TOPIC 1 RIGHTS/RULES RELATED TO MARRIAGE GUARDIANSHIP

Introduction: The right of guardianship of the minor belongs to the father and in his absence to his nominate.
Where no one has been nominated then to the grandfather. If he dies the right of guardianship vests in the court.
Guardian: According to guardians and wards act 1890 guardian means a person having the care of the person of
a minor or of his property or of his person and property.
Meaning : The marriage guardianship is called (Wlayat ul Nikkah).
Rules of marriage guardianship: The following are the rules of marriage guardianship. The right to contract a
minor in marriage belongs successively to the:
1)Father,
2)Paternal grandfather how high soever, and
3)Brother and other male relations on the fathers side in the order of inheritance enumerated in the Table of
Residuaries.
4)In default of paternal relations, the right to contract marriage devolves upon the mother, maternal uncle or aunt
and other maternal relations within the prohibited degrees.
5)In default of maternal kindred, the right to contract marriage devolves upon the ruling authority.
Minors contract of marriage:
Valid contract:When a minor has been contracted in marriage by the father or fathers father the contract of
marriage is valid and binding and it cannot be annulled by the minor on attaining puberty.
Voidable contract:Where a father or fathers father act fraudulently or negligently. In a situation the contract is
voidable at the option of minor on attaining the age of majority.
Dissolution of marriage:on dissolution of Muslim marriages Act 1939 all restrictions on the option of puberty
and minority are of minor girl has marriage her seen arranged by the father or grandfather has been abolished.
Similarly under section 2(VII) of the act a wife is entitled to devolve her marriage if he proves for following
points:
1.The marriage has not been consummated.
2.The marriage took place before she attains the age of 15 and she has repudiated the marriage before attaining
the age of 18 years or any other ground which is recognized as valid for the dissolution of marriage under the
Muslim family law.
Conclusion:Islam has issued instruction for every corner of life. The problem of guardianship of children has
been resolved in Quran and Sunnah and secured the rights of the children whilst their parent has not cared for
them dissolving their nuptial tie.
TOPIC 2 What are the grounds available for Muslim woman to obtain the decree of khula
INTRODUCTION: Khula is mode of separation or putting to end the marriage but the wife has to return the
benefits to the husband taken during the nuptial tie.
Meaning: Khula means put off.
Definition: (i)Khula is the right of a woman to seek a divorce from her husband in Islam for compensation
(usually monetary) paid back to the husband from the wife.
(ii)When a divorce takes place at the instance of and with the consent of the wife it is called khula.
Dissolution of marriage: A woman may get the decree for the dissolution of her marriage
in following grounds:
1.The whereabouts of the husband have not been known for the period of 4 years (MAFQUD UL
KHABR)
2.That the husband has sentenced to imprisonment for the period of 7 years or up-word.
3.That the husband was neglected or failed to provide maintenance for the period of 2
years.
4.Husband is failed to perform matrimonial obligations without any reasonable cause for a
period of 3 years.
5.The husband was impotent at the time of marriage and continue to be so.
6.The husband has been insane for the period of 2 years or in-suffering from leprosy.
7.The marriage has been contracted before she attain the age of 15 years by her father or
other guardian provided the marriage has not been consummated.
8.That the husband treats her with cruelty.
Cruelty means:
1.Makes her life measure able even if such conduct does not amount physical ill treatment.
2.Husband use to spend his time with woman of evil repute.
3.Husband compelled his wife to leave an immoral life.

4.If husband obstruct in the observance of religious performance.

5.If husband more then 1 wife and he dose not treat her equitable in accordance with the
injunction of Islam.
6.Apostasy of Islam before the dissolution of Muslim marriage Act 1939 apostasy from Islam
either party to marriage operated as complete and immediate. After the dissolution marriage
Act 1939 either party may sue for dissolution.
CONCLUSION: Khula is considered a friendly and peaceful mode of dissolving the sacred tie of marriage giving
some consideration to the husband.
TOPIC 3
POLYGAMY
Introduction: Marrying more than one woman at a time is called polygamy. For well-being and eschew
matrimonial disputes, Islam has restricted a man to marry more than four at one time issuing warning to do
justice ,if not ,be limited to one only.
According to Quran: Following women are forbidden to you for the contract of marriage
1.Your mother (real mother).
2.Women whom your father married (step mother).
3.Your daughters.
4. Your sisters.
5.Your fathers sisters.
6. Your mother sisters.
7.Your brother daughter.
8. Your sisters daughter.
9.Your fathers mother.
10. Your mother in law.
11.Your step daughter born from your wife. 12. Wife of your real son.
13.Two sisters together at the same time.
14.A women and her paternal aunt similarly her maternal aunt cannot be united at the same time.
Polygamy: The Quran allows Muslims to have more than one wife at a time and if you fear that you would not be
able to deal fairly and equitably with the orphans you should marry the women who have these orphans and she
seen good to you.
Permission of marriage: Marry women of your choice two or three or four but if you fear that you shall not be
able to deal justly (with them) than marry only one
(Sura Nisa- verse 3)
Justice: All the commentators of the Quran unanimously hold this opinion that justice in this verse means equal
treatment in food, clothing, and lodging and even irrespective of all these things. There must be equal treatment in
love and affection.
Consensus of opinion: There is almost consensus of opinion that Quran permits polygamy. However this verse is
in nature of permission and not in nature of odder.
Plural marriages:The Quran simply permits its followers the contract plural marriages but it does not command
them to do so. It also restricts the maximum number of wives at four and this permission is subject to condition of
justice. There is another condition that choice of wives for plural marriages must be among from the widows and
orphan girls.
Jurists opinion: According to a group of jurists it is not a valid condition Quran did not introduce polygamy
actually it was existed in Pre-Islamic world.
According to Holy Prophet (PBUH): When a man has two wives and he does not deal equitably between them
he will come on the day of judgment with side hanging down
Polygamy is justified: Polygamy is justified in exceptional circumstances.
For example in case of war men are generally killed in large numbers then the number of men is decreased as
compare to women. In such situation if polygamy is not permitted to sport the widows and orphans it would lead
to economic problems as well as immoral practices. Similarly a wife of a man may be sterile and husband wants to
have children or a wife may be a chronic patient and a husband do not want to separation with her the 2nd marriage
is option for husband to satisfy for herself.
Conclusion: The facts and discussion supra is suffice to say that polygamy is save the Muslims from matrimonial
disputes that is necessary for peaceful and happy life.
TOPIC 4 DIVORCE
INTRODUCTION: Divorce in legal sense means the dissolution of marriage tie of husband and wife. It is a right
of the husband to dissolve the marriage. A man may divorce his wife three times taking her back after the 1st two
reconciling after the 3rd talaq they cannot get back together until she marries someone else.
MEANING: Divorce means freeing or undoing the knot or rejection.
Literal meaning: It means to discriminate, leave, or reject.
Definition: According to Holy Prophet (PBUH): Talaq is the exercise of absolute power of pronouncing
unilateral divorce on his wife by the husband

Cessation of relationship (tie) of marriage:

1.Sunni school: emphasis on the wording of divorce. Intention is no more important in the case of divorce.
2.Shia law: considers the presence of witnesses important at the time of dissolution of marriage. Intention and free
will are necessary for the valid talaq.
Capacity for divorce: Any adult Muslim of sound mind can divorce his wife.
Who cannot pronounce divorce: (i)Minor
(ii)Unsound mind
Nature: A Muslim husband has right to pronounce divorce without assigning any reason.
Islam discourages divorce: According to Holy Prophet (PBUH) The most detestable of lawful things near
ALLAH is divorce.
Permission of divorce in Islam: Islam permits divorce because divorce becomes inevitable in some extreme
situation when it is not possible for the husband and wife to live together to resolve the issues between husband
and wife the Quran instruct to its followers one from husbands family and one from wifes family for making
reconciliation. If the parties wish for settlement and peace.
Divorce on the basis of prescribed form:
Quran and Sunnah:
1.The method of divorce as pronounced by Quran and Sunnah is briefly described in these words If the husband
intends to divorce his wife he can do so by making a single pronouncement of divorce within the state of tuhur
during which he has not had matrimonial relations with her and then leave her to observe iddah After expiry of
iddah the divorce would may attain finality.
2.The husband would be pronounce divorce thrice in 3 successive tuhur, no intercourse taking place during any of
the tuhur. In that way the divorce would become irrevocable after the 3rd pronouncement of divorce.
3.In case of 1 or 2 divorce the husband retain the right of rejoin within the period of iddah by resuming the
matrimonial relation or by verbal detection. However after the expiry of iddah divorce irrevocable and husband
right stand for-feted.
Procedure of divorce: is spread over a period of almost 3 months during which a husband has right to revoke the
divorce. Basically this duration is a check the action of a husband and also leave the door open for the parties to
reconcile those who pronounce 3 divorces at a single sitting.
Holy Prophry (PBUH): They have been condemn by the Holy Prophet(PBUH) by saying this Are you playing
with the book of Allah while i am still among you
Simultaneous pronouncement: The simultaneous pronouncement of 3 divorces was treated as a single divorce
during the time of Holy Prophet (PBUH) and Caliph Abu Bakar and are in the early days of Caliph Umer.
However later-on Caliph Umer challenged his mind when he found that the people frequently divorced by 3
pronouncements. He therefor ordered to these pronouncement as 3 divorces and made them operation. As a matter
of punishment upon those who used the sinful method.
Khula: Quran has give the right of obtaining divorce to a wife if she agrees to pay some compensation this is
called khula. If the husband and wife are not able to keep themselves within the limits of Allah and they agree to
dissolve the marriage on the condition that wife gives compensation. Such agreement is valid under law. However
such compensation must not exceed above the amount of dower given by the husband to wife. Khula
is a kind of facility provided to a woman by returning the Mehar if she dislikes her
husband.
Conditions:
1.There must be an offer from the wife
2.The offer must be accepted with consideration for the release
3.The offer must be accepted by the husband
CONCLUSION: To conclude i can say that, the divorce is that the divorce is the mode of dissolution of the
marriage. A husband can divorce his wife has a right to buy her release from marriage from her husband.
TOPIC 5 RECOGNIZED FORM OF DIVORCE
INTRODUCTION: Divorce in legal sense means the dissolution of marriage tie of husband and wife. It is a right
of the husband to dissolve the marriage. Divorce is the vexed question in Islamic law. Talaq or divorce is regarded
by Holy Prophet (PBUH) to be the most detestable before ALLAH of all the permitted things for it prevents
conjugal happiness and proper upbringing of children.
Meaning: Dissolution or rejection.
Definition:The right given to a Muslim man to divorce his wife by mere unequivocal statement. Related Terms:
Idda, Khula, Zihar. Also presented as talk. The unilateral repudiation of a marriage by a Muslim husband.

Who cannot pronounce divorce: (i)Minor

(ii)Unsound mind
Nature: A Muslim husband has right to pronounce divorce without assigning any reason.
Capacity for divorce: Any adult Muslim of sound mind can divorce his wife.
Forms of divorce: following are the different forms of divorce:
1.Oral talaq
2.Talaq in writing
3.Illiah
4.Zihar
1.Oral Talaq: No particular form of words is prescribed for effecting a talaq. If the words are expressive or
SARIH are well understand then there is no need to prove the intention of the man whoever if words are
ambiguous. The intention must be proved in this connection. It is not necessary that talaq is pronounced in the
presence of wife and even address to her.
2.Talaqin writing: A talaq may be in shape of deed by which a divorce is effective. The deed may be executed in
the presence of Qadi or other witnesses. This deed must be in proper form and show the name of writer and the
person address. If the deed is in customary form then the intention to divorce is presumed other wise the intention
to divorce must be proved.
3.Illah: It is constructive divorce which id effected by astain from matrimonial relations according to shafi school
of law it is not operative divorce but it gives the right to a lady to demand a judicial divorce.
4.Zihar: Zihar is a form of inchoate divorce if a husband compares his wife to his mother or any other female
relation within prohibited degree then the wife has right to refuse herself to him unless he has performed penance
in default of penance the wife has right to apply for a judicial divorce.
5.Khula and Mubarat: A marriage may not be dissolved only by talaq which is discretion of husband but also by
agreement b/w husband and wife.
(i).Khula: A divorce by khula is the divorce with the consent. In which wife agrees to give consideration to the
husband for her release from the marriage tie. Failure to pay consideration dose not invalidate the divorce. A
Khula divorce is effected by an offer from the wife to compensate the husband. Once the offer is accepted it
operates as a single irrevocable divorce and its operation is not postpone until the execution of khula nama.
(ii).Mubarat: A Mubarat divorce like khula is a dissolution of marriage by agreement but there is difference b/w
khula and mubarat. In khula separation is demanded by wife however in mubarat both sides desire to conduct an
agreement of separation the offer may persieve bye husband and wife. Once the offer is accepted by husband and
wife the dissolution is complete. The requirements of law is satisfied now. If a notice of dissolution of marriage in
form of khula or mubarat is sent to the chairman of union-council then their is no need to conduct negotiations b/w
the parties and that mubarat or khula is effected immediately.
CONCLUSION: To conclude i can say that, the divorce is that the divorce is the mode of dissolution of the
marriage. A husband can divorce his wife has a right to buy her release from marriage from her husband.
TOPIC 6 EFFECTS OF DIVORCE
INTRODUCTION: marriage and divorce are 2 basics of our family system. Beloved Prophet (PBUH) Allah did
not make anything lawful more abominable to him than divorce pf all the lawful acts the most detestable to Allah
is divorce(Sunan abu dawud: book#12,Hadith #2172_2173).
MEANING: Divorce means freeing or undoing the knot or rejection.
Literal meaning: It means to discriminate, leave, or reject.
In Islamic law: it is release from the tie of the marriage either immediately or eventually. It can take place
personally or through an agent. Right to divorce may be delegated. It may be either express or implied.
Definition: According to Holy Prophet (PBUH): Talaq is the exercise of absolute power of pronouncing
unilateral divorce on his wife by the husband
Effects:
1.If the marriage was consummated the wife may marry again after the period of Iddah but if it was not
consummated she may marry immediately.
2.If the marriage has been consummated the wife is entitled to receive immediate payment of whole unpaid dower
both prompt and deferred. If the marriage was not consummated the lady is entitled to receive half amount of
specified dower. If no amount of dower is specified then in case of divorce there is no restriction in this regard.
3.Either party is entitled to inherit until the divorce become irrevocable except where divorce was pronounced
during the husband death, illness. In such case the right of wife to inherit continuous until the expiry of period of
Iddah. However in case of her own request she is not entitled to get inheritance.
4.Cohabitation b/w divorce couple becomes unlawful after the divorce become irrevocable.

5.Where the husband has repudiated the contract of marriage after 3 pronouncements. It is not lawful for him to
marry her again until she will marry another man and the later will divorced her or died after actual consummation
of marriage. If this will be occurred by design it is illegal. However if it is occurred by default it is permissible in
the eye of sharia.
CONCLUSION: To conclude i can say that, the divorce is that the divorce is the mode of dissolution of the
marriage. A husband can divorce his wife has a right to buy her release from marriage from her husband.
TOPIC 7 APOSTASY AND CONVERSION AS GROUNDS OF DIVORCE
APOSTASY: When a Muslim leaves Islam it is called apostasy
Conversion:when a Non-Muslim embraces or accepts Islam it is known as conversion.
Effects of apostasy and conversion: Apostasy and conversion may effect the marriage tie in the following
circumstances:
Apostasy: 1.Where husband leaves Islam.
2.Where wife leaves Islam.
Conversion: 1.Where husband embraces Islam.
2.Where wife embraces Islam.
Where a Muslim husband leaves or renounce Islam his Marriage with his Muslim wife is dissolved. A formal
declaration is sufficient in this regard. According to a judgment of A.I.R 1937 Sec 4 of dissolution of Muslim
marriage act 1937 says: The renunciation of Islam by a Married Muslim woman shall not by itself operate to
dissolve her marriage . The second provision of the same Section however provided this rule: Shall not apply to
a woman converted to Islam from same other faith who re-embraces her former faith.
For Example: A is a christian lady who embraces Islam and marriage with B who is a Muslim A then reembraces christian in this case the marriage of A with B is now dissolved.
Sayad Ameer Ali: If a christian or Jew or anybody else following a divine book embraces Islam his marriage
with his christian or Jewish wife is not dissolved however it will be dissolved if his wife belongs to a Nonrevealed religion.
For Example: Hinduism, Judaism and Buddhist etc due to this fact a Muslim cannot marry with a Non-kitabia
Islam has to be offered to such a wife if she refuses to embrace it. Divorce may be given this offer shall be made
by his own husband.
Where a Non-Muslim wife whether she is Hindu, Christian and Jew embraces Islam her marriage tie stands intact
irrespective of that the husband is Non-Muslim. The legal position of the married party one of whom leaves Islam.
Must be determined on principles of Muslim law other then those relating to apostasy. This id the legal view or
legal fiction presented by Sayad Ameer Ali. Similarly according to some jurist create this question who is the
person that seeks relief. If the husband changes his religion it is understandable that the wife should complain and
sue for dissolution and vice versa but is it right and just that one spouse should declare himself or herself or
convert and then ask the court to declare the marriage dissolved. The result would be that by these means a party
to marriage would be able to avoid legal obligations of marriage entered into a prior time and in-accordance with
the different systems of personal law.
TOPIC 8 Void and Invalid Marriage
Introduction: Marriage of Nikkah is a civil contract, which is made by parties for the sole purpose and object of
benefiting themselves according to Shariat it is a method to legalize the cohabitation of a man and a woman and
issues out of this union are legitimate. Under Islamic law, contract of marriage, need not to be proved through a
written document.
Meaning of marriage: Marriage means wedlock, the mutual relation of the husband and wife. It is a contract
for the legalization of intercourse and procreation of children.
Nature of Marriage
Although a religious duty marriage is emphatically not a sacrament. There are no sacraments in Islam, nor is it
coverturesMohammedan marriage is purely contractual.
Definition of marriage:
According to Ameer Ali: Marriage is an institution ordained for the protection of society, and in order that
human being may guard themselves from foulness and un-chastity.
Proof of marriage:
Marriage can be proved by two modes.
(i) By the direct evidence of the witnesses.
(ii) By the written document i. e. documentary evidence.
Classification of marriage: Classification of marriage is as under.
(a) Valid.
(b) Void.
(c) Irregular.
Valid: A marriage which conforms in all respects whit the law is called valid marriage.
Void: A void marriage is null and void and creates no civil rights and obligation between parties. A void marriage

is no marriage at all. The illegality of such marriages commences from the date when they made such contract
following types of marriages are void:
(i) A Marriage of Muslim who has attain puberty and having sound mind if his marriage commences without his
consent.
(ii) A marriage prohibited from the ground that relationship forbidden according to the teaching of Islam.
(iii) A marriage with a woman who has her husband alive and has not been divorced by that husband.
(iv) A marriage prohibited on the ground of fort rage.
Legal effects of void marriage:
Following are the legal effects of void marriage.
No rights and obligation: The void marriage creates no right and obligation upon any party.
Illegitimate children:The children born out of such marriage are illegitimate.
No rights to inheritance:The deaths of one them dose not entitle the other to inherit form the deceased.
Irregular:An irregular marriage is one which is not unlawful in itself, but unlawful for something else. in
irregular marriage irregularity arises from an accidental circumstances.
Legal effect of irregular marriage:
Legal effect where consummation has not taken place: The irregular marriage has not legal effect if
consummation has not taken place.
Legal effect if consummation has taken place: If consummation has taken place the irregular marriage has
following legal effects.
Legitimacy of children: The children born out of such marriage are legitimate.
Right of dower: The wife is entitled of dower.
Right of inheritance: No right of inheritance is created the husband and wife.
Right of issues: The issues are entitled to share the inheritance.
Observation of iddat: A marriage with a lady who is observing the period of iddah is also only irregular and not
void following marriages are consider irregular or fasid:
(i) A marriage without witnesses or where the witnesses are deaf and dumb.
(ii) A marriage with a woman observing the period of Iddat.
(iii)When proposal and acceptance are not made and given in the same meeting.
(iv). Marriage of a Muslim made with a non-kitabia.
(v) A marriage to a fifth wife when 4 are already there.
Jurists opinion: According to the most of jurist cohabited marriages may be broadly divided into two categories
the Batil and Fasid marriages.
Batil marriages: A batil or void marriage is such marriage which is unlawful itself prohibition is perpetual and
absolute.
Fasid marriage: An irregular and fasid marriage is that which is not unlawful in itself but where the irregularity
arises from accidental circumstances such as the absence of two witnesses the prohibition is temporary.
Case of irregular marriage when parties avoid such marriage: In case of irregular marriage either of party
can avoid such a marriage by adopting one of the following modes or ways:
1. The husband can repudiate his wife.
2. Either of them can be sue to avoid it.
3. The court can itself move for its cancellation if the matter is proving to its notice.
4. Either of them can are his or her own terminate the marriage by a simple single declaration to that effect.
Conclusion:
To conclude I can say that, the legal effects of three kinds of marriages are different in nature. A void marriage
being illegal is null and void abinitio. An irregular marriage is not unlawful in itself but it has no any legal effect
before consummation.