Q. 4 (b). Discuss the essentials of a valid Muslim marriage.
Ans. Essentials of Muslim marriage. The essentials of a valid marriage under Muslim Law are as follows:
1. Proposal and acceptance.
2. Consent.
3. Witnesses (under Sunni Law).
4. Capacity to marry or capacity to be married.
5. No impediments to marriage.
1. Proposal and acceptance (Ijab and Kabul). Performance of any religious ceremony is not necessary at the time of marriage. Presence of a Qazi or a Mulla is also not necessary. “Marriage under Muslim Law rests of the same footing as any other contract.”
In a Muslim marrriage, proposal for marriage must be made by one party and it must be accepted by the other party.
Under Muslim Law, it is not necessary that parties to the marriage may themselves make proposal or acceptance for marriage. The proposal and acceptance may be made through an agent appointed verbally or in writing In case of minors or lunatics the guardians can act as agent.
Proposal and acceptance must be made at the same meeting. Proposal made at one meeting and acceptance made at another meeting does not constitute a valid marriage.
2. Consent. When the consent has not been obtained, the marriage is invalid and even consummation against the will of the woman will not validate the marriage
Consent under compulsion will invalidate the marriage (Mohiuddin v Khadija Bibi). But the Hanafi (and none else) hold that contracts of marriage even under compulsion are valid. This peculiar rule of Hanafi Law is based on the following tradition of the Prophet “Apostle of God said, there are three things which whether done in joke or earnest, shall be considered as serious and effectual, one marriage, second divorce and third taking back.”
3. Witnesses. Under Sunni Law, the proposal and acceptance must be made in the presence of two males or one male and two female witnesses who are sane, adult and Muslims. Absence of the witnesses does not render marriage void but irregular.
Under Shia Law presence of witnesses is not necessary at the time of marriage Presence of witnesses is required at the time of the dissolution of marriage.
4. Capacity to marry or capacity to be married. Every Muslim (whether major or minor) is capable of getting himself married, that is, capable of becoming husband or wife. Those persons who have attained puberty and are of sound mind are competent to marry on their own accord while those who are minors or lunatics can be contracted in marriage by their respective guardians.
Minority means physical immaturity. The age of puberty means the age on the completion of which a person is presumed to have acquired the competence to have sexual intercourse. This competency may be ascertained on the basis of natural signs or physical features of the boy and the girl
If a Muslim minor has been contracted in marriage during his minority by a guardian, such a person has a right on attaining majority to repudiate the marriage. This is known in Muslim Law as Khyar-ul-bulugh (Option of Puberty).
5. No impediments to marriage- There are some impediments or prohibitions which render the marriage void while others make it only invalid.
(a) Absolute Prohibitions. (i) Consanguinity, e.g.. a Muslim cannot marry his mother, grand-mother, daughter or sister, aunt or niece.
(ii) Affinitye.g., a Muslim cannot marry wife of an ascendant or wife of a descendant or an ascendant of the wife or a descendant of the wife
But a Muslim male may marry with the female descendant of the wife with whom marriage has not been consummated.
(iii) Fosterage. If a child below the age of two years has been suckled by a woman other than its mother, the woman becomes the foster mother of the child. It is as much a prohibition to marriage as consanguinity.
(iv) Polyandry-Wife cannot marry a second time during subsistence of the first marriage
(b) Prohibitions which make the marriage irregular.-(1) Marrying fifth wife. The maximum number of wives that a Muslim can have at a time is four, and so the marriage with a fifth wife is invalid or irregular under the Sunni Law. This impediment may be removed by divorcing one of the four wives.
Under the Shia law marriage with the fifth wife is void.
(ii) Absence of proper witness (in case of Sunni Law)- Marriage in the absence of witness is irregular in Sunni Law. But such marriage is valid under Shia law.
(iii) Difference of religion. A Sunni Muslim male can marry a Muslim woman or a Kitabia. A kitabia is a woman who belongs to that community which believes in a religion possessing a revealed Book (Kitab). In India, Christians and Jews are regarded as Kitabis if males and Kitabias, if female. A Sunni female cannot marry a non-Muslim male. Such a marriage is void according to Fyzee, but according to Mulla, such marriage is irregular. Where a Sunni male marries with a Christian female, such marriage must be solemnized in accordance with the provisions of the Indian Christian Marriage Act, 1872, Under Sunni Law, marriage of a Sunni male with a Kitabia female is valid. But marriage of a Sunni male with a non- Muslim and a non-Kitabia female is irregular Nikah (Marriage) of a Shia male is possible only with a Muslim female Marriage of a Shia male or Shia female with a non-Muslim is void.
However inter-sect marriages between members of different communities of Muslims are valid. Marriage of a Shia male with a Sunni female or a Shia female with a Sunni male is valid.
A Muslim woman cannot contract a valid marriage with a non-Muslim. But it can subsequently become valid, if the non-Muslim becomes a convert to Islam.
Civil Marriage- We have described above those rules of Muslim Law which apply in the case of difference of religion between the parties to Nikah. But under Special Marriage Act, 1954, inter-religious marriage is possible. Under the provisions of this Act, a Muslim male can marry a non Muslim female, whether Kitabia or not, and a Muslim female with a non- Muslim male, provided the provisions of the Act are complied with.
(iv) Unlawful conjunction. A Muslim male may not have at the same time two wives who are so related to each other by consanguinity, affinity or fosterage that if either of them were a male, they could not have legally married. This is called-bar of unlawful conjunction and it renders a marriage irregular, not void.
Under the Shia law marriage prohibited on the ground of unlawful conjunction is void. Under the Shia law, a male person may marry with his wife’s aunt, but he cannot marry with wife’s neice without the consent of his wife.
(v) Marrying a woman undergoing iddat. If a marriage is dissolved either by death of the husband or by divorce, the widow or the divorced woman is prohibited from marrying another person within a specified period. This period is called Iddat. It is not lawful for a man to marry a woman undergoing Iddat of her previous marriage. Under the Sunni law, such a marriage is irregular, but not void. But under the Shia law, marriage with a woman undergoing her iddat is void.
Q. 4 (c). When can a Muslim woman remarry?
OR
Whether a married woman can contract a second marriage during the subsistence of first marriage under Muslim Law?
Ans. Marriage of a Muslim woman under Muslim Law. Under the Muslim Law, a male person may have maximum four wives at a time. But a woman cannot have more than one husband at a time. Polyandry is prohibited under the Muslim law. An unmarried woman, a divorcee or a widow woman can marry, but if a Muslim woman contracts the second marriage during the subsistence of her first marriage, she would be guilty of bigamy under Section 494 or Section 495 of the Indian Penal Code and her second marriage would be void
Kinds of marriages and differences between them
Q. 4 (d). Give the kinds of marriages under the Muslim law on the basis of their validity and establish the differences among them.
OR
Distinguish between valid (Sahih) void (Batil) and irregular (Fasid) marriages and point out the effects of each of such marriages.
Ans. Kinds of Muslim marriages according to Sunnis. Under the Sunni Law, the marriage may be classified into three classes:-
1. Valid (Sahih)
2. Void (Batil)
3. Irregular or invalid (Fasid)
According to Shia Law. According to the Shia Law marriage may only be either-
1. Valid, or 2. Void.
Distinction between void and invalid (irregular) marriage (1) If the impediment is absolute and permanent the marriage is void; if it is relative and temporary, the marriage is irregular.
(2) In void marriage, impediments can never be removed, in other words, a void marriage is void ab initio and can never become vaild whereas an irregular marriage, whose prohibitions are relative, can become valid if those defects are cured.
(3) Void marriage does not create any civil rights or obligations between the wife and husband, but in irregular marriage some legal consequences ensue, provided the marriage has been consummated.
(4) Sexual intercourse in void marriage is unlawful (Zina) and the children are illegitimate, while under irregular marriage the children are legitimate
Valid and irregular Marriage.-(1) Parties to the irregular marriage may leave each other and terminate the marriage without pronouncing Talaq and may contract another marriage. It is not so in valid marriage
(2) Parties to the irregular marriage are not entitled to inherit even after consummation whereas under valid one, rights of inheritance accrue.
Valid and Void Marriage-1. Valid marriage entails all the legal consequences of marriage while the void one does not entail any consequence at all.
2. Valid marriage is absolutely lawful, void marriage is absolutely unlawful.
Void marriages. The following marriages are void:
1. Marriage with a woman prohibited by reason of-
(i) Consanguinity, e.g., marriage with mother, daughter or sister, etc.
(ii) Affinity, e.g., marriage with wife’s mother, wife’s daughter, father’s wife or son’s wife, etc.
(iii) Fosterage
2. Marriage with a woman who is another man’s wife
3. Marriage brought about by force or fraud.
Effect of void Marriage. There is no legal effect of a void marriage.
Void marriage is no marriage at all. It is a semblance of marriage without reality. The children born of such a union are illegitimate and there is no legal process by which such a union can be made legal.
Invalid (irregular) marriages.-The following marriages are irregular (invalid or fasid):
1. Marriage prohibited on the ground of unlawful conjunction, e.g… marriage with wife’s sister when the wife is alive and not divorced.
The defect may be removed if the man divorces his prior wife with whose sister he is going to marry.
2. When a Muslim man marries an idolatress or fire worshipping woman-Marriage of a Sunni male with a non-Muslim and non-Kitabia woman is irregular. According to DF Mulla, the marriage of Sunni female with a non-Muslim male is irregular, but according to Fyzee, such marriage is void.
The subsequent conversion of the non-Muslim male into Islam will cure this defect. Under Shia Law, such marringe is void ab initio.
3. Marriage with a woman undergoing Iddat.-A Muslim male can contract a marriage with a woman after Iddat de novo. Under Shia Law, such marriage is void.
4. Marriage in the absence of witnesses or where witnesses are less than legal number or when they are drunk or deaf. This defect can be made up by sufficient acknowledgment before sufficient witnesses. Under Shia Law. marriage in the absence of witnesses is a valid marriage.
5. Marriage with a fifth wife. It can be validated by divorcing one of the four wives.
6. Marriage of a male with a non-kitabi.This defect can be cured by conversion of the latter into Islam or a Kitabı religion.
Legal consequence of a invalid marriage.-1. Before Consummation. Before consummation, an invalid (irregular) marriage has no legal effect. Wife is not entitled to dower or to observe Iddat.
2. After Consummation. (i) Wife is bound to observe Iddat after divorce but the duration of iddat is only three monthly course irrespective of the fact whether the marriage is dissolved by the death of the husband or by divorce.
(ii) She is entitled to get specified or customary dower whichever is less
(iii) She is not entitled to maintenance during Iddat.
(iv) Children are legitimate.
(v) Any party to an irregular marriage can terminate the union at any time and separate from each other for ever.
Under Shia Law these aforesaid irregular marriages except marriages contracted in the absence of witnesses are void. Under this school, a marriage contracted in the absence of witnesses is a valid marriage
Legal effects of a valid marriage
A valid marriage has the following legal effects:-
(1) Sexual intercourse between the married spouses is lawful and children born of a valid marriage are legitimate.
(2) Parties are prohibited from marrying with the certain relations of each other.
(3) Any lawful agreement between the parties to the marriage made at the time of marriage which are intended to regulate their marital relationship is binding upon them.
(4) The wife is bound to observe strict conjugal fidelity and the husband is entitled to enjoy all the benefits of marital life.
(5) The wife is bound to allow her husband to have sexual intercourse with her, having due regard to her health, decency and place.
(6) She is bound to obey his just commands
(7) The wife is bound and is also entitled to reside in the house of the husband.
(8) She is bound to observe Iddar on the divorce or on the death of the husband.
(9) The wife is entitled to obtain maintenance from her husband.
(10) She is entitled to equal treatment and separate maintenance, in case the husband has more than one wife living.
(11) She is entitled to get her dower and to refuse cohabitation if prompt dower is not paid provided marriage is not consummated
(12) She is entitled to visit and be visited by her blood relations within the prohibited degrees at least once a year.
Muta Marriage
Q. 5 (a). What is a Muta marriage? What are its incidents ? Distinguish it from Nikah.
Ans. Muta Marriage. Shia School of Muslim Law recognises two kinds of marriages (1) Permanent marriage or Nikah, or (2) Temporary marriage or Mura
Muta marriage is a marriage for a temporary but a fixed period for a specific dower. This kind of marriage is recognised only in the Ithna Asharia Shia School of Muslim Law. Muta marriage is not recognized in Sunni Law because according to that school the marriage contract should not be restricted in its duration/and the words used at the time of proposal and acceptance must denote an immediate and permanent union. Thus, under the Sunni Law a marriage specifically declared for a limited period is void whereas under Shia Law such marriage is valid. The specified period for which Muta marriage may be contracted under Shia Law may be a day, a week, a fortnight a month or year, or number of years.
Essentials of Muta marriage
1. The period during which the union is to last should be fixed at the time when the Muta is contracted. It may be for a day, a month, a year or for a number of years.
2. Some dower should be specified in the contract of marriage. If the term is not specified but the dower is fixed the contract would be void as Mata but valid as Nikah (S.A. Hussain Rajamma, AIR 1977 Andin 153]. But if dower is not specified the contract of Muta marriage will be void.
3. The maximum number of wives in Muta marriage is not limited to four.
4. Where two person having married under the Muta form for a fixed period continue to live as husband and wife beyond the expiry of that period or till the death of the husband, the presumption in the absence of evidence to the contrary will be that the term of marriage had been extended till the period of cohabitation. Shoharat Singh v. Mst. Jafri Bibi, 24 1.C. 499 (PC)]
5. The parties must have attained the age of puberty and they must be of sound mind.
6. The consent of both parties must be free consent.
7. They should not be within prohibited degrees of relationship.
8. A Shia male can contract Mata marriage with a Muslim woman, a Kitabia woman (Christian or Jewish) or a fire worshipping woman (Majusiyya) but he cannot contract Muta marriage with a woman following any other religion.
A Shia female cannot contract Mura marriage with a non-Muslim.
9. There must be offer made by one of the parties to such a marriage and acceptance by the other party.
10. Presence of witness is not necessary at the time of marriage.
Legal Incidents
The following are the legal incidents of Mura marriage:-
I No mutual rights of inheritance between parties are created. It is still a moot point as to whether an express stipulation that there should be mutual or unilateral rights of inheritance would be valid or not.
2. The children born out of such marriage are legitimate and are entitled to inherit from both the parents.
3. The marriage is dissolved ipso facto on the expiry of the fixed period or earlier by mutual consent, or on the death of either party to the marriage
4. Divorce is not recognized in Muta marriage. The husband may, if he likes, make a gift of the unexpired period to the wife which is called Hiba-i- muddat. The Muta marriage may be dissolved on the death of either of the parties or on the expiration of the specified period or on the release of the unexpired period by the husband (Hiba-i-muddat).
5. If the marriage is consummated, the wife is entitled to get full dower. If the marriage is not consummated, she is entitled to half dower.
6. The Muta wife is not entitled to maintenance under Muslim Law, but she may claim maintenance under Section 125 of the Criminal Procedure Code [Luddan Sahiba v. Mirza Qamar Qadri. (1882) 8 Cal. 736).
7. The husband is not bound to provide residence to the Muta wife.
8. The Muta wife is bound to observe iddat in case of death of her 1 husband for a period of four months and ten days. In case of pregnancy this period is to be extended till delivery.
In the case of dissolution (not by death) Iddat is necessary only if the marriage has been consummated. In this case the period is two menstrual courses if she is in menstruation and forty-five days if she is not menstruating.
Nikah and Muta distinguished
1. Muta is a temporary marriage while Nikah is permanent.
2. Muta is recognized only among the Ithna Asharia School of Shias and not among Sunnis. Nikah is recognized in both the sects.
3. Muta marriage terminates ipso facto on the expiry of the stipulated term; there is no such stipulation in Nikah.
4. Divorce is not recognized in Muta marriage. It is fully recognized in Nikah. A Muta husband may get rid of his Muta wife by hiba-i-muddat.
5. Muta wife is not entitled to maintenance under Muslim Law (though she is entitled to claim maintenance under Section 125 of the Criminal Procedure Code). In Nikah she is entitled to maintenance.
6. Dower must be specified, otherwise Muta marriage is void. It may be implied in Nikah if not specified.
7. Muta marriage does not create any liabilities except those specified in contract for marriage. It does not give rise to reciprocal right of inheritance to the wife and husband, while Nikah does create rights and liabilities.
Q. 5 (b). State briefly the nature and scope of ‘option of puberty’. To what extent have its provisions been modified by legislature?
OR
Define Khyar-ul-bulugh. Under what circumstances can a minor of either sex repudiate the marriage? What are limitations, if any, to such repudiation?
Ans. ‘Option of Puberty’. (Khyar-ul-bulugh)
Meaning and Nature. “Option of puberty is the right of a minor boy or girl, whose marriage has been contracted through a guardian, to repudiate or confirm the marriage on attaining puberty.” Under certain circumstances a minor Muslim girl (or boy) contracted in marriage by the guardian for marriage has the option of repudiating the marriage on attaining puberty. This is known as the option of puberty. The marriage is valid until repudiation.
In Abdul Karim v. Amina Bai, (1935), the Bombay High Court held that the option of repudiation given to the wife is based on principles repeatedly emphasized in the Quran. It is one of the safeguards by which Islam alleviates the incidence of pre-Islamic institutions pressing harshly against women and children.
For the sake of convenience and better understanding we may divide a man’s life into three stages:
1. Saghir i.e., the first stage when the boy or the girl is below seven years of age. In this stage, the marriage is void ab initio. The question of his consent or his opinion does not arise. In no circumstances can a marriage in this stage be recognized. A person below this age cannot himself or herself contract a marriage nor his or her marriage can be contracted by his or her marriage-guardians.
2. Sarir, i.e., the second stage when his or her age is above seven years but below 15 years. In this stage though he can be married, his consent for marriage is not recognised and has no validity. In this stage he can be validly married by his marriage-guardians. He cannot marry on his own free consent without the intervention of guardian.
3. Bulugh i.e., the third stage when he or she is above 15 years of age and becomes major. It is now when he or she can enter into contract for marriage on his or her own free consent.
If he or she has been married by his or her guardian in the second stage, he or she now acquires right either to ratify or to repudiate the marriage contracted by his or her guardians. Thus, we see that the right of option originates in the second stage but availed in the stage when such a person attains the age of fifteen years.
Old Law on Option of Puberty. If the minor had been married by the father or grandfather, the marriage was regarded to be valid and binding on the minor who could annul it on the attainment of puberty except in very special circumstances.
Grounds of the option to repudiate. In the case of marriage of minor contracted by the father or grandfather, it could not be repudiated except-
1. when the father or grandfather acted negligently or wickedly, or
2. when the marriage was to the manifest disadvantage of the minor.
Marriage of a minor may be contracted by his or her father or father’s father. Marriage of a minor contracted by persons other than father or father’s father is ineffective under Shia Law, unless it is ratified by such minor on attaining puberty.
Illustration. A Shia girl, who was a minor, was married to a Sunni by her father and on her attaining puberty she considered the marriage repugnant to her religious feelings and grossly disadvantageous to herself. It was held that she must be allowed the option to repudiate it. [Aziz Bano v. Mohammad, 47, All. 832].
In case of marriage through other guardian (and not through father or father’s father) the minor might, on attaining puberty, repudiate it without giving any ground or he or she may ratify it.
Under Shia Law a marriage contracted by persons other than father or grandfather is not recognized and such a person is termed as Fazuli for this purpose.
Time of Option
By the female.-1. In case she was aware of the marriage she was to exercise this right immediately on attaining puberty. Any unreasonable delay would deprive her right of option.
2. Among the Sunnis, if the girl had no knowledge of her marriage she retained her right:
(a) until she became aware of the marriage.
(b) until she was acquainted with fact that she had the right to repudiate the marriage.
(c) And she could exercise that right within a reasonable time thereafter. (Bismillah v. Nur Mohammad, 44 All. 61). The essential principle worthy of consideration was that the woman should exercise her option immediately on attaining puberty and seeing the signs thereof, and any sort of delay was to be avoided because of the husband’s right of cohabitation.
3. The option was lost if she, after having attained puberty permitted the marriage to be consummated with her free consent.
By the male. A male retained the option until he had ratified the contract by:
(i) express declaration;
(ii) payment of dower;
(iii) cohabitation.
Present Law regarding option of Puberty– Dissolution of Muslim Marriage Act, 1939. This Act has considerably modified the old law of the Option of Puberty. Prior to this, the marriage contracted by father or grandfather could not be repudiated by the minor on attaining puberty except in very special circumstances. But now this law has been superseded by Section 2 Clause VII of the above Act of 1939.
Section 2, Clause VII reads thus: ‘A woman married under Muslim Law shall be entitled to obtain a decree for divorce on the ground that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years repudiated the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated.”
The Dissolution of Muslim Marriages Act, 1939 applies only to a woman married under the Muslim Law, and it does not apply in the case of a Muslim man. Therefore, the old law of Khyarulbulugh (option of Puberty) applies in the case of a Muslim male married during his minority.
An analysis of the above clause will clearly explain that all the restrictions on the option of puberty in the case of minor Muslim girl whose marriage has been arranged by the father or grandfather have been abolished, provided that three conditions are satisfied, namely:
1. the marriage took place while she was below the age of fifteen years.
2. she repudiated the marriage before attaining the age of 18 years.
3. the marriage has not been consummated.
Effects of the Dissolution of Muslim Marriage Act, 1939
1. It is no more necessary for a woman married under the Muslim Law to show, as in the old law that the father or grandfather has acted negligently or wickedly.
2. It is no more necessary to show that the marriage is to her manifest disadvantage.
3. It is no more necessary that she should exercise her right of option immediately on attaining puberty without unreasonable delay.
4. The marriage contracted by father or other guardian would be valid and binding till the Court decrees the divorce on the ground laid down in Section 2 (vii).
5. A regular suit has to be filed for the exercise of the option of repudiation and a decree is essential.
6. The girl would not lose her right to option if the marriage is consummated before she attains the age of fifteen years. But if the marriage is consummated with her free consent after she attains the age of fifteen years, this option is lost.
7. She must repudiate the marriage before attaining the age of eighteen years.
Grounds of Prohibitions to marriage in Muslim Law
Q. 6 (a). What restrictions are laid down by Mohammedan Law as regards marriage?
OR
What are the grounds of prohibitions to marriage in Muslim Law?
OR
What are the legal disabilities to marriage in Muslim Law?
Ans. Grounds of prohibitions to marriage in Muslim Law. If there is any legal disability or bar to marriage the marriage will not be valid. The restrictions or prohibitions in respect of marriage under Muslim Law may be divided as follows:
A. Absolute Prohibitions. Marriage in contravention of these prohibitions is void and has no effect. Even the doctrine of factum valet cannot cure this defect. Absolute prohibitions are the following:
(i) consanguinity.
(ii) affinity.
(iii) fosterage.
(i) Consanguinity, i.ec., relationship by blood. It is unlawful for a male Muslim to marry, the following relations:-
1. his mother or grandmother, how-high-soever,
2. his daughter or grand-daughter, how-low-soever,
3. his sister, whether full, consanguine or uterine,
4. his niece or grand-niece, how-low-soever,
5. his aunt (paternal or maternal), how-high-soever.
(ii) Affinity (nearness). It is unlawful to marry the following relations:-
1. Ascendants or descendants of one’s own wife, i.e., his mother-in-law or grand-mother-in-law, how-high-soever, daughter or grand daughter of his wife. A man can marry the descendants of his wife if his marriage with such wife is not consummated.
2. The wife of any ascendant or descendant, i.e., the wife of his father, paternal grandfather, how-high-soever or, the wife of his son or son’s son or daughter’s son how-low-soever.
(iii) Fosterage. When a child below the age of two years has been suckled by a woman, other than its own mother, the woman becomes the foster mother of the child. It is as much a prohibition in marriage as consanguinity because the act of suckling is regarded as equal to the act of procreation. For example, man is prohibited from marrying his foster- mother, foster-mother’s daughter.
But under Sunni Law one can marry-
(1) foster sister’s mother or sister’s foster mother.
(2) foster-son’s sister.
(3) foster brother’s sister.
(4) foster brother’s mother.
(5) foster sister’s foster mother etc.
The Shias refuse to recognize the above exceptions because they place fosterage and consanguinity on the same footing. Under Shia Law, the marriage with any of the foster relations is void without any exception.
A marriage prohibited on account of consanguinity, affinity or fosterage is void.
B. Relative Prohibitions. These are not absolute prohibitions and if violate makes the marriage irregular and not void. This irregularity lasts so long as the cause which creates the impediment exists. The moment it is removed, the marriage becomes regular and valid. Relative prohibitions are the following:
(i) unlawful conjunction,
(ii) polygamy.
(iii) woman undergoing Iddat,
(iv) prohibition on the ground of difference of religion,
(v) lack of witnesses.
(i) Unlawful Conjunction. A Muslim is forbidden to have two wives at the same time, so related to each other by consanguinity, affinity or fosterage that if either of them had been a male, they would have been prohibited from marrying each other. Thus, a Muslim cannot contract a valid marriage with his wife’s sister till his first wife is living. This bar may be removed by divorcing his first wife or when she is dead. Such marriage is irregular but the children born of them are legitimate.
Under Shia Law, a person may marry his wife’s aunt, but he cannot marry wife’s niece without her permission. According to Shia Law marriage contracted in contravention of this bar is void.
(ii) Polygamy. It is unlawful for a Mohammedan to have more than four wives. Under Sunni Law marriage with the fifth wife is irregular and this irregularity may be removed by divorcing one of them. Under Shia Law, marriage with the fifth wife, while marriages with the previous four wives are subsisting, is void.
(iii) Woman undergoing Iddat.-A Mohammedan marriage is not dissolved for all purposes immediately on death or divorce. Even after such dissolution, it continues to be effective for certain purposes during the period of Iddat. “Iddat” means a period during which a wife must wait after the dissolution of her marriage before she can marry again. Iddat is the period during which it is incumbent upon a woman whose marriage has been dissolved by divorce or death of her husband to remain in seclusion and to abstain from marrying another husband.
The object of Iddat is to ascertain the pregnancy of the wife so as to avoid confusion of parentage.
Duration of Iddat.- (1) Iddat of widowhood. When a person dies leaving a widow, she is prohibited from marrying before the expiration of 4 months and 10 days. But if she is pregnant at the time of death of her husband, the iddat will expire on the delivery of the child or after miscarriage. But if the delivery or miscarriage comes before 4 months and 10 days, the remaining period of Iddat will have to be observed.
(2) Iddat of divorce. The period of Iddat in case of divorce is 3 menstrual courses, if the woman is subject to menstruation, if she is not subject to menstruation she has to observe iddat till the expiry of three lunar months. If the woman is pregnant at the time of divorce, the iddat will not terminate till delivery.
Marriage with a woman undergoing her iddat is irregular under the Sunni law, but void under the Shia law.
(iv) Prohibition on the ground of difference of religion. This topic may be divided into two parts:
(a) Difference of sects. Inter-sect marriage is permissible under Muslim Law. Thus, marriage between a Sunni man and Shia woman, or Shia man and Sunni woman is valid.
(b) Difference of religion.(1) In case of woman. A Muslim woman cannot marry any man who is not a Muslim whether he is a Kitabi or not. Thus a marriage between a Muslim woman and a Christian male is not valid. But if he turns a Muslim the marriage will become valid.
(2) In the case of man. A Sunni Mohammedan male may marry a non-Mohammedan female if she is a Kitabia, i.e., (a Christian, Jewes but not a woman who is an idolatress (Hindu) or a Fire-worshipper (Parsee). Marriagebof a Sunni male with an idolatress or a fire worshipping woman is irregular.
In Imamhussain v. Jannathi, (AIR 2008 (NOC) 254 Karn.] it was held by Karnataka High Court that marriage between a Muslim male person and a Hindu woman is irregular and not void. Children born of such marriage are legitimate and are entitled to inheritance.
This marriage can also become lawful if non-Muslim woman becomes a convert to Islam or to a Kitabi religion. Kitabi religion means a revealed religion in which there is a Divine Book.
Under Shia Law, no Muslim man or woman may marry a non-Muslim in Nikah form (in permanent form) whether Kitabi or not. Under Shia law, marriage of a Muslim male or female with a non-Muslim female or male, as the case may be, is void.
(v) Lack of witnesses. According to the Sunni Law two male witnesses or at least one male witness and two female witnesses must be present at the time of marriage, otherwise marriage would be irregular. But under Shia Law, witnesses are not necessary at the time of marriage.
C. Prohibitory Incapacity. It arises in the following cases:
(i) polyandry,
(ii) marriage of a Muslim woman with non-Muslim.
(i) Polyandry. A married woman cannot contract a second marriage till her first marriage subsists. If a Muslim woman marries a second husband during the subsistence of her first marriage she is liable to be punished under Section 494 or Section 495 of the I.P.C. and the subsequent marriage would be void. The children born of such a marriage are illegitimate and law knows no procedure by which such children can be legitimated.
(ii) Marriage of a Muslim woman with non-Muslim. A Muslim woman cannot marry a non-Muslim man. According to Fyzee, marriage of a Sunni female with a non-Muslim is void, but according to D.F. Mulla, such a marriage is merely irregular, not void. In Shia Law, marriage of a Muslim female with a non-Muslim is void.
D. Directory Incapacity. Those religious directions which prohibit a marriage are called Directory Incapacity. This may arise from:
(i) marrying a woman enciente,
(ii) prohibition by divorce,
(iii) marriage during pilgrimage,
(iv) marriage with a sick person.
(i) Marrying a woman enciente. It is immoral to marry a woman who is pregnant by her former husband but if he himself has caused a pregnancy before marriage, he can marry her.
(ii) Prohibition by divorce. Where a marriage has been dissolved by the pronouncement of divorce three times reunion is prohibited, but if it is intervened by a consummated marriage with another, the disability is gone. Under Shia Law, if the intention of the second marriage be to remove the bar of re-marrying the first, both marriages would become void.
(iii) Marriage during pilgrimage. Under Shia Law, marriage during pilgrimage is void. Under Maliki, Shafei and Hanabali school marriage during pilgrimage is irregular but not void. Under Hanafi Law such marriage is lawful.
(iv) Marriage with a sick person. Marriage with a sick man suffering from a disease which is likely to be fatal is irregular.
Iddat
Q. 6 (b). What do you understand by Iddat? Discuss the incidents, rights and duties of the parties during Iddat period ?
Ans. Definition of Iddat.- Ameer Ali says that “It is an interval which the woman is bound to observe between the termination, by death or divorce of one matrimonial alliance and the commencement of another.” Iddat is the period during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or husband’s death, to remain in seclusion and to abstain from marrying another husband.
A Muslim marriage is not finally dissolved for all purposes immediately on death or divorce but even after such dissolution, it continues to be effective for certain purposes, one of the purposes being to ascertain whether the wife is pregnant by her husband so as to avoid confusion of the parentage of the child born in her womb. Ascertainment of pregnancy being the sole object, Iddat need not be observed when the marriage remains unconsummated except in the case of valid marriage where the dissolution has been caused by death.
Incidents, rights and duties of the parties during Iddat
1. The wife cannot marry with another person during the period of Iddat. She can marry only when the period of Iddat ends.
2. During the period of Iddat of the divorce (she being one of the four wives he had) the husband cannot marry another wife.
3. She has a right to claim maintenance during this period.
4. The prohibition to marry by unlawful conjunction continues, during the period of Iddat of his wife, and therefore, during the period of Iddat, the husband cannot marry her sister.
5. On the death of the husband or the wife, the surviving party is entitled to inherit the property of the deceased during Iddat, provided the divorce has not become irrevocable.
6. The wife is also required to observe mourning during the period of Iddat by abstinence from rich clothes, perfumes and other objects of beautifying her body. cord sil
7. The wife becomes entitled for the payment of her whole deferred dower and if the prompt dower has not yet been paid it also becomes immediately payable.
8. In case the husband has pronounced divorce in death illness and he dies before the completion of the wife’s Iddat the wife is entitled to inherit from him even if the divorce has become irrevocable unless the divorce has been pronounced by the husband at the request of the wife.
Duration of Iddat-1. Iddat in valid marriage:-
(a) In case of divorce.-(1) If the wife is subject to menstruation, the period of Iddat is three menstrual courses.
(2) If she is not subject to menstruation, the period is three lunar months.
(3) If she is pregnant, she has to observe Iddar till delivery or abortion.
(4) If marriage is not consummated, she is not bound to observe Iddat
(b) In case of death of the husband. In case of death of the husband. the wife is to observe Iddar for a period of 4 months and 10 days or till the delivery, or abortion, whichever is longer, irrespective of the fact whether the marriage is consummated or not. If the husband dies while the wife is observing Iddat of divorce, a fresh Iddat of death will be observed by the wife from the date of the death of the husband.
The computation of Iddat commences from the date of divorce in case of divorce or from the date of death of the husband in the case of death of husband. In case information of divorce or death of the husband does not reach the wife before the expiry of the period of Iddat, she is not bound to observe Iddat.
2. Iddat in irregular marriage
The period of Iddat in case of irregular marriage is three lunar months or three menstrual courses whether the marriage is terminated by separation or by death of the husband.
Mahr (Dower)
Q. 7 (a). Define dower (Mahr) and discuss its nature? What is the importance of dower in the Muslim law of marriage.
Ans. Definition, Nature and Importance of Dower (Mahr).- “Dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of marriage” (D. F. Mulla).
According to K.P. Saxena “Dower is a sum of money or any property promised by the husband to be paid or delivered to the wife as a mark of respect for the surrender of her person after the marriage contract but generally said to be consideration for marriage.”
Dr. Jung defines dower as the property or its equivalent, incumbent on the husband either by reason of being agreed in the contract of marriage or by virtue of contract as special consideration for Buza, the right of enjoyment itself.”
In the Muslim system dower may historically be traced to be bride’s price in certain respects. Before the advent of Islam, two different types of marital gifts were prevalent in Arabia. One was known as Mahr another was known as Sadaq. The first kind of gift was given by the husband to the guardian of the bride as a purchase money in the ball form of marriage. In such type of marriage, the bride was purchased by a man from her guardian and taken to his house as his wife. The second kind of gift, ie., Sadaq, was given by the husband to the wife herself in the Beena form of marriage. In this form of marriage the husband did not take the wife to his house, he visited her and the money or property given by him to her was a gift for marriage.
But when Islam was promulgated, the Prophet directed that some money or property should be given by the husband to the wife herself and not to her guardian. This gift to the wife was called Mahr after the advent of Islam.
That is why dower has generally been defined as a consideration for marriage contract. According to the Muslim Law marriage is a civil contract and dower is a necessary result of it, being a part of the consideration for agreement of a Muslim woman to become her husband’s wife by consummating the marriage. Thus, contract of marriage has been likened to a contract of sale, the husband to be the buyer, the wife to be the goods and dower to be the consideration.
In Saburannessa v. Sabdur Sheikh, [(1934) 31 Cal. W.N. 747] this analogy has been extended to even a greater degree. It was held in the above case “The right to resist her husband so long as the price or any part of it (dower) is unpaid is analogous to the lien of vendor upon the goods sold while they remain in his possession and so long as the price or any part of it is unpaid, and her surrender to her husband resembles the delivery of goods to the vendee”. In this case, Justice Mitter remarked: “The marriage under Muslim law is a civil contract and it is like a contract of sale. Sale is a transfer of property for a price. In the contract of marriage the wife is the property and dower is the price.”
But the notion of dower given above is not correct. Fitzgerald says: “It would be incorrect to describe the Muslim dower purely as the bride’s price.”
Dower is not a consideration for marriage in the true sense of the term Because ordinarily a contract without consideration is void, whereas even if dower is not fixed at the time of marriage, marriage is not void and in such a case, the wife is entitled to obtain proper dower from her husband. ” If dower were the bride’s price, a post nuptial agreement to pay dower would be void for want of consideration. But such an agreement is valid and enforceable. (Mst. Fatima Bibi v. Lal Din, 1937 Lahore 345].
The word ‘consideration’ is not used in the sense in which this word is used in the Indian Contract Act. Baillie says, under Muslim Law ‘dower is an obligation imposed upon the husband as a mark of respect to the wife.
Dower is not exchange or consideration given by the husband to the wife for entering into the contract of marriage, but it is an effect of the contract of marriage imposed by husband as a token of respect for its object-the woman.
Abdur Rahim rightly says, “It is not a consideration proceeding from the husband for the contract of marriage, but is an obligation imposed by the law on the husband as a mark of respect for the wife as is evident from the fact that the non-specification of dower at the time of marriage does not affect the validity of marriage.” (Muhammadan Jurisprudence, p. 334).
Hedaya says that “the payment of dower is enjoined by the law as a token of respect for its object, the woman.”
In Hamira Bibi v. Zubaida Bibi [(1916) 43 IA 294] the Privy Council observed “Dower is an essential incident under the Mussalman law to the status of marriage, to such an extent this is so that when it is unspecified at the time the marriage, is contracted, the law declares that it must be adjudged on definite principles”.
Kinds of Dower (Mahr)
Q. 7 (b). Explain specified Dower (Mahr-i-Musamma) and proper Dower (Mahr-i-Misl). Point out the differences between prompt and deferred dower.
OR
Discuss the kinds of dower. What are differences between prompt dower and deferred dower?
Ans. Kinds of Dower.-Dower may be divided into two kinds:-
(1) Specified Dower (Mahr-i-Musamma)
(2) Unspecified or proper dower (Mahr-i-Misl).
Specified Dower- What is it? When the amount of dower is fixed either before the marriage or at the time of marriage or even after marriage such fixed amount is called specified dower.
The amount of dower is generally settled at the time of marriage bu ante-nuptial or post nuptial agreements are permissible and such agreement are binding on the parties.
If the parties to the marriage have attained the age of puberty and are o sound mind, they are competent to settle themselves the amount of dower.
Contract can be made by father. In the case of minor husband, his father has the power to make the contract of dower on the minor’s behalf and the contract is binding on the husband and on attaining the age of majority, he cannot take the plea that he was not a party to such contract. Where the dower is fixed by father or other guardian, on behalf of the minor boy, under Sunni Law, he does not thereby render himself liable for its payment unless he stands a surety. In the case of Shia Law whether the father is surety or not, if he contracts his minor son in marriage and the child is poor, the liability for dower rests entirely on the father and in the event of his death, must be discharged out of his estate. [Sabir Hussain v. Farzand Hasan, AIR 1938 PC 80].
The maximum and minimum limits of specified dower. Under Hanafi Law, specified dower must not be less than the value of 10 dirhams. Under Maliki Law, the specified dower must not be less than 3 dirhams. Dirham is silver coin weighing 2.97 grammes. In 1909, it was valued at 3-4 annas or 20-25 paise. In Asma Bibi v. Abdul Samad, [(1909) All 167], it was held that the value of ten dirhams is something between Rs. 3 and 4. The wife is entitled to this minimum even if the specified dower is less. Under Shia Law no minimum is fixed.
But under Sunni Law, there is no upper limit to the specified dower and the dower is never invalid on the ground of its being excessive. Dower is often high among Mohammedans, to prevent the husband from divorcing his wife, in which case he would have to pay the amount stipulated. The mere fact that the amount stipulated is excessive or beyond his means is no defence. It is not uncommon to fix it at a figure which is beyond the means of the husband, e.g., a dower of Rs. 51,000 in the case of a poor man. It may be such as to cover the whole estate of the husband and in that case the other heirs would be totally excluded. Shias consider it to be abominable to have more than 500 dirhans as dower.
Dower can be increased after marriage. Subsequent to the settlement of the marriage the husband may increase the amount at any time during the continuance of the marriage. But he cannot decrease the amount of specified dower without the consent of his wife.
The wife may after the marriage remit or reduce her dower with her free consent. But she must be major and must have capacity to enter into an agreement. The remission may be of the whole dower or of a part of it. The remission may be made only in writing. Once she has relinquished her right to receive the Mahr under a valid agreement, she is prevented from claiming the same [Hasina Bano v. Alam Noor, AIR 2007 Raj 49].
When the dower is specified it may be payable (1) on demand, or (2) on death of husband or divorce. The former is known as prompt dower (Mahr-i- Muajjal), and the latter as deferred dower (Mahr-i–muwajjal). When dower is fixed, it is usual to split it into two equal parts and to stipulate that one shall be paid at once on demand and the other on the death of the husband or in case of divorce.
Prompt dower (Mahr-i-Muajjal). The following points must be noted regarding prompt dower:
(i) Prompt dower is payable immediately on the marriage and it must be paid on the demand of the wife unless delay is stipulated for or agreed. It can be realized at any time before or after the marriage.
(ii) Prompt dower does not become deferred after consummation of prompt dower marriage and a wife has absolute right to sue for payment of pror even after consummation. On the consummation of marriage, the only thing that goes against her is that she cannot resist the restitution of conjugal rights of the husband if the prompt dower has not been paid by him. Instead of refusing to decree the suit for restitution of conjugal rights to which she is entitled if marriage is consummated, the Court may pass a conditional decree for restitution on payment of prompt dower.
(iii) It is only on the payment of the prompt dower that the husband becomes entitled to enforce the conjugal rights, unless the marriage is already consummated. The right of restitution arises only after the dower has been paid. Until the marriage is consuminated the wife has a right to refuse herself to him unless the prompt dower is paid. (Anis Begum v. Mohammad Istafa Wali Khan, AIR 1933 All. 634].
Deferred dower-(i) Deferred dower is payable on dissolution of marriage by death or divorce or on the happening of any specified event. It there is any agreement as to the payment of deferred dower earlier than the dissolution of marriage, such an agreement would be valid and binding.
(ii) The wife is not entitled to demand payment of deferred dower (unless stipulated) but the husband can treat it as prompt. and pay or transfer the property in lieu of it.
Presumptions regarding prompt and deferred dower-If the terms of the prompt and deferred dower are settled, no difficulty arises. Where it is not settled at the time of marriage whether the dower is to be prompt or deferred. the real difficulty arises. The Sunni and Shia Law differ at this issue.
Shia Law. The whole dower is presumed to be prompt.
Sunni Law. According to the Sunni Law, the rule is to regard part as prompt and part as deferred, the proportion referable to each class being regulated by custom, by the status of the parties and the amount of the dower settled
Allahabad High Court has held that part should be decreed as prompt and part as deferred, the proportion being determined by the custom or if no custom is provided according to the status of the parties and the amount of the dower claimed.
Remedies in case of non-payment of dower
Q. 7 (c). Discuss the remedies available to the wife in case of non-payment of Mahr to her.
OR What are the modes recognised by the Muslim Law for the enforcement of dower? Discuss.
Ans. Remedies in case of non-payment of Dower. The rights which dower confers on the wife are three fold:
1. Refusal to cohabit.
2. Right to dower as a debt.
3. Right to Retention.
1. Refusal to cohabit. Before consummation, the wife is entitled to refuse to live with her husband and refuse to him sexual intercourse so long as prompt dower is not paid to her. In a suit for restitution of conjugal rights by the husband, the non-payment of prompt dower is a complete defence if the marriage is not consummated. If the wife is minor or insane. her guardian can refuse to allow the husband to take her with him till the payment of prompt dower If the minor wife is already in her husband’s custody, such guardian can take her back on the ground of non-payment of prompt dower. Nasra Begum v. Rizwan Ali. AIR 1980 All. 118
If the marriage has been consummated, she cannot refuse to cohabit. After consummation the husband’s suit for restitution would not be dismissed, but the Court may pass decree of restitution on condition of payment of prompt dower Anis Begum v. Mohammad Istafa Wali Khan, AIR 1933 All 634]
2. Right to ight to dower as a debt. The dower ranks as a debt and the wife is entitled, along with the other creditors, to have it satisfied on the death of the husband out of his estate. The Privy Council in the case of Hameera Bibi v. Zubaida Bibi, (1916) 43 LA. 2911 held that the dower ranks as a debt and the widow is entitled to have it satisfied along with the other creditors. in case of death of her husband, out of his estate
3. Right to Retention-The dower ranks as a debt, and the wife is entitled, along with other creditors, to have it satisfied on the death of the husband out of his estate. Her right is not greater than that of any other unsecured creditors, and as such, it does not entitle her to charge on any specific property of her deceased husband. She must however, be paid like other creditors, before legacies and before distribution of the estate.
But if she lawfully and without force or fraud obtained in lieu of her dower actual possession of the whole or part of her deceased husband’s property, she is entitled to retain that possession as against the other heirs and as against other creditors of her husband, until her dower debt is satisfied. A widow who has not obtained possession of her husband’s estate in lieu of her dower cannot exclude other heirs of her husband from possession. They are entitled to joint possession with her.
This right is sometimes called a ‘lien’ but it is not a lien in the strict sense of the term. However, this is the only kind of lien under Muslim Law, recognized in India (Hamira v. Zubaida Bibi, 8 All. 581 (PC)].
The following features must be noted in the right of retention :
(i) No right of retention during continuance of marriage. The right comes into existence only after the death of her husband, or if the marriage is dissolved by divorce, immediately on such divorce but not before.
(ii) Actual possession. The widow or a divorcee woman can retain possession of her husband’s property in order to secure payment of her unpaid dower only where such possession was in her hands in lieu of her unpaid dower. If she is in possession of her husband’s property for some other reason, she cannot retain it for the exercise of this right
(iii) Right to retain, not to obtain possession. This right is right to retain the possession in lieu of dower, and not right to obtain the possession. Therefore, efore, if the wife was not in possession of the property during the life time of her husband she cannot obtain its possession after his death under this right. The widow’s right of retention is simply the right to continue the possession of her husband’s property obtained during his life time so long as her dower is not paid
(iv) Without force or fraud. The widow must have obtained possession of property without force or fraud. According to Calcutta, Patna and Allahabad High Courts, consent of the husband and his heirs is necessary for obtaining possession. But view of Bombay and Madras High Courts is that such consent is not necessary. Tyabji holds that consent of the husband or his heirs for obtaining the possession is immaterial.
(v) The right of retention not analogous to a mortgage -The woman has no interest in her deceased husband’s property as a mortgagee has under an ordinary mortgage There is no true analogy between her right of retention and mortgage. In the case of a mortgage, the mortgagee retains possession under an agreement between him and the mortgagor, while her right of retention does not arise from any such agreement but is conferred on her by law.
(vi) Not a charge-The right does not constitute a charge on the property and as such she is not a secured creditor. If the property which is being held by her in lieu of her dower under her right of retention has been mortgaged by her deceased husband, the mortgagee can sell it free of her right and can oust her from possession.
(vii) A possessory lien on property, no title. (a) She is to satisfy her claim for dower with the rents and profits accruing from the property. For example, suppose the unpaid dower is Rs. 10,000 and the property possessed by the widow yields the annual income of Rs. 1,000. In this case, thus, in 10 years, the widow’s dower would be satisfied out of the income of the property. The widow can also claim interest upon the dower for which she can take some more income of the property. But immediately after her dower, together with interest is satisfied, she must hand over the possession of the property to legal heirs of the deceased husband. After satisfaction of dower she can no more retain the possession of the property.
(b) The right of retention does not give her any title to the property. The property retained by her is not owned by her. The title to the property is in the heirs, including, of course, the widow.
(c) She cannot alienate, sale or mortgage, the property to satisfy her dower. If she alienates the property, it is valid to the extent of her own share only
In Maina Bibi v. Choudhary Vakil Ahmad, [(1925) 52 L.A. 145] upon the death of her husband, Muinuddin, his widow, Maina Bibi retained certain immovable properties of her deceased husband in lieu of her unpaid dower The legal heirs of her deceased husband did not pay her unpaid dower. The widow made a gift of the properties and handed over the possession of the properties to the donees. In the suit filed by the legal heirs of the deceased, it was held by the Privy Council that the widow had no power to make a gift of the properties
(viii) Widow in possession liable to account -A widow in possession of her husband’s estate is bound to account to the other heirs of her husband for the rents and profits received by her out of the estate, while she is herself entitled to charge interest on the dower due to her.
(ix) Can sue heirs The widow is not disentitled to sue her husband’s heirs for the recovery of her dower out of his assets on the ground that she is retaining the property
(x) Heritable and transferable. The right to hold possession is heritable, though it cannot be said with certainty whether it is also transferable The balance of authority in India is in favour of the view that it is also transferable. She can assign her right to mahr
(xi) Extinction of her right. The right of retention is extinguished-
(i) if she voluntarily gives up the possession, or
(ii) if she is dispossessed, though she can sue for re-possession.
The right is essentially a right to retain possession which she has obtained and not to obtain possession ion in exercise of that right.
(xii) Possession, not adverse to the heirs. The possession of the husband’s property by the widow in lieu of her dower would not be treated as adverse to other heirs. (Bibee Ajeemun v. Asgar Ali.).
Talaq (Dissolution of Marriage)
Q. 8. What are the different modes of Talaq recognised under Muslim Law? Describe the procedure of pronouncing different kinds of Talaq. When does Talaq become irrevocable?
OR
Explain the different kinds of Talaq and distinguish between Sunni and Shia law of Talaq.
Ans. Talaq. Before Shamim Ara v. State of U.P.. [AIR 2002 SC 3551] a Muslim husband had unlimited power effecting Talaq without of assigning any reason. But in Shamim Ara’s case the Supreme Court observed that law as ordained by Holy Quran is-
(i) that Talaq must be for a reasonable cause, and
(ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, Talaq may be effected. [Shamim Arav State of U.P. also followed in Kausarbi K. Mulla v. State of Maharashtra, AIR 2007 (NOC) 419 Bombay.]
Capacity for pronouncing Talaq. The only essential condition for pronouncing Talay by a Muslim husband is that he must have attained the age of puberty and must be of sound mind at that time.
However in Mohd. Siddique Ali v. Mustt. Fatima Rashid [(2007) Cr.L.J. 1763] Gauhati High Court held that mere pronouncement of Talaq orally or in writing is not sufficient to terminate the marriage. The factum of Talaq should be proved by independent witnesses and it must also be proved that attempts for reconciliation between the parties have failed.
Similarly, in Dagdu Chotu Pathan v. Rahimbi Dagdu Pathan, [(2002) 3 MH L.J. 602] Bombay High Court has held that mere statement made in writing before the Court, in any form or in oral depositions regarding the Talog having been pronounced sometimes in the past is not sufficient to bold that the husband has divorced his wife.
In Iqbal Bano v. State of U.P. (2007) 6 S.C.C. 785], the Apex Coun held that the conclusion that in view of the statement in the written statement about an it an alleged divorce 30 years back by utterance of the words Talaq. Talaq. Talaq three times is sufficient in law is not sustainable A mere plea in the written statement of a divorce having been pronounced sometimes in the past cannot by itself be treated as effectuating Talaq on the date of delivery of the copy of the written statement to the wife. The husband ought to have adduced evidence and proved the pronouncement of Talaq at the claimed earlier date and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed.
Modes of effecting Talaq– A Talaq may be effected in any of the following way’s
(A) Talaq-ul-Sunnat (Revocable Talaq)-This form of Talaq is revocable, hence it is regarded as approved form of Talaq. This form of Talaq was approved by the Prophet. Both Shia and Sunni schools recognize this form. It is again divided into (i) Talaq Ahsan and (ii) Talaq Hasan
(i) Talaq Ahsan-This consists of a single pronouncement of divorce made during a ruhr (period of of purity) p followed by abstinence from sexual intercourse for the period of Iddat. The main requirements of a Talaq Ahsan are :
(i) Formula of Talaq must be pronounced only once by the husband.
(ii) If the marriage has been consummated, the pronouncement must be made during the period of purity (ruhr) of the wife.
(iii) After such pronouncement, the husband should abstain from sexual intercourse during her period of purity and Iddar.
(iv) Where the marriage has not been consummated or the parties have been away from each other for a long time it may be pronounced even if the wife is in her menstruation.
(v) When the wife is not subject to menstruation the pronouncement may be made even after sexual intercourse.
Talaq pronounced in the Ahsan form may be revoked during the period of Iddat. Such revocation may be made by express language or may be inferred from the conduct of the husband. Sexual intercourse with the wife is a clear example of implied revocation.
This form of divorce is regarded as the best form because there is a chance of reconciliation between the parties during the period of Iddat. After the expiry of the period of Iddat; divorce becomes irrevocable.
(ii) Talaq Hasan-This consists of three pronouncements made during successive ruhrs (period of purity), no intercourse taking place during any of these three tuhrs.
The chief requirements of Talaq Hasan are:
(i) There must be three successive pronouncements of the formula of divorce.
(ii) In the case of a menstruating wife, the first pronouncement should be made during a period of tuhr or purity, the second during the next ruhr and the third during the succeeding tuhr.
(iii) In the case of a n-menstruating wife, the pronouncement should be made during the successive 30 days.
(iv) No sexual intercourse should take place during these three periods of tuhr.
This is also proper form of Talaq. but less proper than Talaq Ahsan. This Talaq is revocable before the third pronouncement, but becomes arrevocable immediately after the third pronouncement.
(B) Talaq-ul-Biddat or Talaq-i-Biddat-Position before Shayara Bano v. Union of India, (AIR 2017 SC 4609). – Before the decision of the Supreme Court in Shayara Bano v. Union of India. this form of divorce was regarded as a sinful form of divorce and was recognized only under Sunni Law. It was the irregular mode of Talaq introduced by Omeyyads in order to escape the strictness of law. This consisted of two modes:
(i) Three pronouncements made during a single tuhr either in one sentence. e.g.. “I divorce thee thrice” or in three separate sentences e.g.. “1 divorce thee, I divorce thee, I divorce thee.”
(ii) A single pronouncement made during a tuhr clearly indicating an intention to dissolve the marriage irrevocably, e.g., “I divorce thee irrevocably”.
Position after Shayara Bano v. Union of India. – In the above case, the Supreme Court by a majority of 3 to 2 held the Talaq-ul-Biddat (Triple Talaq) as violative of fundamental right contained under Article 14 of the Constitution and illegal. This form of Talaq was held to be manifestly arbitrary in the sense that marital tie could be broken capriciously and whimcically by Muslim man without any attempt so to save it. Thus, the Supreme Court in the above case in a majority judgment of 3: 2 set aside the practice of Talaq-e-biddat (three pronouncements of talaq at one and the same time) practised by Sunni Muslim husbands to divorce their wives.
For ensuring constitutional goals of gender justice and gender equality of married Muslim women and help subserve their fundamental right of non- discrimination and empowerment, the Muslim Women (Protection of Rights on Marriage) Act, 2019 was enacted by the Parliament, which received the assent of the President on July 31, 2019. This Act extends to the whole of India and is decmed to have come into force on the 19th day of September, 2018. According to Section 2(c), ‘talaq means talaq-e-biddat or any other similar form of talaq, having the effect of instantaneous and irrevocable divorced pronounced by a Muslim husband. According to Section 3, “Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal” Section 4 runs. “Any Muslim husband who pronounces talaq referred to in Section 3 upon his wife shall be punished with imprisonment for a term which may extend to 3 years and shall also be liable to fine”. According to Section 5, a married Muslim woman upon whom talaq is pronounced shall be entitled to receive from her husband such amount of maintenance allowance for her and dependant children, as may be determined by the Magistrate. Section 7 of the Act lays down-“Notwithstanding anything contained in the Cr.P.C.-
(a) an offence punishable under this Act shall be cognizable, if information relating to the commission of the offence is given to an officer in-charge of a police station by the married Muslim woman upon whom talaq is pronounced or any person related to her by blood or marriage,
(b) an offence punishable under this Act shall be compoundable, at the instance of the married Muslim woman upon whom talaq is pronounced with the permission of the Magistrate, on such terms and conditions as he may determine;
(c) no person accused of an offence under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person.”
When they become irrevocable
1. Talaq-ul-Sunnat. (i) Talaq-Ahsan. It becomes irrevocable on the expiry of the period of Iddat.
(ii) Talaq Hasan-It becomes irrevocable on the third pronouncement.
2. Talaq-ul-Biddat. Before Shayara Bano v. Union of India, AIR 2017 SC 4609, Talaq-ul-Biddat became irrevocable immediately when it is pronounced irrespective of Iddat. But after the pronouncement in the above case, Talaq-ul-Biddat has become unconstitutional and illegal.
Distinction between Sunni and Shia Law of Talaq
Under Sunni Law, Talaq is easier to be given than under Shia Law, the basis of which lies in the fact that the Shias do not want that men should be so liberal and frequent in pronouncing Talaq. The following differences may be marked between the Sunni and Shia law of Talaq:
1. According to Sunnis Talaq’ could be offered in writing but the Shias do not recognize Talaq in writing, unless the husband is phys physically incapable of pronouncing. However in Shamim Ara v. State of U.P. (AIR 2002 SC 3551), the Supreme Court has observed that the words of Talaq must be pronounced. Therefore Talaq in writing is not valid in view of this decision, whether the parties are Shia or Sunni.
2. Under Sunni Law, no witnesses are required at the time of pronouncing Talaq, while under Shia Law, the presence of two male witnesses is necessary.
3. Under Shia Law, ‘intention’ is a necessary ingredient which is not so under Sunni Law. Hence, a Talaq pronounced under intoxication or compulsion or in jest is invalid under Shia Law, because under such circumstances man does not do what he intends, but in Sunni Law even such Talaqs are valid and effective. In view of Shamim Ara decision, Talaq without reasonable cause is not valid.
Grounds of dissolution of marriage under Dissolution of Muslim Marriages Act
Q. 9 (a). State the grounds on which a wife married under the Muslim Law can obtain decree for the dissolution of her marriage under Dissolution of Muslim Marriages Act, 1939.
OR
Who can sue for dissolution of marriage under the provisions of the Dissolution of Muslim Marriages Act, 1939? On what grounds can a marriage be dissolved under this Act?
OR
Under what provisions of law can Muslim marriage be dissolved by the Courts and on what grounds?
Ans. Grounds of dissolution of marriage under the Dissolution of Muslim Marriages Act, 1939.- A Muslim marriage may be dissolved by the Courts of India under the provisions of Section 2 of the Dissolution of Muslim Marriages Act. 1939. Before the passing of this Act only two grounds, namely-
(i) Impotency of husband, and
(ii) Lian,
were generally recognized in British India as valid grounds of dissolution of marriage by a judicial decree. Under the present Act of 1939, further grounds have been provided under which a wife married under the Muslim Law can obtain a decree for the dissolution of her marriage. The grounds provided under Section 2 of the Dissolution of Muslim Marriages Act, 1939 are the following:
1. Long absence of husband. If the whereabouts of her husband have not been known for a period of four years the wife is entitled to a decree for dissolution of her marriage. [Clause (1) of Section 2]. But a decree passed on this ground will not take effect for a period of six months from the date of such decree, and if the husband appears within this period of six months and satisfies the court that he is prepared to perform his conjugal duties, the court must set aside the said decree.
2. Failure to maintain her -If the husband has neglected or has failed to maintain her for a period of two years, the wife is entitled to a decree for the dissolution of her marriage [Section 2 (ii)1
The husband cannot defend the suit merely on the ground that he was unable to maintain her due to poverty, failing health, unemployment. imprisonment or on any other grounds, such as, personal properties of his wife, unless it is shown that her conduct has been such, as to disentitle her to maintenance under Muslim Law
3. Imprisonment of husband-If the husband has been sentenced to imprisonment for a period of seven years or upwards, the wife is entitled to a decrec for the dissolution of her marriage [Section 2 (iii)), but no decree can be passed on this ground unless the sentence has become final [Proviso (a) (Section 2)].
4. Failure to perform marital obligations If the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years the wife is entitled to a decree for the dissolution of marriage under clause (iv) of Section 2
In Veeran Sayvu Ravuthar v. Beeva Thunima. AIR 2002 Ker. 370, the wife was residing in her own family house and no attempt was made by the husband to get conjugal company and consortium of the wife. It was held by the Kerala High Court that the husband has failed to perform his marital obligation without any reasonable cause,
5. Impotence of husband-The wife is entitled to obtain a decree for the dissolution of her marriage on the ground that the husband was impotent at the time of marriage and continues to be so till the institution of the suit [Section 2 (v)).
6. Insanity, leprosy or venereal disease. If the husband has been (1) insane for a period of two years or (ii) is suffering from leprosy or Omitted by the Personal Law (Amendment) Act. 2019] (iii) is suffering from virulent venereal disease, the wife is entitled to dissolution of her marrriage (Section 2 (vi)]
7. Option of Puberty-[Please see Q. 5 (b)|
8. Cruelty. If the husband treats her with cruelty the wife may obtain a decree for the dissolution of her marriage. For example, if he has more wives than one, and does not treat her equally in accordance with the injunctions of Quran (Section 2 (viii))
9. Grounds of dissolution recognised by Mohammedan Law -The wife can claim judiciai dissolution on any other ground which is recognised as valid for the dissolution of marriage under Muslim Law (Section 2 (ix)]. This clause covers the divorce by Ila, Zihar. Khula. Mubarat, Lian (lian means fals accusation of adultery) and Tawfeez)
In A.M. Jagjakh v Rajathi Ziaudeen, 11 (2007) D.M.C. 365), the parties were living separately for about 12 years. The Court held that there was an irretrievable breakdown of marriage, and therefore the Court granted divorce.
Khula and Mubarat
Q. 9 (b). Explain Khula and Mubarat and distinguish between the two.
Ans. Khula and Mubarat (Divorce by mutual consent).- A marriage may be dissolved not only by Talaq, but also by agreement between the husband and wife. A dissolution of marriage by mutual consent may take the form of either Khula or Mubarat.
1. Khula- Definition-Khula or redemption literally means to take off clothes. In law, it means laying down by a husband of his rights and authority over his wife. Thus “A divorce by Khula” is a divorce with the consent and at the instance of the wife, in which she gives or agrees to give consideration to the husband for her release from the marriage tie. [Moonshee Bazul-ul-Rahim v. Luteefutoon Nissa, (1861) 8 Moor. L.A. 399].
“It signifies an agreement entered into for the purposes of dissolving a connubial connection in lieu of compensation paid by the wife to her husband out of her property.” (Hedaya).
“It is a divorce which is virtually purchased by the wife from the husband for a price.” (Saxena).
Essentials of Khula
Mutual consent of the parties.- 1. Khula is complete when the offer made by the wife for a certain consideration is accepted by the husband.
2. There must be an Ewaz or consideration which must pass from the wife to the husband for her redemption. The consideration may be :
(i) the release of dower, or
(ii) the release of other rights or property, or
(iii) any other term agreed upon by them.
Failure on the part of the wife to pay the consideration for the divorce does not invalidate the divorce, though the husband can sue for it.
3. Once the offer is accepted by the husband, it operates as a single irrevocable divorce and its operation is not postponed until execution of the Khulanama.
Capacity for Khula-Under Sunni Law, the parties must be (i) adults. (11) sane while under Shia Law they must also give, (iii) free consent; and (iv) must have the intention to enter a Khula.
Under Sunni Law, Khula may be effected even in the absence of witnesses, but under Shia Law, offer and acceptance of Khula must be made before competent witnesses.
2. Mubarat. The word ‘mubarat denotes “the act of freeing one another mutually”
It is, like Khula a dissolution of marriage by agreement. The offer of a Mubarat may proceed from the wife or it may proceed from the husband. but once it is accepted the dissolution is complete and operates as a complete discharge of all marital rights on either side In Mubarat the aversion is mutual and both the sides desire separation. There is no question of consideration.
Distinction between Khula and Mubarat
1. Khula is a “redemption” of the contract of marriage, while Mubarati a “mutual release” from it.
2. In Khula the offer is made by the wife and its acceptance is made by the husband. In Mubarat any of the two may make an offer and the other may accept it.
3. In Khula, a “consideration” passes from wife to the husband, in Mubarar the question of consideration does not arise.
4. In Khula, the aversion is on the side of the wife, while in Mubara there is mutual aversion.
Both Khula and Mubarat require the observance of Iddat. It is the husband who can effect the divorce and it is not possible for Qazi or a Coun to give a divorce even by Khula, that is by directing the wife to pay some compensation to the husband in lieu of a decree for divorce in her favour. Husband’s consent is essential.
Ila and Zihar
Q. 10 (a). Explain Ila and Zihar
Ans. 1. Ila- Definition-Where a husband who has attained puberty and is of sound mind, takes an oath that he will not have sexual intercourse with his wife and in pursuance of such oath he refrains from sexual intercourse with her for a period of four months or more he is said to make Ila, and its effect will be that of a single irrevocable Talaq.
Thus, if the husband was to say to his wife, “I swear by God that I shall not approach thee” it is a valid Ila.
Ingredients of Ila.- 1 The husband must be of a sound mind and must have attained puberty.
2. He must swear by God or take a vow that he will not have sexual intercourse with his wife.
3. Pursuant to this vow, he abstains from sexual intercourse with his wife for four months or more.
According to the Shia and Shafei Schools, the wife is entitled to apply to the Court for restitution of conjugal rights and on her doing so, the husband has two alternatives-
(i) divorce her, or
(ii) resume sexual intercourse with her, and on her refusing to do the eather, the Court has the power to dissolve the marriage
According to Hanafi Law, after the expiry of the specified period marriage is dissolved and no decree of Court is necessary.
Ila may be cancelled by. (i) the husband resuming sexual intercourse within the period of four months,
(ii) a verbal retraction thereof.
2. Zihar– Definition “If a husband (who is sane and adult), compares his wife to his mother or any other female within prohibited degree, the wife has a right to refuse herself to him until he has performed penance. In default of expiation by penance, the wife has a right to apply for a judicial divorce.” (Mulla).
Ingredients of Zihar.-(1) Husband must be of sound mind and must have attained puberty.
(2) He must compare his wife to his mother or any other female within prohibited degrees.
(3) Then the wife has right to-
(a) refuse to have sexual intercourse with him till he has expiated himself by penances prescribed by law such as-
(i) freeing a slave; (But now after the Abolition of Slavery Act. this mode of expiation has become obsolete.)
(ii) fasting for two months;
(iii) feeding sixty poor persons:
(b) apply to the Court for an order requiring him either to perform a penance or to give her a regular divorce.
Legal effects of Zihar. The declaration of Zihar does not of itself terminate the marriage tie, nor is the claim of the wife for the restitution of conjugal rights lost, even if expiation has not been made.
The following legal consequences emerge from Zihar.-
(i) Sexual intercourse becomes unlawful.
(ii) Husband is rendered liable to expiation by penance
(iii) The wife can claim judicial divorce or claim restitution of conjugal rights after insisting the husband to perform penance The Law of Zihar has now received statutory recognition in Section 2 of the Shariat Act, 1937.
Intention. According to Sayed Amir Ali, Zihar would become incumbent on the husband only if the “comparison” or “assimilation” was intended “disrespectfully” The Hedaya says: “If he declares that in making the comparison his intention was only to show respect to his wife then no expiation would be necessary.”
Shia Law. The Shia Law insists on the presence of two witnesses when any injurious assimilation is made to the wife. Mura marriage which admits no other sort of divorce may be dissolved by Zihar.
According to Fyzee. “Although these two forms of divorce (lla and Zihar) are mentioned in the Shariat Act, 1937, Sec. 2, they are very rare in India and of no practical inmportance.”
Q. 10 (b). Write short notes on Lian and Faskh.
Ans. Lian (False charge of adultery by the husband)- Where a husband charges his wife of adultery and the charge is false, the wife is entitled to sue for obtaining the decree of divorce. The following conditions are necessary for obtaining decree of divorce on the ground of lian:-
1. The husband (sane and adult) charges his wife (adult and sane) of adultery or denies the paternity of her child.
2. Such charge is false. If the charge is proved to be true, decree of divorce on this ground would not be granted in favour of the wife.
3. She must file a regular suit for the dissolution of marriage on this ground. Mere application is not enough. No such suit will lie if marriage is irregular.
4. Such false charge does not ipso facto dissolve the marriage. It only gives the wife an opportunity to move the Court for the dissolution of the marriage.
5. Lian is applicable only to valid marriage.
Faskh- Faskh’ is an Arabic word which literally means abrogation or annulment. It denotes the power of the Kazi (ie. Court) to dissolve the marriage on the application of the wife. It therefore, may be defined as “The dissolution of marriage by the decree of a Court.” Prophet Muhammad has said, “If a woman be prejudiced by marriage, let it be broken of.
Now, the provisions of the Dissolution of Muslim Marriages Act, 1939 lay down the grounds on any one or more of which a woman married under the Muslim law may obtain decree of dissolution from a Court.
[Note These grounds are given in Q. No. 9 (a) Please see the question.)
Legal effects of Divorce
Q. 11. State the consequences (legal effects) that follow from the divorce under Muslim Law.
OR
Discuss the rights and obligations that arise on the completion of a divorce.
Ans. Legal Consequences of Divorce. The following consequences emerge for a valid divorce.-
(1) Sexual intercourse-Sexual intercourse between the divorced couple is illegal.
(2) Iddat. If the marriage has been consummated, the wife is bound to observe Iddat. However if the marriage is not consummated, she is not bound to observe Iddat.
(3) Remarriage after the divorce.-Husband is free to marry another woman immediately after the divorce. But if he has four wives and divorces any one of them, he cannot marry before the expiry of Iddat of the divorced wife.
If marriage is not consummated, the wife is free to remarry with another person immediately after divorce without observing Iddar. But if the marriage is consummated, she can remarry with another person only after the expiry of her Iddat.
(4) Dower. All the unpaid dower whether prompt or deferred becomes immediately payable to the wife after divorce.
In case of consummated marriage, the wife is entitled to the full amount of specified dower. But if marriage was not consummated, she is entitled to half of the specified dower. If marriage was consummated but dower is not specified, she is entitled to proper Dower. However, if marriage was not consummated and dower is not specified, she is entitled only to a present.
Nothing contained in the Dissolution of Muslim Marriages Act affects right which a married woman may have under Muslim Law to her dower or any part thereof on the dissolution of her marriage. (Section 5. Dissolution of Muslim Marriages Act, 1939).
(5) Remarriage between the divorced couple. So long as the divorce is revocable, there is opportunity for reconciliation between the divorced couple and they can resume cohabitation without remarriage between them. But when divorce is given in an irrevocable mode or divorce becomes irrevocable, reconciliation is not possible between them without remarriage. However, if the wife is divorced by three pronouncements of Talaq, remarriage between the divorced couple is not possible and valid, unless :-
(1) the divorced wife remarries another person after observing her Iddat
(2) the second marriage is actually consummated
(3) the second husband dies or there is divorce.
In Rashid Ahmad v. Anisa Khatun, [(1939) 59 IA 21 (Alld)], the husband divorced his wife by pronouncing three Talaq. After the divorce the parties resumed cohabitation. Five chidren were born by such cohabitation. The Privy Council held that since the wife had not remarried with another person and there was no remarriage between the divorced couple, all the children were illegitimate and were not entitled to inherit the property of their father.
But if the marriage is dissolved by three pronouncements of Talaq, and the divorced couple remarry, the remarriage between them would be irregular and the children born of such remarriage would be legitimate. [Khadija v Muhammad, (1979) KLT 878].
(6) Mutual right of inheritance. Immediately after the divorce becomes irrevocable, mutual rights of inheritance between the divorced couple cease and neither of them can inherit the property of the other.
(7) Maintenance. Under the pure Muslim Law, a divorced wife was entitled to obtain maintenance from her former husband upto the period of Iddar and not after that. But now the position is that she is entitled to obtain maintenance from her former husband so long as she does not remarry (for detail see the chapter of Maintenance).