Family Law –II

Mohammadan Law & Indian Succession Act

 Historical Evolution of Muslim Law
2

Pre Islamic Arabia

The Prophet and the advent of Islam
 Stages of Development
3
➢ The Period of Quaranic Precepts ( 622 -632 A.D)
➢ The Period of Orthodox Khilafat (632 A.D to 661 A.D)
➢ The period of theological study and Collection.
➢ The period of evolution of Ijihad and Taquid
Ijihad –Imitation
Taqlid – The power of forming one’s own opinion
➢ Fifth Period
4
Prophet Mohammad

Abu Bhaker Omar Osman

(II) Ali
(I) (III) (iv)

Hassan Hussain
5
 Cond…
6
Name of the School Founder Features
Hanafi School Abu Hanifa Traditions
Maliki School Malik-ibn-Anas Traditions of companions
& new rules obtained
from those traditions
 Cond…
7

Shafei School Ash Shafei Traditions but examined

them in the light of legal
reasoning and logic in
order to get a very
balanced and systematic
rule of law. He not only
approved Ijma as a
source of new law but
also enlarged its scope.
Hanbali School Ibn Hanbal Traditions of Prophet
&Rejeted Ijma and
Qiyas
 Shia Schools
8

Zyadis School Zyad Followed Sunni

Principles
Ismailia School Ismail Traditions
Ithna Asharia Asharia Traditions
( 12) Principles of Equity
9
 Quran
10
➢ Arabic word ‘Qurra’,which ought to be read.
➢ Verses – Each verse is called as ‘Ayat’
➢ Chapters – Sura – Chapters are arranged in
subject wise
➢ There are 6666 Verses and 114 Sura
➢ Divided into 30 parts called Paras and 7
Divisions each called Manzil
 Features of Quran
11 ➢ Divine Origin
➢ Contains direct revelations of God through Prophet Mohammed.
➢ Religious, spiritual, legal, political, moral and social.
➢ 200 verses relating to law, out of which 80 verses relate to Family
and the rest deal with state and polity. (marriage, dower, divorce
guardians inheritance, )
➢ The verses revealed in Mecca deal with philosophical and
theological issues.
➢ Those revealed in Medina are concerned with socio-economic
laws.
➢ Entirety is not a legal code rather its purpose is to lay down a way
of life which regulates man's relationship with others and God.
 Sunnat ( Traditions)
12
➢ Sunnat refers to traditions.
➢ It includes the Prophet’s modal behaviour, the procedure that was
followed by the Prophet, his way of action, whatever were the actions
of the Prophet, his sayings, his doings. All these are considered
traditions.
➢ Practices done by Prophet himself.
➢ Practices which Prophet enjoined (instruct or urge to do something)
by words.
➢ Practices that were done in his presence without his disapproval.
 Ijma
13 Ijma -opinion of Muslim jurist.
According to Sir Abdul Rahim, Ijma is the agreement of the jurist
among the followers of Prophet Mohammad in the particular
question of law. These are the different kinds of Ijma:
➢ The Consenses
➢ The Jurists
➢ Jurists to be Muslims
➢ Jurists to be of a particular period
➢ Consensus on religious matter
 Qiyas
14
The term in the literal sense is known measuring or
ascertaining the length, quality, and weight of something.
There are no clear authorities of Qiyas in the Quran.
However many legal jurists have provided several proofs
from the Quran and Sunnat and also from the practices
done by the companions as indirect evidence to support
the authority of Qiyas.
 Secondary Sources
15

Custom or Urf Judicial Legislation Justice

Decisions and
Equity
 Custom
16
Prophet also retained age old customs of Arabia but seen that those
were not in conflict with Muslim law.
Customs are accepted as supplementary to the Muslim law.
a custom must be of regular occurrence i.e. continuous and certain
➢ It should be universal
➢ It should be reasonable
➢ It should not be in contravention of any express text of the Quran
or the Sunnas
➢ It need not to be ancient and immemorial
 Legislation
17
➢ Hanbali school recognised some part of legislations by name Nizam
(Ordinance / decree)
➢ Shariat Act, 1937
➢ Wakf Validating Act, 1913
➢ The Dissolution of Muslim marriage Act, 1939
➢ The Muslim Women (Protection of Rights on Divorce) 1986
 Precedent
18

➢ Fatwa is a legal pronouncement. It is the opinion of someone called

a mufti; that is an Islamic legal scholar who is capable of
pronouncing his judgments, his opinions on any kind of legal issue
with regard to Islam.
➢ Fatwas are usually issued in response to questions from individuals
or Islamic courts.
➢ The decisions of Kazis never constituted a precedent in the sense of
English law.
 Cond…
19

Who is a Muslim ?
”La Ilaha Illallah Muhammadur Rasulullah” There is only one God
‘Allah’ and mohammad is his Prophet.
To whom Muslim Law is applicable?
• Muslims by birth or Origin
• Muslim by Conversion ( I.e. Person who professes Islam or
persons who undergo the formal ceremony of conversion)
 Five Pillars of Islam
20
 Pillars of Islam
21
➢ Shahada (Faith)
➢ Salah (Prayer)
➢ Zakat (Almsgiving)
➢ Sawm (Fasting)
➢ Hajj (Pilgrimage)
 Operation, Application and Interpretation of Muslim Law
22
The Muslim Personal Law (Shariat) Act, 1937
O7 October 1937
Section 1: Short title and extent
Section 2: Application of Personal Law to Muslims
Section 3: Power to make a declaration
Section 4: Rule-making power
Section 6: Repeals
 Application of the Act, 1937
23
Section 2 of the Muslim Personal Law (Shariat) Act, 1937 talks about the application of
Personal Law to Muslims.
1.Intestate succession;
2.Marriage
3.Dissolution of marriage that also includes all kinds of divorce as well namely talaq,
illa, zihar, lian, khula, and mubarat;
4.Maintenance;
5.Dower;
6.The special property of the females;
7.Guardianship;
8.Gift;
 Cond…
24

➢ Those rules which have been expressly directed to be applied to

Muslims except in as far as they are altered or abrogated by the
Indian Legislature.
➢ Which though not expressly directed to be applied is not excluded by
the Indian legislature, either expressly or by implication.
Pre- Emption are not applied in U.P and Punjab because these
are special Acts dealing with these topics in those States.
 Section 3 : Power to make declaration.
25
1.The person has to be a Muslim;
2.The person is competent to enter into a contract; and
3.The person is a resident of India.
May by a declaration in the prescribed form and filed before
the prescribed authority declare that he desires to obtain the
benefit of [the provisions of this section], and thereafter the
provisions of section 2 shall apply to the declarant and all
his minor children and their descendants as if in addition to
the matters enumerated therein adoption, wills and legacies
were also specified.
 Cond…
26

➢ They include wills, legacies, and adoption. By doing so, the provision
provides discretion for the courts to apply Muslim Law in such
subjects only if a Muslim declares that he wants to be ruled by the
provisions of the Shariat Act, 1937 as he will be for the rest of the ten
subjected provided under Section 2 of the Act.
➢ In the absence of the declaration the provision provides an implied
power to the courts to not be bound by such law while deciding a
matter ruled by Section 2, and 3 in dispute.
 Section 4 : Rule making Power
27
(1) The [State Government] may make rules to carry into effect the purposes of this
Act.
(2) In particular and without prejudice to the generality of the foregoing powers,
such rules may provide for all or any of the following matters, namely:
(a) for prescribing the authority before whom and the form in which declarations
under this Act shall be made;
(b) For prescribing the fees to be paid for the filing of declarations and for the
attendance at private residences of any person in the discharge of his duties under
this Act; and for prescribing the times at which such fees shall be payable and the
manner in which they shall be levied.
(3) Rules made under the provisions of this section shall be published in the
Official Gazette and shall thereupon have effect as if enacted in this Act.
(4) [Every rule made by the State Government under this Act shall be laid, as soon
as it is made, before the State Legislature].
 Section 5 : Dissolution of marriage by Court in certain circumstances.
28

[Rep. by the Dissolution of Muslim Marriages Act, 1939 (8 of 1939), sec. 6 (17-3-1939).]
 Section 6 : Repeals
29

(1) Section 26 of the Bombay Regulation IV of 1827;

(2) Section 16 of the Madras Civil Courts Act, 1873 (3 of 1873);
(4) Section 3 of the Oudh Laws Act, 1876 (18 of 1876);
(5) Section 5 of the Punjab Laws Act, 1872 (4 of 1872);
(6) Section 5 of the Central Provinces Laws Act, 1875 (20 of 1875); and
(7) Section 4 of the Ajmer Laws Regulation, 1877 (Reg. 3 of 1877).
 To whom Muslim Law is applicable?
30
Muslim by Birth
Muslim by Conversion
Muslim Law by Birth
➢ A person who has been born in the Muslim faith and has never
been proved to have adopted any other religion must be held to be
a Muslim.
➢ Where it is not shown nor alleged that partners are shais there is a
presumption that they are Sunnis.
 Muslim by Conversion
31
➢ Conversion to Islam is the process whereby a non-Muslim takes
on a new religious identity, adopts new beliefs and practices,
learns to live as a Muslim and gradually becomes accepted as
one by others.
➢ He may simply declare that he believes in the oneness of God
and Prophetic character of Mohammad. Or
➢ He may go to mosque to a person who is well versed in Islamic
theology. It is however necessary that the conversion must be
bonafide .
 Effects of conversion to Islam
32
➢ The religion of Islam is substituted for the previous religion of the
convert to Islam, with so much of the personal law as necessarily
follows from that religion;
➢ The rights and status of the convert become subject to the
Mohammedan law;
➢ His apostasy (abandonment of religion) has an immediate and
prospective effect, from the moment of the conversion and is not
retrospective;
➢ Conversion of the both spouses, without any intention to commit
fraud upon the law, will have the effect of altering the rights
incidental to marriage.
➢ Succession to the estate of a convert is governed by Muslim Law.
 Conversion to Islam & Rights of Inheritance
33
In the absence of a custom to the contrary, in case of a Hindu
converts to Islam, succession and inheritance are governed by
Mohammedan Law and not by Hindu law.
Where a Hindu, who had a Hindu wife and children, embraced Islam
and married a Muslim woman and had children by her, his property
would pass on his death to his Muslim wife and children and not to
his Hindu wife or children because under Muslim Law, a Hindu
cannot succeed to the estate of a Muslim.
 Conversion to Islam & Right To Maintenance
34
In Muslim law, if a person converts to other religion, it affects a
forfeiture of the pre- existing maintenance rights. When a husband
renounces Islam, the marriage comes to an end and the wife can
claim maintenance from husband during the iddat period.
 Conversion to Islam and Martial Rights
35

•In a country subject to Muslim Law

•In a country where the Law of Islam is not the law of the lane.
 Colourable Conversion
36
Colourable Conversion is a conversion done conversion with
the sole purpose of evading the personal law to which a
person is subject.
Cases :
➢ Skinner v. orde
➢ Rikya Bibi v. Anil Kumar
➢ Sarala Mudgal v. Union of India
Marriage
(NIKHA)
 NIKHA ( MARRIAGE)
38
➢ Arabic Word Nikha means Union of Sexes and in law it means
Marriage.
➢ Marriage (nikah) is defined to be a contract which has for its
object the procreation and the legalizing of children.
➢ Ashabah says: “ Marriage is a contract underlying a permanent
relationship based on mutual consent on the part of a man and
woman.”
 Objectives
39

➢ The restraint on Sexual Passion

➢ The ordering of domestic life
➢ The increase of the family
➢ The discipline inn the care and responsibility
of Wife and Children
➢ The upbringing of Virtuous children
 Essentials of a valid Marriage
40
•Proposal and Acceptance
• Competency of Parties
• Absence of Prohibition
• Registration
 Proposal and Acceptance
41 ➢ Muslim Marriage, proposal is referred to as ‘Ijab’
➢ Acceptance is called as Qubul
Rashida Khatoon v. S K Islam
➢ A proposal should be made by or on behalf of one party
and the same should be accepted by the other party.
➢ The proposal and acceptance has to be done in the same
meeting.
➢ The parties may enter into any ante-nuptial or post nuptial
agreement.
➢ Two Female and one Male Witness – Sunni
➢ In Shia Witness are not required.
 Competency of Parties
42
➢ Muslim
➢ Major : Puberty for female is 9 years and for male, it is 12
years. The persons recognized as guardian under Muslim law
are: (a) Father, (b) Paternal Grandfather, (c) Brother or any
other male member of father’s family, (d) Mother, (e)
Members of Maternal Relation.
Puberty and Majority are same in Muslim Law
➢ Sound Mind
 Marriage of Minors and Guardianship in Marriage
43
➢ Father
➢ Parental Grandfather
➢ Brother and other male relations on the father side
in the order of inheritance enumerated in the table.
➢ Mother
➢ The maternal uncle or aunt and other maternal
relations without the prohibited degree
 Option of Puberty
44
➢ Minor contracted in marriage by the guardian for
marriage has the right of repudiating or ratifying
the marriage contract on attaining puberty.
➢ This is the right of minor girl or boy whose
marriage has been contracted through a guardian.
 Old Law on Puberty
45
➢ If the marriage of the minor had been contracted
by his/ her father/ grandfather she had no right to
repudiate the marriage after attaining the age of
puberty.
➢ Dissolution of Muslim Marriage Act 1939
➢ If the option of repudiation is made the marriage
ceases to be a marriage and consequently it is
treated as never taken place.
 Present law on Option of Puberty
46
Sec 2 (7) of Dissolution of Muslim Marriage Act
1939- 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.
➢ The marriage took place before the age of 15
years.
➢ She can repudiate the marriage on attaining 18
Years
➢ The marriage has not been consummated.
 Absence of Prohibition
47
 Absolute Prohibition
48 Consanguinity Affinity Fosterage
(Sunni & Shia) (Sunni & Shia) (Shia)
(Blood) (Marriage) ( Bring up of Child,
not own)
Mother or grandmother how Wife’s mother or Sister’s foster-mother
high grand-mother

Daughter or grand-daughter Wife’s daughter or Foster- sister’s mother

grand-daughter
Sister whether full, wife of his father or Foster son’s sister
consanguine or uterine paternal grand-father

Niece or great-niece Wife of his son or son’s Foster bother’s sister

son or daughter’s son
 Relative Prohibition
49 ➢ Unlawful Conjunction :A man may not have at the same time,
two wives who are so related to each other by consanguinity,
affinity or fosterage, that if either of them had been a male, they
could not have lawfully intermarried, as for instance, two sisters,
or aunt and niece.
➢ Polygamy : A Muslim man can have four wives at a time, but if
he marries the fifth one despite of having four wives, the
marriage turns to be irregular and not void.
➢ Absence of Proper Witness
➢ Difference of religion
➢ Marriage during Iddat
 IDDAT
50
➢ Iddah or Iddat is an Arabic term which means period of
waiting and is observed by Muslim women.
➢ It is a period of chastity which a Muslim woman is bound
to observe after the dissolution of her marriage due to the
death of her husband or by divorce before she can lawfully
marry again.
➢ The reason behind observing Iddat is the peternity of the
Child
 Duration of Iddat
51 ➢ Iddat Widowhood : 4 Months 10 Days
➢ Iddat of Pregnant Woman : Till delivery or miscarriage. If the
delivery or its miscarriage comes before 4 months and 10 days the
remaining period will have to be observed.
➢ Iddat of Talaq - Three courses if the woman is subjected to
Menstrual Cycle or 3 Lunar months.
➢ Iddat when marriage is irregular : If the marriage is irregular and
parties have separated before actual consummation, there is no
Iddat.
➢ If the Consummation has taken place the wife has to observe Iddat
in case of death, but not in case of divorce.
 Cont…
52
➢ The period of Iddat begins from the date of death or divorce and
not when the woman heard the news.
➢ If she hears the information after the expiry of the specified
period.
➢ Where a husband had divorced his wife and has died before the
completion of the iddat, the woman is required to undergo a fresh
iddat for 4 months 10 days from the date of the husband’s death.
 Rights and Duties in Iddat
53 ➢ If the Wife observes Iddat, the husband is bound to maintain
the wife during the period of Iddat.
➢ The Wife cannot marry another person until completion of
her Iddat and if the husband has 4 wives including the
divorced one, he cannot marry the 5 one until the
completion of iddat of the divorced wife.
➢ The wife becomes entitled to Deffered dower and the
prompt dower has not been paid, it becomes payable
immediately.
➢ In the event of death of either party before the expiration of
the period of Iddat the other is entitled to inherit from him
 Directory Incapacity
54

➢ Marrying a woman enceinte

➢ Prohibition of divorce
➢ Marriage during pilgrimage
➢ Marriage with a sick man:
 Valid Marriage
55

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.
 Types of Marriage
56
Consequences of Valid, Void
and
Irregular Marriage
 Consequences of Valid Marriage
58
➢ Mutual Rights and Obligations
➢ Rights of Wife and Duties of Husband
➢ Rights of Husband and Duties of Wife
 Mutual Rights and Obligations
59
➢ The Parties become entitled to inherit from one another.
➢ Sexual intercourse is legalised.
➢ Prohibited degree of relationships are created between the
parties.
➢ Lawful conditions between them become binding on them.
 Rights of Wife and duties of husband
60
➢ Maintenance from husband with due consideration of his
capacity.
➢ Equal treatment and separate house if there are more than one
wife.
➢ Entitled for Dower and refuse cohabitation if the prompt dower
is not paid.
 Rights of Husband and Duties of Wife
61

➢ She is to permit her husband to exercise Conjugal

rights.
➢ She is bound to obey his legal commands
➢ She is bound to reside in the house and observe Purdah
if necessary
➢ She is bound to observe Iddat on Divorce or death of
her husband.
 Void marriage
62
➢ No legal effect before or after Consummation
➢ It does not create any rights or obligations between the parties
➢ The Wife is no entitled to Maintenance
➢ One cannot inherit from each other.
➢ The Women is entitled to Dower if the marriage is
Consummated.
➢ The offspring’s of the marriage are illegitimate.
➢ The parties can separate from each other at any time without
divorce and may contract another marriage lawfully.
 Irregular Marriage
63
➢ The Consequences of Irregular Marriage
Before Consummation
After Consummation
 Before Consummation After Consummation
64
➢ Like void marriage it has ➢ wife has to observe Iddat
no legal effects. ➢ She is entitled to get
➢ If the marriage has not Specified dower which
been consummated the ever is less.
wife is not entitled to ➢ She is not entitled for
dower. maintenance
➢ Can separate from each ➢ The children are
other without divorce. legitimate
➢ The marriage may be
terminated by a single
declaration on either side,
 Muta Marriage
65
Muta marriage is a temporary agreement for a limited time period, upon
which both the parties agreed.
The essentials of Muta marriage are:-
(1) The period of cohabitation should be fixed.
(2) Dower should be fixed.
(3) If dower specified, term not specified, it could amount to permanent
or regular
marriage.
(4) If term fixed dower not specified, it amounts to void marriage
 Effects of Muta Marriage
66
➢ Parties have no right to mutual inheritance
➢ Muta wife is not entitled for maintenance - But if in their contract it is so
mentioned then
➢ husband is bound to pay or she may file Petition under Sec.125 of Cr.P.C.
➢ If marriage is not consummated, wife is entitled for half of the dower. Also if
wife leaves
➢ husband before the contracted period, still she is entitled for proportionate
dower.
 Cont…
67 ➢ When marriage is consummated, wife required to undergo idda of
three months
➢ In muta, husband has the right to refuse procreation Children of
muta treated as the legitimate and inherit property of mother only.
➢ Children of muta treated as the legitimate and inherit property of
mother only.
➢ Muta comes an end after expiry of term, if husband want to end it
early then by mutual consent, he can do so by making gift of
remaining term.
 Difference between Nikha and Muta
68 Nikha Muta
Permanent marriage. Temporary marriage
Basic object of a nikah is socio- The basic object of a muta
religious union marriage is pleasure
it is essentially a union for life, In muta marriage, the period is
subject to divorce fixed by agreement.
Sunni does not recognise Shias recognised it
The marriage does not become Dower must be specified in muta
void if no dowar is specified for marriage otherwise it is a void
the idea is that the woman may agreement
get it anytime during the lifelong
duration
 Cond…
69

Whether consummated or not, Nikah entitles An Unconsummated muta would entitle the
the wife to full dower-both prompt and wife to one-half dower only.
deferred.
Hanafi Law recognises a minimum limit of There is no minimum limit to dower and it
ten dirhams in nikah depends upon the terms of contract.
In nikah there is no automatic termination as In muta there is ipso facto termination of the
no time limit is fixedTime limit is the limit of contract on expiry of the term of marriage
relationship. In nikah there is no automatic and no formality of termination is required.
termination as no time limit is fixed
Wife by Nikah is entitled to maintenance. In muta, there is no provision for
maintenance of the wife, for she is not
regarded as depended
Mutual right exists In muta, there is no right of inheritance to the
wife or husband in respect of each other’s
property
Dower/ Mahr
 Pre – Islamic Arabia
71
Ball form of Marriage : Compensation was paid by
husband to the guardian of the girl at the time of
marriage.
Beena form of Marriage : Husband visited the wife but
dint not bring her home ,the wife was called as Sadiqa
or female friend. And the gift given to the wife on
marriage was called sadaq.
 Definition
72
➢ Mahr or dower is a sum of money which becomes payable by
the husband to his wife on marriage, either by agreement
between the parties or by operation of law.
➢ According to Mulla, Dower is a sum of money or other
property which the wife is entitled to receive from the
husband in consideration of the marriage.
 Object of Dower
73
➢ To enforce an obligation on husband as a mark of respect towards
his wife,
➢ To place a check on the misuse of power to give divorce by the
husband,
➢ To provide for her livelihood on the dissolution of her marriage,
so that she can lead her dignified life after the death of her
husband or divorce.
 Kinds of Dower
74

Specified Dower Customary

Dower

Prompt Deferred
Dower Dower
 Specified Dower
75
➢ If the amount of Dower is specified in stated in the marriage
contract, it is called the Specified Dower.
➢ In case the husband is minor the amount is settled by the
guardian.
➢ The specified dower must not be less than 10 dirhams.
 Prompt Dower
76
➢ Payable immediately on Marriage. It must be paid on
demand unless delay is stipulated or agreed.
➢ The wife may refuse cohabitation unless the Dower
amount is paid. If the wife is minor the guardian may
refuse to send her to the husband’s house till the payment
of Dower.
➢ Prompt Dower will not become deffered dower after
consummation of marriage.
➢ It is only on the payment of Prompt dower the husband
will be able to enforce Conjugal rights unless the
marriage is already consummated.
➢ Limitation begins to run on demand and refusal. The
period of limitation is 3 years.
 Deffered Dower
➢ It is payable on dissolution of marriage either by death or divorce.
77 ➢ But is there is any agreement as to the payment of deferred dower
earlier than the dissolution of marriage such agreement would be
valid and binding.
➢ The wife is not entitled to demand payment of deffered ( unless
otherwise stipulated), but the husband can treat it as prompt and
pay or transfer the property in lieu of it. Such a transfer will not be
void as a fraudulent preference unless actual insolvency is
involved.
➢ The widow may relinquish her dower at the time of her husband’s
funeral by the recital of a formula. Such a relinquishment must be
voluntary act of the widow.
➢ The interest of the wife in deferred dower is vested one and not
contingent one.
 Proper Dower ( Customary Dower)
78
➢ When the amount of Dower is not fixed in the
marriage contract or even if the marriage has been
contracted on the condition that she should not claim
any dower, the wife is entitled to proper dower.
➢ Proper dower is to be determined by taking into
consideration the amount of dower settled upon
other females members of the father’s family.
 Determination of Proper Marriage
79
➢ Personal Qualifications
➢ Social position of her father’s family.
➢ Dower given to female paternal relations.
➢ Economic condition of her husband.
➢ Circumstances of time
 Remedies for Non Payment of Dower
80
➢ Refusal to Cohabit
➢ Right to dower as a debt
➢ Right to retain her deceased husband’s property
✓ No right to retain the possession during the continuance
of marriage
✓ Actual possession
 Cond…
81

✓ Right of retention not analogous to a mortgage

✓ Not a charge
✓ A possessory lien on property is no title
✓ Can Sue heirs
✓ Widow in Possession liable to account.