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Muslim Family Law in India (Part 1: Sources of Law, Marriage, Divorce, Maintenan

 

 

MUSLIM FAMILY LAW in INDIA

(PART 1: SOURCES OF LAW, MARRIAGE, DIVORCE, MAINTENANCE, GUARDIANSHIP)

Nayab Naseer

Shakespir Edition

Copyright 2017 Nayab Naseer

 

 

This ebook is licensed for your personal enjoyment only. This ebook may not be re-sold or given away to other people. If you would like to share this book with another person, please purchase an additional copy for each recipient. If you’re reading this book and did not purchase it, or if it was not purchased for you use only, then please return to your favorite ebook retailer and purchase your own copy. Thank you for respecting the hard work of this author.

 

 

 

TABLE OF CONTENTS

 

Sunni v Shia Islam

Primary Sources of Muslim Law

Secondary Sources of Muslim Law

Concept and Nature of Marriages in Islam

Conditions of a Valid Marriage

The Marriage Ceremony in Islam

Different Types of Marriages in Islam

Mahr and Dower Debt

Prohibited Relationships (Mahrims)

Divorce (Talaq and other forms)

Iddat

Maintenance of Wives and Shah Bano Case

Muslim Minority and Guardianship

Adoption in Islam

 

SUNNI v SHIA ISLAM

Islam was established in the Arabian Peninsula by Prophet Mohammed (570 CE-632 CE). Following his death, dispute arose among his followers as to who would succeed him as the leader of the Muslims. One group pitted for Abu Bakr, who won and became the first caliph of Islam. The other group (since then known as Ahlul bayt), had pitted for Ali, the cousin and son-in-law of the Prophet, on the contention the leadership should vest with the Prophet’s family. The community nevertheless remained united during the reign of the first two caliphs – Abu Bakr and Umar. Matters came to a head during the time of the third caliph, Usman, who was accused of nepotism. Utman was eventually murdered, and Ali was accepted as the fourth caliph. However, the supporters of Utman, under the leadership of Mu’awiyah, refused to accept Ali as the caliph, and demanded the caliphate for Mu’awiyah under the customary law that the successor of a murdered person was entitled to the murdered man’s rights and position. The Muslims soon became vertically split into two camps – Shia Ali and Shia Mu’awiyah, and a civil war ensured. Shia literally means group. Even Ayisha, the wife of the Prophet, took to the battlefield in favour of Mu’awiyah. Several notable companions of the Prophet sided with Ali as well. Eventually Ali was murdered, and Ali’s son, Hassan became the fifth caliph. However, in order to bring unity among Muslims, Hassan abdicated the caliphate in favour of Mu’awiyah, on the condition the caliphate will return to Hassan or his successors on Mu’awiyah’s death. However, after Mu’awiyah’s death, Mu’awiyah’s son Yazid usurped the caliphate, denying it to Hussain, Hassan’s brother and the Prophet’s grandson. Matters reached a flashpoint during the battle of Karbala, when Yazid’s army beheaded the Prophet’s grandson and send his head on a platter to Yazid’s palace at Damascus. Islam suffered an irrevocable vertical split on that day. Shia Mu’awiyah (the followers of Mu’awiyah), who had the caliphate and the political power began to be referred to as Sunnis, and the majority of the jurists supported them for patronage. The followers of Ali (Shai Ali) became to be referred to as just Shias.

 

There are various sub divisions within both Sunni and Shia groups as well. The four well known schools among Sunnis arte Shafis, Malikis, Hanafis, and Hanbalis, based on four leaders who compiled their own collection of hadeeths and other aspects of fiqh. The Wahabbi or Salafi sect, popular in Saudi Arabia and many parts of the world today, is actually a neo-Hanbali school.

 

Differences between Sunnias and Shias

The Shias rejected the caliphs, considered them as usurpers, and have their own imamate. For them Ali was the first imam, Hassan the second imam, Hussain the third imam, and then their descendants. The fiver Shiites recognizes only five imams. The twelver Shiites (Itna Ashara), which is the majority in Iran, recognize twelve imam, and consider the last imam went in hiding to a cave, and will return when the world is about to end. For the Sunnis, in the meantime, caliphate became a hereditary monarchy.

 

The Shias consider all those who sided with Mu’awiyah and its ilk as renegades and do not accept any hadeeths from them. They even consider Abu Bakr, Umar, and Usman, the caliphs who preceded Ali as inhabitants of hell. The Sunnis likewise consider the Shias and their imams as deviants, and do not accept any teachings from them.

 

PRIMARY SOURCES OF MUSLIM LAW

1. Quran:

 

Quran is the primary and fundamental source of Islam. It consists of 6237 ayats (verses) divided into 114 suras (chapters). It is regarded as “Al-furqan:” the one that shows the truth from falsehood and the right from the wrong.

 

The root meaning of Quran is Arabic word ‘Qurra’ = ‘the reading.’ Quran is the word of God, revealed to Prophet Mohammed, through Angel Gabriel. The first revelation (Wahi) came to the Prophet in 609 CE, and continued for about 23 years. The Prophet preached the revelations. Later, some sahabis (followers) wrote the verses on animal skin and palm leaves. Finally, the third caliph, Usman, collected and aggregated the Quran in its present form, burning other versions.

 

The verses of Quran are a mix of religion, law and morality. About 200+ verses deal with law, and about 80+ deal with personal law. However, it lays down only the basic principles, and is not a complete code of Muslim personal law. Further, the Quran is silent on many issues, which leaves heavy reliance on other sources.

 

The Quran, being from Prophet Mohammed, is accepted by both Sunnis as Shias, though Shias consider the Quran as incomplete, and accuse Usman of having irrecovably destroyed some verses of the Quran.

 

2. Traditions of the Prophet (Sunnah and Hadiths)

 

Sunnah = “ trodden path”. It refers to the actions and sayings of the Prophet, outside of revelation. Hadiths are the compilations of sunnah, recounting incidents of Prophet’s life. The Prophets acts and words are believed to have been inspired by God, though it is not a part of revelation. So wherever the Quran is silent, the Hadeeths, which contain the sunnah are the next source.

Sunnah are graded into several categories:

Sunnat-ul-Qaul: the words spoken by the Prophet.

Sunnat-ul-Fail: conduct and behaviour of the Prophet.

Sunnat-ul-Taqrir: The Prophet’s implied approval to pre-islamic customs and practices, (mostly through his silence.)

 

There are several narrators of hadeeths. The Sunnis categorize them in the following hierarchy.

1.Companions of the Prophet: Muslims who lived with the Prophet during his lifetime and were close to him. Their testimonies are the most reliable ones.

2.Successors of the Companions: The Muslims who came in contact with the Companions of the Prophet. They stand second in reliability.

3.Successors of successors: The Muslims who were in constant companionship of the successors. They come last in the line of reliability.

The further a narrator from the Prophet, the lesser authority is given to his narration. In addition, each narrator was judged by the mental understanding, power of retention, and righteous conduct.

 

The authenticity of each hadeeth is evaluated based on the chain of transmission (isnad). The reporter of the hadeeth cite their reference, their reference’s reference, and so on, all the way back to Muhammad. Based on the insad, hadeeths are classified as:

Muttawir hadeeths: Universally accepted traditions, with no doubt on their certainty. Narrated by many narrators, and accepted by all schools of Islam.

Mashor hadeeths: Popular traditions narrated by the companions of the Prophet and with mass acceptance, but not universally accepted.

Ahad hadeeths: Isolated traditions not followed by many. Generally, the acceptance and practice is a localised one.

 

Hadeeths were transmitted orally, and not written down until many years after the death of the Prophet, leading to serious doubts about the credibility of even muttawir hadeeths. Sahi Bukhari and Sahi Muslim, the two most popular collection of hadeeth, were compiled in 854CE and around 870 CE respectively, more than 200 years after the death of the Prophet. The Shia school of islam reject Sahi Bukhari and Sahi Muslim completely. Their most popular compilation of hadeeth is “Al Kafi” instead.

 

Many hadeeths have a doubtful origin and some are even contradictory to each other. There are no uniform or certain rules on certain issues.

 

The Shias follow only those traditions that come from the Prophet’s family, and reject all other hadeeths.

 

3. Ijma: Unanimous decision of scholars

 

Ijma means the opinion of the learned. It refers to the unanimous decision of scholars on any issue, at a particular time or era.

 

When the Quran is silent on an issue, and nothing clear-cut or definite can be ascertained from hadeeths, persons knowledgeable in law would agree upon a point, which became ijma.

 

The basis of ijma is Ijtihad, or creating law through consensus on the basis of ‘exercise of one’s reasoning. The Ijma had to be justified with references to the principles given in the Quran, as well as public policy, interest of the community and equity.

 

The authority of Ijma depends upon the capabilities of the people participating in its formation:

Ijma of the Companions: the consensual opinion of the Companions is believed to be most authoritative and accurate. It cannot be overruled or modified by subsequent Ijmas.

Ijma of the Jurists: the opinion of learned scholars was believed to be the next best Ijma after the Ijma of the Companions. This can be overruled by a new set of jurists

Ijma of the People: At times, the mass acceptance of a principle as law was also accepted, but can be overruled by a higher ijma.

 

A major chunk of the fiqh or actual Muslim law came through Ijma, and not directly from Quran and Hadeeths. In fact, the raison-de-etre of various sub sects in Islam is different interpretations while deducing ijma.

 

4. Qiyas – Analogical Deduction

 

Qiyas is a method of comparing a problem in present times to a similar problem for which the solution is provided in the texts. It is actually a weaker form of ijtihad.

 

Istihsan = juristic equity, conclusion of law based on the jurist’s sense of justice or equity rather than any text. Recognised only under Hanafi Law.

Istidlal = inferring one thing from another. Only an inference is drawn and analogy is not established. Accepted only in Maliki and Shafi schools.

 

The Hanifi school, under Imam Abu Hanifi relied heavily on Qiyas. The Shafi school considered it as a very weak source. The Shias do not recognize Qiyas as a source of law.

 

SECONDARY SOURCES OF MUSLIM LAW

1. Custom (Urf / Tammul)

 

Before Islam, customary law governed Arabia. The Prophet abolished most of them, but some were implicitly or explicitly approved by the Prophet. The British Courts in India held that a custom would prevail over a written text provided that the custom was ancient and invariable.

 

The Shariat Act, 1937 has abolished most of the customs, and states customs and usages do not apply to marriage, divorce, inheritance, wakf and, maintenance. However, customs can still apply to wills, adoption, charities and religious endowments. Additionally, the Shariat Act is not applicable to the state of Jammu and Kashmir. Thus, the rules of Muslim law there are subjected to customs and usages.

 

2. Legislations

 

The major legislations governing Muslim personal law in India are

1.The Mussalman Waqf Validating Act, 1913 – re-establishes validity of family-wakfs.

2.The Muslim Personal Law (Shariat) Application Act, 1937 – establishes custom cannot be an independent source of Muslim law all the time

3.Dissolution of Muslim Marriage Act, 1939 –provides rights to judicial divorce under the grounds mentioned in it, to women who traditionally had no independent right to seek divorce.

4.Muslim Women (protection of Rights on Divorce) Act, 1986 – deals with issues of maintenance after divorce and maintenance during idddat

5.Punjab and Haryana’s Muslim in Muslim Shrine’s Act, 1942.

 

Other acts, not directly dealing with Muslim personal law, nevertheless have an impact on Muslim law as well. Some such acts are:

 

1.The Caste Disabilities Removal Act, 1850 changed the laws of the pre-existing rights of converts

2.The Indian Evidence Act, 1872 changes the traditional outlook on legitimacy

3.The Indian Majority Act, 1875 differed on its definition of majority

4.The Dowries Prohibition Act, 1961 prohibits payment of dowry

5.The Child Marriage Restraint Act makes the marriage of a boy under 21 years of age and a girl under 18 years a ‘child marriage’ and punishable without affecting the validity of it.

6.Special Marriage Act, 1954 – deals with inter religious marriages, i.e. of Muslim with bride or groom of another religion.

7.Indian Succession Act, 1925 – deals with inheritance and intestate succession of the spouse or heirs, when married is conducted under Special Marriages Act 1954

 

3. Judicial Decisions

 

In British India, the Privy Council decided many cases related to Muslim law. These cases continue to have a binding force on all the High courts and the lower courts of India, and have a persuasive value in the Supreme Court of India. Some aspects of Muslim law where courts have stepped in and judicial decisions have become the basis of law are

Law of pre-emption

Validity of gifts to minor wife

Additional grounds of dissolution of marriage

Interest on unpaid dower

 

4. Fatwas

 

A fatwā is an educated opinion, issued by an expert in religious law (mufti), pertaining to a specific issue, usually at the request of an individual or judge to resolve an issue where Islamic jurisprudence (fiqh), is unclear. Unlike ijma or qiyas, fatwa can be issued by any mufti, on how he interprets the issue in his individual capacity. Fatwā compares to a court verdict, but is not legally binding on anyone. It is expected the one who issues fatwa should know the complete Quran and corpus of hadeeths.

 

The scholar issuing the fatwa should provide argument and basis for the opinion. Often, other scholars disagree, and there are contradicting fatwas.

 

5. Works of Scholars

 

Works of scholars throughout the ages, codifying the information found in Quran and other sources are often the first hand source of information. For example, Fatawa-e-Alamgiri, a compilation of law created at the insistence of the Mughal Emperor Aurangzeb is the source relied upon in India and Pakistan for implementing Sunni Hanafi Islam’s sharia. Likewise Charle’s Hamilton’s “Hedaya” (1752), which is a translation of ʻAlī ibn Abī Bakr’s Marghīnān is also the relied upon work for family law in India and Pakistan.

 

CONCEPT AND NATURW OF MARRIAGE IN ISLAM : LEGAL, SOCIAL AND RELIGIOUS

Nikah literally means “to collect and bind together.” It is the basic and most common form of marriage among Muslims, and is described in the Qur’an (Surah 4:4). The contract may be in writing or oral, executed by a qadi (judge) in the presence of witnesses.

 

Legal

 

In Islam, marriage is a civil contract, by which a man and women enter into a legitimate state of sexual intercourse, cohabitation and procreation.

 

Sn 2(f) of Muslim Women (Protection of Rights on Divorce) Act, 1986 defines “Nikah” as “A solemn pact (Mithaq-e-ghalid) between a man and women, soliciting each other’s life companionship, which in law takes the form of a contract (aqd.)

 

Unlike Hindu law where the marriage is a sacrament, marriages in Muslims have a nature of civil contract. Marriage is necessary for the legitimization of a child. When the marriage is done in accordance to the prescribed norms it creates various rights and obligations on both the parties.

 

Muslim marriage can also be differentiated from a civil contract on the basis of following points:-

(a) It cannot be done on the basis of future happenings unlike the contingent contracts.

(b) Unlike the civil contract it cannot be done for a fixed period of time. (with the exception of Muta Marriage)

 

Social

 

In Islam, marriage is also a social obligation. Ameer Ali defines marriage as “an institution to protect the society from foulness and unchastity.”Marriage is considered to be a moral safeguard and a social need.

 

There were several forms of marriages in pre-Islamic Arabia, such as:

1. Buying of girl from parents by paying a sum of money.

2.Temporary marriages.

3.Marriage with two real sisters simultaneously.

4. Freeness of giving up and again accepting women

 

Islamic regulated and reformed such marriage practices.

 

Religious

 

In islam, marriage is also a religious requirement. The Prophet said:- “When a man marries he has fulfilled half of his religion, so let him fear Allah regarding the remaining half.” He also said “Marriage is my tradition whosoever keeps away there from is not from amongst me.”

 

The classical Sunni Imams Abu Hanifa (Hanafi), Ahmad ibn Hanbal (Hanbali) and Malik ibn Anas (Maliki) regard marriage as recommendatory, though for individuals who fear they will commit fornication, it becomes obligatory (wajib). Imam Shafi considers it to Nafl or Mubah (preferable). However, at the same time, one should not marry if he does not possess the means to maintain a wife and future family or if he has no sex drive or if dislikes children, or if he feels marriage will seriously affect his religious obligations.

 

However, getting married is haram(absolutely prohibited) for a man who is sure due to his temperament that he will be guilty of cruelty and excesses towards the would be wife. If he is not sure but has a reasonable apprehension of meting out of cruelty to her, getting married is makruh-e-tahrini (to be essentially avoided).

 

A valid marriage creates the following legal rights and obligations for both parties:

1. Right to have legitimate sex

2. Right to have legitimate children

3. Wife gets power to get ‘Mahr’

4. The wife entitles to get maintenance, subject to conditions.

5. Husband gets right to guide and prohibit the wife’s movement, subject to considtions

6. Right of succession develops.

7. Prohibition of marriage (in-law maharims) due to affinity sets in

8. Women bound to complete Iddat period & not to marry during Iddat period; after divorce or death of husband.

 

On the basis of a marriage husband and wife do not get the right on one another’s property.

 

CONDITIONS OF A VALID MUSLIM MARRIAGE

Under the Muslim law, a valid marriage is that which has been constituted in accordance with the essential conditioned. It confers upon the wife; the right of dower, maintenance and residence, imposes on her obligation to be faithful and obedient to her husband, admit sexual intercourse with him & observe Iddat.

 

1. OFFER AND ACCEPTANCE: The Islamic marriage ceremony is essentially offer and acceptance. Both parties are clearly identified by the qazi who presides over the ceremony. The wali (guardian) of the bridegroom makes the eejaab (proposal), who says to the groom “I marry so-and-so to you” or similar words. The bride makes qabool (acceptance) it by saying “I accept,” or similar words.

The offer and acceptance has to be in a single sitting. There is no deferred marriage in Islam.

The process is same for Sunnis and Shias.

Abdul Kadir v Salima (1886): Court held Muslim marriage is a civil contract between Muslim male and any female, and on completion of proposal and acceptance, the rights and obligations apply immediately.

 

2. WITNESS: Sunni jurisprudence requires either two adult Muslim males or one adult Muslim male and two adult Muslim females as witness. Shia jurisprudence requires two adult Muslim males as witness.

 

3. CAPACITY: At the time of the marriage, both the parties must be of sound mind. Unsoundness of mind may be either idiocy or lunacy.

Idiocy = abnormal state of mind in which a person is completely incapable of knowing the legal consequences of his/her activities.

Lunacy = a mental disease. The period during which a lunatic behaves like a sane person with normal understanding, is called ‘lucid interval’. Marriage by a lunatic during ‘lucid interval’ is a valid marriage. Both marriage by idiots and lunatics (except during lucid intervals) are void.

However, a minor and insane (lunatic) who have not attained puberty can be validly contracted in marriage by their respective guardians.

 

4. LEGAL AGE: There is no specified legal age for marriage. Sahi Muslim permits marriage on reaching sexual maturity (I.e. menstruation, voice changing, wetdreams). Sexual maturity in sharia law is typically understood to mean puberty. In Sadique Ali Khan v Jai Kishori (1928): Privy Council held earliest age of puberty is 12 years for men and 9 years for women. But In Mst. Atika Begum v. Mohd. Ibrahim, the Privy Council lays down the rule to determine majority (i) the completion of her 15th year or (ii) attainment of a state of puberty at an earlier period. Same rule applies to both boy and girl. The Child Marriage Restraint Act, 1929 makes marriage of people below 21 years for men and 18 years for women punishable.

 

5. CONSENT OF PARTIES: Consent of both the parties, including the bride is essential. A marriage without the consent of the bride, or performed under coercion is illegal. For virgins, silence constitutes consent (because of her natural shyness.)

Hassan Kutti v Jainabah (1929): Marriage of girl who has attained puberty and of sound mind is void if her consent is not obtained.

Abdul Kasim v Jameela Khatum (1940): Consumation of marriage held without consent of bride will not validate the marriage.

6. MAHR: Nikah is not valid without mahr, which is dowedr paid by bridegroom to bride.

 

7. OTHER SPOUSES: The groom should not have more than four living wives. Muslim men are allowed to practise polygyny as per Quran Sura 4 (Al Nisa) Verse 3. A man does not need approval of his first wife for a second marriage. The only requirement is to create fairness among his wives. If this requirement cannot be fulfilled, then he can only marry one woman. The wives under “mutah” marriage do not count towards this limit of four. Polyandry is however not permitted, apparently owing to the potential questioning of paternal lineage. As such, wife should not have a living husband when marriage takes place.

 

8. CONSENT of WALI: Permission from the bride’s father or guardian (wali) is essential in Shafi, Maliki, and Hanbali schools of Sunni law. It is strongly recommended in Hanafi school. It is obligatory only as a precaution in Shia jurisprudence.

 

Where consent of wali is required, the bride does not enter into the contract of marriage with the groom directly, and rather enters into the marriage contract with the wali, who acts on the bride’s behalf.

 

The wali should satisfy the following essential conditions.

1. He should be a male. “No woman may conduct the marriage contract of another woman, and no woman can conduct the marriage contract on behalf of her own self, because the zaaniyah (fornicatress, adulteress) is the one who arranges things on her own behalf.” (Reported by Ibn Maajah, 1782; see also Saheeh al-Jaami’, 7298)

2. He should be of sound mind

3. He should be an adult

4. He should be free (not a slave)

5. He should be a Muslim (applicable for converts)

There are also stipulations the wali should be of good character, wise and mature.

A wali who is more closely-related should not be ignored unless there is no such person or the relatives do not meet the specified conditions.

 

Order of hierarchy of wali (subject to whoever satisfies all the conditions)

SUNNI LAW: Father  Whoever father nominated before his death  paternal grandfather or great grandfather  son of the bridge  grandfathers sons or grandsons  full brother (brother through both parents)  brother through bride’s father  sons of brother through both parents  sons of brother through father  uncle (father’s brother through both parents)  father’s brother through father  sons of her father’s brother though both parents  sons of father’s brother through father…… If no one satisfies the condition, the leader of the Muslims in the community (Qazi or judge) becomes the wali.

 

SHIA LAW: Father  Paternal Grandfather  Qazi

 

Ayub Hassan v Atakkari (1965): Marriage by consent of a distant wali when a nearer eligible wali is available and present is void. Parties to marriages can however ratify such void marriage on attaining puberty.

 

THE MARRIAGE CEREMONY IN ISLAM

The essential marriage ceremony in Islam is very short

The nikah is registered by the Qadi who performs the short ceremony, which includes the eejab and qabool, in the presence of the witnesses. There will be an optional sermon (qutba) as well.

 

Unlike the wedding ring in Western societies, there is no visible sign worn to show a woman or a man is married.

 

The Walima is a dinner given by the groom’s side of the family to celebrate the welcoming of the bride to the family. It is a strong sunnah, but not mandatory.

 

Irregular or Fasid Marriage:

Failure to fulfill the following essential conditions of a valid Muslim marriage results in an irregular (Fasid) marriage. Such marriages are not legally valid until consummation, and can be terminated by any one party to the marriage, at will. When consummation takes place, the marriage becomes legal.

 

1. A marriage without witness

2. Marriage of a man with a fifth wife.

3. Marriage with a women undergoing Iddat.

4. Marriage with a fire-worshipper.

5. Marriage outcome of bar of illicit sex

 

Void (Batil) Marriage

Failure to fulfill the following essential conditions of a valid Muslim marriage results in an void (batil) marriage. Such marriages are illegal from the very beginning, does not create any civil rights or obligations between the parties, and the offspring of a void marriage is illegitimate.

1. Marriage through forced consent.

2. Plurality of husband.

3. Marriage prohibited on the ground of consanguinity.

4. Marriage prohibited on the ground of affinity.

5. Marriage prohibited on the ground of fosterage.

 

Khyar-ul-Bulugh (Option of puberty):

 

Khyar-ul-Bulugh is the option available to a minor, on attaining the age of puberty, to approve or disapprove the marriage. If this option is invoked, marriage stands dissolved with immediate effect.

Clarification of option of puberty is optional in Sunni law, and compulsory in Shia law.

 

Rules relating to the ’option of puberty’:

 

The ‘option of puberty’ is not allowed for husbands, if his marriage was contracted by father or grandfather, unless it can be proved the marriage was done in a fraudulent manner.

A wife can exercise option of puberty even if her marriage was contracted by her father or grandfather.

 

The option must be exercised by a wife immediately after the attainment of puberty, or else the right is lost. However, under Section 2(vii) of the Dissolution of Muslim Marriage Act, 1939 a Muslim wife has a right to exercise this option till she attains the age of eighteen years.

 

A husband has the right to exercise the option until he approves the marriage either expressly or impliedly. Payment of dower to the wife or cohabitation with her is regarded as implied approval of the marriage by a husband.

 

The marriage does not dissolve merely by the exercise of option of puberty. Confirmation by court is necessary for dissolution of marriage.

 

Abdul Kassim v Jamila Khatum (1940): Opt6ion of puberty should be exercised within a reasonable time after puberty, failing which the option to exercise the right will be lost.

 

DIFFERENT TYPES OF MARRIAGE

Apart from the standard Nikah, there are many other types of marriages in islam, with varying degrees of legitimacy

Nikah Mutah

 

Muta marriage is a temporary marriage. If there is an agreed upon end date in the marriage contract, such contract is invalid according to Sunni jurisprudence. However, this is allowed in Shia jurisprudence, and such marriages with an end date are known as Mutah marriage or temporary marriage.

 

The essentials of Muta marriage are:-

The period of cohabitation should be fixed.

Dower should be fixed.

If dower specified, term not specified, it could amount to permanent or regular marriage.

If term fixed dower not specified, it amounts to void marriage.

 

Mutah vs Traditional marriage

 

Unlike traditional nikhah, the couples do not inherit from each other in mutah marriage. There is only mehr.

Unlike regular marriage, husband is not responsible for the economic welfare of the woman and she usually may leave her home at her own discretion.

Nikah mut‘ah also does not count toward a maximum of wives (four according to the Qur’an).

However, similar to normal marriages that are common among Sunnis and Shi’ias, the woman the woman must still observe the iddah, during which time the woman cannot remarry. This is to ensure that there is no pregnancy from the ex-husband and thus clarifies paternal lineage.

 

Is Mutah a legitimate form of marriage?

 

Mutah marriage is there in the Qur’an, in Sura An-Nisa (4:24). Sunnis believe this verse was abrogated, but Shias hold since Quran is infallible, there is no abrogation. Sunnis regard mutah as a form of legalized prostitution, but Shias hold the ban of mutah was initiated by Caliph Umar and not Mohammed. “Were it not for Omar banning Mut’ah only the sickest people would commit fornication.”

 

Nikah misyar

 

Nikah Misyaar is a type of nikah in Sunni jurisprudence, popular in Saudi Arabia. It is the same as normal nikah and carried out by the normal contractual procedure, but the husband and/or wife give up several rights by their own free will, such as living together, equal division of nights between wives in cases of polygamy, the wife’s rights to housing, and maintenance money (“nafaqa”), and the husband’s right of home keeping, access etc. Since such conditions can technically also include an end-date to the marriage, critics equate it to mutah.

 

Beena Marriage

 

Beena is a form of pre-Islamic marriage, where a wife would own a tent of her own, within which she retained complete independence from her husband. This type of marriage is still popular among Muslim communities in Sri Lanka and elsewhere.

 

Nikah Ijtimah

 

Nikah intimah was another type of pre-Islamic marriage where a group of less than ten men would assemble and enter upon a woman, and all of them would have sexual relations with her. If she became pregnant and delivered a child, she would send for all of them and none of them could refuse to come, and when they all gathered before her she would say to them “You (all) know what you have done and now I have given birth to a child. So it is your child O so and so!” Naming whoever she liked and her child would follow him and he could not refuse to take him. This form of marriage was outlawed by Islam.

 

Nikah Halalaa

 

Nikah halala is a female divorcee marrying someone else, consummating the marriage and then getting a divorce to remarry her previous husband. This is to circumvent the Quranic prohibition of not being able to take back the talaq after the third talaq, unless the wife has married and divorced someone else. This is commonly practiced in the Muslim world.

 

The conditions to re-marry following a divorce and nikah halalah are the following:

1. Wife should observe iddah after each divorce

2. The nikah halalah must be actually consummated.

3. The second husband must pronounce talaq fulfilling all conditions, or die.

 

Presumption of Marriage

 

When there is dispute if marriage has actually taken place, the proof are

1, the nikah namna, or register signed during marriage ceremony

2. oath of the witness present during the marriage ceremony

 

However, when these two are not available, there can still be presumption of marriage if the parties

 

1. Have been cohabitating as husband and wife for a prolonged period of time.

2. Acknowledge the marriage has taked place

3. Acknowledgement of paternity of child born to a women takes place

 

Gazaufar Ali v Kainz Fathima: Cohabitation with a prostitute, however prolonged, cannot give rise to presumption of marriage.

Badri Prasad v State: When parties live together for a long time, there is presumption of wedlock, and strong evidence is required to rebut the presumption of marriage.

 

MAHR AND DOWER-DEBT

The word “mahr” is related to the Hebrew word “mohar” and the Syriac word “mahrā”, meaning “bridal gift”, which originally meant “purchase-money”. Mahr was already mandatory according to Eastern Roman law, and was customary in pre-Islamic Arabia as well.

 

In Islamic law, Mahr is a mandatory payment, in the form of money or possessions, paid or promised by the groom, or by groom’s father, to the bride at the time of marriage. Mahr is typically specified in the marriage contract signed during an Islamic marriage.

Mahr is often money, but it can also be anything agreed upon by the bride such as jewelry, home goods, furniture, a dwelling or some land.

It is the duty of the husband to pay Mahr as per the Qu’ran (Sura Al-Nisaa’ 4:20–24).

Mahr is the bride’s legal property, and establishes her financial independence from her parents and in many cases from her husband, who has no legal claims to his wife’s mahr.

The wife is entitled to mahr even if one of the spouse died before consummation of marriage, but after nikah (signing the marriage contract.)

 

Wife may refuse to cohabit with husband if dower is not paid (if marriage is not already consummated). Wife can also sue the husband (or heirs of deceased husband) for recovery of mahr.

Kapoor Chand v Nizza Begum (1953): Claim for unpaid dower is like ordinary debt. Legal heirs are bound to pay only from the share of inheritance they received.

 

Under Islamic law, there is no concept of marital property. In Islam, marriage is a contract between a man and his wives. A Muslim man and woman do not merge their legal identity upon marriage. The assets of the man before the marriage, and earned after the marriage, remain his during marriage, and in case of a divorce. Likewise, divorce does not require redistribution of property, with each spouse walking away from the marriage with his or her individual property.

 

Mahr v Dower

 

“Dower” in English customs refers to the payment from the husband or his family to the wife, especially to support her in the event of his death. However, mahr is distinct from dower in two ways:

1) mahr is legally required for all Islamic marriages while dower was/is optional,

2) mahr is required to be specified at the time of marriage (when a certain amount is promised, if not paid immediately), while dower is not paid until the death of the husband.

 

Mahr may be paid in full at time of marriage, fully deferred, or a portion may be paid at time of marriage and a portion deferred (in promissory form).

Muqaddam = mahr amount given to the bride at the signing of the marriage contract

Mu’ajjal = mahr amount promised but deferred. This is payable at any agreed upon date following the consummation of the marriage. If the husband dies, the mahr that had not been paid to the wife becomes a debt that he still owes; it should be taken from the estate before it is divided among the heirs.

Mu’jaal (mahr in promissory form) also becomes payable if the husband initiated the divorce (talaq). If it was previously paid, a woman is entitled to keep her mahr.

 

If husband divorces the wife, wife keeps the mahr.

If the wife initiates the divorce for any acceptable cause, such as husband’s abuse, illness, impotence, or infidelity, the woman has the right to keep the mahr.

If the wife seeks divorce outside any generally accepted cause, the husband may request the return of the mahr. According to Hanafi school, if the woman initiates the divorce she cannot receive her mahr regardless of the circumstances.

 

There is no hard-and-fast rule regarding the quantum of mahr. However, according to a hadith, the Muhammad stated the mahr should be “one gold piece.”

 

Proper Dower

When the amount of mahr is not fixed or specified in the marriage contract, wife is entitled to proper dower. The court can fix the3 quantum of proper dower based on

Qualification, age and beauty of wife

Social position of family

Dower given to father’s sister

Under Shia law, maximum amount of proper dower is 500 dirhams.

 

PROHIBITED RELATIONSHIPS (MAHRIMS)

“Mahrim” refers to a specific legal relationship that regulates marriage and other aspects of life. A mahram is an unmarriageable kin with whom sexual intercourse is incestuous, and a punishable taboo.

The following are the category of male mahrams for a woman:

 

1. Permanent or blood mahrams with whom one is mahram by a blood relationship:

Parents, grandparents and further ancestors

Siblings

Children, grandchildren and further descendants

Siblings of parents, grandparents and further ancestors

Children and further descendants of siblings

 

2. In-law mahrams with whom one becomes mahram by marrying someone:

Father-in-law, Mother-in-law;

Son-in-law, Daughter-in-law,

stepfather (mother’s husband) stepmother (father’s wife)

Stepson (husband’s son), stepdaughter (wife’s daughter)

 

3. Rada or “milk-suckling mahrams” with whom one becomes mahram because of being nursed by the same woman.

 

For a man, mahram women include his mother, grandmother, daughter, granddaughter, sister, aunt, grandaunt, niece, grandniece, his father’s wife, his wife’s daughter (step-daughter), his mother-in-law, his rada mother and any other rada relatives

 

Is it allowed to marry two sisters?

 

According to Sharia, it is not permissible to marry two sisters at the same time, regardless of whether they share the same father and mother, or they have only one parent in common. Quranic verse al-Nisaa’ 4:23 makes a prohibition to this effect.

However in Bismillah Begam case, a SC bench under Justice Altamas Kabir held such marriages are merely irregular and not void, and a sister who is the second wife is bound to get maintenance under Sn 125 of CrPC.

 

DIVORCE (TALAQ & OTHER FORMS)

Talaq=divorce. In its literal meaning, it means “setting free”or “letting loose.” In Muslim Law it means freedom from the bondage of marriage

 

The Prophet declared that among the things which have been permitted by law, divorce is the worst, and should be avoided as far as possible. But in some occasions this evil becomes a necessity.

The basis of divorce in Islamic law is the inability of the spouses to live together rather than any specific cause (or guilt of a party) on account of which the parties cannot live together.

Under Muslim law divorce (talaq) may take place by the act of the parties themselves or by a decree of the court of law.

 

Divorce by husband

 

A husband may divorce his wife by repudiating the marriage without giving any reason. The proclamation of talaq can be at the whim of the husband, even in the absence of the wife, and without the presence of any witness.

 

Types of Talaaq

 

Talaaq-i-sunnah: Talaq in accordance with dictates of the Prophet. It is of two types,

Talaq-i-ahsan: Most approved: Single pronouncement of talaq made in between periods of two mensurations, followed by abstinence from sexual intercourse during the period if iddat. Not applicable if wife has passed age of mensuration, marriage is not consummated, or parties have been away for a long time. Talaq can be revoked any time before iddat comes to end, either explicitly or by resuming sexual intercourse.

Talaq-i-hassan: Less approved. Husband is required to pronounce the formula of talaaq three time during three successive periods of purity (periods between mensuration). If the wife has crossed the age of menstruation, each pronouncement is made after interval of thirty days. When the third pronouncement is made, the talaaq, becomes final and irrevocable.

 

Talaaq-i-Biddat: (also known as irrevocable talaq) Innovative forms of talaq, developed during the caliphate. It is of many forms:

(i) the triple declaration of talaaq made in a period of purity, either in one sentence or in three,

(ii) A single irrevocable pronouncement of divorce made in a period of tuhr or even otherwise.

 

Conditions for a valid talaaq:

 

1. MENTION: The word talaq must be expressly mentioned, and husband’s intention of talaaq should be clear. There is however no specific formula, and pronouncement of such words which signify his intention to disown the wife is sufficient. The expression of talaq may be written, oral and even through Whatsapp!

 

2. CAPACITY: Husband should be of sound mind, and have attained puberty. If a husband is lunatic then talaaq pronounced by him during “lucid interval” is valid. However, when insane husband has no guardian, the Qazi or a judge has the right to dissolve the marriage in the interest of such a husband.

 

3. PERSON: The husband has to pronounce the talaq himself. A guardian cannot pronounce talaaq on behalf of a minor husband.

 

4. FREE CONSENT: Consent of the husband in pronouncing talaaq must be a free consent. However in Hanafi law, a talaaq pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication is also valid and dissolves the marriage. All other schools of Sunni and Shia jurisprudence require free consent.

 

Among the Sunnis, talaaq may be express, implied, contingent constructive or even delegated. The Shias recognize only the express and the delegated forms of talaaq.

 

Case laws:

 

Ghulam Mohyuddin v. Khizer: Husband wrote a Talaqnama in which he said that he had pronounced his first Talaq on 15th September and the third Talaq would be completed on 15th November. He had communicated this to his wife on 15th September. Court observed that Talaqnama was merely a record of the first pronouncement and the Talaq was revocable. The Court further observed that for an effective and final Talaq, the three pronouncements must actually be made in three Tuhrs, only a mention of the third declaration is not sufficient.

 

Marium v. Md. Shamsi Alam, the wife left her husband’s place and went to her parent’s house, since husband was negligent to her health. When the husband went to take her back, she refused to go with him. The husband became agitated and in anger he uttered Talaq three times in one breath. But later on, realising his mistake, he revoked the Talaq within the period of Iddat. Allahabad HC held although the word “Talaq” was uttered thrice, since it was pronounced in one breath it is to be interpreted as one single pronouncement. Also, in in this case the Talaq was in the Ahsan form which was revocable. As the husband expressly revoked the Talaq before the Iddat he cannot be said to have intended the divorce seriously. The marriage was, therefore, not dissolved and the wife had to accompany the husband.

 

Rahmat Ullah v. State of U.P., Allahabad HC observes that an irrevocable Talaq (Talaq-e-Biddat) is unlawful because this kind of Talaq is against the dictates of the Holy Quran and is also against the provisions of the Constitution of India. Court said, that an irrevocable Talaq (Talaq-e-biddat) appears to be violative of the Fundamental Duties as provided in Article 51-A(a), (e), (f), (h) of the Constitution. However, on appeal, SC stayed the HC verdict.

 

Relying on Hedaya, the Patna High Court has held that an irrevocable Talaq may be pronounced even during menses period.

 

Shamim Ara v State of UP (2002): SC held for a valid talaq, there should be reasonable cause, preceeded by attempts at reconciliation between husband and wife by two arbitrartors, one from husband’s side and another from wife’s side.

 

Yusuf Rawter v Sowramma (1970): Justice V R Krishna Iyer held divorce was permissible only in extreme cases, where all attempts of reconciliation have failed.

 

Shayara Bano case (2016): Shayira Bano was subjected to triple talaq by her husband in October 2016 after 15 years of marriage. She went on to challenge the very provision of instantaneous triple talaq (talaq-e-bidat) and two other evils associated with it – polygamy and nikah halala. Her petition wants the Supreme Court to declare all three discriminatory practices as illegal and unconstitutional as they violate the rights guaranteed by the Constitution under Article 14, 15, 21 and 25.

 

Other forms of Divorce by Muslim Men

 

Ila:

 

In Ila, Husband takes an oath not to have sexual intercourse with his wife, and following the oath there is no sex for a period of four months. After the expiry of the fourth month, the marriage dissolves irrevocably. If there is sex within the four months, ila is cancelled. In Sunni law, divorce is automatic after end of four months, in Shia law, the wife is simply entitled to a judicial divorce after end of four months.

 

Zihar:

 

Husband compares his wife with a woman within his prohibited relationship e.g., mother or sister The husband would say that from today the wife is like his mother or sister. Following such comparison, husband does not cohabit with his wife for a period of four months.

After the expiry of fourth month the wife has following rights:

Wife may go to the court to get a decree of judicial divorce

Wife may ask the court to grant the decree of restitution of conjugal rights.

Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek judicial divorce.

Zihar can be revoked if:

The husband observes fast for a period of two months, or,

He provides food at least sixty people, or,

He frees a slave.

According to Shia law Zihar must be performed in the presence of two witnesses. No witness is required under Sunni law.

 

Divorce by wife

 

Grounds on which a Muslim women may divorce her husband

 

Before 1939, a Muslim wife had no right to seek divorce except on the ground of

Lian (false charges of adultery)

insanity of husband

impotency of the husband.

Divorce by Mutual Agreement (Khula and Mubarat)

Divorce by delegation (Talaaq-i-tafweez)

The Dissolution of Muslim Marriages Act 1939 lays down several other grounds on the basis of which a Muslim wife may get her divorce decree passed by the order of the court.

 

Lian:

If the husband levels false charges of unchastity or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce is called Lian.

 

Nurjahan v. Kazim Ali: Calcutta HC observed it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the wife to get divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behaviour and the husband hits back an allegation of infidelity against her, then what the husband says in response to the bad behaviour of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian.

 

Khula:

Khula = “to draw” or “dig up” or “to take off” such as taking off one’s clothes or garments. It is said that the spouses are like clothes to each other and when they take khula each takes off his or her clothes, i.e., they get rid of each other.

Khula is an agreement between the spouses for dissolving the marriage in lieu of compensation PAID BY THE WIFE to her husband out of HER property. The consideration can be anything, usually it is mahr, the whole or part of it.

Once the husband gives his consent, it results in an irrevocable divorce.

The husband has no power of cancelling the ‘khul’ on the ground that the consideration has not been paid.

Once khula sets in, wife should remain in idda

 

Abdul Majid Patni v Asif Iqbal Manssori: Wife approached a mufti to settle the matter of khula, and the mufti issued a fatwa to this effect. However, court held such an ex parte fatwa cannot dissolve the marriage.

 

Mubarat

Murabat is a variant of khula. Unlike Khula, where the wife initiates the agreement for divorce, in mubarat, the proposal may emanate from either side. In mubarat both the husband and the wife, are happy to get rid of each other, and all mutual rights and obligations come to an end.

 

The Shias the word mubarat should be followed by the word talaaq, otherwise no divorce would result. They also insist that the pronouncement must be in Arabic unless the parties are incapable of pronouncing the Arabic words

mubarat is irrevocable among both Sunnis and Shias.

 

Talaaq-i-tafweez

Talaaq-i-tafweez or delegated divorce is recognized both by Sunnis and Shias.

 

The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily or permanently . A permanent delegation of power is revocable but a temporary delegation of power is not.

 

The delegation must be made distinctly in favour of the person to whom the power is delegated,

The purpose of delegation must be clearly stated.

The power of talaaq may be delegated to his wife in prenuptial agreements.

 

Md. Khan v. Shahmai: Under a prenuptial agreement, a husband undertook to pay certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the house and conferred a power to pronounce divorce on his wife. The husband left his father-in-law’s house without paying the amount. The wife exercised the right and divorced herself. It was held that it was a valid divorce in the exercise of the power delegated to her.

 

Dissolution of Muslim Marriages Act 1939:

Section 2 of the Act allows Muslim women to obtain a decree for divorce from the court, on any one or more of the following grounds:

 

1. Whereabouts of the husband not known for four years or more: Court issues notice to all legal heirs of the missing husband and waits for six months for the person to re-appear, before granting decree of divorce

2. Husband neglects or fails to provide for maintenance for a period of two years: Failure to provide owing to negligence or lack of means makes no difference. However, wife should not be living separately without any reasonable excuse.

3. Husband sentenced to imprisonment for a period of seven years or more. The date sets in from the date on which the sentence becomes final, i.e. after all appeals are over.

4. Husband fails to perform, without reasonable cause, his conjugal obligations for a period of three years.

5. Husband was impotent at the time of the marriage and continues to be so. Burden on proof is normally on the wife. However, in Gul Mohd. Khan v. Hasina: Wife filed a suit for dissolution of marriage on the ground of impotency. The husband made an application before the court seeking an order for proving his potency. The court allowed him to prove his potency.

6. Husband is insane for a period of two years or is suffering from leprosy or a virulent veneral disease: The period should be two or more years immediately preceding the presentation of the suit.

7. Khyar-ul-Bulugh (option of puberty): If wife was given in marriage by her father or other guardian before she attained the age of fifteen years, she can repudiate the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated

8. Husband treats wife with cruelty. The act recognizes the following as grounds of cruelty

 

Habitual assault

 

Making life miserable due to cruel conduct, even without physical ill-treatment. There is no strait jacket formula to define cruelty. Even a gesture, an angry look, a sugar coated joke, an ironic look may be more cruel than beating. However, the mere fact is that the erring spouse is moody, whimsical, mean, stingy, selfish, boorish, irritable, inconsiderable, irascible etc. will not be sufficient to amount to cruelty.

Husband associating with women of ill-repute or leads an infamous life

Husband attempts to force or forces wife to lead an immoral life

Husband disposes of wife’s property or prevents her exercising her legal rights over it

Husband obstructs wife in observance of her religious profession or practice

Husband does not treat the wife in question equally, compared to other wives (in case of more than one wife). Umat-Ul-Hafiz v. Talib Hussain (1945), husband went abroad leaving behind his two wives in India. He provided maintenance to one wife and neglected the other. The court granted divorce to the neglected wife.

 

Case Laws:

 

Syed Ziauddin v. Parvez Sultana: Parvez Sultana was a science graduate and wanted to take admission in a college for medical studies. Syed Ziaudddin promised to give her money for admission provided she married him. She did. Later she filed for divorce for non-fulfillment of promise on the part of the husband. The court granted her divorce on the ground of cruelty.

 

Aboobacker v. Mamu koya: Husband used to compel his wife to put on a sari and see pictures in cinema. The wife refused to do so because according to her beliefs this was against the Islamic way of life. She sought divorce on the ground of mental cruelty. The Kerela High Court held that the conduct of the husband cannot be regarded as cruelty because mere departure from the standards of suffocating orthodoxy does not constitute un-Islamic behaviour.

 

Noor Jahan Bibi v. Kazim Ali: Noor Jahan filed a suit against her husband who charged her of bad character and of being enamoured, and committing adultery with one Asghar Ali. Court held doctrine of Lian is not absolute under the Muslim Law and therefore a Muslim wife can bring a suit for divorce against her husband on the ground that her husband has charged her with adultery falsely under section 2(ix) of the act.

 

M.B. Rahim v. Shamsoonnissa Begum: Husband disposed of the property of her wife, confined her to a room, and misbehaved with his wife. In appeal Husband raised contention that as far as Muslim Law is concerned a wife has no right to live separately even though the conduct of the husband is not good. Privy Council held that if under Muslim law no wife can separate herself from her husband then such law is clearly contrary to the principle of natural justice. This case was decided in favour of wife

 

Zubaida Begum v. Sardar Shah (1943): Husband sold the ornaments of the wife with her consent. It was submitted that the husband’s conduct does not amount to cruelty. Cruelty sets in only if husband disposes wife’s property for his selfish ends.

 

Itwari v. Asghari, the Allahabad High Court observed that Indian Law does not recognize various types of cruelty such as ‘Muslim cruelty’, ‘Hindu cruelty’ and so on, and that the test of cruelty is based on universal and humanitarian standards; that is to say, conduct of the husband which would cause such bodily or mental pain as to endanger the wife’s safety or health.

 

Irretrievable Breakdown:

 

Divorce on the basis of irretrievable breakdown of marriage has come into existence in Muslim Law through the judicial interpretation of certain provisions of Muslim law.

 

Umar Bibi v. Md. Din (1945): It was argued the wife hated her husband so much that she could not possibly live with him and there was total incompatibility of temperaments. But court refused to grant a decree of divorce on these grounds. But in Neorbibi v. Pir Bux (1970), court granted the divorce on the basis of irretrievable breakdown of marriage.

 

In contrast to the Western world where divorce was relatively uncommon until modern times, and in contrast to the low rates of divorce in the modern Middle East, divorce was a common occurrence in the pre-modern Muslim world. In the medieval Islamic world and the Ottoman Empire, the rate of divorce was higher than it is today in the modern Middle East. In 15th century Egypt, Al-Sakhawi recorded the marital history of 500 women, the largest sample on marriage in the Middle Ages, and found that at least a third of all women in the Mamluk Sultanate of Egypt and Syria married more than once, with many marrying three or more times. According to Al-Sakhawi, as many as three out of ten marriages in 15th century Cairo ended in divorce. In the early 20th century, some villages in western Java and the Malay peninsula had divorce rates as high as 70%.

 

IDDAT

Iddat is the time-period before which a women cannot have a second marriage, after the first marriage ends.

 

The iddat period is generally considered to be

Three menstrual courses if she is subject to menstruation,

Three lunar months if she is not subject to menstruation or

The period between her divorce and the delivery of child or the termination of pregnancy, whichever is earlier, if she is pregnant at the time of her divorce.

Four lunar months and ten days if marriage is dissolved by death of husband (this applies even if marriage is not consummated)

 

Generally it is taken to be three months.

 

Husband is bound to maintain the wife during the period of iddat.

 

MAINTENANCE OF WIVES (NAFQAH) AND SHAH BANO CASE

A Muslim husband is duty bound to provide maintenance to his wife, even if he is poor, if the marriage is lawful. A Muslim is required to maintain his other relations only if he has the means.

The wife has no obligation to maintain the husband.

 

The quantum of maintenance is decided as per the circumstances of each case. The following are the factors considered:

SUNNI-Hanafi: Position of spouses

SUNNI-Shafi: Only the husband’s position is considered

SHIA: Wife’s needs and the prevalent local customs

 

In India, the Shariat Act, 1937 also recognizes the Muslim wife’s right to maintenance. Sn 488 of the old Code of Criminal Procedure1898 provides for criminal action by virtue of magistrate’s orders for maintenance of wives which included Muslim wives too, as held in the case of Shahulmeedu v. Subaida Beevi. The Kerala High Court held that s. 488(3) of the Cr.P.C, applied to all Indian wives including Muslim wives.

 

Sn 125-128 of the new Code of Criminal Procedure 1973 retained the old provisions and now included the divorced wives too. A divorced wife now could ask for maintenance from the former husband if she was unable to maintain herself and the former husband even after having sufficient means neglects or refuses to maintain her.

 

However, prior to the Supreme Court judgement in Mohd Ahmed Khan v. Shah Bano Begum, it was generally held that the Muslim women did not have any right of maintenance once the period of iddat(period of separation) is over. But in this case the Supreme Court held that divorced Muslim women had the right to maintenance even after the period of iddat was over.

 

Shah Bano Case

 

In the Shah Bano case (Mohd Ahmed Khan v. Shah Bano Begum), a 60-year-old woman went to court asking maintenance from her husband who had divorced her by uttering talaq-talaq-talaq in one go, after living together for 40 years. The court ruled in her favour, decreeing Shah Bano was entitled to maintenance from her ex-husband under Section 125 of the Criminal Procedure Code (with an upper limit of Rs. 500 a month) like any other Indian woman.

 

Section 125 of the Code of Criminal Procedure, 1973 (CrPC) states: a First Class Magistrate could order a husband to provide a monthly allowance to his wife\divorced wife (as long as she has not remarried) if he neglected to maintain her and she was unable to maintain herself. This provision is religion-neutral.

 

Shah Bano’s husband pleaded in the court that he, along with his divorced wife, were governed by the Muslim Personal Law, which did not provide for maintenance beyond the iddat period (three months following the divorce). He argued that he was only obliged to pay Mahr and as he had done the same, he had no further obligation to maintain her. All India Muslim Personal Law Board (AIMPLB), which impleaded itself in the case, argued that Section 125 of the CrPC could not override the provisions of the Muslim Personal Law.

 

All the three courts – the lower court, the high court and the supreme court – adjudicated that Section 125 of the CrPC did not make any exception for the Muslim community and therefore, it would override the provisions of the Muslim Personal Law.

 

The judgment was not the first granting a divorced Muslim woman maintenance under Section 125. But a voluble orthodoxy deemed the verdict an attack on Islam. Various Supreme Court judgments in between 1979 and 1985, such as Bai Tahira v. Ali Hussain Fidaalli Chothia and Fazlunbi v. K. Khader Vali held that Muslim women is entitled to maintenance under Section 125.

 

Muslim Women (Protection of Rights on Divorce) Act, 1986

 

The Muslim Personal Law Board opposed the Shah banoo verdict, and opined the Supreme Court was wrong in interpreting the holy Quran as per a judicial stand.

 

The government caved in under the pressure of the orthodoxy and enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, to counter the judgment. The act gave a Muslim woman the right to maintenance for the period of iddat (about three months) after the divorce, and shifted the onus of maintaining her to her relatives or the Wakf Board.

 

Sn 3(1) of the act lays down that a divorced Muslim woman is entitled to:

(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;

(b) where she herself maintains the children born to her before or after the divorce.

 

A woman not granted maintenance by husband can claim maintenance from his relatives, and failing that, from the Waqf Board.

An application of divorced wife under Section 3(2) can be disposed of under the provisions of

Sections 125 to 128, Cr. P.c. if the parties so desire.

 

All obligations of maintenance however end with her remarriage and no claims for maintenance can be entertained afterwards.

 

The Act is discriminatory as it denies divorced Muslim women the right to basic maintenance which women of other faiths had recourse to under secular law.

 

The Act does not apply to the deserted and separated Muslim wives. It brings within its purview only ‘divorced woman’ who has been married according to Muslim law and has been divorced by or has obtained divorce from her husband in accordance with the Muslim law. But the Act excludes from its purview a Muslim woman whose marriage is solemnized either under the Special Marriage Act, 1954 or a Muslim woman whose marriage was dissolved either under Indian Divorce Act, 1969 or the Special Marriage Act, 1954.

 

The Act while nullifying the Shah Bano ratio, tried to restrict the divorced Muslim woman’s right to maintenance up to the iddat period only. The Constitutional validity of the Act was challenged on the ground of violating Article 14, 15 and 21. The basic question raised by right activists was the necessity of enacting an Act, completely segregating a section of the population, while a secular remedy was already available under Section 125 of the Code of Criminal Procedure.

 

In the meantime, tragically, the Muslim clerics succeeded in pressurizing Shah Bano to disown the Supreme Court verdict and give up on maintenance in 1986.

 

Daniel Latifi Case

 

In Daniel Latifi v. Union of India (2001). Danial Latifi, Shah Bano’s lawyer, challenged the constitutionality of the Act, calling it discrimination against Muslim women on the basis of their religion. Under the Act, women were excluded from the protections of Areticle 14, 15 and 21 Constitution of India.

Art 14: The State shall not deny to any person equality before the law and equal protection of laws within the territory of India

Art 15: The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

Art 21: No person shall be deprived of his life or personal liberty except according to a procedure established by law

SC held that husband has to pay reasonable and fair provision includes provision for the future of the divorced wife (including maintenance). Only the payment, and not the means to subsist is confined to the iddat period only. The Constitutional validity of the Act was also upheld.

 

Before the Danial Latifi judgment, the expression “provision and maintenance” created confusion

 

High Court of Kerala (Ali v. Sufaira,) Bombay High Court (Abdul Rahman Shaikh v. Shehnaz Karim Shaikh,) and Gujarat High Court (Arab Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai) interpreted expression of reasonable and fair provision as arrangement for a lump sum amount for the future provision of the wife within the iddat period other than the iddat period maintenance.

 

However, Andhra Pradesh High Court (Usman Bahmani v. Fathimunnisa,) and Calcutta High Court (Abdul Rashid v. Sultana Begum) interpreted both expressions provision and maintenance meant the same, and it covered only maintenance for the iddat period only. In Bilkis Begum v. Majid Ali Gazi it was held that claim of maintenance of the divorced wife cannot be proceeded under Section 125 of the Cr PC after the enactment of the 1986 Act.The controversy still remains.

 

The interpretation provided by the judiciary in the Danial Latifi case fails to satisfy the minds of the reasonable people, as there are glaring defects. On one hand where it upholds the Constitutional validity of the Act, it also interprets the provisions of the Act in favour of the divorced Muslim women.

 

MAINTENANCE OF CHILDREN AND PARENTS

 

Father is obliged to maintain children until they attain puberty (for men), or until marriage (for females).

CrPC 125 applies as well to maintain parents and grandparents.

 

MUSLIM MINORITY AND GUARDIANSHIP

Natural Guardians

 

LEGITIMATE CHILDREN (both male and female):

Sunni Law: FATHEREXECUTORGRANDFATHER’S EXECUTOR

Shia Law: FATHERGRANDFATHERFATHER’S EXECUTORGRADFATHER’S EXECUTOR

 

The father is recognized as sole and supreme guardian of his minor legitimate children in both Sunni and Shia law, and has the right to control education and religion of minor children. The father’s right of guardianship exists even when the mother, or any other female, is entitled to the custody of the minor. The mother is not recognized as a guardian, natural or otherwise, even after the death of the father.

 

The father is not entitled to natural guardianship or to custody of his minor illegitimate children. The mother is not a natural guardian even of her minor illegitimate children, but she is entitled to their custody. An illegitimate child has no natural guardian.

 

Testamentary Guardian

 

SUNNI: Father has full power of making a testamentary appointment of guardian. In the absence of the father and his executor, the grandfather has the power of appointing a testamentary guardian.

 

SHIAS: Father’s appointment of testamentary guardian is valid only if the grandfather is not alive. Grandfather has power to appoint a testamentary guardian, in absence of father.

No other person has power to appoint testamentary guardian.

 

Among both the Shias and the Sunnis, the mother has no power of appointing a testamentary guardian of her children, except

1. when she has been appointed a general executrix by the will of the child’s father, OR

2. in respect of her own property. which will devolve to her children, on her death.

 

Mother can become a testamentary guardian

1. On being appointed so by father or grandfather (as applicable)

2. If she is a Muslim (only for Shias. For Sunnis, non-Muslim mothers are OK)

 

Muslim law does not lay down any specific formalities for the appointment of testamentary guardians. Appointment may be made in writing or orally. The intention to appoint a testamentary guardian must be clear and unequivocal.

The testator must have the capacity to make the will at the time when it was executed. This means that the testator should

be major

of sound mind

 

Guardian appointed by the Court

 

When there is no natural guardian or testamentary guardians, the kazi (judge) was entrusted with the power of appointment of guardian of a Muslim minor. In India, the matter is governed by the Guardians and Wards Act, 1890.

 

Under the Guardians and Wards Act, 1890, the power of appointing, or declaring any person as guardian is conferred on the District Court. The court considers the welfare of the minor, taking into consideration the age, sex, wishes of the child as well ‘as the wishes of the parents and the personal law of the minor.

 

Custody of children

 

The first and foremost right to have the custody of children belongs to the mother and she cannot be deprived of her right so long as she is not found guilty of misconduct. This right is known as right of hizanat and it can be enforced against the father or any other person.

 

HIZNAT (custody of mother) extends up to…

 

SON DAUGHTER

SUNNI – Hanafi Till 7 years Till age of puberty

SUNNI – Shafi Upto puberty Till marriage

Sunni – Hanbali Upto puberty Till marriage

SUNNI – Maliki Upto puberty Till marriage

SHIA Till the child is weaned Till 7 years

After this age, hiznat passes on to father

 

Hiznat is for both legitimate and illegitimate children

 

Hierarchy of Hiznat

 

In the absence of mother, the following hierarchy of hiznat applies:

SHIA: Mother  Father  Grandfather

 

SUNNI—Maliki: Mother  Maternal grandmother  Maternal great grandmother  Maternal aunt and great aunt  Sister  Paternal aunt

 

In the absence of father, other male relations entitled to hiznat (in lieu of father) are:

SHIA: Grandfather

SUNNI: Nearest paternal grandfather  Brother  Brother’s son  Consanguine brother’s father  Full brother of the father  Consanguine brother of the father  Father’s full brother’s son 

Father’s consanguine brother’s son

 

A person (mother or rather) is eligible for hiznat only if he/she is:

1. Of sound mind

2.Of good moral character

3. Living at such a place where there is no risk, morally or physically to the child

4. Poverty: of such a age which would qualify her to bestow on the child the care it may need (not applicable to the mother)

5. A Muslim

6. Not married to a person not related to the child within the degrees of prohibited relationship

In the absence of such conditions, hiznat passes to next in line of eligibility

 

Ayisakutty v Abdul Samad (2005): Mother committed suicide, and child was brought up by maternal grandparents. After maternal grandfather died, father moved family court for custody of male child. Court allowed the petition, considering welfare of child, and incapability of maternal grandmother.

 

Acknowledgement of Paternity – legitimacy by acknowledgement

 

Maternity of a child is established in the woman who gives birth to the child; it is immaterial whether the child is an offspring of a valid or irregular marriage, or even of fornication or adultery.

 

Paternity of a child is established if the child is born during continuance of a valid marriage or within 280 days of its dissolution, the mother remaining unmarried.

 

However, in cases where paternity of a child, (legitimate descent from its father), cannot be proved by establishing a marriage between its parents at the time of its conception or birth, such marriage and legitimate descent may be established by “acknowledgement”.

 

Since a marriage among Muslims may be constituted without any elaborate ceremony, the existence of a marriage in a particular case may be an open question. If no direct proof of such marriage is available, indirect proof may be relied upon. Acknowledgment of legitimacy of a child is one of the kinds of indirect proof.

 

An acknowledgement of paternity need not be express. Such an acknowledgement may be presumed from the fact that one person has habitually and openly treated another as his legitimate child.

Muhammad Azmat v. Lalli Begum (1881): Privy Council observed that an acknowledgement of children by a Muhammadan as his sons may be inferred from his having openly treated them as such.

 

Conditions of a Valid Acknowledgement of Legitimacy:

 

1. The acknowledger must possess the legal capacity for entering into a valid contract.

2. The acknowledgement must not be merely of sonship, but of legitimate sonship. “Acknowledgement” cannot be availed of to legitimize a child known to be illegitimate.

3. The person to be acknowledged must not be the offspring of intercourse which would be punishable under Muhammadan law, e.g., adultery, incest or fornication.

4. The ages of the acknowledger and the acknowledged must be such as to admit of the relation of parentage, i.e., the acknowledger must be at least twelve-and-a-half years older than the person acknowledged.

5. The child to be acknowledged must not be known to be the child of some other person.

6. The acknowledged person must believe himself (or herself) to be the acknowledger’s child, and the child must verify (or at least must not repudiate) the acknowledgement.

7. The acknowledger should be one who could have lawfully been the husband of the mother of the child, when it was begotten. Thus, where there is direct proof that there was no marriage between the man and the mother of the child, or that if there was such a marriage between them, it would have been void, and then the presumption of legitimacy cannot be raised by acknowledgement, however strong such presumption may be.

 

ADOPTION IN ISLAM

Islam allows and even recommends raising orphans (kafala), but does not allow adoptions. The prohibition on adoption is based on Quran (33:4-5)

The adopted child

Continues to be named after the biological father,

Remains a non-Mahram to members of the adoptive family. Essentially, members of the adoptive family would be permissible as possible marriage partners, and rules of modesty exist between the grown child and adoptive family members of the opposite sex.

Inherits from his/her biological parents, and not from the adoptive parents (unless adoptive parents leave a will in his/her favour)

If the child is provided with property/wealth from the biological family, adoptive parents are recommended to take care and not intermingle that property/wealth with their own. They serve merely as trustees.

 

Islam place an emphasis on locating a relative to care for the child, before allowing someone outside of the family, much less the community or country, to adopt and remove the child from his or her familial, cultural, and religious roots.

 

In the Shabnam Hashmi case (2014), Supreme Court of India ruled any person can adopt a child under the Juvenile Justice (Care and Protection of Children) Act 2000 irrespective of religion he or she follows and even if the personal laws of the particular religion does not permit it.

 

XXX


Muslim Family Law in India (Part 1: Sources of Law, Marriage, Divorce, Maintenan

This book is a summary of the Muslim Family Law in India, covering primary and secondary sources of Muslim Laws, rules regarding Marriage and Divorce, Maintenance of Wives and relatives, Guardianship of Children, and Adoption. It offers the legal perspective on several burning topics of the day, such as marriage to four wives, triple talaq, Shah Bano case of maintenance of Muslim wives, Mutah marriage, and more. This book is especially useful for LLB students in India.

  • Author: Nayab Naseer
  • Published: 2017-05-29 03:50:09
  • Words: 12401
Muslim Family Law in India (Part 1: Sources of Law, Marriage, Divorce, Maintenan Muslim Family Law in India (Part 1: Sources of Law, Marriage, Divorce, Maintenan