sources
1. Quran
2. Sunna
3. Ijma- consensus opinion of the jurists
4. Qiyas- analogical deduction
B. Secondary sources or extraneous sources
1. Customs
2. Legislation
3. Judicial Decisions
4. Justice, equity and good conscience

1. QURAN
Quran is derived from the Arabic word “Qurra” means “the reading” or “that
which ought to be read”. Quran is a collection of all such divine messages
revealed to the Prophet from time to time.
Salient features of Quran
1. Divine origin
2. First and fundamental source of Muslim law
3. Structure- it is in the form of verses or Ayats. 6236 verses or Ayats and
114 Chapters or Suras. Chapters are arranged subject wise.
Eg. Surat-un-nisa, Surat-ul-Bakr
4. Admixture of law, religion and morality.- only 200 Ayats are law making
5. Different forms of legal rules are included.
6. Unchangeable
 7. Incompleteness- 200 verses deals with legal rules out of which 80 verses
deals with personal law.
8. Silence of Quran - On many legal issues Quran is found to be silent.

2. SUNNAH OR AHADIS OR TRADITIONS OF THE PROPHET

 Traditions were delivered in the Prophet’s own language.
 This consists of
o Sunnat-ul-Qaul- words spoken by Prophet
o Sunnat-ul-Fail-conduct of Prophet
o Sunnat-ul-Taqrir- silence of Prophet
•  
 Preaching and precepts could become an authoritative source or Sunna
only when it is narrated by a competent narrator.
 Kinds of narrators
o Companions of the Prophet
o Successors of the Companions
o Successors of the successors
 Kinds of traditions
o Ahadis-i-Mutwatir- universally accepted traditions
o Ahadis-i-Mashoor-Popular traditions
o Ahadis-i-Ahad-Isolated traditions 
 “Kitab-al-Muwatta” of Malik-Ibn-Anas is the first systematic collection of
traditions.
  Aḥmad ibn Ḥanbal has collected 80,000 traditions in his book “Masnad”
 Drawbacks of traditions
1. There are many traditions of doubtful origin
2. Several traditions are contrary to each other
 3. It is difficult to separate religious or moral principles from legal rules
4. When successors of the successors were also died the formation of law
was stopped.

3. IJMA or unanimous decision of the jurists

Quran itself approves of the Ijma:

“O you who believe, obey Allah, and Obey His messenger and those
charged with duty amongst you”
Prophet- Al Sunnah/Hadeeth
“My community shall never agree on an error

• Meaning of Ijma
• Ijma` is the verbal noun of the Arabic word ajma'a, which has two
meanings: to determine, and to agree upon something. 
 When Quran and Sunna could not supply the rule of law for a new
problem then jurist used to agree unanimously and gave their common
opinion over their point.
 Person having knowledge of law are called Mujtahids. Such consensus
opinion or unanimous opinions of the jurists are called Ijma.
 Ijma has laid new principles according to the changing needs of the
society.
 Acc.to Fyzee- “Quran and Sunna look to the past while Ijma deal with the
future of the Islamic jurisprudence”
• Essential Requirements of Ijma`
1. That there are a number of mujtahids available at the time when the
issue is encountered.  (not single).
2. All the mujtahids, regardless of their locality, race, colour and school or
following, must reach a consensus on a juridical opinion at the time an issue
arises. 
3. The agreement of the mujtahids must be demonstrated by their expressed
opinion on a particular issue. This may be verbal or in writing.
  The process of formulating an Ijma is called Ijtihad means exercise of
one’s own reasoning to deduce a new rule of law based on Quran and
Sunna.
 They have to justify their opinions in the light of well established
principles of Quran or Sunna.
 Kinds of Ijma
1. Ijma of the companions of the prophet (Unchangeable)
2. Ijma of the Jurists- Changed
3. Ijma of the people- Changed
 Ijma is an explanation and clarification to the text of Quran and Sunna. It
is flexible and formulated acc.to changing needs of the society
Example of Ijma-
1. Compilation of the Quran: book
2. to Calls for Friday Prayers:
 Defects of Ijma
 Differences in the approach of jurists
 Doubtful regarding the consensus
 Except the Ijma of the companions other two Ijma can be
modified
 It is practically difficult to consult opinion of all the jurists of
Islamic society
 After 10th century no development of Ijma
Finding new law based on Quran and Sunna= Ijma

4. QIYAS or Analogical deduction

 In the Arabic language Qiyas means “measurement/comparison”
  Qiyas means measuring or comparing thing in relation to a standard or
“to establish an analogy”.
 It was a process of comparing the problem of society with a similar
problem for which solution was given in the texts of Quran,
Ahadis/Sunnah or Ijma.
 It can only be performed when both Quran and Sunnah are silent on a
particular issue and even no Ijma is performed earlier.
 Permission of its use is found in the famous dialogue between the
Prophet and Muadh bin Jabal when he was appointed governor of
Yemen. The Holy Prophet allowed him to exercise Qiyas.
 Qiyas like Ijma is required to be in accordance with the primary sources
of Islamic Law.
 In obtaining a law through Qiyas the following method was applied by
the jurists (Mujtahids):
1. Similarity was established between the new problem and an identical
problem given in the texts (Quran, Sunna or Ijma).
2. For establishing similarity ‘reason’ or the sense behind the texts was
taken into account.
3. In this manner the common cause of the two problems was found.
4. Solution of the problem given in the texts was applied to the new
problem.
5. The law was discovered from the implied meaning of the text of Quran,
Sunna or Ijma.
Finding the law by interpreting the Quran, Sunna or Ijma (NO new law)

Secondary sources

1. Customs- ESSAY (Shariat Act)

 2. Legislation
3. Judicial Decisions
4. Justice, equity and good conscience

1. Customs or Urf or Taamul

 Before Islam Arab were governed by customary laws. Most of the
customs were found by the Prophet as evil and abolished. But dower
(mahr), talaq etc. was sanctioned by the prophet by his silence.
 Prophet accepted most of the commercial customs of Mecca and
customary agricultural laws of Medina.
 Custom is an extraneous source Where the texts are silent
 According to Muslim Personal Law (Shariat) Application Act 1937 custom
is not an independent source.
 For the acceptance of customs following conditions are necessary
 It must be regular acceptance
 It should be universal
 It should be reasonable
 It should not be in contravention of texts (Quran, Ahadis
and Ijma)
 It need not be ancient
Present position of customs under Muslims
THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937 (The Shariat
Act 1937)
Shariah means commands of God.
An Act to make provision for the application of the Muslim Personal Law to
Indian Muslims.
Section 2- Muslim personal law is applied to Muslims in matters of
 1. intestate succession, special property of females, including personal
properly inherited or obtained under contract or gift or any other
provision of Personal Law,
2. Maintenance
3. Marriage
4. Guardianship
5. Gifts
5. Waqfs
6. Trust and trust properties; and
7. Dissolution of marriage includes Talaq, Ila, Zihar, Lian, Khula and
Mubaraat
8. dower
Customs are applicable to Muslims in matters relating to
i. agricultural lands,
ii. charities and
iii. religious and charitable endowments.
Section 3. Power to make a declaration.—
(1) Any person who satisfies the prescribed authority—
(a) that he is a Muslim, and
(b) that he is competent to contract within the meaning of section
11 of the Indian Contract Act, 1872 (9 of 1872), and
(c) that he is a resident of India
To be governed by customs in matters relating to
i. adoption,
ii. wills and
iii. legacies
5. Rule-making power.—by The State Government
2. Judicial Decisions or precedents
1. Begum Subanu V. Abdul Gafoor
Supreme Court held that if the first wife lives separately only on the ground of
husband’s second marriage, she would be entitled maintenance from husband.
 2. Maina Bibi v. Choudhry Vakhil Ahmad
 Privy Council held that a widow possess the right to retain the property of her
husband till her dower money was paid.
3. Shayara Bano v. UoI- Triple Talaq –abolition
4. Mohd. Ahmad Khan v. Shah Bano Begum- Alimony

3. Legislation
1. The Shariat Act 1937- - SN
2. The Dissolution of Muslim Marriage Act 1939- Muslim wife - SN
3. The Muslim Women (Protection of Rights on Divorce) Act 1986- - SN
4. Caste Disability Removal Act 1850
5. Indian Evidence Act 1872- legitimacy
6. The Prohibition of Child Marriage Act 2006 – minor marriage
7. Criminal Procedure Code 1973- alimony
8. The Waqf Act 1995
The Family Court Act 1984 etc.
 Schools of Muslim Law
Sunni Schools Shia Schools

Hanafi Ithna Asharia

Maliki Ismailyas

Shafei Zyadyas

Hanbali

1. Hanafi School or Kufa School

 Founder - Abu Hanifa
 Hanifa was known for his outstanding logical reasoning and technical legal
thought. The city of kufa became an important centre of distinct thinking so
this school is also called as ‘Kufa school’. Founder of private judgment.
 
Sources - Acc. to him law must be formulated acc. to the changing needs of the
society. He propagated juristic equity (Istihsan) in the absence of law in Quran
and Sunna. This school recognized the traditions which have passed through
the severe tests of their originality. Ijma, Qiyas and Istihsan was the source of
law. Customs and traditions were recognized provided they are not against
the texts (Quran and Sunna).
Important Books
 Radd-al-Makhtar
Durr-ul-Mukhtar
Prevailing in Iraq, Iran, Egypt, Israel, Turkey, Afghanistan, China and India.
Majority of the Muslims in India and Pak are Hanafis
2. Maliki Schools
Founder – Malik-ibn-Anas of Medina
Sources-
1. Quran
2. Tradition/Sunna of the companions of the Prophet and of the
successors of the companions
3. Ijma of companions and Ijma of jurist only such jurists who lived in
Medina
4. Istidlal- inferring a thing from another thing for public welfare
5. Customs as additional source of law
Important feature- married women and her properties are always under the
control of her husband
Books- Kitab-al-Muwatta and Al-Mukhtasar
 
Spread over to the Central and West Africa, Spain, Kuwait and Bahrain. Less
Malikis in India
 
3. Shafei School
 
Founder – Muhammad ibn Idris Ash Shafei
 
Sources-
1. Quran
2. He examined the Sunna in the light of legal reasoning and logic in order
to get a very balanced and systematic rule of law.
 3. He made the greatest use of Qiyas. But Believed that Qiyas should be
considered only after Quran, Sunna and Ijma.
4. Customs and Istidlal was recognised
5. Hanifa’s Istihsan was not accepted.
Important feature- Women is never regarded as a free agent in her marriage
even if she is adult
Books- Kitab-ul-umm and Al-Wajiz
Prevailing in - Egypt, Indonesia, Malaysia and Southeast Asia. Some of the
Muslims in the Western Coast of India are Shafeis

4. Hanbali School
Founder –Ahmed ibn Hanbal
Sources-
1. Quran
2. He rigidly adhered to the tradition/Sunna of Prophet.
3. Ijma and Qiyas were neglected by him.
4. He recognized Ijma only of the companions of the Prophet
5. Istihsan/Istidlal was not accepted.
Books- Masnad and Kitab-ul-Alal …Prevailing in – Saudi Arabia and Qatar. Very
few Muslims are the followers of this school

Shia Schools
1. Ithna Asharia or Imamia /Twelvers
Founder – Followers of this school believed that staring from Ali there had
been 12 Imams who possessed spiritual powers.
Sources-
1. Quran and Sunna 
 2. Everything that comes from the Imam taken to be a law.
Important feature- Recognizes Mutah or temporary marriage
Sub-group
Akhbari- They follow rigidly the traditions of Imams (all the 12 Imams)
Usuli- interpret the texts of Quran with reference to the practical problem of
day to day life.
Book- Shari-ul-Islam
Prevailing in – Most of the Shias are Ithna Asharias. Found in Iran, Iraq,
Lebanon, India and Pakistan.

2. Ismailyas or Seveners
 Founder – Ismail. for some reason Jafar Sadiq, the 6th Imam disinherited his
son Ismail. Minority accepted Ismail as the 7th Imam. Acc.to his followers only
7 Imams so they are called as seveners.
 Sources-
1. Quran and Sunna 
2. Everything that comes from the Imam taken to be a law.
Sub-group in India
Khoja and Bohras- originally they are Hindus. Inheritance and succession they
were governed by Hindu law. They are converted Muslims. (Cutchi memons,
Halai Memons)- this changed after Shariat Act 1937
Book- Daimul-Islam
Prevailing in – central Asia, Syria, India and Pakistan.

3. Zyadis/ Zyadyas
 
Founder – Zyad who is the son of 4th Imam.
 
Sources-
1. Quran and Sunna 
2. Everything that comes from the Imam taken to be a law.
 
Important feature- They incorporate some of the Sunni principles
 
Prevailing in – They are not found in India but in Yemen
 Muslim Marriage or Nikah
Nikah means “to tie up together”.
DEFINITIONS
 Hedaya says that “Marriage implies a particular contract used for the
purpose of legalising children (generations).
 Justice Mahmood (Abdul Kadir v. Salima) - “Marriage among
Mohammedans is not a sacrament (sanskar) but purely a civil contract”
Husband and wife are bound together for an indefinite period.

• Polygamous nature of Nikah-ESSAY

 Several war widows and orphans were exploited. Children born to them
could not get social status
 One man could solve the problem of four female
 Husband should give equal treatment and love and affection to all the
four wives
 Economic stress, modern life and education Muslims in India prefer
monogamy
Nature and concept of Nikah- ESSAY
 Legal Aspect- Nikah is a civil contract
1. Like contract parties must be competent
2. Offer, acceptance and free consent
3. Term of marriage contact may be settled by the parties
4. Rights and duties of the parties upon the breach of contract of
marriage
 
Social Aspect – Nikah is a social institution not merely a contract
1. Dower is a token of respect not a consideration
2. Limited polygamy v/s contract
3. Prohibited relations- In contract there is no prohibition to contact with
close relatives but not so in case of Nikah.
4. Special instance – Shia CANNOT marry during pilgrimage- VOID
Religious Aspects
 Quran directs every Muslims to marry a suitable woman.
 Person remains bachelor without any reasonable excuse disobeys the
words of God.
 Marriage is also the traditions/Sunna recognized by the Prophet
Sunnat Muwakkidah
Conclusion
1. Nikah creates mutual rights and obligations between husband and wife.
2. Social Institution
3. Religious duty
Essentials of a valid marriage or Nikah – ESSAY
1. Parties to the marriage must be competent.
2. The consent of the parties must be a free consent.
3. The required formalities are duly completed.
4. There must not be any prohibition.

1. Parties to the marriage must be competent

i. Age of puberty – ESSAY (Minor Marriage and option of puberty)
ii. Sound mind- Short note
iii. Muslims- Problem questions
(i) AGE OF PUBERTY
 
 For the purpose of marriage, dower and divorce age of majority is age of
puberty
 Age of puberty means an age at which the person is supposed to acquire
the sexual competency.
 In Muhammad Ibrahim v. Atkia Begum held that age of puberty is 15
years in India
 Minor Marriage, Prohibition of Child Marriage Act and Option of
Puberty = ESSAY
Minor marriage (less than 15) with the consent of guardian is allowed -
Jabar
Under Sunni law guardian for minor marriage are: imp
i. Father or
ii. Paternal grandfather or
iii. Brother or other male members of the father’s family or
iv. Mother or
v. Maternal uncle, aunt or other maternal relations
•  
Under Shia law guardian for minor marriage are: imp
i. Father or
ii. Paternal grandfather
PROHIBITION OF CHILD MARRIAGE ACT, 2006
Section 2. Definitions.
(a) “child” means a person who, if a male, has not completed twenty-one
years of age, and if a female, has not completed eighteen years of age;
Section 3. Child marriages to be voidable at the option of contracting
party being a child.
Section 4. Provision for maintenance and residence to female
contracting party to child marriage.
Section 5. Custody and maintenance of children of child marriages.
Section 6. Legitimacy of children born of child marriages.
(Section 7. Power of district court to modify orders issued under
Section 4 or Section 5.
Section 8. Court to which petition should be made.)
Section 9. Punishment for male adult marrying a child.
 Whoever, being a male adult above eighteen years of age, contracts a
child marriage shall be punishable with rigorous imprisonment which
may extend to two years or with fine which may extend to one lakh
rupees or with both.
Section 10. Punishment for solemnising a child marriage.
Whoever performs, conducts, directs or abets any child marriage shall
be punishable with rigorous imprisonment which may extend to two
years and shall be liable to fine which may extend to one lakh rupees
unless he proves that he had reasons to believe that the marriage was
not a child marriage.
11. Punishment for promoting or permitting solemnisation of child
marriages.
shall be punishable with rigorous imprisonment which may extend to
two years and shall also be liable to fine which may extend up to one
lakh rupees:
Provided that no woman shall be punishable with imprisonment.
• 12. Marriage of a minor child to be void in certain circumstances. imp
• Where a child, being a minor-
(a) is taken or enticed out of the keeping of the lawful guardian; or
• (b) by force compelled, or by any deceitful means induced to go from
any place; or
• (c) is sold for the purpose of marriage; and made to go through a form of
marriage or if the minor is married after which the minor is sold or
trafficked or used for immoral purposes,
such marriage shall be null and void.
• Section 13. Power of court to issue injunction prohibiting child
marriages.
• Section 14. Child marriages in contravention of injunction orders to be
void.
• Any child marriage solemnised in contravention of an injunction order
issued under section 13, whether interim or final, shall be void ab initio.
• Section 15. Offences to be cognizable and non-bailable.
• Section 16. Child Marriage Prohibition Officers.
• Section 17. Child Marriage Prohibition Officers to be public servants.
• Section 18. Protection of action taken in good faith.

 Option of Puberty – Khyar-ul-Bulugh`- S.N (part of minor marriage)

Meaning - Under Muslim law, a minor on attaining the age of puberty
(15) has a right to approve or disapprove the marriage contracted by a
guardian who was neither father nor paternal grandfather is called
option of puberty
1. Option of puberty cannot be exercised by husband (of minor marriage)if
it is contracted by father or paternal grand father (general rule)
Aziz Bano v. Mohd. Ibrahim (exception)
2. Acc. to Section 2(vii) of the Dissolution of Muslim Marriage Act 1939 wife
(of minor marriage) can exercise this right of option of puberty even if
the minor marriage is contracted by father or paternal grand father.
3. Acc. to Section 2(vii) of the Dissolution of Muslim Marriage Act 1939 wife
can exercise this option anytime between 15 to 18. (husband till he
approves)
4. This option is lost if marriage is consummated provided before attaining
the age of puberty or against her will
5. Confirmation of the court is necessary for the dissolution of marriage
(Mafizuddin Mandal v. Mahima BiBi)
6. Any spouse dies after the exercise of option but before the confirmation
surviving spouse can inherit the property of other.
7. Marriage ceases to be a marriage.
•
• SOUNDNESS OF MIND
1. Marriage during the ‘Lucid interval’ is valid
2. Marriage with an idiot is void.
3. Marriage with an insane can be contracted by guardians.
4. List of guardians and rules of option of puberty is similar to that of minor
marriage
• Parties must be Muslims
1. Muslim male (of any sect) + Muslim female = valid marriage
2. Sunni male + kitabia female = valid marriage
3. Sunni male + female who is neither Muslim nor Kitabia = Marriage is
irregular
4. Shia male + non Muslim female = marriage is void
5. Muslim female + non-Muslim male = marriage is void
• Kitabia means a person belong to a community the origin of which is
believed from a heavenly revealed book eg. Christians and Jews.

2. The consent of the parties must be a free consent

 Consent is not free if it is given under compulsion, fraud and mistake of
fact.
Compulsion - Under all schools of Muslim law including Shias except
Hanafis if the consent of the parties or their guardian is obtained under
any compulsion the marriage is void.
Mishcat-ul- Mussabih- Book on Sunna
Fraud - Fraud is committed where there has been a dishonest
concealment of certain relevant facts or a false statement in obtaining
the consent for a Nikah. In case of fraud marriage is voidable at the
option of the party defrauded.
Abdul Latif v. Niaz Ahmad- 48 Sinha
Mistake of fact - If at the time of marriage both parties or their guardian
are under a mistake of fact relevant to a marriage, there is no consent
and the marriage is void.
3. The required formalities are duly completed- ESSAY
 
1. Offer (Ijab) and acceptance (Qabool)
Generally offer by the boy or his guardian and acceptance the girl or her
guardian
Offer and acceptance can be oral or written (Kabinnamah/Nikahnama)
Offer and acceptance must be made at the same sitting
Offer and acceptance must be reciprocal to each other
2. Conditional and contingent marriage is void
3. Presence of witnesses
Offer and acceptance must be made in the presence of 2 witnesses
 
Qualifications of witnesses
1. Two males
2. or one male and two females
3. Muslims
4. Sound mind
5. Attained the age of puberty
 
Marriage without witness is irregular in Sunnis
Marriage without witness is valid under Shias.

4. Registration of Nikah is not compulsory but optional. But registration may

be mandatory in India
In 2006, the Supreme Court in the case of Seema v. Ashwani Kumar laid that
different state at state level should come up with laws regarding marriage
registration and subsequently several states passed a law. (Maharashtra,
Gujarat, Karnataka and Himachal Pradesh- Compulsory registration )
Marriage under Muslim law is a contract and hence registration is the basic
essential for validating Nikah.
Procedure
When there is nikah between two Muslims then the Kazi or Imam takes
consent of girl and boy respectively thereafter recites prayer from Holy Quran
and then in Urdu as well as in other language fills a form and gives its copy to
both the parties and adds to his register likewise following every month
whatever solemnization he has done and forwards to the registrar and their
registration is made.
If Muslims marry according to Shariat Act then registration and such Nikah
Nama gets evidence validity.

4. Absence of prohibition- ESSAY

A. Absolute prohibition
 Prohibition is mandatory in nature. Nikah is null and void with absolute
prohibition.
Two persons are said to be with prohibited relationship if they are related each
other by consanguinity, affinity and fosterage.
 
a. Consanguinity – Relation by blood
1. One’s own ascendant and descendant how high so ever (Eg. Father,
mother, son, daughter etc.)
2. Descendant’s of one’s father and/or mother how low so ever (Eg. Full,
uterine and consanguine brothers and sisters)
3. Brothers and sisters of one’s ascendants (Booa, Chacha etc.)
b. Affinity – Relation by marriage
Ascendants or descendants of one’s wife or husband (Eg. Father in
law, mother in law, step son, step daughter etc.)
Wife or husband of one’s ascendant or descendant (Eg. Step
mother, step father, daughter in law, son in law)
 c. Fosterage- Relation by milk
Where a child under the age of 2 years has sucked the milk of any
woman other than its own mother such a woman is called the foster
mother.

 Relative  Sunni  Shia Law

Prohibition Law
   

Unlawful conjunction – A man can

 Nikah is
not marry at the same time two Nikah is void
wives who are related each other by
consanguinity, affinity and fosterage
irregular
 

Marriage with the 5th wife 

 Nikah is Nikah is
irregular void
 

Marriage with non-Muslim 

 Nikah is Nikah is
irregular void
 

Marriage without witnesses

 Nikah is  Nikah is
irregular Valid
 

Marriage during Iddat

 Nikah is  Nikah is
  irregular void
 

Valid retirement – if a boy and girl

 Valid  Not
are together for sometime in privacy
and there is no social, moral or legal recognised
restriction for their intercourse. 

Marriage during pilgrimage

 Nikah is  Nikah is
Valid void
 Polyandry
 Nikah is  Nikah is
void void
Iddat
 Nikah is  Nikah is
irregular void

Iddat
Arabic word ‘Iddat’ means counting (period of waiting). Means counting the
days of possible conception to ascertain whether a woman is pregnant or not.
Object of Iddat is to ascertain the paternity.
Different period of Iddat
1. Dissolution of marriage by divorce- divorce iddat
Valid marriage + consummated = 3 menstruations or 3 calendar months (when
menstruation is irregular)
Valid marriage + not consummated = no need to observe Iddat= Next marriage
Valid marriage + consummated + wife is pregnant = Iddat extends till the
delivery of the child or abortion whichever is earlier .
2. Dissolution of marriage by death of husband – death iddat
Valid marriage + consummated or not consummated = 4 months and 10 days
Widow is pregnant = Iddat extends till the delivery of the child or abortion
whichever is earlier .
3. Death of husband during the divorce Iddat - divorce iddat and 4 months and
10 days

 Legal Effects (Sunni and Shia)   Valid (Sahih)  Void (Batil)  Irregular
(Fasid)- Sunni
(Sunni & Shia) (Sunni &
Shia)
   Lawful  Unlawful  Lawful
Cohabitation between the
husband and wife 
   Legitimate  Illegitimate  Legitimate
Children born out of this
marriage 
   Yes  No  No
Mutual right of inheritance
between husband and wife 
 Husband and wife are  Yes  No  Yes (relative)
prohibited to marry if there is
any prohibitions.
Absolute prohibition
 Right to dower  Complete  No dower  NO Specified
dower or proper
dower
whichever is
less if
marriage
is(NOMINAL)
consummated

 Right to maintenance  Yes  No No

   Yes  No  NO 3 months
both- if
Observance of Iddat  3m/4m10days
consummated
Nikah Muta/mut'ah S.N
 
Marriage is recognized only by the Ithna Asharia Shias (not all Shias).
 
Muta means – enjoyment or marriage for pleasure.
Definition- It is a temporary union of male and female for a specified period, on
payment of some consideration.
Essentials of Nikah mut’ah/Muta marriage-
1. Parties must be competent to marry. (age of puberty and sane) No
minor Muta.
2. Shia male may contract Muta with any Muslim, Kitabia. Muta with Hindu
is void.
3. No restriction as to the number of Muta wives.
4. There must be free consent
5. Formalities- There must be offer, acceptance, specified dower and no
need of witnesses.
6. There must not exist any prohibited relationship.
7. Period of Muta must be clearly specified.
8. Cohabitation continues after Muta then it becomes Nikah.
9. If husband leaves the wife before the expiry of term then he has to make
a gift for an unexpired period called Hiba-i-Muddat
• Legal Effects of Muta marriage
1. Cohabitation is lawful.
2. Children are legitimate.
3. No mutual rights of inheritance.
4. Children can inherit the property.
5. Wife is entitled to full dower provided she completes the term of Muta.
 6. No maintenance to wife but YES under Cr.P.C.
7. Iddat- 2 months after the end of Muta and 4 M 10 days after death.
Pregnant till the delivery /abortion.
8. No divorce in Muta.
9. Muta dissolves- by death, expiry of period or husband leaves.
S.A.Hussain v. Rajammae- Habibulla
Shazada Qanum v. F. Jung

________________________________________________________________

Dower or Mahr
Meaning - Dower is that sum of money or property which a Muslim wife is
entitled to get from her husband on marriage as a token of respect.
Ball marriage- price to girl’s guardians = Mahr
Beena marriage- price to girl= Sadaq (Sadeeqa)
Shighar marriage- girl herself is the consideration
ABDUL RAHIM
 Object of dower
1. To impose an obligation on the husband as a mark of respect towards his
wife
2. To place a check on the use of Talaq/k (Divorce).
3. To provide for her subsistence after the dissolution of marriage. 
 Essential conditions (nature)
1. Once the right to dower is vested it is never lost.
2. Unpaid dower is an unsecured debt (Kapore Chand v. Kadar Unnissa- 75)
3. Subject matter of the dower can be any property.
4. There is no maximum (500 Dirhams Shia) or minimum (10 Dirhams)
amount of dower.
5. Husband may increase or wife may decrease the dower during the
existence of marriage. (write Remission of dower.. )
• Remission of dower by the wife- Hiba-e-Mahr
 Increased by the husband but can not be decreased.
 It is lawful with conditions
 Wife must be age of puberty and sane.
 Free consent of the wife.
 It must be in writing.
 Absolute remission is lawful.
  N. Khanum v. K.M. Sakroo- Problem

Confirmation of dower
Sunni Law
1. Consummation of marriage
2. Valid Retirement
3. By the death of husband or wife/divorce
Shia Law
1. Consummation of marriage
2. By the death of husband or wife/divorce

Unspecified dower (Mahr-i-Misl) or proper dower or customary dower

 If the dower is not specified by the parties at the time of the marriage it is
called as unspecified. This dower amount is fixed by the court of law.
Hedaya- Qazi- Age, Beauty, virtue, intelligence, family etc.
Proper dower is determined based on the following condition  -- may….may not
1. Personal qualification of the wife.
2. Social position of the wife’s father.
3. Custom or the tradition prevailed in the wife’s paternal family. Therefore
it is also called as customary dower.
4. Economic condition of her husband.
Cases
Hamira Bibi v. Zubaida Bibi (Widow’s right to claim the dower)
Marina Jatoi v. Naruddin Jatoi- Problem question

Specified Dower (Mahr-i-musamma)

 The sum of money or property is fixed by the parties at the time of the
marriage.
Dower may be fixed by guardian for marriage in case of minor and insane
marriages.
Prompt dower (Muajjal)
1. This may be demanded by the wife any time during the marriage
whether consummated or not.
 2. On demand husband must pay it promptly and immediately.
3. If any unreasonable delay is caused in the payment, the wife is entitled
to get interest (6%) for the period during which it remained unpaid.
(Maimuna Begum v. Sharafat Ullah Khan+ Hamira Bibi)
4. Wife may refuse consummation till the payment, provided the marriage
is not yet consummated.
5. Period of limitation is 3 years. (Suit must be filed within 3 years from the
date of demand of dower)
6. If husband divorces his wife before the consummation she receives half
of her specified dower.

Deferred dower (Muwajjal) (also write Right of retention 89)

A. Deferred dower is payable
1. On the dissolution of marriage either by death or divorce
2. Upon the happening of specified agreed event if so agreed
(limitation period = 3 years )
What amount of dower is payable?
Valid marriage
1. Specified dower + not consummated = ½ of the specified dower
2. Specified dower + consummated = full amount of the specified dower
3. Unspecified dower + not consummated = nominal/proper dower- LESS
4. Unspecified dower + consummated = proper dower-MORE- REQUIRED
Irregular marriage = (NO dower)….. if consummated then nominal dower

Enforcement of the right to dower - ESSAY

1. Refusal of conjugal rights – Prompt dower + not consummated – extra-
judicial
Nasra Begum v. Rizwan Ali
Anis Begum v. M.I. Wali Khan- Problem
2. Right to dower as a debt- suit- Judicial Remedy
Abdul Kadir v. Salima
3. Widow’s right of retention- (Deferred dower)- SN

3. Right of retention  - very important

1. No right of retention during the continuance of marriage. (death of
husband)
2. Possession of the husband’s property was obtained only in lieu of unpaid
dower.
3. Widow right of possession is only a possessory right.
4. The right of retention is not analogous to a mortgage or lien.
5. Payment of dower from income of property of the retained property.
6. The property is non transferable. (Maina Bibi v. Chaudhari Vakil Ahmad-
78)- Problem (Muin Uddin and Maina )
7. Once the possession is lost it is lost forever.
 8. Transferability of the right of retention.
9. Heritability of the right of retention. (Tahirunnissa v. Nawab Hasan- 79)
10.Widow is not entitled to sue her husband’s heirs.
11.Widow in possession is liable to account.

________________________________________________________________

Conversion/Apostasy- IMPORTANT
ESSAY

Any person of any religion who is of sound mind and has attained the age of
majority can become the follower of Islam after renouncing his original religion
who is known as converted Muslim.
Conversion to Islam may take place in two ways:
1. By public declaration that he believes in the principle of Islam (there is
only one god Allah and Muhammad is the messenger (Rasool) of Allah.
(kalma)
 2. Through religious ceremonies: (Practice not a law)
a. Faith in Islam (kalma)
b. Person will go to a mosque.
c. Imam may ask him to read a Kalma and
d. Imam will give him a Muslim name.
All converts to Islam are governed by Muslim law in matters mentioned under
Section 2 of the Shariat Act 1937
• Rules of conversion
1. Conversion must be bonafide.
2. The purpose of conversion is not to commit fraud upon Muslim law.
Effect of conversion on marital rights
1. Muslim country- Converted spouse should offer Islam to the other
spouse if the other spouse refuses to accept Islam = marriage dissolves.
2. Non-Muslim country - Converted spouse should offer Islam to the other
spouse within 3 months if other spouse refuses to accept Islam =
marriage dissolves.
3. India – Secular country= no effect on the marriage
 Case laws
1. Skinner v. Orde- Problem Question – Imp.
Christian widow (Helen Skinner) + Christian married man (John Thomas).. Illicit
relationship…converted to Islam … married.. Held conversion is VOID.
2. Sarla Mudgal v. Union of India (Lily Thomas v. UoI)
G. C. Ghosh and Sushmita Ghosh husband and wife… Husband converted to
Islam with Vanitha Gupta.. Conversion VOID … Marriage Bigamy (S494 IPC)
3. Khambatta v. Khambatta - Problem Question – Imp.
Sunni male marriage with Christian lady in Christian form (not Nikah).. Wife
converts to Islam .. Husband pronounce Talaq.. Divorce?????
4. Rikhya Bibi v. Anil Kumar
5. Ahmad Bux v. Smt. Nathoo

Conversion to Islam and right of inheritance

Where there is no local customs in this regard, the estate of person converted
to Islam succession would be governed by Islamic law. (Khoja and Halai
Memons- Governed by Muslim law but will as per custom)
1. Chandrashekarappa v. Governor of Mysore
2. Jowala Buksh v. Dharun Singh
3. Shabana Khan v. Sulochana (Caste Disability Removal Act 1850)

• Effect of conversion on guardianship

 No effect on custody, guardianship and educational rights
 But effect his right as a guardian for marriage
 Muchoo v. Arzon
 Sham Singh v. Santabai
 Zaynab v. Md. Ghouse