Mohammedan Law

By:- Apurva Sharma

  Topics of Muslim Law:-
1. Historical Background

2. Origin, Sources and Who Is A Muslim?

3. Schools of Muslim law.

4. Conversion to Islam

5. Marriage (Nikah)
6. Dower (Mahr)

7. Divorce (Talaq)

8. Parentage, legitimacy and Acknowledgment.

9. Gaurdianship (Hizanat)

10. Maintenance (Nafaqa)

11. Gift (Hiba)

12. Will (Wasiyat)

13. Waqf (trust)

14. Death-Bed-transactions (Marz-ul-Maut)

15. Pre-Emption (Shufa)

16. Inheritance
 Introduction
From the view point of application of a particular branch of law upon persons,
laws may be either territorial or personal. A territorial law is that branch of law
which is applied in a particular territory and is applicable upon persons of all
communities living in that territory. Thus, the Indian Penal Code or the Indian
Contract Act are examples of territorial laws, because the Indian Penal Code or
the Indian Contract Act applies upon all the persons living in India. On the other
hand, a personal law is that branch of civil law which applies upon the persons of
a particular religious community. Thus, the Mohammedan Law applies upon the
Muslims and the Hindu Law applies upon the Hindus.
1. Pre-Islamic Arabia- (Ayyam-e-jahiliya)

This law had no existence before Mohammad became a

Prophet and there was no general law of the races inhibiting
the Arabian Peninsula. Each tribe was governed by its own
laws, and matters in dispute were either referred to the Chief,
or decided by an appeal to the sword. The conduct of the Arabs
was regulated by customs. Most of the customs of the Arab
people were barbarous and inhuman. Often the parents buried
alive their female child. Usury, i.e., taking a very high interest on
the debts, was common. Gambling was rampant.
2. History of Islam – The Prophet and the advent of
Islam.-

Prophet Mohammad (PBUH) was born at Mecca in 571

A.D. The Prophet was a posthumous child. His father
Abdullah, while returning from Syria, where he had gone
for some business, died at Medina. The Prophet was
brought up by his mother Amina. On his mother's death,
while he was six years old, the Prophet passed into the
care of his grandfather, Abdul Muttalib. Two years later the
grandfather also died and the boy was then brought up by
his uncle Abu Talib.
 After the age of twenty-five years he spent much of his time in
a solitude making a lonely cave named Hira, his abode, where
he is said to have been occupied in prayer and meditation. He
became a Prophet at the fortieth year of his age, when he
received his first-wahi or message from God.

After converting the people of Persia, in advancing his dominion

to the banks of Indus and the Oxus and in founding a sect of
people that afterwards became the conquerors of India and are
at the present time one of the most numerous, if not the most
powerful races of men on the earth.
3. Quran, the Foundation of Mohummedan Law.

Muslim Law is founded upon 'Al-Quran’ which is believed by the

Musalmans to have existed from eternity, subsisting in the very
essence of God. The Prophet Mohammad himself declared that
it was revealed to him by the angel "Gabriel" in various portions
and at different times. Its texts are held by Muslims to be
decisive as being the words of God (Kalam allah) transmitted to
man, through the Prophet. Besides inculcating religion and
theology, the 'Quran' contains also passages which are
applicable to jurisprudence, which form the principal basis of
the 'Sharia.
 Muslim Law in India means "that portion of Islamic Civil Law which is applied to

Muslims as a personal Law" (Fyzee). It consists of

1. the injunctions of Quran,

2. the traditions introduced by the ‘practice' of the Prophet (Sunna),

3. the common opinion of the jurists (Ijma),

4. the analogical deductions of these three (Qiyas).

 The Quran is, Al-furgan, i.e., one showing truth from
falsehood and right from wrong. It is in the form of
a series of communications addressed by God to the
Prophet. The communications were revealed to the
people on a number of different occasions in the
last twenty-three years of the Prophet's life, and
dealt with a great variety of problems, one after
another, as they arose.
Q. What is Islam?

In the religious sense Islam means 'submission to the will of God' and in
secular sense Islam means the 'establishment of peace." It occurs eight
times in Holy Quran.

B. After disappearing of Prophet Mohammad from this world.-

After disappearing of Prophet Mohammad from this world, various

competitors came forward claiming to succeed to the Caliphate and
divided the people into rival and discordant fractions. This division was
more political than religious.
But notwithstanding this, the Sunnah or Hadis were preserved from hand to
hand, by authorised persons, and applied to many questions relating to things,
both temporal and spiritual touched upon in Quran.

 Succession to Caliphate:- As per the Sunni and Shia Muslims:-

 The Caliphs were -

1. Abu Bakar(632 A.D.),

2. Umar (634 A.D.), and

3. Usman (644 A.D.) were his disciples and early companions.

4. HAZARAT ALI
 The Caliphs as per Shia Muslims:-

1. Hazarat Ali

2. Hasan

3. Hussain

4. Ali
 Sources of Muslim Law
The primary sources of Muslim law as per the Sunni Muslims:-

1. Quran,

2. The Sunnat (the way of the Prophet),

3. The Ijma (consensus of Islamic scholars), and

4. The Qiyas (reasoning by analogy).

 Other Secondary Sources are

1. Judicial decisions,

2. Customs and

3. Legislation.

 In Shia Law there are only two chief sources of

1. Quran

2. Ahadis:- What Prophet said and done.

 Primary Sources:
1. Quran

 The word Quran is derived from the Arabic

word ‘Qurra’ which means to read. Every
word of Quran is the word of god,
communicated to the Prophet Mohammed
through angel Gabriel for the benefit of
mankind, at different times, places, and
situations during the period from 609 to 632
A.D (23 years).
The whole body of the Quran was given to the world in
small incomplete parts during the lifetime of the
Prophet. The Quran was never compiled or arranged in a
proper form. In the starting, it was written down on palm
leaves, skin or parchment, so it was available in this form
only.

 The Quran was structured in Arabic and it consists of

114 chapters, which are known as Suras. The Suras
contain 6666 verses which are called Ayats and the
total number of 77, 934 words.
Out of these verses, 200 dealt with legal principles such as marriage,

maintenance, transfer of property, inheritance, etc.

 The Quran was disclosed over two periods which :

 Meccan

 Medina

 The words of the Quran is divine in nature, it cannot be amended,

revised, or modified by any institution or human agency. The

sacred book has been translated into a number of languages as

well.
2. The Sunnat

 Sunnat is also known as Hadis or Sunna, it is the

traditions of the Prophet Mohammed. The term
Sunnat means a procedure, the trodden path or
a way of action. Quran consists of the words of
Allah but on the other hand, Sunnat indicates
some precedents, acts, language, and the
practice of the Prophet. Whatever the actions
of the Prophet were or the Prophet said or did
was considered as a tradition.
 The Traditions of Sunna comprises of:

(1) Sunnat-ul-Fail :- Sometimes, the Prophet gave his opinion or

after consulting with some of his companions but most of his
verdicts were influenced by divine authority. He was considered as
a role model and others were inspired by whatever he did. This was
known as Sunnat-ul-fail, which means whatever he did by
himself.

(2) Sunnat -ul-Tuqrir :- There were many instances when in his

presence people did some acts which were in accordance with the
Quran. The acts of the people which he allowed without openly
expressing his consent through words were known as Sunnat -ul-
Tuqrir'.
(3) Sunnat-ul-Qaul:- All the enjoined words & the precepts of

the Prophet were known as Sunnat-ul-Qaul.

3. Ijma

 Ijma is a consensus within Muslim Jurists on a particular

legal issue. In simpler words when Quran and other

traditions were not able to provide any rule of law for a

particular problem, the jurists unanimously gave their

decision and this was referred to as Ijma.

 Those people who had much knowledge and

learning about the law were known

as Mujtahids (jurists).

There are two types of Ijma or consensus:

1. Ijma-al-ummah (Community consensus)

2. Ijma-al-aimmah (Religious authorities consensus)

4. Qiyas

Qiyas is the fourth primary source of Islamic law, it means analogical

reasoning. The term in the literal sense is known measuring or

ascertaining the length, quality, and weight of something. There are no

clear authorities of Qiyas in the Quran. However many legal jurists have

provided several proofs from the Quran and Sunnat and also from the

practices done by the companions as indirect evidence to support the

authority of Qiyas.

 The Hanafi school of thought very strongly supports Qiyas.

  Secondary Sources:-
1. Judicial Decisions

 Our Indian judiciary at several instances interpreted Muslim law in

several cases. All these interpretations is generally relied upon primary
sources. Legislation, opinion of jurists and courts have settled many
important legal anomalies using judicial interpretations.
2. Customs

 Customs are basically practices that people follow continuously for a long
period of time. In fact, it is followed for so long that it obtains the status
of law in some cases. In Muslim law there are various customs which
regulate the practices of people.
3. Legislation

 Muslim law in India is not codified, but the

Parliament has made some laws to regulate Islamic
practices. For ex. The Muslim personal law (Shariat)
Application Act, 1939.This act deals with the
marriage, succession, inheritance and charities
among Muslims.
SCHOOLS OF MUSLIM LAW.
 Schools developed under Sunni
were-
 Hanafi School ( 699 AD – 767 AD)

 The founder of this school was Imam Abu Hanifa. He had

two most important disciples – Abu Yusuf and Imam
Muhammad. In India, mostly Muslims follow Hanafi
school. This school was followed in China, Pakistan,
Afghanistan, Turkey as well.
 Maliki School (711 AD – 795 AD)

 The founder of this school was Imam Malik. They

were followers of the hadiths however only the ones
that were authentic or adequate even if they were
not correct as per the parameters laid down. People
of Madina also followed a certain way of Islam, this
way was also followed by the Maliki School. They
accepted the practices of the people of Madina and
the sayings of the companions of the prophet.
 Shafi School ( 767 AD – 820 AD)

 The founder was Imam Muhammad ibn Idris Ash-Shafi who was
also a disciple of the Maliki School. They followed all four
sources.

 Hanbali School (780 AD – 855 AD)

 Ibn Hanbali was the founder of the Hanbali School of Islamic

Jurisprudence. They were strict regarding the traditions of
the Prophet and strictly confirmed to the Principle of Hadiths.
Their methodology depended on Quran, Ijma, and Sunnat.
They followed Qiyas only when they believed it to be
necessary. They were dominant in Saudi Arabia mostly.
 Schools developed under Shia were-
 Ashriya School

 The founders of this school are twelve Imams, thus

the Arabic Term Itna Ashris means Twelvers. They are
followed in Syria, Lebanon, and Pakistan. The
majority of the Shias follow this school. In India also
this school is followed by Muslims residing in
Lucknow, Murshidabad, and Deccan, Kashmir.
 Ismailiyah School

 The school of Ismailis accepted only seven Imams and were

hence known as the ‘Seveners’. Their origin could be traced to
Egypt. There consist two groups of them viz,

(1) the Kohojas or Eastern Isamilis who were believed to be

followers of Aga Khan who was the 49th Imam in the line of the
prophet, and
(2) Western Ismailis popularly called as Bohoras who were divided
among the Sulaymanis and Daudis. They prevailed in Central Asia,
East Africa, Arabia, Pakistan, Syria, and Iran.
 Zaidiyah School

 Imam Zaidi founded this school. They believed that

Imam should be based on election, so the
succession in this school is through the election.
They believe Imam to be above and considered as a
‘right guide’. The Zaidis were followed in the South
of Arabia, mostly in Yemen.
 Who is a Muslim?

 The term Muslim means submission. A Muslim is a

person who follows Islam. Muslim law applies to a
born Muslim or a person who is a convert Muslim.

 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.
 According to Aghnides a Muslim is:-

(i) one, who believes in the mission of Mohammad as

Prophet, or

(ii) one, who says that there is one God and that

Mohammad is "His Prophet", or

(iii) one who believes in a number of other essential

beliefs in God and Mohammad.

  To whom Muslim Law apply?

Muslim by Religion;
 Muslim by birth

 Muslim by conversion

1. Muslim by Birth:-

a. Both parents are belongs to Muslim religion.

b. One of the parent is belongs to Muslim religion the other one

is belongs to any other religion.
 2. Mohammedans by
conversion.
 We are here concerned only with conversion to Islam. A
non-Muslim, who has attained majority and is of sound
mind may embrace Islam in any of two modes :-

(a) he may simply declare that he believes in the oneness of

God and the Prophetic character of Mohammad, or
(b) he may go to' a mosque, to a person who is well
versed in Islamic theology (Alim), where he utters Kalma
(Lailaha-ill-Allah Muham-mad-ur Rasoolullah) before
Imam, whereupon he is given a Muslim name by the
Imam. A convert must formally profess to be a
Mohammedan.

 It is however, necessary that the conversion must be

bona fide; the Court will not permit any one to
commit a fraud upon the law by pretending to be a
covert to Islam in order to elude the personal law by
which he is bound.
 Amir Ali says

"Any person who professes the religion of Islam, in other words,

accepts the unity of God and the prophetic character of Mohammad is
a Muslim”.

 This view has been followed in Narantakath v. Prakkal wherein it

was held that the essential doctrine of Islam is that there is one
God, and Mohammad is the Prophet and any belief in excess of this
is, at least for law courts, a redundancy. Thus to be a Muslim only
two things are required-one is that Allah is one and the second is
the prophet hood of Mohammad.
 Religious injunctions. –

 There are five kinds of religious injunctions under 'Shariat" and they
are :

1. Farz, or duties which are strictly enjoined on Muslim e.g., five daily
prayers are Farz.

2. Haram, or acts which are strictly forbidden to the Muslims e.g., wine
is Haram.

3. Mundub, or the things which the Muslims are advised to do e.g.,

additional prayers on Id are mandub.
4. Makruh, or the things about which the Muslims
are advised not to do, e.g., certain kinds of fish
are makruh.

5. Jaiz, or the things about which Islam is

indifferent, e.g., travelling on sea or air is Jaiz.
 Dower/ Mahr/ Sadak/ Dain
Mahr
 Origin
In old pre- Islamic Arabia, institution of marriage was not
developed and many sexual relationships between men and
women had no name. Men after ruining their wives used to throw
them out leaving no means to her for the continuation of her
dignified life. In ancient customs, the concept of providing any
sum to wife after she was turned out by the husband was treated
as disregarded and there was no proper law to provide financial
or moral help to those wives.
 Definition

Mahr or dower is a sum of money which becomes payable by the husband to his wife on

marriage, either by agreement between the parties or by operation of law.

1. According to Wilson,

“Dower” is a consideration for the surrender of person by the wife.

2. According to Ameer Ali,

“Dower” is a consideration which belongs absolutely to the wife.

3. According to Mulla,

“Dower” is a sum of money or other property which the wife is

entitled to receive from the husband in consideration of the
marriage.

 The word “consideration” which is used under this definition is not used
with the same meaning as used under the Indian Contract Act.

 Payment of Mahr is an obligation on the part of husband as a mark of

respect to his wife. There was an argument that marriage is a civil contract
and dower is the consideration for the contract of marriage.
Therefore, in the case Abdul Kadir v. Salima,
Justice Mahmood stated that under Muslim
Law “Dower” is a sum of money or other
property promised by the husband to be paid to
the wife in the consideration of marriage and if
the amount of money or other property is not
fixed in the marriage ceremony then also the
wife has right to demand dower.
 Object of Dower
 The object of Dower are: to enforce an
obligation on husband as a mark of respect
towards his wife,
A) to place a check on the misuse of power to give
divorce by the husband,
B) to provide for her livelihood on the dissolution of
her marriage, so that she can lead her dignified life
after the death of her husband or divorce.
 Increase Or Decrease Of Dower
 Husband can increase the amount of dower at any time and also the wife can remit the
dower wholly or partially but it should be done by her free consent. A Muslim girl who
has attained puberty can relinquish her dower, it is not mandatory that she has attained
majority (which is 18 years according to Indian Majority Act) or not. The remission of
Mahr by wife is called Hibe-e-Mahr.

 In any case after the death of husband, wife suffers mental distress, then remission of
dower at that condition will be considered against her free consent and will not be
binding on her.
 Classification Of Dower
 Dower can be classified into two:

1) Specified Dower (Mahr-i-Musamma)- This type of Dower is further

divided into two:

A) Prompt Dower (Muajjal Mahr)

B) Deferred Dower (muwajjal Mahr)

2) Customary (Proper) Dower (Mahr-i-Misl).

 Specified Dower if further classified into:

 Prompt Dower (Muajjal Mahr)

Prompt dower becomes payable immediately

after the marriage ceremony. According to

Ameer Ali, if the payment of prompt dower is

not made by the husband, then wife can refuse

to enter into the conjugal domicile until the

amount of prompt dower is paid.

Following points of Prompt Dower are:

 Prompt Dower becomes payable immediately during or after the marriage
ceremony and it must be paid on demand, unless the other parties have
agreed for the delay. If the dower is not paid then wife can refuse to live
with her husband until the amount is paid and in case the wife is minor
then her parents can refuse to send her to her husband’s house and
husband has to give maintenance to her wife even if she is not living with
him.

 If the marriage has been consummated that does not convert the prompt
dower into deferred dower. After consummation, wife cannot refuse to live
with her husband on the ground of non-payment of dower, but she can sue
her husband for the payment of dower. And if the wife refuses to live with
her husband after consummation due to non-payment of dower, then Court
can pass the decree of restitution of conjugal Rights on the condition of
payment of dower by husband.
 Husband can only file petition for the restitution of conjugal Rights
if the amount of dower is not paid when the marriage has been
consummated.

 Prompt Dower should be paid on demand, the limitation period of

filing the suit for non-payment of dower is three years. The time
would begin from the date when the demand was made and was
refused by the husband during the subsistence of marriage. If the
wife does not make any demand, then the limitation period will
begin from the date of dissolution of marriage either by death or
divorce.
 Deferred Dower (muwajjal Mahr)
Deferred Dower becomes payable after the dissolution of marriage either by death or
divorce.
Following points of Deferred Dower:

1. Deferred Dower is generally paid after the dissolution of marriage but any agreement in
which it is mentioned that deferred dower will be paid before the dissolution marriage, then
that kind of agreement will be binding and will not be considered as void.

2. Wife cannot claim for the payment of deferred dower during the lifetime or during the
subsistence of marriage but husband can treat it as prompt dower and can pay or transfer
property, and that payment will be valid and will not be considered as fraudulent preference
unless there is actual insolvency of husband involved.
3. In case of death of husband, widow can waive off her

right to claim for the payment of deferred dower, but this

act must be done on her free consent.

4. The interest of wife in deferred dower is vested and it is

not contingent. Deferred dower does not depend upon the

happening of certain contingencies not even on the death

of wife, in case of death of wife her legal heirs can claim

for the money payable under deferred dower.

 Presumption regarding prompt and
deferred dower
 In case where in the marriage contract (Kabin-nama), it is not specified that which
portion of the amount decided for the payment of dower will be prompt and which
portion will be deferred, according to Allahabad and Bombay High Courts held that
the proportion of amount to be paid will be specified according to the:
position of wife,

 custom of locality,

 total amount of dower,

 status of husband.
 Shia Law:

 If the amount of dower is specified in the marriage contract but it

is not mentioned that which portion will be prompt and deferred,
then according to Ithna Ashari Shia Law the whole amount of
dower will be regarded as prompt. In Madras Presidency, the
whole amount to be paid will be regarded as prompt no matter
the person is Shia or Sunni.

 Sunni Law:

 According to Sunni Law, half of the amount will be regarded as

prompt and the other proportion will be regarded as deferred.
2. Proper (Customary) Dower

 When the amount of dower is not specified in the marriage contract and

even if it is agreed that the wife will not claim for dower, then also wife is

entitled to proper dower. Amount of proper dower is decided on the basis of

the amount of dower paid on the marriage of female members of father’s

family.

 Determination of Proper Dower-

 The amount of proper dower is decided on the basis of following factors:

 Personal qualification of wife, her age, her beauty, fortune, understanding

and virtue.
1. Social Position of her father’s family.

2. Amount of dower given on her female paternal

relations marriages.

3. Economic condition of her husband.

4. Circumstances of time.
  Wife’s Rights And Remedies On Non-
Payment Of Dower
 Under Muslim Law, wife or widow have following rights on non-payment of
dower:

1. Refusal to Cohabit:
Under Muslim law, wife has a right to refuse to live with her husband when the
amount of prompt dower is not paid, if the marriage has not been consummated.
If the wife is minor or a lunatic then her guardians can refuse to send her to her
matrimonial home until the payment of prompt dower is done and during that
time husband is bound to maintain his wife.
In the case Rabia Khatoon v. Mukhtar Ahmed, it was held that if the suit for
restitution of conjugal rights is brought up after the consummation of marriage
with the free consent of wife, then the decree will be passed on the condition of
payment of prompt dower.

2. Right to dower as a debt:

The Privy Council has held that dower is ranked as a debt which must be paid to
the widow along with the other creditors out of the estate of the husband on
account of his death. If the husband is alive, then wife can claim for dower debt
by filing a suit against him. After the death of husband, widow can claim for
dower by filing suit against the other heirs of the property from which the
amount of dower has to be recovered.
3. Right to retain possession in lieu of unpaid dower:
Widow has right to retain the possession of the property of her deceased
husband which she has already obtained lawfully and without any force or
fraud against other heirs and creditors of the property until the amount of
dower is paid. The right to retain the property does not her the owner of the
property, therefore she cannot alienate the property. The right to retain the
property also arises in case of divorce.

Right to retain the possession of the property by the widow is for special
purpose, so she has to satisfy the amount of dower as soon as possible from
that property. If the widow is not in possession of the property or has lost it
then she cannot claim for the possession of the property.
 Features of right to retain the possession are:
1. No right to retain the possession during the continuance
of marriage:
Wife cannot retain the possession of her husband’s property
during the continuance of marriage. This right only arises
after the dissolution of marriage either by death or divorce.

2. Actual possession:
The right of retention means to continue the possession of
the property until the dower debt is paid. Therefore, the
wife or widow must be in actual possession of the property
after the dissolution of the marriage and if the wife or widow
is not in actual possession of the property then she cannot
retain the possession.
3. Right of retention not analogous to a mortgage:
The wife or widow do not have interest in the property, she has
retained the property as a mortgage. But in case of mortgage,
the mortgagee retains the property under an agreement made
between him and the owner of the property and in case of
retention by wife or widow, that right has conferred upon him by
law.

4. Not a charge:
The right to retention does not create a charge on the property
as the wife or widow is not a secured creditor. And if the
property has been mortgaged to someone by the husband when
the wife/widow was having the possession of that property, then
the mortgagee can sell the property and dispose the possession
of wife/widow.
5. A possessory lien on property is no title:
Wife or widow can only satisfy the amount of dower through rents and profits from
the property, she does not get the title of the property. The title goes to the heirs
of the husband including widow. She has no right to sell or mortgage the property to
satisfy the amount of dower, she can only alienate her share in the property not the
share of other heirs. And if she alienates the whole property then the other heirs
become entitled to recover the possession of their shares, and that share will be
given to them without the payment of dower proportionate to their shares. Widow
can acquire the possession of the property if she has been dispossessed by the heirs
under Section 9 of the Specific Relief Act, within the period of 6 months, and if she
fails to do so, then she loses her possession over the property and if the
dispossession is caused by the trespasser, then she can file case under Article 12 of
Indian Limitation Act within 12 years.
6. Widow in possession liable to account:
Widow is bound to account the profits and rents
received out the property to the other heirs of
her deceased husband while she is entitled to
charge interest on the dower which is due to her
and to set it off against the net profit.

7. Can sue heirs:

widow can sue the heirs of her deceased
husband for the recovery of the amount of
dower out of their shares.
 Difference Between Sunni And Shia Law Relating To Dower
Sunni Law Shia Law
The minimum amount of specified dower is 10
There is minimum amount of specified dower.
dirhams.
The maximum amount of proper dower is 500
There is no maximum amount of proper dower.
dirhams.
The maximum amount of specified dower is also
There is maximum amount of specified dower.
500 dirhams.
In case the marriage is dissolved by death of
husband, and the payment of dower is not
specified or it has been agreed that no payment Payment of dower will not be due if the
of dower will be done by the husband, in such marriage has not been consummated.
case the amount will be due whether the
marriage has been consummated or not.
Any agreement which states that no dower shall Such agreement will be valid if the agreeing
be due is void. party are sane and adult.
In the absence of agreement, a reasonable part The whole amount of dower will be considered
of dower will be considered as prompt. as prompt dower.