Class Notes on Family Law II – Unit I (2nd Sem / 3 year LL.B)

Development of Islamic Law

Introduction

Islam means “submission to the will of God and establishment of peace”. Muslim Law had its origin in Arabia, where the Prophet Mohammed started it and the Mohammedan invaders in India brought the religion to India. Before the advent of Islam in Arabia, the Arabians were following various superstitions and were not leading a disciplined life.

According to the Muslim religion, God created the universe and He prescribes a pattern of behavior which the human beings must observe.

The Holy Quran

It is the divine communication of Prophet Mohammed with the Allah, the only God according to the Muslim religion.

The Quron is the holy of sacred book and the basic text of the Muslim religion.

The Muslim Law is founded upon Quron.

The Shariat

Stages in the development of Mohammedan Law

Stage of Quranic precepts

Stage of Collection

Stage of Theoretical study

Stage of evolution of Ijtihad and Taqlid

The Fifth period

Sources of Islamic law

Classical Sources of Mohammedan Law

1. Quran or The Holy Kuran
2. Sunna
3. Ljmaas
4. Qiyas

Position of Classical Sources in India

Taglid means that the court should not give their own interpretation of Quron. However, traditionally settled legal principles must be accepted as such, though it is contrary to Quron. The settled laws must be followed as such even if they are not modern, just or logical. News rules of law can not be introduced.

Other Sources of Muslim Law in India

1. Legislative Enactments
2. Judicial precedents
3. Texts of Jurisprudence

Customary practices

Mohammedan people  are governed by both codified laws that are enacted by the State as well as the informal laws based on customary practices which differs from cultural, social and political scenario.

• Shariat Application Act
• Dissolution of Muslim Marriage Act
• Muslim Women (Protection on Divorce) Act

Schools of Islamic Law

Sunni School

On the death of the Prophet, Mohammed Abubeker was elected as the successor. Those who supported the election were called Sunnies. They are predominant Muslims in India.

Sub Schools among the Sunnies

1. The Hanafi School
2. The Maliki School
3. The Shafei School
4. The Hanbali School
5. The Zaydi School
6. The Jafari School
7. The Ismaili School
8. The Ibadi School

Popular Schools in India

1. The Hanafi School
2. The Shafei School
3. The Jafari School
4. The Ismaili School

Shia School

Those persons who did not support the election  to fill the vacancy of the Prophet were considered Shias. They supported the succession to the office by inheritance and by election.

Concept of Marriage: Definition, object, nature, essential requirements of a Muslim marriage

Introduction

According to Mohammadan law, the marriage is a civil contract and not a sanctity. So, all the requirements of a valid agreement are also required for Mohammadan marriage. But for the capacity of parties, the Mohammadan law prescribes 15 years as puberty.

Abdul Khader vs. Salima

Essentials of a valid marriage

According to Muslim Law, Marriage or `Nikah` as the Muslims call the nuptial ceremony is an agreement underlying a permanent relationship based on mutual approval.

Essential Features of Muslim Nikah 

• A Muslim marriage requires proposal called the Ijab from one party and acceptance or Qubul from the other as is necessary for a contract.
• There can be no marriage except for the free consent and such consent should not be obtained by means of compulsion, deception or unjustified influence.
• Just as in case of agreement, entered by a guardian, on attaining majority, so can a marriage contract in Muslim Law, be set aside by a minor on attaining the age of puberty.
• The parties to a Muslim marriage may enter into any ante-nuptial or post-nuptial agreement, which is enforceable by law, provided it is sensible and not opposed to the policy of Islam. In the case with a contract the same policies are folowed.
• The terms of a marriage contract may also be changed within the legal limitations to suit individual cases.
• Although discouraged both by the holy Quran and Hadith, yet like any other contract, there is also provision for the violation of marriage contract.

Requirements of Muslim Nikah

The solemnization of a Muslim marriage needs strict following of certain rules and regulations. They are called the basic fundamentals of a valid marriage. If any of these requirements is not fulfilled the marriage becomes either void or irregular, as the case may be.

The essentials of Muslim marriage are as follows:

• Proposal and Acceptance
• Competent Parties
• No legal Disability

Absolute Prohibition

There is absolute prohibition of marriage in case or relationship of consanguinity. In this case the situation is such that the relationship has grown up of the person through his/her father or mother on the ascending side, or through his or her own on the descending side. Marriage among the persons associated by affinity, such as through the wife it is not permitted. Marriage with foster mother and other related through such foster mother is also not permitted.

Procedure for Muslim Nikah

• According to Muslim Law it is necessary that a man or someone on his behalf and the woman or someone on her behalf should give their consent to the marriage at one meeting and two adult witnesses should witness the agreement.
• The words meaning proposal and acceptance must be spoken in each other`s presence or in the presence of their agents, who are called Vakils or Qazi.
• The other circumstance for a valid marriage is that the contract must be completed at one meeting. A proposal made at one meeting and an acceptance at another meeting does not constitute a valid marriage.
• There must be exchange of views between offer and acceptance. The acceptance must not be restricted.
• Under the Sunni Law, the proposal and acceptance must be made in presence of two males or one male and two female witnesses who are sane, adult and Muslim. Under Shia Law, witnesses are not necessary at the time of marriage. They are required at the time of dissolution of marriage.
• The parties arranging the marriage must be giving their free will and consent.

Divorce – Marriage under Islam is only a civil agreement and not a sacrament. A husband can leave his wife without any reasons or merely by pronouncing the word “Talak” thrice. However, for a Muslim woman to obtain divorce certain circumstances are necessary. The husband and the wife with mutual agreement can also put an end to the marriage.

Like Hindu law, followers of Islam have their own personal law, which states that Nikaah or marriage is a contract, may be permanent or temporary, and permits a man four wives if he treats all of them equally. There should be a proposal or `offer,` made by or on behalf of one of the two parties;

The Muslim marriage law also states that to have a valid marriage under the Muslim law, if a person is of sound mind, normal and has attained puberty at the age of 15 his or her marriage cannot be performed without his or her consent. There are certain prohibited relationships, whose marriage is considered void. Like mother and son, grandmother and grandson, uncle and niece, brother and sister and nephew and aunt.

• An `acceptance` of such proposal or `offer` by or on behalf of the other party;
• The `offer` and `acceptance,` both, must be expressed in the same meeting. There is no prescribed form for proposal and acceptance. However, a proposal, made at one meeting and an acceptance, made at another meeting, will not constitute a valid marriage;
  
• The offer and acceptance must be made in the presence of two male witnesses, or one male and two female witnesses, who must be adult Mohammedans of sound mind; iv. A marriage, contracted without witnesses, is not void but is considered irregular. Such irregularity can be cured by consummation.
• However, according to Shia law, the presence of witnesses is not necessary in any matter.

A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely: 

• That the whereabouts of the husband have not been known for a period of four years;
• That the husband has neglected or has failed to provide for her maintenance for a period of two years;
• That the husband has been sentenced to imprisonment for a period of seven years or upwards;
• That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years.
• That the husband was impotent at the time of the marriage and continues to be so;
• That the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease.
• 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.

Classification of marriage

Legal effects of valid

Void and irregular marriage

Relative Prohibitions

• Unlawful union
• Marrying a fifth wife
• Marrying a woman undergoing iddat
• Marrying a non-Muslim
• Absence of proper witnesses
• Woman going for a second marriage even after the existence of the first marriage.
• Marrying pregnant women
• Marrying during pilgrimage
• Marrying own divorced wife

Muta marriage

1. It means a temporary marriage.
2. The marriage is for a fixed period.
3. This type of marriage is recognized in the Shia Law – Ithna Ashari School

Essentials of Muta Marriage

1. The amount of dower must be fixed. It is not fixed then the marriage becomes void.
2. If the marriage is consummated, half the amount of the dower should be paid to the wife.
3. The period of co-habitation must be fixed. If the period is not fixed, then it is not a Muta Marriage but becomes a normal marriage.
4. A Shia can make a valid Muta Marriage with a non-Mohammedan woman. But a Shia female cannot marry a non-Mohammedan male
5. The Muta marriage comes to an end when the fixed period is over. Even after expiry of the fixed period, if they live together then it is presumed that the term of Muta marriage is extended.
6. Divorce cannot take place in Muta marriage but the husband by paying the full amount of dower, can put an end to the marriage even before the expiry of the term
7. The children born out of the Muta marriage are legitimate. They can inherit the property of the parents. But the wife and husband cannot inherit the property of each other. The Muta marriage is obsolete in India.

State regulation

Polygamy

The Muslim law permits a Muslim man to have four wives, provided he treats all of them equally.

Child marriage

Pre-emption

Wakf

Dower

Introduction

Dower is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of marriage, It is an obligation imposed upon the husband at the time of the marriage as a mark of reverence to the wife. The wife can receive it by instituting an action as if it was a debt due to her.

This is primarily because Mohammedan marriage contract is easily dissoluble, and the husband has the freedom of divorce and also in order to restrict polygamy, the concept of payment of dower was introduced.

The object of dower

• to create an obligation on the husband to place his wife in respect
• to restrain the frequent use of divorce by the husband; and
• to provide for the wife’s living after the dissolution of her marriage or death of her husband

Types of Dower

Specified Dower: 

1. In this case, the amount of dower is stated in the marriage contract. It can be settled by the parties to the marriage either before the marriage or at the time of the marriage or even after the marriage.
2. The minimum dower amount is ten dirhams. However, Shia Law does not fix any minimum amount of dower.
3. According to the Prophet, the Muslim husbands who are not in a position to pay even 10 dirhams to the wife as dower, should teach Quran to the wife in lieu of dower.
4. In the case of marriage of a minor, the guardian contracting the marriage of a minor or lunatic boy can fix the amount of dower.

Types of Specified Dower

Specified dower is divided into Prompt Dower & Deferred Dower.

Prompt Dower

• Prompt Dower is payable on demand by the wife, unless otherwise stated at the time of the Marriage.
• The entire dower is considered as prompt dower in the Shia Law whereas it is usual to regard half as prompt dower and half as deferred dower in Sunni or Hanafi Law.
• It can be paid any time before or after the marriage.
• If the prompt dower is not paid, the Wife may refuse herself to her husband.
• If the wife is minor, her guardian may refuse to allow her to be sent to the husband’s house till the payment of Prompt Dower.
• In such circumstances, the husband is bound to maintain the wife.
• Ever after the consummation of marriage, amount of prompt dower can be sued for recovery.

Masthan Sahib Vs. Assam Bibi

The wife refused for consummation of marriage until the prompt dower is paid. Even after consummation of marriage, the amount of prompt dower is not paid on demand by the wife. If the husband sues for restitution of conjugal rights, a conditional decree may be granted by the Court, that the husband should pay the prompt dower within the times fixed by the Court.

When the wife makes a demand for prompt dower, it becomes a debt and as such the wife can sue for the recovery of the debt within a period of three years.

Deferred Dower

Deferred dower is payable only on the dissolution of the marriage or on the death of the husband. But if there is any agreement as to the payment of deferred dower earlier than the dissolution of marriage, such agreement would be valid and binding.Since, the husband can divorce his wife at any point of time without assigning any reasons, the deferred dower acts as a security to the wife and is usually very hih.

If there is no divorce, then the deferred dower becomes payable only on the death of the husband.

Immediately on the death of the husband. the deferred dower becomes a debt, which is recoverable within a period of three years subject to the Law of Limitation.

Proper Dower or Customary Dower:

In the case of dower not fixed by the parties to the marriage before the marriage or if there is a condition that the wife should not claim for any dower amount, still the wife got a right to claim dower. Such dower is called ‘Proper Dower’ or ‘Customary Dower’.

It is determined after considering the personal qualifications of wife such as age, social position of her family, economy condition of her husband, etc.

Remedies for a divorced woman or widow to enforce the dower debt

In the case of divorce

If the husband is alive and if the wife is not yet divorced, the prompt dower is immediately payable on demand by the wife. However, the deferred dower becomes payable only after divorce by the husband.

The dower debt is an unsecured debt and so it is an actionable claim and ranks with the other unsecured debts of the deceased husband.

The limitation period is three years as in case of a general debt.

If the wife is in possession of her husband’s property after the divorce, she can utilise the property to satisfy her debt. There is no limitation period for this.

In the case of death of husband

When there is no divorce, the deferred dower becomes payable only after the husband’s death.

If the prompt dower is not demanded by the wife during the husband’s lifetime, then it becomes payabe only after the husband’s death.

Maina Bibi vs. Chaudary Vakil Ahmed

Muinuddin died leaving his widow Maina Bibi. He had left immovable property which was retained possession by Maina Bibi until dower was paid.

The respondents instituted a suit against the widow for the immediate possession of their shares of the estate, for which the widow defended that she is entitled to the possession of the estate till payment of dower. The Trial Court held that the respondents were entitled to possession on the condition that they paid to the widow Rs.25,357/- within 6 months, and in default of payment, the suit shall be dismissed. The widow continued to be in possession,  since the respondents did not pay the money.

After some years, Maina Bibi executed absolute gifts of her husband’s estate in favour of some donees and gave absolute title and possession to them. The respondents filed a suit against the widow and her alienees, that the widow had only right of retention until payment of dower and could not transfer the properties.

Judgment:

The Privacy Council held that the possession of the property once peacefully and lawfully acquired, the widow gets the right till the dower is paid and such right is conferred by Muslim Law. She has no right to alienate the property by sale, mortgage, gift etc.