1.

Introduction and Meaning Mahar or Dower

Mahr or Dower is a sum of money or other property to be paid or delivered to the wife. It is
either specified or unspecified but in either case, the law confers a mandatory right of Mahr or
Dower on wife.
The Mahr (Dower) belongs to wife and she can deal with it in the manner she likes it and
neither her husband nor husband’s relations nor even her relations can dictate her in matter of
using the Mahr money or property. No doubt, Mahr was originally analogous to sale price, but
since the inception of Islam, it is hardly correct to regard it as the price of sexual intercourse.
Muslim marriage is like a contract where wife is the property and Mahr is the price or
consideration. However, it is also true that non-payment of Mahr does not void the marriage,
so Mahr is not purely a consideration. [1]In pre-Islamic Arbia, Sadqua was a gift to wife but
Mahr was paid to the wife’s father and could therefore, be regarded as sale-price. But after
Islam, Mahr payment is required to be paid to wife and not to her father, it could no longer be
regarded as Sale Price.
No sin upon you if you divorce woman before you have touched them (but) appoint a portion
fixed for them by you (rather pay Mahr) and make provision (of gift) for them, Rich, according
to his means, Poor, according to his means.
And if you divorce them before you have touched them, and you have fixed for them the
dower, (pay) half of what you have fixed (i.e., dower) unless they (women) relinquish or give it
up.
Divorce is twice: Then retain them reasonably or release them with kindness. And it is not
lawful for you that (you) take back anything of what you had given to them except that both
fear that they will not be able to keep limits of Allah and she returns what she was given.
 Mahr or Dower has to be given to wife however she is vested with discretion to remit it.
 Mahr is non-refundable even after divorce (unless she remits it at her sole discretion)
and it becomes the property of wife in perpetuity.
 Payment of Mahr is mandatory even if marriage is not consummated. But in that case,
Mahr is half of the amount fixed.
 In a way, Mahr provides a check on the capricious exercise by the husband of his almost
unlimited power of divorce. Even a middle class man can fix the Mahr of eleven lakhs of
Ashrafis (an ashrafi would be 15-20 rupees). This sum of money would give serious
cause for anxiety for a middle class man for giving divorce.
Mahr amount
 Hanafi Law, 10 Dirhams
 Malaki Law, 3 Dirhams
 Shafi Law, No fixed amount
  Shariya Law, No fixed amount.
The Mahr fixed by Prophet of Islam for his favourite daughter Fatima, wife of Ali was 500
Dirhams. A dirham (derived from the Greek) is the name of Silver coin of 2.97 grams in weight.
However, it would be a sad mistake to lay too great stress upon the monetary value of the
Mahr amount. It is said that in the case of an extremely poor man, the Prophet requested him
to teach the Quran to his wife. It is said in one Hedaya that the payment of Mahr is enjoined by
the law merely as a token of respect for the woman.
Types of Dower
A. Specified dower (mahrul-musamma)
The Mahr is usually fixed at the time of marriage but it is also fixed after the marriage. Mahr
fixed by the father on behalf of his minor son is binding on the minor son on his majority.
However, under Hanafi Law, the father is not personally liable for the Mahr but in Ithna Ashari
Law, father is also held liable. Where the amount has been specified, the husband will be
compelled to pay the whole of it, howsoever excessive it may be.
But in Oudth, only a reasonable amount will be granted, if court deemed the amount excessive
or fictitious. Sometimes, for the purpose of glorification, a large Mahr for the purposes of show
is announced but the real Mahr is smaller. Such a Mahr for the purposes of show is fictitious.
But this will be a fraud on Law and defeats the very purpose and hence must not be allowed to
be given recognition in law.
B. Unspecified dower (mahrul misal)
The obligation to pay dower is a legal responsibility on the part of the husband and is not
dependent upon any contract between the parties. Hence, the husband’s liable to pay Mahr
even if it is not specified. The only question would be the quantum. If no Mahr is fixed, wife will
be entitled to receive the amount which is customary in the community or in respective society
or what is proper in each individual case. What is proper ion each individual case will be
determined as under?
 With reference to the social position of her father’s family.
 Her own personal qualifications.
 Social position of the husband. But the means of husband are of little account.
 Her age, beauty, fortune, understanding and virtues.
 Mahr fixed earlier in the family (i.e., Mahr fixed for father, brother, uncle, sister etc. of
the wife’s family).
C. Prompt (muajjal) and deferred (muvajjal) Mahr
A technical term for Prompt is Muajjal and for Deferred is Muvajjal. The term Muajjal is derived
from a root meaning ‘hasten’, ‘to proceed’ whereas the term Muvajjal is derived from the root
meaning ‘delayed’ or ‘deferred.’
The prompt dower is payable immediately after the marriage but the deferred Dower becomes
payable either on the dissolution of the marriage or on the happening of a specified event.
When dower is fixed, it is usual to split it into two equal parts, one part is paid at once or on
demand and the other on the death of the husband or on divorce or on the happening of some
specified event. In Ithna Ashari Law, the presumption is that the whole of the dower is prompt
but in Hanafi Law, the position is different.
Ideally and usually, the whole Mahr is required to be promptly awarded but in earlier case, the
Full Bench held that the usage (custom) of the wife’s family is the main consideration and in
absence of proof of custom, the presumption is that one half is prompt. However, the
proportion may be changed to suit particular cases.
Increase or decrease of dower
The Husband may at any time increase the Dower. Like-wise, the wife may remit the Dower
wholly or partly. The remission of the Mahr by wife is called as Hibatul Mahr or Hiba-I-Mahr.
when a wife was being ignored by husband and thought that only way to win him back was to
waive Mahr, her remission of Mahr was considered without her consent and was not binding
on her.[2]
Remedies of a Muslim woman to recover dower
The right to dower is an inherent right of every Muslim wife. But, unless this right is effectively
enforced, it is of no use to her. Under Muslim law, following means of enforcement of the right
to dower are available to a wife (or widow):
 Refusal of Conjugal Rights
Before consummation of the marriage, the wife is entitled to deny cohabitation to the husband
till he gives her Prompt Dower on demand. It is to be noted that under Muslim law a husband
has right to cohabit with his wife and she cannot refuse the same without any reasonable
excuse.
But non-payment of Prompt Dower before consummation is a lawful justification for the wife to
refuse cohabitation. A Muslim-wife can refuse to live with her husband and refuse to him the
sexual intercourse so long as the Prompt Dower is not paid to her.
Case : Nasra Begam v. Rizwan Ali[3]
The Allahabad High Court held that the right to dower comes into existence before cohabitation
and Prompt Dower may be demanded even before the cohabitation.
Where the wife is minor or insane, her guardian can refuse to allow the husband to take his
wife with him till the Prompt Dower has been paid. If the minor wife is already in the custody of
her husband, such guardian can take her back on the ground of nonpayment of Prompt Dower.
But, where the consummation has taken place even once, the wife’s right to refuse
consummation is lost. If the marriage has already been consummated, the husband’s suit for
restitution of conjugal right will not fail on the ground of non-payment of Prompt Dower.
However, the court has discretion, even in such a case, to pass a decree for restitution of
conjugal rights subject to the condition of payment of Prompt Dower.
Case: Anis Begum v. Muhammad Istafa Wali Khan[4]
The facts were that in the marriage of Anis Begum and Md. Istafa, the Prompt Dower was Rs.
15,000. The husband and wife lived together for some time and a daughter was born to them.
Later on, Anis Begum left the house of her husband and refused to come back till her Prompt
Dower was satisfied. Md. Istafa, the husband, filed a suit for the restitution of conjugal rights. It
was held by Sulaiman, C.J., that there was no absolute right in a husband to claim conjugal
rights unconditionally. The courts have discretion to make the decree of restitution of conjugal
rights conditional on payment of wife’s unpaid Prompt Dower even where the marriage has
already been consummated. Accordingly, the decree for restitution of conjugal right was passed
in favour of the husband subject to his payment of Rs, 15,000/-.
 Enforcement of Dower as debt:
Where the marriage has been consummated, the wife cannot enforce her claim by refusing
conjugal rights to the husband. In such a situation the wife can recover her unpaid dower by
maintaining an action in a court of law. She may realise it from husband in the same manner as
a creditor recovers his loan.
If the husband dies, the widow is entitled to recover the amount by filing a suit against the legal
heirs of the deceased husband. But the legal heirs of the husband are not personally liable to
pay the dower. The dower is a debt against the estate of the deceased husband which is
inherited by heirs.
 Widows Right of Retention
After the death of husband the most effective method of enforcement of dower is the exercise
of right of retention. A widow, whose dower remains unpaid, has a right to retain the
properties of the husband till her dower debt is satisfied. This right is termed as the right of
retention in lieu of unpaid dower and it is available to a widow, whether there is any agreement
between the parties for this right or not.
Under this right if a wife has taken possession of her husband’s properties lawfully (with free
consent of the husband) in lieu of unpaid dower, then she is entitled to retain that possession
after the death of her husband, until her dower is paid out of the properties retained by her.
This right is exercised against the creditors, if any, of her deceased husband, and his legal heirs.
The legal heirs of the husband cannot get possession (and benefit) of the properties of the
deceased until they make payments towards unpaid dower in proportion of their respective
shares. Thus, this may be said to be a coercive method of recovery of unpaid dower from
husband’s legal heirs.
2. Introduction Examining Triple Talaq – meaning, nature, truth and myths

Triple–Talaq is a form of “talaq–ul–bid-at” in which, the husband may pronounce the three
formulae at one time, and it is irrelevant that whether the wife is in state of tuhr or not. It is
denoted in Arabic as Mugallazah, means very hard-divorce which is most disapproved and
which does not conform to Talak-us-sunnat. The separation then effects definitely after the
woman has fulfilled her “iddat” or period of probation.
NATURE OF TRIPLE-TALAQ:
There is a great controversy regarding the effect of triple pronouncement of the divorce at one
and the same time. The difference in the opinion of jurists is due to the difference in their
interpretation and application of the law. One class of the jurists is of the opinion that no
leniency is to be shown in the application of laws so that people should not take undue
advantage on that account. Abu Hanifa and Malik, therefore, hold the three repetitions of
divorce to be final. The other jurists explained that Allah wants to treat people leniently so that
they may not be put to hardship, and also to minimize the chances of separation. Hence, they
hold three repetitions to amount to one only. Ibn Rushd has explained that Islam believes in
golden mean.
WHAT IS HALALA MARRIAGE (NIKAH HALALA)?
Majority of Muslim population work as per the Sharia law. Sharia is derived from the religious
precepts of Islam, particularly the Quran and the Hadith.
A couple which undergoes Nikah Halala, where a divorce cannot remarry unless the women
marry another man, consummates the marriage and then her second husband dies or divorces
her. Nikah Halala is practiced under Sharia law.
POSITION OF TRIPLE-TALAQ IN THE TRADITIONS OF PROPHET:
There are different traditions of Prophet quoted by scholars regarding whether three divorces
at same time should be treated as one or three distinct divorces. Those scholars who
accept triple-talaq on a single occasion as one quote following tradition in its favour: It is said
that the notion of three divorces as one is not altogether baseless and invalid, but there is a
ground for it which has always been accepted by a group of Ahl-e-Sunnat Wal Jammat• (the
followers of the tradition of the Prophet and of the decision of the collective body of Muslims).
POSITION OF TRIPLE-TALAQ IN QURAN:
In the Holy Quran there is nowhere been ordained the three divorces pronounced in a single
breath would amount to three separate divorces.
POSITION OF TRIPLE-TALAQ IN MUSLIM COUNTRIES:
In all Muslim countries there has been pressure to introduce reform which will safeguard the
wife’s right, and enable a proper opportunity to be made to attempt to reconciliation. The first
of major reforms were in Egypt in 1920‟s. In no other country except Iraq, women have
equal rights with men in the matter of divorce.
THE VALIDITY OF TRIPLE TALAQ:
There has been Numerous court judgements which have established that Triple Talaq is invalid
and have set some definite requirements for its validity.
In Masroor Ahmed v. State (NCT of Delhi) [2008 (103) DRJ 137 (Del.), Triple Talaq was held to
be one revocable Talaq meaning that the divorce can be revoked at any time before the
completion of a waiting period of 90 days (called Iddat) after which the marriage is dissolved.
Talaq must be for a reasonable cause. (Talaq given in anger is not valid).
In Riaz Fatima v .Mohd. Sharif [(2007) DMC 26], evidence must be given by the husband of the
reasons that has compelled him to seek divorce. A proof that talaq was proclaimed thrice in the
presence of witnesses or in the letter must be provided and an attempt of reconciliation has
been made. There has to be proof of payment of meher (dowry) amount and observance of
iddat (the period of waiting by a woman after divorce or the spouse’s death before she can
marry again).
EFFECT OF TRIPLE-TALAQ ON SOCIETY:
In Islam marriage has been regarded as an important function which an ideal Muslim whether
male or female should perform firstly in order to save the society from unchastity and to build
up a healthy society. This practice of talaq has deleterious effect on women; breaking of a
marriage contract has emotional and financial concerns. Often it is not interest of women,
which are at stake, but those of their children as well the trauma of triple-talaq is rife in the
reality of women.
The scholars of Muslim law, who consider three divorces at a time as one, argue that in our
present social set up religion has been relegated to such an extent that religious values have
become eclipsed. It has ceased to be a way life, a guiding source and an inspiration.
CONCLUSION:
Thus it can be concluded that this need not be mentioned that the Muslims are required to
follow the teachings of Holy Quran and Hadith rather than the rule imposed by a Caliph over
people for a certain period of time to prevent them from deceiving the women and making
mockery of law of Allah. The rule or the law was for people of that time whereas the Quran and
Hadith are applicable for all times and all people. Almost all the Islamic Scholars whether
belonging to Ahlehadis or Shia or Hanafi or any other school of thought agree that this practice
is either Haram or Biddat so Muslims must not allow this to corrupt their society.

Under Muslim law, the age of majority is regulated by two system:

 The Classical Muslim Law:
Under classic Muslim law a person is said to be minor if he or she has not attained the age of
puberty. The age of puberty is 15 years. But, as already discussed, fifteen year is the age of
majority only for marriage, dower and divorce. Thus for purpose of marriage, dower and
divorce, a Muslim who has not attained the age of puberty is minor.
 Statutory law:
Statutory rules which regulates the age of majority of the Muslim, are given below:For purpose
other than marriage, dower and divorce, the age of majority is governed by the Indian Majority
Act, 1875. Under this Act the age of majority is eighteen years. A Muslim who has not attained
the age of eighteen years, is a minor in respect of all the matters except marriage, dower and
divorce.
Where a Muslim is within the supervision of a guardian appointed by the court of law, or is a
Muslim whose property has been under the supervision of the Court of Wards, the age of
majority for such Muslims is Twenty-one years. Therefore, except in matter of marriage, dower
and divorce, a Muslim who is in the supervision of a guardian appointed by the court or is under
protection of Court of Law, remains a minor so long as he or she not attained the age of twenty
one years.
Conclusion
For purpose of marriage, dower and divorce, a Muslim become adult after attaining the age of
puberty. But for filling a suit in a court of law, the minimum age is eighteen years even if the
suit may relate to marriage, dower and divorce. A minor can’t file any suit relating to his
marriage without the ‘next friend’.
3.Minor and Guardianship under Muslim Law - Introduction

A minor is supposed to have no capacity to protect his or her own interests. Law therefore,
requires that some adult person must safeguard the minor’s person or property and do
everything on his or her behalf because such a minor is legally incompetent. A person who is
authorised under the law to protect the person or property of a minor, is called a guardian.
Under Muslim law guardians are required for the purpose of marriage, for the protecting the
minor’s person and for protecting the minor’s property.
Guardianship of a minor person means an overall supervision of the minor’s personality. It
means care and welfare of the child including the liability to maintain it. It is more than simply
custody of the child upon a certain age. Under Muslim law, is called HIZANAT. They are
sometime taken to mean the same thing .But under Muslim law, these two aspects of the
guardianship are different and are governed by the different laws. The guardianship of a child
means overall supervision of the child during its minority. Father or his executer or in his
absence, the paternal grandfather, being the natural guardian, are in charge of the minor’s
person. On the other hand ‘custody of the child’ simply means a physical possession (custody)
of the child upon a certain age. Although mother is not the natural guardian of the child under
Muslim law, but she has a right to the custody of the child, till the child attains a specific
age.[1] But the father or the paternal grandfather has a control over the minor during the
whole period of the minority. Tahir Mohmood states that:
“Guardianship of a person in relation to a child belongs primarily to its father, the mother’s
being only a pre-emptive right to keep the father away for a legally prescribed period only from
a particular aspect of the guardianship of person, namely, the custody and physical upbringing
of the child’’. [2]
It may be said therefore, that mother has a right to the custody of her child for some time,
because except her, no one can handle and nurse a child during its infancy. But her custody of
the child is subject to the supervision of the father who, as a legal guardian, is under an
obligation to provide means for the upbringing of child.
In this paper we will understand the different possibilities and move of our legal system for
every circumstances arising regarding guardianship under Muslim law.
Types of Guardianship
Muslim law recognise following kind of guardianship:
1. Natural or legal guardian.
 2. Testamentary guardian.
3. Guardian appointed by courts or statutory guardian, and
4. De-facto guardian
Natural or legal guardian: Natural guardian is a person who has a legal right to control and
supervise the activities of a child. Father is recognized as the natural guardian of his child under
all the Schools of Muslim law. The father’s right to act as guardian of a minor is an independent
right, and is given to him under the substantive law of Islam. Natural guardian is also
called dejure or legal guardian. As stated above, only father is the legal guardian of his child. But
in the absence of father, the father’s executor may also act as a legal guardian. Executor is a
person who is appointed by the father or grandfather to act as a guardian of his minor child on
his behalf. In the absence of the father or his executor, paternal grandfather or paternal
grandfather’s executor acts as a legal guardian. Thus, the nature guardian of a minor, in order
of priority, are as under:
1. Father
2. Executor of father
3. Paternal grandfather
4. Executor of Paternal grandfather
Under Muslim law in the absence of any of the above mentioned persons, nobody else is
recognized as the natural guardian of a minor.[3]
Shia Law: In the absence of father only paternal grandfather may act as a legal guardian .In the
presence of paternal grandfather, the father’s executor has no right to act as legal guardian of a
child.
Testamentary Guardians: Testamentary guardian is a person who is appointed as guardian of a
minor under a will. Only father or, in his absence, paternal grandfather has right to appoint a
testamentary guardian. No special formality is required for the appointment of a testamentary
guardian, but, as obvious, such a person should be competent to act as a guardian. A non-
Muslim and a female may also be appointed as a testamentary guardian.
Shia Law: A non- Muslim cannot be appointed as testamentary guardian.
Guardians appointed by Court: In the absence of a natural and testamentary guardian, the
court is empowered to appoint a guardian for the purpose of the minor’s person or property or
for both. The appointment of guardian by court is governed by the Guardianship and Wards
Act, 1890 which is applicable to all the Indians irrespective of their religion. Such guardians are
also called Statutory Guardian. It may be noted that no provision has been made under this act
for the guardianship for the marriage. The result is that except the guardian for marriage, the
guardian for a Muslim minor’s person or property may be appointed by the court of law. In case
of conflict between Muslim personal law & Guardianship & wards act, provisions of acts prevail
over the provisions of Muslim personal laws.
The courts are empowered to appoint the guardians for a minor upon an application. Such
application may made by any of the following persons:
1. any person desirous of being or claiming to be the guardian of the minor, or
2. any relative or friend of the minor, or
3. The collector of the district in which the minor generally resides
If the court is satisfied that it is for welfare of the minor that an order should be made, then it
may make an order –
1. Appointing a guardian of minor’s person, or both ,or
2. Declaring a person to be such a guardian.[4]
Sec. 17 (2) of the act says about the various grounds for deciding the guardianship like: sex, age
of the minor, capacity of the proposed guardian etc.
In Smt. Farzanabai v. Ayub Dadamiya[5], the Bombay high court observed that under
Guardians and Wards act, the personal law of the parties is a factor which is to be kept in mind
by the court subject to the interest of the minor.
De-facto guardians: A de-facto guardian is a person who is neither a legal guardian nor a
testamentary guardian or statutory guardian, but has himself assumed the custody and care of
a child. According to Tyabji a de-facto guardian means an unauthorised person who, as a
matter of fact, has custody of the person of a minor or his property.[6] De facto guardian is a
person having no authority for the guardianship but under the circumstances has taken the
responsibility to act as the guardian of a minor.
4.Guardianship for Marriage and apostasy of marriage

Marriage of a boy or girl under the age of puberty, is not valid unless it is contracted by a
marriage-guardian. A ‘marriage-guardian’ is a person who, under Muslim law, is authorized to
contract the marriage for a minor. This authority is termed as Guardianship for Marriage.
(wilayat–e-nikah).Guardianship for marriage is different type of guardianship and must be
distinguished from the guardianship of the person or property. The provisions of the Guardians
& wards act does not apply to the guardianship of marriage .So, the guardianship for marriage
is purely governed by Muslim laws. Fyzee observed that: the court cannot appoint a ‘Wali’
although in some cases ‘kazi’ himself could act as marriage guardian[1].
Who Are Marriage Guardian?
The following person in order of priority, are entitled to act as guardian for the marriage of a
minor:
1. Father
2. Paternal grandfather, how high so ever
3. Brother or other male member of the father’s family, one after the other in the line of
agnatic heir
4. Mother
5. Maternal relation such as uncle or maternal aunt.
6. The kazi or the court
Shia law: According to shia laws, the only guardian for marriage are (i) & (ii).
In Abdul Ahmad v. Shah Begum [2] a person contracted the marriage of a minor girl by
declaring himself as her guardian. He was not a ‘marriage-guardian’. It could also not be
established that he had ever been given the authority by a competent guardian. The Jammu &
Kashmir high court held that this marriage was void ab anitio.
Apostasy of Marriage – Guardian
It is not clear whether a Muslim father may lawfully act as a marriage- guardian after
renouncing Islam. Under Muslim law if the marriage-guardian renounces Islam, he has no right
to contract the marriage of the minor. But the Caste Disability Removal Act, 1850 repeals all
legal provisions imposing loss of rights of the apostates or the converts. In all old case, in the
matter of Mohin Bibi[3], the Bombay high court has held that a non-Muslim father has no right
to act as a marriage-guardian. Marriage-guardianship or the right of jobar comes to an end as
soon as the child whether male or female, attains the age of puberty. But the Shafie and the
Maliki schools, the right of jobar in the case of a female child continues till she is married
5.Maintenance of wife and children under Muslim Law
Introduction
The concept of Maintenance was introduced to provide support to those people who are not
capable to maintain themselves. It is basically provided to the spouse who is not independent
and is dependent on the other spouse. The principle of maintenance includes financial support,
means of livelihood and educational facilities.
In marriage, it is the obligation of the husband to maintain the wife and to provide her all
necessities. The whole concept of maintenance is to protect the rights of the wife and to
provide her a dignified life and even after the dissolution of marriage, the husband is in the
liability to provide maintenance to his wife if she is not able to maintain herself. The concept of
maintenance has broader aspect. It is not only provided to the wife but also to children,
parents, grandparents, grandchildren and other relations by blood. The amount of maintenance
depends on the financial position of the person who is bound to provide maintenance.
Various laws and rules have been made on the principle of maintenance. The concept of
maintenance has also been added to personal laws. The Muslim Law also provides for
maintenance. Though Muslim Law does not properly define maintenance, its meaning has been
inferred from Hindu Law which provides that:
“in all cases, provisions for food, clothing, residence, education and medical attendance and
treatment; in the cases of an unmarried daughter, also the reasonable expenses of and incident
to her marriage.”
Under Muslim Law, women are considered weak as compared to men. It is believed that they
are not able to maintain herself on her own so it is the liability of the husband to provide
maintenance to her wife in all conditions even if she is capable of maintaining
herself. Maintenance is known as “Nafqah” which means what a man spends on his
family. Nafqah basically includes food, clothing, and lodging.
The Muslim Law of maintenance may be discussed from the point of view of the persons
entitled to maintenance. Such persons are:
i. The Wife
ii. The Children
iii. The Parents and Grandparents
iv. The other relations.
But under Muslim Law, maintenance is provided to wife even if she is capable of maintaining
herself which differs it from other laws. But in case of Maintenance to Children, Parents and
other relations, it is given only when they are not able to maintain themselves. Here, we are
going to discuss the maintenance of wife and children under Muslim Law.
2. Maintenance of wife
Under Muslim Law, as discussed above men are considered superior to women and women in
all cases is considered to be dependent on men. It is the liability of husband under Muslim Law
to maintain his wife even after divorce.
2.1 Obligation of Husband to provide Maintenance
It is the obligation of the husband to provide proper maintenance to his wife in all
circumstances whether he is in good financial condition or not. His obligation to provide
maintenance is even after the dissolution of marriage. However, the obligation of husband
extends only when the wife remains faithful towards him and obeys all his reasonable orders.
In Baillie’s Digest of Mohammedan Law, it has been stated that:
“If and when called upon to remove his house, she refuses to do so of right, that is to obtain
payment of her dower, she is entitled to maintenance; but if she refuses to do so without
rights, as when her dower is paid, or deferred, or has been given to her husband she has no
claim to maintenance.
If a woman is ‘nashizah’ or rebellious, she has no right to maintenance until she returns to her
husband’s house. By this expression, it is to be understood that a woman who goes out from
her husband’s house and denies herself to him, in contradiction to one who merely refuses to
abide in her husband’s apartment, which is not necessary for the purpose of restraint. If,
however, the house her own property, and she forbids him from entering it, she is not entitled
to maintenance unless she had asked him to remove her to his own house or to hire a house for
her. When she ceased to be a nashizah or rebellious, she is again entitled to maintenance.”
2.2 Quantum of Maintenance
The quantum of maintenance is not prescribed under any matrimonial statute. It is decided as
per the discretion of court depending upon the condition of husband and wife.
Under the Shia Law, the quantum of maintenance is decided by taking into consideration the
requirements of the wife. Under Shafei Law, the quantum of maintenance is determined by the
post of the husband.
2.3 Maintenance under anti- nuptial agreements
Muslim marriage is a contract, an agreement is made between the parties to the marriage
which prescribes the rights and duties if husband and wife. The condition of agreement should
be valid otherwise the marriage should be considered as illegal. In this agreement, the wife can
stipulate some conditions for husband and in case of breach of such conditions, she has a right
to live separately and is entitled to maintenance. Such conditions are as follows:
• If the husband ill-treats her;
• Takes a second wife or concubine;
An agreement which stipulates that wife is entitled to maintenance after divorce is also valid.
But she is entitled to maintenance only during the period of iddat and not beyond that. The
husband’s liability is only till the iddat period.
Ali Akbar Vs. Mst. Fatima (1929) ILR II Lah.85
An allowance of Rs. 25.00 per month was fixed for Kharach-i-Pandan in addition to the amount
of maintenance which she is entitled to get from her husband. It was held that the wife is
entitled to it irrespective of the fact that she refuses to stay with her husband. (Kharach-i-
Pandan is a personal allowance and it cannot be transferred.)
2.4 Divorced wife’s right to maintenance under Muslim law and section 125 of Crpc and dower
Under Muslim Law the rights of the wife to get maintenance during the marriage is absolute
but after the dissolution of marriage, her rights are limited. She is entitled to maintenance from
husband after divorce is only till iddat period ( Iddat is a period of three menstrual courses or
three lunar months). Muslim law does not provide maintenance to wife after the iddat period is
over. In Hanafi school of law, a divorced Muslim wife is entitled to maintenance during iddat
period whereas in Shefai law, a divorced Muslim wife is not even entitled to maintenance.
In case of dower, which is the right of Muslim wife, which she is entitled at the time of
marriage, the husband is under the obligation to pay her whatever the amount of dower has
been agreed upon between the parties at the time of marriage or if no amount is decided then
a reasonable amount should be paid by the husband to wife for her maintenance.
But this creates hardship for Muslim wife as under Muslim Law it is very easy for men to give
divorce to his wife as the Law allows him to marry thrice. Muslim wife does not have any proper
means for herself in Muslim Law. If after the expiry of iddat period, she has no means to
maintain herself then in that case husband has no liability for her and she is left with nothing.
Under section 125 of Crpc, provides for maintenance to divorced wife of all religion. It stated
that after divorce if the wife is not able to maintain herself, she is entitled to maintenance from
her husband until she gets married. The act applies this provision to Muslim women also who
are not entitled to the maintenance after the period of Iddat. This act creates liability over
husband to provide maintenance to wife even after the period of Iddat.
But the provisions of this act are in conflict with the provisions of Muslim Law and a debate was
going on as which law should be applied. This matter was seen by the Supreme court in a
landmark judgment
Shah Bano Begum Vs Mohammad Ahmed Khan, AIR 1985 SC 945
In this case, Shah Bano Begum, a 62 years old lady filed a petition under section 125 of Crpc
before Judicial Magistrate of Madhya Pradesh. The petition stated that her husband has
pronounced Talaq to her and she has not even remarried and thus she was entitled to
maintenance. For which her husband has stated that he had no liability to provide maintenance
to her as under Muslim Law, a divorced wife has no right of maintenance after Iddat period.
The magistrate, in this case, passed an order stating that the husband is entitled to provide her
maintenance of Rs.25 per month as per Section 125 of Crpc.
Shah Banu filed a revision petition against this order in the High court of Indore for
enhancement of the amount of maintenance. For which Indore High court has enhanced the
amount of maintenance to 179.20 Rs per month.
Against this order, Mohd. Ahmed Khan appealed to the Supreme court. Supreme court rejected
the appeal and stated that Muslim wife is entitled to maintenance even after the period of
Iddat if she is not able to maintain herself.
The Supreme court has observed that with this judgment the distinction between the Muslim
personal law and Civil Procedure code will come to an end. But the judgment has even
increased the controversy as a result of which the legislatures have to make a new law to
govern Muslim divorce i.e. Muslim Women (Protection of Rights on Divorce) Act 1986.
This act has enacted some provisions in support of Muslim Personal Law and has restricted the
application of Section 125 of Crpc regarding the maintenance of Muslim wife. The Act has
stated that the husband is entitled to provide maintenance only during the period of Iddat and
not beyond that. If the wife is not able to maintain herself after iddat period then, in that case,
she can seek maintenance through Wakf Board or relatives of her or her husband. This act has
not mentioned anything clearly and has created various confusions in the judicial system and
was considered as vague. The confusion of this act has been solved by the Supreme Court of
India under:
Daniel Latifi Vs. Union Of India, AIR 2001 SC 958
A writ petition was filed challenging the validity of the act. For which the court has stated as
under:
• As per Section 3 of the act, Muslim husband is entitled to provide fair and reasonable
maintenance to his wife and has to make proper arrangement for her maintenance after the
divorce.
• Muslim husband’s liability under this act is not limited to iddat period. He has to make
arrangement within the period of iddat for her wife’s maintenance.
• A divorced Muslim woman is entitled to maintenance under section 4 of this act from her
relatives who are entitled to her property after her death.
• If her relatives are not able to maintain her then, in that case, a Wakf board has been created
by this act who will take care of the maintenance of such women.
• The magistrate can direct this board to pay maintenance to them.
The Supreme Court on the basis of the above points has held the act constitutionally valid.
3. Maintenance of the Children
Children are the responsibility of their parents and they should be taken care of. They are
entitled to proper and adequate maintenance from their parents and especially the father. As
under Muslim Law, men are considered as superior and are in the obligation to maintain his
family, maintenance of the child is his primary responsibility.
3.1 Father’s obligation to maintain his child
Father is under an obligation to maintain his legitimate child until he earns puberty. Under
Muslim Law, the father has to maintain his son only until he attains majority and has to
maintain his daughter until she gets married. Under certain circumstances, father is bound to
maintain his widowed or divorced daughter.
Father is not bound to maintain his son or unmarried daughter if they refuse to live with him
without any reasonable cause. Under Muslim Law, father is under no obligation to maintain his
illegitimate child but an agreement between the parties to maintain his illegitimate child is not
valid.
Under section 125 of Crpc, if the father has sufficient means, he is under obligation to maintain
his child whether legitimate or illegitimate.
Pavitri vs. Katheesumma, AIR 1959 KER 319
In this case, it was stated that it is not at the discretion of the court to allow maintenance to an
illegitimate child. The court can allow only if asked for it.
3.2 Mother’s obligation to maintain his child
Mother’s obligation to maintain her child arises when the child is illegitimate and husband has
refused to maintain the child. But under Hanafi Law, if the father is poor and the mother is rich
then, in that case, it is the obligation of the mother to maintain the child. However, she can
recover the money when her husband gets into the condition to repay it.
Under Shefai Law, even if the father is poor and mother is rich, then the mother is not obliged
on maintaining her child. In that case, it is the obligation of grandfather to maintain the child.
3.3 Father’s obligation to maintain his major child
Under Muslim Law, father is obligated for the maintenance of his legitimate child only until he
attains puberty. But if the child is lunatic, mentally or physically disabled and not in the
condition to maintain himself, then, in that case, it is the obligation of the father to maintain
him.
Conclusion
Thus, from the above article, it can be stated that the maintenance provisions of Muslim Law
are different from other personal laws. The provisions for maintenance of child are not a matter
of concern as they are provided adequate maintenance under the law but the position of the
wife is poor as compared to other laws. Though the legislature has enacted an act, it has not
created much difference in the condition of the wives. The proper efforts and contribution of
legislature and judiciary is required to improve the position of wife under Muslim Law.
6.Introduction – HIBA (Gift under muslim law)
In Muslim law, gifts are called “hiba”. The gifts in India are governed by Transfer of Property
Act, 1872. However, the provision of Transfer of Property Act, 1872 does not apply to Muslim
law. The English term, ‘gift’ is of a wider connotation and applies to all transactions where one
transfer’s one’s property to another without any consideration. The term hiba has a narrow
meaning.
According to Ameer Ali, “A hiba is a voluntary gift without consideration of property or the
substance of thing by one person to another so as to constitute the done the proprietor of the
subject-matter of the gift.” Muslim law allows a Muslim to give away his entire property by a
gift inter-vivos, even with the specific object of disinheriting his heirs. [Abdul vs. Ahmed, (1881)
8 IA 25]
Essentials of a Hiba
According to Ameer Ali, a hiba will be valid if the following conditions are fulfilled:-
1. The manifestation of the wish to give on the part of the donor,
2. Acceptance of the gift, express or implied, by the done, and
3. Taking of possession of the subject-matter of the gift by the donee, either actually or
constructively. [Jamela vs. Abdul Rahman, 2001 Guj. 175]
Capacity to make a Hiba
Mental capacity – Every Muslim, male or female, married or unmarried, who has attained the
age of majority and who is of sound mind has the mental capacity to make a gift. The rule of
Muslim law of majority, i.e. attainment of puberty, does not apply to gifts. A person of unsound
mind can make a valid gift during lucid intervals. The Muslim law-givers recognize the doctrine
of ikrash or compulsion, and a gift-deed executed under compulsion is not valid. In such a case
the gift is voidable, and it can be avoided by the donor whose consent was so obtained.
Financial capacity – The Malikis hold the view that a person under insolvent circumstances or
extremely involved circumstances have no capacity to make a gift. On the other hand, the
Hanafis hold the view that insolvency does not create an incapacity to make a gift, but the kazi
has the power to render such gift nugatory if it is made with a view to defrauding the creditors.
The Indians court follow the Hanafi view. In every gift, there must be a bona fide intention on
the part of the donor to transfer property to the donee. And, if a gift is made with an intention
to defraud the creditors, the gift I invalid. [Abdul vs. Mir Md, (1886) 11 IA 10]
Subject-matter of Gift
All forms of property over which dominion could be exercised, or anything which could be
taken into possession, or which could exist as a specific entity, or as an enforceable right,
maybe the subject-matter of a valid gift. Muslim law, in this context, makes no distinction
between ancestral or self-acquired or between movable and immovable property.
Gift of Musha
The word “musha” means an undivided share or part of a property, movable or immovable.
Among the Shafis and Ithana Asharis, the gift of musha is valid, if the donor withdraws his
dominion and allows the donee to exercise control. [Sadiq vs. Hashim, (1916) 43 IA 212]
But the rule is otherwise among the Hanafis. The general rule is thus laid down in the Hedaya,
“A gift of a part of a thing which is capable of a division is not valid unless the said part is
divided off and separated from the property of the donor, but a gift of an indivisible thing is
valid.”
The doctrine of musha has been subject to much criticism. It has been said that the doctrine is
“wholly unadapted to a progressive society”. [Sheikh Md. vs. Zabeda, (1889) 16 IA 205] The
doctrine has been confined to within the strictest rules by judicial interpretation and has been
cut-down considerably.
Donee
Under the Muslim law, a gift may be made to any person without any distinction of age, sex or
religion. Under the Hanafi law, the donee must be must be legally in existence at the time of
hiba. Thus, a gift to an unborn person, one not in existence, either actually or presumably, is
invalid. Under the Shia law, a gift to an unborn person can be validly made provided the gift
commences with a person in existence.
Formalities: Delivery of Possession
Under Muslim law, a gift may be made orally or in writing, irrespective of the fact whether the
property is movable or immovable. [Ibrahim vs. Noor Ahmed, 1984 Guj. 126] The only
formality that is essential for the validity of a Muslim gift is “taking a possession of the subject-
matter of gift by the done either actually or constructively”. [Mohammed vs. Fakr, (1922) 49 IA
195]
Who can Challenge a Hiba or Gift
A stranger cannot challenge the validity of a gift on the ground that the gift is bad as no delivery
of possession has been made. A gift on this ground can be challenged only when the issue is
raised between the donor or those claiming under him on one side and the done and those
claiming under him on the other.
Conditional or Contingent Hiba or Gifts
The contingent or conditional gifts are those which are made dependent for their operation
upon the occurrence of a consistency. A contingency is a possibility, a chance, an event, which
may or may not happen. In Muslim law, contingent or conditional gifts are void.
In Muslim law, a gift is not rendered invalid, by involving an invalid condition. Hanafi law clearly
lays down that in such a case the gift is valid and the condition is valid.
Under Shia law, if the conditions attached to a gift is subsidiary, then both the gift and the
condition are valid.
Revocation of Gifts
Although there is a tradition which indicates that the Prophet was against the revocation of
gifts, it is a well-established rule of Muslim law that all voluntary transactions, including gifts,
are revocable.
Modes of Revocation
1. Revocation of gifts before the delivery of possession
2. Revocation of gifts after the delivery of possession
Revocation of gifts before the delivery of possession
Under Muslim law, all gifts are revocable before the delivery of possession is given to the done.
The fact of the matter is that under Muslim law no gift is complete till the delivery of possession
is made, and therefore, in all those cases where possession has not been transferred, the gift is
incomplete. The revocation of such a gift, therefore, merely means that the donor has changed
his mind and does not want to complete it by the delivery of possession.
Revocation of gifts after the delivery of possession
Mere declaration of revocation by the donor, or institution of a suit, or any other action, is not
sufficient to revoke a gift. Until a decree of the court is passed revoking the gift, the donee is
entitled to use the property in any manner, he can also alienate it. [Mahboob vs. Abdul, 1964
Raj 250]
The revocation of a gift is a personal right of the donor, and, therefore, a gift cannot be revoked
by his heirs after his death. A gift can also not be revoked after the death of the donee. (There
are some exceptions in Hanafi School)
7.Inheritance under Muslim Law

The Islamic Law of inheritance is a combination of the pre-Islamic customs and the rules
introduced by the Prophet. Whatever is left after the death of a Muslim is his heritable
property. This property can be movable or immovable and ancestral or self-acquired. The
estate of a deceased Muslim devolves on his heirs separately and the heirs are entitled to hold
the property as tenants-in-common, each having a definite share in the property.
In Abdul Raheem vs. Land Acquisition Officer, AIR 1989 AP 318, it was held that the joint
system family or joint property is unknown to Muslim law and therefore the right, title and
interest in the land held by the person stands extinguished and stands vested in other persons.
RULES OF INHERITANCE OF PROPERTY
The general rule of inheritance states that the inheritance opens on the death of the person.
Nobody can claim any right in the property even if he is an heir.
Birth right
Any child born into a Muslim family does not get his right to property on his birth. In fact, no
such person becomes a legal heir and therefore holds no right till the time of the death of the
ancestor. If an heir lives even after the death of the ancestor, he becomes a legal heir and is
therefore entitled to a share in property. However, if the apparent heir does not survive his
ancestor, then no such right of inheritance or share in the property shall exist.
Rule of Representation
Doctrine of representation states that if during the lifetime of an ancestor, any of his or her
legal heirs die, but the latter’s heirs still survive, then such heirs shall become entitled to a
share in the property as now they shall be representing their immediate generation.
Doctrine of Representation finds its recognition in the Roman, English and Hindu laws of
inheritance. However, this doctrine of representation does not find its place in the Muslim law
of inheritance.
Rule of Distribution
Vesting of property takes place immediately on the death of the propositus. Under the Muslim
law, distribution of property can be made in two ways, firstly per capita or per strip distribution.
Per – Capita distribution method is majorly used in the Sunni law. According to this method, the
estate left over by the ancestors gets equally distributed among the heirs. Therefore, the share
of each person depends on the number of heirs. The heir does not represent the branch from
which he inherits.
On the other hand, per strip distribution method is recognised in the Shia law. According to this
method of property inheritance, the property gets distributed among the heirs according to the
strip they belong to. Hence the quantum of their inheritance also depends upon the branch and
the number of persons that belong to the branch. It is noteworthy that the Shia law recognises
the principle of representation for a limited purpose of calculating the extent of the share of
each person. Moreover, under the Shia law, this rule is applicable for determining the quantum
of the share of the descendants of a pre-deceased daughter, pre-deceased brother, pre-
deceased sister or that of a pre-deceased aunt.
GROUNDS OF DISQUALIFICATIONS
Disqualifications which debar the heirs to succeed the property of the intestate are—
MURDERER
Under the Sunni Law, a person who has caused the death of another, whether intentionally, or
by mistake, negligence, or accident, is debarred from succeeding to the estate of that other.
Homicide under the Shia Law is not a bar to succession unless the death was caused
intentionally.
ILLEGITIMATE CHILDREN
Under the Hanafi School, an illegitimate child is not entitled to inherit. Such a child cannot
inherit from his/her father but can inherit from his/her mother and all relatives of the mother.
The mother can also inherit the property of her illegitimate children.
WIDOW
Under Muslim law, no widow is excluded from the succession. A childless Muslim widow is
entitled to one-fourth of the property of the deceased husband, after meeting his funeral and
legal expenses and debts. However, a widow who has children or grandchildren is entitled to
one-eighth of the deceased husband’s property.
In Abdul Hammed Khan vs. Peare Mirza, 1935 I.L.R. 10 Luck. 550 it was held that a childless
widow, in the absence of other heirs, was entitled to inherit her share and rest of the property
including the land, of her husband by the application of the doctrine of return.
CHILD IN THE WOMB
A child in the womb of its mother is competent to inherit only if it is born alive. A child in
embryo is regarded as a living person and, as such, the property vests immediately in that child.
But, if such a child in the womb is not born alive, the share already vested in it is divested and,
it is presumed as if there was no such heir (in the womb) at all.
ESCHEAT
Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by
Government through the process of escheat.
DIFFERENCE OF RELIGION
A non-Muslim could not inherit from a Muslim but the Caste Disabilities Removal Act of 1850
does away in India with the exclusion of a non-Muslim from the inheritance of the property.
Theory of Propinquity
Propinquity means nearness in blood. In determining the preferential claims of the heirs, the
Shias adopt the principles of consanguinity. The rule that nearer in degree excludes the more
remote is applied to kindred of the same class only. This theory of propinquity is fully
recognized by Shias but partially recognized by the Sunnis.
Case Laws
1. In Hakim Rehman vs. Mohammad Mahmood Hassan, AIR 1957 Pat 559, it was held that
upon the death of a Mohammedan, the whole estate devolves upon his heirs at the
moment of his death and the heirs succeed to the estate as tenants-in-common in
specific shares.
2. In Rukmanibai vs. Bismillavai, AIR 1993 MP 45, it was held that where a person, who
has converted to Islam, dies leaving behind his daughter only and no residuary, shall be
entitled to her share as well as residuary share in the property of the deceased.
3. In Shukurllah vs. Zohra Bibi, AIR 1932 All. 512 it was held that each heir of the
Mohammedan is liable for the debt of the deceased to the extent only of a share of the
debts proportionate to his share of the estate.
8.Pre-emption (Shuffa) under Muslim Law – Concept, Rights and Effect

Concept
The word pre-emption is a right of substitution conferred on someone either by statute,
custom or contract. The right is to step into the shoes of the vendee preferentially, on the
terms of sale already settled between the vendor and vendee. [Vijayalakshmi vs. B.
Himantharaja Chetty, (1996) 9 SCC 376] In the words of Mulla, “The right of Shuffa or Pre-
emption is a right which the owner of the immovable property possesses to acquire by
purchase another immovable property which has been sold to another person.” The Muslim
law of pre-emption is to be looked at in the light of the Muslim law of succession.
Under Muslim law, the death of a person results in the division of his property into fractions. If
an heir is allowed to dispose of his share without offering it to the co-heirs, then it is likely to
lead to the introduction of strangers into a part of the estate with resultant difficulties and
inconveniences. In view of this, the law of pre-emption imposes a limitation or disability upon
the ownership of the property to the extent that it restricts the owner’s unfettered right to
transfer of property and compels him to sell it to his co-heir or neighbor, as the case may be.
Who can Pre-empt or the Classification of Pre-emptors
1. The shafi-i-sharik or a co-owner in the property.
2. The shafi-i-khalit or a participator in appendages. This expression means a person who
is entitled to such easements as a right of way, or discharge of water.
3. The shafi-i-jar or owner of an adjoining property.
The right of pre-emption arises from full ownership, and it is immaterial that a pre-emptor is
not in possession of his property. It is the ownership and not possession which gives rise to the
right of pre-emption.
When does the Right of Pre-emption Arise
The right of pre-emption arises only in two types of transfer of property – sale, and exchange.
When it arises in respect of a sale, then the sale must be complete, bonafide and valid. [Najam-
un-nissa vs. Ajaib Ali, (1900) 22 All 342] Similarly, the right of pre-emption arises in respect of
exchange when it is complete, bonafide and valid.
The right of pre-emption does not exist in respect of a gift, sadaqah, wakf, inheritance or lease.
It does not apply to a mortgage also, but if a mortgage is foreclosed, then the right of pre-
emption arises.
It has been held in various cases that the court should look into the real nature of the
transaction. A deed which is called a gift, if it is, in fact, a sale, then the right of pre-emption will
arise. [Bhagwan Dutt vs. Brij, 1938 Oudh 27]
The right of Pre-emption when parties belong to different sects or schools and when some of the parties
are non-Muslims
Pre-emption involves three parties: the pre-emptor, the vendor, and the vendee. When all of
the parties belong to same sect or school no difficulty arises. But difficulties crop up when
parties belong to different schools or to different religions. It appears to be established that the
right of pre-emption can be claimed only if the law applicable to the vendor recognizes pre-
emption. [Pir Khan vs. Fyizaz Hussain, (1914) 36 All 488]
Under Shia law, the right of pre-emption cannot be claimed by a non-Muslim pre-emptor where
the vendor and vendee are Muslims. Also, where the law of pre-emption is lex loci, or arises by
custom, or is created by contract, then it is immaterial that some of the parties are non-
Muslims.
Formalities Necessary for the Exercise of the Right of Pre-emption
The Muhammedan law of pre-emption is a law of technicality, and the existence of the right
depends upon the full and complete observance of formalities. Non-observance of any of the
formalities will be fatal to the suit of pre-emption. The two essential formalities are called “two
demands”. Fyzee says that there are three demands, though admits that the “third demand” is
not really a demand.
First demand or talab-i-muwasibat
This requirement lays down that the pre-emptor asserts his claim immediately on hearing of
the sale, but not before. This is called talab-i-muwasibat or the first demand. No specific form
of asserting this demand has been laid down. It is imperative that the first demand must be
made as soon as the fact of sale becomes known to the pre-emptor. Any improper or
unreasonable delay will imply an election not to exercise the right of pre-emption. [Baijnath vs.
Ramdhari, (1908) 35 Cal 402]
The first demand need not be made in the presence of witnesses. The first demand to be valid
must be made when the sale has been completed. If a demand is made before the completion
of the sale, it is totally ineffective.
Second demand or talab-i-ishhad
The pre-emptor should, as soon as practicable, affirm the intention of asserting his right by
making the second demand wherein he refers to the fact that he had already made the right
demand. This is called the second demand. No specific form of asserting this demand has been
laid down. It is imperative that the second demand should be made in the presence of two
witnesses and in the presence of the vendor (if he is still in possession of the property), or in
the presence of the buyer.

Third demand or talab-i-tamlik

The occasion of talab-i-tamlik will arise only if the claim is not conceded, and, therefore, the
pre-emptor files a suit to enforce his right. Thus, the third demand is not an essential formality.
When the right of Pre-emption is lost
The right of pre-emption may be lost in the following cases: a) by acquiescence or waiver, b) by
the death of the pre-emptor, c) by misjoinder, and d) by release.
By acquiescence or waiver – Acquiescence takes place when a pre-emptor fails to observe
necessary formalities, such as making of demands. The right of pre-emption is also lost when
the pre-emptor enters into a compromise with the buyer, such as when he agrees to cultivate
the land (subject matter of pre-emption) with the vendee.
By the death of the pre-emptor – If the pre-emptor dies after making both the demands but
before the filing of the suit, the right of pre-emption is lost. And his legal representative cannot
file the suit.
By misjoinder – If the pre-emptor joins himself as a co-plaintiff with a person who is not
entitled to claim pre-emption, then the right is lost and the suit must be dismissed.
By release – The right of pre-emption is lost if the pre-emptor releases the property for
consideration to be paid to him. However, the right of pre-emption will not be extinguished, if,
before the completion of the sale, the property was offered to the pre-emptor, but he refused
to buy it since the right of pre-emption accrues only after the completion of the sale.
Effect of Pre-emption
Once a suit for pre-emption is decreed, the pre-emptor stands the pre-emptor stands in the
shoes of the vendee and take the property subject to all existing equities. However, the original
vendee is entitled to mesne profits, such as rents and profits, of the property between the date
of the first sale and the date of transfer to the pre-emptor.
The right of pre-emption cannot be defeated, or affected by any disposition made by the
vendee, nor can it be defeated by the death of the vendee. A decree of pre-emption cannot be
transferred by the pre-emptor. If the pre-emptor transfers the decree, then the transferee of
the decree is not entitled to take possession of the pre-empted property. [Mehr Khan vs.
Ghulam, 1922 Lah 308]
9.Manager of a Wakf: Mutawalli – Appointment, Duty, Power and Removal
Under the Mohammedan law, the moment a wakf is created, all rights of property pass out of
the wakif and is vested in God. The property is then taken care of by a Mutawalli. A Mutawalli is
more like a manager than a trustee and so far as the wakf property is concerned, he has to see
that the beneficiaries get the advantage of the usufruct. All the beneficiaries are entitled to
benefit equally subject to any special power conferred on the Mutawalli. The statement in
Mulla’s ‘Mohammedan Law’ that a “Mutawalli is not a mere superintendent or manager but is
practically speaking the owner” is not correct. [Bibi Saddiqa Fatima vs. Saiyed Mohd.
Mahmood Hasan, AIR 1978 SC 1362]
A mutawalli is not entitled to any remuneration as of right. The wakif may provide for
remuneration for the mutawalli.
Who is appointed as a Mutawalli?
Any person of sound mind who has attained the age of majority can be appointed as a
mutawalli. [Syed Hasan v. Mir Hasan (1917) 40 Mad 543] A minor may be a mutawalli where
the office of mutawalli is hereditary and the person entitled to succeed is a minor, or where the
line of succession is laid down in the wakf-nama and the office falls on a minor. [Piran vs.
Abdool Karim, (1891) 19Cal 203]
Both male and female of any religion can be appointed as a mutawalli. The mutawalli must be
capable of performing the particular duties under the wakf. If religious duty or spiritual
functions are a part of the duties of a mutawalli, a female and non-muslim cannot be appointed
as a mutawalli. [Shahar Bano v. Aga Mahommad (1907) 34 I.A. 46] Thus a woman or a non-
muslim cannot be Sajjadanashin (spiritual head), Khatib (one who reads sermons), Mujawar of a
dargah, an Imam of a mosque (one who leads congression) or a mulla. A foreigner cannot be
the trustee of any wakf property in India.
Who can appoint a Mutawalli?
The wakif enjoys the full power of appointment of mutawalli. But if a wakf is created without
the appointment of a mutawalli, then
 according to Imam Abu Hanifa and Imam Muhammad, the wakf fails;
 according to Abu Yusuf, the dedication is valid and the wakif becomes the first
mutawalli;
 according to Shia law, the wakf is valid and has to be administered by the beneficiaries
The wakif has the power to lay down rules for the succession to the office of mutawalli and to
nominate the successor thereto; mutawalli can be appointed by the following in the given
order:
1. By the wakif.
2. Failing him, by the executor of the wakif.
3. Failing him, by the mutawalli on his deathbed.
4. Failing him, by the court. The power of appointment is vested in the District Court.
When the court appoints a mutawalli, it will take into consideration: i) the direction, if
any, given by the founder (the court has the discretion to disregard any direction of the
wakif it feels that to do so will be to the manifest advantage of the wakf) ii.) Preference
should be given to a member of the wakif’s family over an utter stranger. iii) In a
contest between wakif’s lineal descendant and one who is not a lineal descendant, the
court is free to exercise its discretion.
5. In some circumstances, a mutawalli may be appointed by a congregation. But a
mutawalli appointment by this method is possible only in the case of a local wakf such
as the mosque or a graveyard for the members of a particular locality.
Powers of a Mutawalli
1. A mutawalli has the power of management and administration of wakf properties. Since
the properties vest in him, in those cases where they are not in his possession, he can
sue for possession.
2. He has the full power of utilizing the wakf property for the purpose which the wakf has
been created. But he has no power of alienating the wakf property unless the wakf deed
specifically authorizes him to do so.
3. Power of alienation with the permission of the court– It is now well settled that a
mutawalli can alienate the wakf properties with the prior sanction of the court. Thus, if
a mutawalli wants to sell, mortgage or exchange the wakf properties, he must obtain
prior permission of the court. An alienation made by a mutawalli without the prior
permission of the court is not void ab intio. It is merely voidable. [Saheb Khan vs. Madar
Sahab, 1954 Orissa 239] An authorized alienation can be challenged by any beneficiary
it is not necessary to bring a representative suit. [Thangachi vs. Ahmed Hussain, 1957
Mad 194]
4. Power of granting lease – Ordinarily, a mutawalli cannot grant a lease of the wakf
property for more than three years if it is agricultural land, and more than one year if it
is non-agricultural property. A lease for longer duration may be granted if the wakf-deed
specifically permits him to do so. Leases for longer periods may be given with the prior
permission of the court. The court has the power to sanction leases in the interest of
wakf, even if the wakf-deed specifically prohibits a mutawalli to do so.
A mutawalli has no power of incurring a debt. A person who advances a loan to a mutawalli for
carrying out the purpose of the wakf has no remedy against the wakf properties. Also no longer
the mutawalli has the power to file a suit.
Removal of a Mutawalli
Once a wakf comes into existence and a mutawalli is appointed, the founder has no power of
removing him unless such a power has been specifically reserved in the wakf deed. [Siddique
Ahmed vs. Syed Ahmed, 1945 Cal 418]
The court has a power to remove a mutawalli. A court may remove a mutawalli on the ground
of misfeasance, breach of trust or for his unfitness, or for any valid reason. The court’s power of
removal is unfettered, and it can remove a mutawalli even if the settlor has specifically laid
down that the mutawalli should not be removed. It is because the foremost duty of the court is
to consider the interest of the wakf. Procedure for removing a mutawalli is by way of a suit in
the District Court. [Md. Ali vs. Ahmad Ali, 1946 All 261 Cl 328]
By the wakf board– under section 64 of the Wakf Act 1995, the wakf board can remove the
mutawalli from his office under the conditions mentioned therein.
10. Introduction: Wakf under Muslim Law : Concept, Creation, Control and Registration

A wakf under Muslim law is essentially a religious and pious obligation, though provision is
sometimes also made for charities and for the benefit of oneself, one’s children and
descendants (alal-aulad). The origin of wakf is traced to an utterance of the Prophet. The
utterance is often quoted and is considered the briefest definition of Wakf – “Tie up the
substance and give away the fruit”. However, in early days of Islam, the law of wakfs suffered
from great uncertainty. It was only in the second century after the flight that a body of rules
based on ijma (consensus) were developed which might be considered to be the basis of the
law of wakfs.
In the centuries that followed not merely the land but all type property, movable and
immovable were made the subject matter of wakfs. In the course of time, the Muslims world
found that the “dead hand” (as wakfs were figuratively called and which in fact they had
become) was trying to strangulate all progress and prosperity. Vast stretches of land and all
other types of properties were dedicated to wakfs all over the Muslims world. In India, there
are about one lakh wakfs valued at more than a hundred crores of rupees.
Instances of the mismanagement of the wakfs are numerous; the incompetence and corruption
of the mutawallis are appalling and abysmal; more often than not, the properties of the wakfs
are squandered away.
Under Muslim law, there are several religious institutions for which a wakf can be
created. Important among them are a mosque, graveyard, dargah, takia, khanqah, and
imambara.
Definition of wakf:
The word wakf literally means ‘detention’. Abu Hanifa defined wakf as “the tying up of the
substance of a property in the ownership of the wakif and the devotion of the usufruct,
amounting to an aryia, or commodate loan for some charitable purpose.” This means that,
according to him, the ownership in wakf property continued to be vested in the owner, and its
usufruct was spent for the charitable or pious purpose. Also, he believed that the tying up of
the property was not of a permanent nature. His two disciples, however, took a different view.
According to Abu Yusuf and Imam Mohammed, wakf is the “tying up of the substance of a
thing under the rule of the property of Almighty God for any purpose by which its profit may be
applied for the benefit of His creatures.” However, Muhammed thought that the right of the
wakif was not extinguished until he appointed a muttawali, while Abu Yusuf took the view that
the right of the wakif was extinguished the moment he made the declaration.
Abu Yusuf’s definition came to be established in view of the wakf and of the Hanafi School.
The definition of wakf has three essential elements:
1. The ownership of the wakif is extinguished;
2. The property is vested in the ownership of God perpetually and irrevocably; and
3. The usufruct of the property is used for the benefit of the mankind.
The Shia law defines a wakf in a different manner. According to Sharia-ul-Islam, a wakf is a
contract, the fruit or effect of which is to tie up the original of a thing and to leave its usufruct
free.
The Wakf Act, 1913, Section 2, defines wakf. Accordingly, it means the permanent dedication
by a person professing the Mussalman faith of any property for any purpose recognized by the
Mussalman law as religious, pious or charitable. Thus the purpose must be religious, pious, or
charitable, the dedication of property must be permanent, and the usufruct must be utilized for
the good of mankind. [Kani Ammal vs. Tamil Nadu Wakf Board [1983 AP 188]
Doctrine of Cypres
Cypres literally means “as near as possible”, the doctrine lays down that if a charitable intention
has been expressed by the dedicator, a wakf (or trust) will not be allowed to fail because the
object specified by the settlor has failed; in such a case the income will be applied for the
benefit of the poor or to objects as near as possible.
Essentials/Characteristics of a Wakf
 Property vests in god – Once the dedication of the property is made to the wakf, the
ownership of the wakf is transferred to god. [Md. Ismalia vs. Thakur Sabif Ali, 1962 SC
1722] Under the Shia law also the property of wakf vests in god. Thus it seems to be that
in respect of wakf property in god there is no distinction between a Shia wakf and Sunni
wakf or a public wakf or private wakf.
 Wakf must be Permanent – A Muslim wakf must be created for an unlimited period. In
short, perpetuity is an essential feature of a wakf. Even in the case of a family wakf, the
ultimate benefit must be expressly or impliedly reserved for the poor or for any other
purpose of a permanent character. [Rahlman vs. Bagridan, 1936 Oudh 213]
 Wakf must be Irrevocable – The irrevocability is another characteristic feature of a
wakf. Once constituted validly, a wakf cannot be revoked. If in a wakfnama a conditions
is stipulated that the wakif reserves to him the right of revoking the wakf or the wakf
will stand revoked on the happening of any event, then such a wakf is void. [Asoobai vs.
Noorbai, (1906) 8 Bom LR 18]
 Wakf properties are Inalienable – Once a property is dedicated to the god, they can’t
be alienated. However this rule is not absolute and in some circumstances, it is
permissible that a mutawalli may alienate the wakf properties, a mutawalli may sell or
 grant a lease of the wakf properties with the prior permission of the court. When a
wakfnama allows selling wakf properties in some circumstances, then the mutawalli has
the power to alienate wakf properties in those circumstances.
Who can make a wakf: Capacity to make a wakf
Any Muslim who has attained the age of majority i.e. 18 years, and who is of sound mind, may
make a wakf. A wakf cannot be made by a guardian on behalf of the minor, such a wakf is
void. [Commissioner of Wakf vs. Md. Mohsin, (1953) 58 Cal WN 252]
The Mussalman Wakf Validating Act, 1913, and the Wakf Act, 1954, contemplate that a wakf
can be made only by a Muslim. Similarly, the Wakf Act, 1954, defines a wakf as meaning a
permanent dedication by a person professing Islam. But the Nagpur High Court has expressed
the view that a non-muslim can also make a wakf – the law only requires that “the object
should be lawful and in consonance with Islam”. [Moti Shah vs. Abdul Gaffar, 1953 Nag 38]
Subject-matter of Wakf
In the beginning, the subject matter of wakf consisted of properties of a permanent nature,
such as land, fields, gardens, etc. But gradually all sorts of properties were made the subject
matter of the wakfs. It is necessary that at the time when a wakf of a property is made it must
be under the ownership of the person making it. [Commissioner of Wakf vs. Md. Mohsin,
(1953) 58 Cal WN 252] A property subject-matter to mortgage or lease can also be given for the
creation of valid wakf.
A wakf which forms part of a transaction to fraud on the heirs is void and totally
ineffective. [Har Prasad vs. Fayaz Ahmed, 1933 PC 83]
How is wakf created?
Muslim law does not recognize any form of creating a wakf. A wakf may be made in writing or
may be oral. There must be appropriate words to show an intention to dedicate the property.
The use of the word wakf is neither necessary nor conclusive. To constitute a wakf it is not
necessary that the word ‘wakf’ should be used. A grant to the Kazi is compulsory for the
purposes of his performing religious or pious duties to constitute a wakf.
1. By an act inter vivos – It means during the lifetime. Thus a wakf is created during the
lifetime of the wakif and takes effect from that very time.
2. By will– It stands in contradiction with the wakf. It takes effect after the death of the
wakif and also called testamentary wakf. A wakf by will cannot operate upon more than
one-third of net assets, without the consent of the heirs.
3. During death illness (Marz-ul-maut) – The wakf made during the deadly illness will
operate only to the extent of one-third of the property without the consent of the heirs
of the wakif.
 4. By immemorial user – wakf may be established by evidence of immemorial user. For
e.g. when a land has been from time immemorial use for the purpose of a burial ground,
it is a wakf by the immemorial user.
Statutory control over Wakfs – The Wakf Act, 1995
It is no longer a secret that the most of the religious institutions are badly managed and bad
management of wakf with regards to their funds and abuse of the setup have reached
menacing proportions.
The Government of India being aware of this state of affairs passed the Wakf Act, 1923. During
the British rule, several provinces passed statutes to control the management of religious
institutions. Some of these applied to wakf also. But things did not improve. The Wakf Act, 1923
was replaced by Wakfs Act, 1954, which was amended in 1964. But things still did not improve
much. Parliament then passed the Wakf Act, 1995 for the better administration of wakfs and
connected matters thereof.
The Act provides for the survey of all wakfs and registration of wakfs. A Central Wakf Council is
stipulated to be established for overseeing, advising and looking after the working of Wakf
Boards. The Act is also stipulated to establish Wakf Boards in each state, if necessary, separate
Wakf Board of Shia and Sunni Wakfs. The Wakf Board is the main instrumentality for the
management of Wakfs.
Registration of Wakfs (Section 36, The Wakf Act, 1995)
The Act makes registration of every wakf compulsory. Mutawallis of wakfs are required to move
an application for registration of wakfs. Such an application can also be made by a wakf or his
descendants or a beneficiary of a wakf. The application should state the following particulars:
1. a description of the wakf properties sufficient for the identification thereof;
2. the gross annual income from such properties;
3. the amount of land revenue, cesses, rates and taxes annually payable in respect of the
wakf properties;
4. an estimate of the expenses annually incurred in the realisation of the income of the
wakf properties;
5. the amount set apart under the wakf for—
 the salary of the mutawalli and allowances to the individuals;
 purely religious purposes;
 charitable purposes; and
 any other purposes;
 any other particulars provided by the Board by regulations.
The Board may require the applicant to supply any further particulars or information that it may
consider necessary.
On receipt of an application for registration, the Board may, before the registration of the wakf
make such inquiries as it thinks fit in respect of the genuineness and validity of the application
and correctness of any particulars therein and when the application is made by any person
other than the person administering the wakf property, the Board shall, before registering the
wakf, give notice of the application to the person administering the wakf property and shall
hear him if he desires to be heard.
In the case of wakfs created before the commencement of this Act, every application for
registration shall be made, within three months from such commencement and in the case of
wakfs created after such commencement, within three months from the date of the creation of
the wakf: Provided that where there is no board at the time of creation of a wakf, such
application will be made within three months from the date of establishment of the Board.
 11. Discuss the various Schools of Muslim Law and point out their differences.
INTRODUCTION:-There are two main schools of Muslim Law the Sunni and the
Shia. In India the majority of the Muslims are of Sunnis and hence it is presumed
that the parties to a suit are Sunnis unless proved otherwise.
Shia law has been applied to Shia since the decision of the Privy Council in
Rajah Deedar Hossein v/s Ranee Zuhor-oon-Nissa-1841. The division between
the Sunnis and the Shias originated in the dispute concerning the question
of Imamat or the spiritual Leadership of Islam.
Schools of Muslim Law:- After the death of Prophet the question arose who would
be his successor. On this point the Muslim community was divided into two factions.
The Shias advocatd that the office should go by the right of succession and
thus Imamat i.e. headship should be confined to Prophet’s own family as his
prophet. Whereas on the other hand the Sunnis advocated the principle of election
by the Jamat and chose out their Imam by means of votes.
The majority of Muslims suggested that there should be election to
choose successor of the Prophet. This group was led by the youngest wife of the
Prophet. Thus the difference between the two lies in political events.
Mohammadans
1 Sunni 2 Shia 3 Motazila

1.1 Hanafis 2.1 Ithna-Asharia or Imamia (2.1.1) Akhbari (2.1.2) Usuli

1.2 Malikis 2.2 Ismailiyas—(2.2.1) Khoja (2.2.2) Bohra
1.3 Shafeis 2.3 Zaidais
1.4 Hanbalis
Sunni Sub-Schools:
(i) Hanafi: This school is the most famous school of Sunni Law. Abu Hanifa was the
founder of this school, he recognised Qiyas, urf, Ijma.
(ii) Maliki: It was founded by Malik, leaned more upon traditions. He was not different
from Hanifa’s.
(iii) Shafei: Imam Shafie was the founder of this school. He was the founder of doctrine
of Qiyas based upon Quran, Ahadis or Ijma.
(iv) Hanbali:- It was founded by Ibn Hanbal who stressed on traditions and allowed very
narrow margin to the doctrine of analogy.
SHIA SUB SCHOOLS: -
I) Athana Asharia School:- This school is very orthodox. The supporter of this
school is the followers of twelve Imams and regards them.
II) Ismailia School: - The sixth Imam Jafar-us-Sadiq had two sons 1. Ismail and
2.Musa-ul-kazim. The followers of this school called Ismailas.
III) Zaidia School:-Zaid who was the son of fourth Imam, Imam Ali ashgar was the
founder of this school.
 CONCLUSION:- Where it is not alleged not shown that the parties are shias, there
is a presumption that they are sunnies, to which sect the great majority of
mohammedans of this country belong. Shia law is also the law of the land. In
india shia law has been applied to shia since the decision of the privy council.

DIFFERENCE BETWEEN SHIA & SUNNI SCHOOL

Shia School Sunni School

Muta or temporary Marriage is recognised. Muta marriage is not recognised.
Father and grand- father are recognised as legal Father and father’s father how high-so-ever, brothers
guardians for marriage. other paternal relations, mother are also recognised
legal guardians for marriage.
The minimum amount for dower is not fixed. 10 dirhams is the minimum amount of dower is
fixed.
Talaq must be pronounced orally in Arabic Talaq may be oral or in writing.
language.
Divorce under compulsion or threat or Divorce under compulsion or threat or intoxication
intoxication is void. or jest is not void.
The mother is entitled to the custody of boy up- She is entitled to the custody of the boy up-to seven
to two years and of a girl up-to seven years. years and of a girl until she attains puberty.
It is not obligatory to maintain the father if he It is obligatory to maintain even if he is able to earn
is able to earn. himself.
Without delivery of possession of the property Mere declaration is enough for a valid waqf.
the waqf is invalid.
A gift of undivided share in the property is valid A gift of undivided share in the property is invalid if
provided it is capable of partition. it is undivided and incapables of portion.
A person can be queath one third of his estate The consent of the heirs is essential in case of legacy
without the consent of the other heirs. in favour of an heir.
There are only two classes of heirs namely There are three classes of heirs:-
sharers and residuary. a. sharers b. Residuary.
c. Distant kindred.
 12. A Muslim marriage is a civil contract. Discuss the nature of the Muslim
marriage.
INTRODUCTION: - Marriage i.e. nikah meant different forms of sex relationship
between man and a woman established on certain terms. In ancient age women were
treated as chattels and were not given any right of inheritance and were absolutely
dependent. It was Prophet Mohammad who brought about a complete change in the
position of women. The improvement was vast and striking and their position is now
unique as regards their legal status. After marriage woman does not lose her
individuality and she remains a distinct member of the community. Under the
Muslim Law marriage is considered as Civil Contract. The contract of marriage
gives no power to anyone over her person or property beyond what the law defines.
Woman remains the absolute owner of individual rights even after marriage.
DEFINITION OF MARRIAGE (NIKAH):-Marriage (nikah) literally means the
union of sexes and in law this term means, ‘marriage’. Marriage has been defined to
be a contract for the purpose of legalising sexual intercourse and procreation of
children.”
In Hedaya, it is defined as, “Nikah in its primitive sense means carnal
conjunction.” Some have said that, “it signifies conjunction generally and finally in
the language of law it implies a particular contract used for the purpose of legalising
generation.” The Prophet of Islam is reported to have said, “That Marriage is my
sunna and those who do not follow this way of life are not my followers.”
Thus marriage according to Muslim Law is a contract for the purpose of
legalising sexual intercourse and the procreation of legitimating of children and
the regulation of social life in the interest of the society.
NATURE OF MUSLIM MARRIAGE:- There are divergence of opinion with
regard to the nature of Muslim marriage. Some jurists are of the opinion that Muslim
marriage is purely a civil contract while others say that it is a religious sacrament in
nature. In order to better appreciate the nature of Muslim marriage it would be
proper to consider it in its different notions.
Muslim marriage by some writers and jurists is treated as a mere civil
contract and not a sacrament. This observation seems to be based on the fact that
marriage under Muslim Law has similar characteristics as a contract. For example:-
i) A marriage requires proposal (Ijab) from one party ad acceptance (Qubul) from the
other so it is the contract. Moreover there can be no marriage without free consent
and such consent should not be obtained by means of coercion, fraud or undue
influence.
ii) Similar as in the case of contract, entered into by a guardian on attaining majority
so can a marriage contract in Muslim Law, be set aside by a minor on attaining the
age of puberty.
iii) The parties of the Muslim marriage may enter into any ante-nuptial or post-nuptial
agreement which is enforceable by law, provided that it is reasonable and not
opposed to the policy of Islam. Same is in the case of a Contract.
iv) The terms of a marriage contract may also be altered within legal limits to suit
individual cases.
v) Although discouraged both by the holy Quran and Hadith, yet like any other
contract, there is also provision for the breach of marriage contract.
vi) In the leading case of Abdul Qadir v/s Salima-1886, it emphasise the contractual
aspect and analogy of Muslim Marriage contract with contract of sale.
CONCLUSION:- Thus marriage according to Muslim Law is a contract for the
purpose of legalising sexual intercourse and the procreation of legitimating of
children and the regulation of social life in the interest of the society. However it is
further viewed that marriage is not purely a civil contract but a religious sacrament
too. Though sacramental nature of marriage is considered as an orthodox view but it
is also supported by the judiciary in the leading case of Anis Begum v/s
Mohammad Istafa-1933,in the case Sulaiman has tried to put a more balanced view
of the Muslim marriage by holding it both civil contract and a religious sacrament.
 13.What are the grounds of dissolution of Marriage under Dissolution of
Muslim Marriage Act - 1939?
INTRODUCTION: An Act to consolidate and clarify the provisions of Muslim
Law relating to suits for dissolution of marriage by women married under Muslim
Law and to remove doubts as to the effect of the renunciation of Islam by a married
woman on her marriage tie. These are as under:-
i. By stipulation in the marriage contract that she shall have such rights as to effect a
divorce. ii By an option to divorce from the husband. iii By judicial divorce on
ground of impotency false charge of adultery. iv By Lian. v By Khula vi By
Mubarat.
Whereas it is expedient to consolidate and clarify the provisions of Muslim
Law relating to suits for dissolution of marriage by women married under Muslim
Law and to remove doubts as to the effect of the renunciation of Islam by a married
Muslim woman on her marriage; it is hereby enacted as follows:
2. Grounds for decree for dissolution of marriage:- A woman married under
Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage
on any one or more of the following grounds provided under Dissolution of marriage
Act-VIII of l939:-

(i) that the whereabouts of the husband have not been known for a period of four years;
(ii) that the husband has neglected or has filed to provide for her maintenance for a
period of two years;
(ii-A) that the husband has taken an additional wife in contravention of the provisions
of the Muslim Family Laws Ordinance, 1961; but wife is not entitled to maintenance
in the following situations and it is the reason that she cannot present a litigation of
divorce against her husband on the following grounds :
a) When she lives separately without any reasonable cause. A case ofYusuf Saramma
-1971.
b) When she is unchaste to her husband case: Mu. Khadiza v/s Abdula-1942.
(iii) that the husband has been sentenced to imprisonment for a period of seven years or
upwards;
(iv) That the husband has failed to perform, without reasonable cause, his marital
obligations for a period of three years;
(v) That the husband was impotent at the time of the marriage and continues to be so.
(vi) That the husband has been insane for a period of two years or is suffering from
leprosy or venereal disease. Mulla the wife may obtain a decree for the dissolution
of her marriage if the husband has been insane for a period of two years and suffering
from leprosy or a verneral diseases.
 (vii) That she, having been given in marriage by her father or other guardian before she
attained the age of sixteen years, repudiated the marriage before attaining the age of
eighteen years: Provided that the marriage has not been consummated.
(viii) That the husband treats her with cruelty, that is to say,
I. habitually assaults her or makes her life miserable by cruelty of conduct even if such
conduct does not amount to physical ill-treatment, or
II. associates with women of evil repute of leads an infamous life, or
III. attempts to force her to lead an immoral life, or
IV. disposes of her property or prevents her exercising her legal rights over it, or
V. obstructs her in the observance of her religious profession or practice, or
VI. if he has more wives than one, does not treat her equitably in accordance with the
injunctions of the Quran. Noorjahan Bibi v/s Kazim Ali-1977: a false charge of
adultery by husband over wife was considered to be cruelty.Begum Zohar v/s
Mohammad Isfaq ut Majid-1955: The use of abusive language by husband and
use of defamatory words by husband was held to be cruelty.
VII. on any other ground which is recognized as valid for the dissolution of marriages
under Muslim Law. They are known as Traditional Grounds: such as : IIa, Zihar,
Khula, Mubarat and Tafweez.
(a) no decree passed on ground (i) shall take effect for a period of six months from
the date of such decree, and if the husband appears either in person or through an
authorised agent within that period and satisfies the Court he is prepared to perform
his conjugal duties the Court shall set aside the said decree; and
(b) before passing a decree on ground (v) the Court shall, on application by the
husband, make an order requiring the husband to satisfy the Court within a period of
one year from the date of such order that he has ceased to be impotent, and if the
husband so satisfied the Court within such period, no decree shall be passed on the
said ground.
(c) If husband converts to another religion the marriage is dissolved at the instance,
so if husband changes religion wife has ground for divorce under section 4 of the
Act-1939.
3. Notice to be served on heirs of the husband when the husband’s where
abouts are not known. In a suit to which clause (i) of section 2 applies:
(a) the names and addresses of the persons who would have been heirs of the
husband under Muslim Law if he had died on the date of the filing of the plaint
shall be stated in the plaint. (b) notice of the suit shall be served on such persons,
and
(c) such persons shall have the right to be heard in the suit:
Provided that paternal-uncle and brother of the husband, if any, shall be cited as
party even if he or they are not heirs.
 4. Effect of conversion to another faith:- The renunciation of Islam by a married
Muslim woman or her conversion to a faith other than Islam shall not by itself
operate to dissolve her marriage: Provided that after such renunciation, or
conversion, the woman shall be entitled to obtain a decree for the dissolution of her
marriage on any of the grounds mentioned in section 2; Provided further that the
provisions of this section shall not apply to a woman converted to Islam from some
other faith who re-embraces her former faith.
5. Right to dower not be affected:- Nothing contained in this Act shall affect any
right which a married woman may have under Muslim law to her dower or any part
thereof on the dissolution of her marriage
6. (Repeal of section 5 of Act, XXVI of 1937)
Rep. by the Repealing and Amending Act, 1942 (XXV of 1942), section 2 and
First Sch.
14.Describe the sources of Muslim Law in detail.
INTRODUCTION:-Muslim Law in India means, “that portion of Islamic Civil
Law which is applied to Muslims as a Personal Law. It consists of the injunctions of
Quran of the traditions introduced by practice of the Prophet of the common opinion
of the jurists of the analogical deductions of these three Qiyas. Muslim mean who
believes in Islam and Islam means, “submission to the will of God.” A person born
as Muslim continues to be a Muslim until he renounces Islam after attaining
majority. Any person who professes the Mohemadan religion is Muslim that he
acknowledges that, there is one God and the Mohamed is his prophet.
“Queen Empress v/s Ramzan and Abraham v/s Abraham: It was held that a
person may be a Muslim by birth or by conversion. If one the parents of child are
Muslim the child is deemed as Muslim. If Parents turned to some other religion the
child is Mohemadan.
The following are the sources of Muslim Law:-
Primary Sources
1. QURAN : The Quran is the primary source of Muslim Law in point of time as well
as in importance. Quran is the first source of Muslim Law. The Islamic religion and
Islamic society owes its birth to the word of Quran. It is the paramount source of
Muslim Law in point of Important because it contains the very words of God and it
is the foundation upon which the very structure of Islam rests. Quran regulates
individual, social, secular and spiritual life of Muslims. It contains the very words
of God as communicated to Prophet Mohammad through angel Gabriel. The Quran
has now been codified. Quran is devided into 114 chapter and 6666 Ayats.
2. Sunnat or Ahadis: Sunnat has three classes :
I. Sunnat-ul-fail: This is being done by Prophet himself.
II. Sunnat-ul-qual: Which Prophet enjoyed by words.
III. Sunnat-ul-tuqrir: Things done in his presence without his disapproval.
Ahadis has also three classes:
I. Ahadis-i-muturatir: Traditions are of public & Universal property & held as
absolutely authentic.
II. Ahadis-i-mashorora: Though known to a majority of people do not possess the
character of universal propriety.
III. Ahadis-e wahid: which depend on isolated individuals?
When Quran is silent on any one of the subject and then that problem is
solved by Ahadis and Sunnat. But while giving the solution to a problem it must be
kept in mind that solution is not adverse to the basics of Quran. Thus such type of
acts which the Prophet himself did or supported it, they came to be known as Adades
and Sumat.
3. IJMAA:- It is third important source of Muslim Law. The origin of IJMAA although
Quran, Sunnat and Ahades had developed as the source of Muslim Law. It takes
 place when new problem stated arising with the development of society which were
not possible to be solved by Quran. The principle of IJMAA based upon the text,
“That God will not allow His people to agree on an error and whatever Muslims hold
to be good is good before God.”
Kinds of IJMAA: -i) IJMAA of Jurists. ii) IJMAA of companions of the
Prophet:- It is universally accepted. iii) IJMAA of People:- This kind of IJMAA has
not much importance.
4. The Qiyas (Analogical deduction):- It is originated source of Muslim Law, when
any problem or question could not be solved by Quran, Sunnat, Ahades and
Ijmaa. Qiyas in the light of Holy Quran which says that spend out of your good
things because as you dislike taking back bad things others also may dislike.” In
such situations the problem are being solved by comparative study of the above three
sources.
i) It is the last primary source.
ii) Qiyas means reasoning by analogy.
iii) Qiyas does not purport to create new law but merely to apply old established
principles to the new circumstances.
iv) Hanbals shias & shafis do not accept Qiyas.
While solving problem through Qiyas it has to be considered that such things
shall not be adverse to basics of Quran, sunnat, ahades and Ijmma.
Secondary Sources
1. Urf or Custom: Custom never recognised as source of Muslim Law but sometimes
referred as supplementing the law. Muslim Law includes many rules of pre-Islamic
customary law, which have been embodied in it by express or implied recognition.
Requirements of a valid custom:- i) Custom must be territorial. ii) it must be
existing from memorable time i.e. ancient. iii) It must be continuous and certain and
invariable. iv) Custom should not oppose the public policies. V)Custom must not
in contravention of Quran & IJMAA.
Smt. Bibi v/s Smt. Ramkali-1982: It was held that the customs of case and sub case
acquire it to be proved for their validity that they are ancient, definite and earnable.
2. Judicial Decisions:- These includes the decisions of Privy Council, the Supreme
Court & High Courts of India, Judges explain what law is. These decisions are
regarded as precedents for future cases. It becomes a source of Law. Hammeera
Bibee v/s Zubaida Bibi: In India interest on loan is not allowed, but in this case the
Privy Council allowed interest on the amount unpaid dower.
3. Legislation: - In India Muslims are also governed by various legislation passed
either by Parliament or by state legislature e.g.:- i) Guardian & Wards Act,
1890. ii) The Shariat Act, 1937. iii) Muslim Woman Protection of Right & Divorce
Act, 1986. iv) The Mussalman Waqf Act, 1923. V) The Dissolution of Muslim
Marriage Act, 1939.
Justice, Equity & Good Conscience: It is also regarded as one of source.
a) Abu Hanifa: Expounded principle that rule of law based on analogy. These
principles are “Isihsan” or Jruistic equity. b) Maliki:- Ibn-Anasproposes the use
of Istiah i.e. seeking peace or amending & he followed it up by distinct method of
juristic interpretation known as Istidal. However the main sources are
Quran, Ahadis and Ijmaa.
15.What are the different forms & Modes of divorce under Muslim Law?
Discuss.
Introduction:-Among almost all the nations of antiquity divorce was regarded as a
natural corollary or marital rights. The provisions of divorce were recognised in all
religions Islam is perhaps the first religion in the world which has expressly
recognised the termination of marriage by way of divorce. In England it was
introduced 100 years back. In India it was allowed only by Hindu Marriage Act
1955 amongst the Hindu community. Before passing this act divorce was not
recognised by Hindu Law.
Before Shamim Ara v/s State of U.P.-2002, a Muslim husband had
unlimited power of effecting Talaq without assigning any reason. But inShamim
Ara’s case the Supreme Court held that the talaq must be for a reasonable cause
and there must be preceded by an attempt of reconciliation between her husband and
the wife by two arbiters one chosen by the wife and the other by the husband.
Different forms & Modes of divorce under Muslim Law
1.Capacity for Pronouncing Talaq:-The only and only essential condition for
pronouncing Talaq by a Muslim husband is that he must have attain the age of
puberty and must be of sound mind at that time. In view of the position of Muslim
Law it cannot be said that Talaq namah was not sufficient to dissolve the marital
relations. Refer case Abdul Wahid v/s Raisa Bi-2007.
In another case of Mohamad Siddiqu Ali v/s Mustt. Fatima Rashid-
2007, it was held by the court that mere pronouncement of Talaw orally or in
writing is not sufficient to terminate the marriage. The factum of the Talaq should
be proved by the independent witnesses.
In the case of Iqbal Bano v/s State of U.P.-2007, the Apex Court held that
the conclusion that in view of the statement in the written statement about an alleged
divorce30 years back by utterance of the words talaq, talaq, talaq three times is
sufficient in law is not sustainable. A mere pleas in the written statement of a divorce
having been pronounced sometimes in the past cannot by itself be treated as
effectuating Talaq.
2. Talaq-ul- Sunnat: This form of Talaq is revocable hence it is regarded as
approved form of Talaq. This form of Talaq was approved by the Prophet both Shia
and Sunni schools recognise this form. It has two parts:-
i) Talaq Ahsan:- This consists of a single pronouncement of divorce made during a
tuhr followed by abstinence from sexual intercourse for the period of Iddat. The
main requirements of a Talaq Ahsan are :-
a) Formula of Talaq must be pronounced only once by the husband.
b) If the marriage has been consummated the pronouncement must be made during
the period of her purity.(tuhr). After such pronouncement the husband should abstain
from sexual intercourse during the period of purity and Iddat.
 c) When the wife is not subject to menstruation the pronouncement may be made
even after sexual intercourse.
The above form of divorce is regarded as the best form because there is a
chance of reconciliation between the parties.
ii) Talaq Hasan:- This consists of three pronouncements made during
successive tuhrs the period of purity no intercourse taking place during any of these
three tuhrs. The chief requirements of Talaq Hasan are :-
i) There must be three successive pronouncements of the formula of divorce.
ii) In the case of a menstruating wife the first pronouncement should be made during a
period of tuhr or purity the second during the nexttuhr and third during the
succeeding tuhr.
iii) In the case of a non-menstruating wife, the pronouncement should be made during
the successive 30 days.
iv) No sexual intercourse should take place during these three periods of tuhr.
This is also proper form of Talaq but less proper than talaq Ahsan, This Talaq
is revocable before the third pronouncement but becomes irrevocable immediately
after the third pronouncement.
2.Talaq-ul-Biddat or Talaq-i-Biddat:- It is sinful form of divorce recognised only
under Sunni Law. It is the irregular mode of Talaqintroduced by Omeyyads in order
to escape the strictness of law. It consists the following two modes:- i) Three
pronouncements made during singletuhr either in one sentence e.g. “I divorce
thee, I divorce thee, I divorce thee. Ii) A single pronouncement made during a tuhr
clearly indicating an intention irrevocable to dissolve the marriage e.g .divorce thee
irrevocably.”Talaq-ul-Biddat form is recognised only in Sunni Law and not in
ShiaLaw.
When They Become Irrevocabale
1. Talaq-ul-Sunnat:- Talaq Ahsan:- it becomes irrevocably on the expiry of the
period of iddat.
2. Talaq Hasan:- It becomes irrevocable on the third pronouncement irrespective of
Iddat.
3. Talaq-ul-Biddat:- It becomes irrevocable immediately when it is pronounced
irrespective of Iddat.
16. Define Maintenance. Discuss the provisions regarding maintenance of divorced woman
according to Muslim Women Protection Rights on Divorce-1986. OR What are the
arrangements for maintenance under Muslim Law? Who are entitled for Maintenance?
Discuss. OR Maintenance of Muslim Women.
Introduction:-The Muslim Law, like the English Law treats the property as
primarily and naturally individual. It does not like the Hindu system contemplate as
the normal state of things. The existence of mass of family property kept together
thorough several generations as common fund for the common needs. Under Muslim
Law a man is bound maintain his wife irrespective of his and her means and his
minor children if he is not indigent.
Definition of Maintenance: - Maintenance is equivalent to Arabic ‘Nafqah’which
means, “What a person spends over his family” however in legal sense maintenance
signifies and includes three things: (i) Food (ii) clothing (iii) lodging.
According to Hedaya: “Maintenance as all those things which are necessary to the
support of life such as food, clothes and lodging.”
Provisions regarding maintenance of divorced woman:- In Shah Bano Beguum
v/s Mohammad Ahmed Khan-1985, the five judges bench held that a Muslim
husband having sufficient means must provide maintenance to his divorced wife
who is unable to maintain herself. Such a wife is entitled to the maintenance even if
she refuses to live with the Muslim husband. The court also held that the ability of
the husband to maintain his divorced wife till the expiration of the iddat period
extends only in case the wife is able to maintain herself. The following are the
rights of maintenance of divorced wife:-
1. Maintenance during the subsistence of marriage:-The husband is liable to
maintain the wife from the date when the wife attains puberty and as long as she is
obedient and faithful to her husband. The husband is bound to maintain her even
though she may have the means to maintain herself. A Muslim wife who is living
separately may claim maintenance against him for example if the husband treats her
cruelty or marries with second wife without her consent or if he paid prompt dower
to her as held in a case ofItwari v/sAshgari-1960.
2. Maintenance of a divorced wife:-Under Muslim Law a divorced wife is entitled
to obtain maintenance from husband up-to her period of Iddat. In a case
of Mohammad Ahmad Khan v/s Shah Bano Begum-1985, although the Muslim
law limits the husband’s liability to provide maintenance for his divorced wife up to
the period of Iddat. The court held that if the divorced wife is unable to maintain
herself after the period of Iddat she is entitled to recourse to sec. 125 Cr.P.C.
3. Maintenance of a Widow: - According to Hedaya says, “That a widow shall not
have any right of maintenance after the death of her husband. Under the Shia Law a
Widow is not entitled to any maintenance though she was pregnant at the time of the
death of her husband. There are some authorities in Mohammadans who recognised
widow’s right if on the death of her husband she was pregnant to maintenance until
delivery, out of share in estate of her husband which child borne by her entitled to
inherit.
In order to nullify the effect of the Shah Bano’s decision, Parliament passed
the Muslim Women’s Protection of Rights on Divorce Act-1986, the following
are the provisions :-
1. A reasonable and fair provision and maintenance to be made and paid to her within
the Iddat period by her former husband.
2. Where she herself maintains the Children born to her before or after her divorce a
reasonable a reasonable and fair provision and maintenance for a period of two years
from the respective dates of birth of such children.
3. An amount equal to the sum of mehr or dower agreed to be paid to her at the time
of her marriage or at any time thereafter according to Muslim Law.
4. All the properties given to her before or at the time of marriage or after the
marriage by her relatives or friends or the husband or any relatives of the husband
or his friends.
17. Discuss the provisions of Muslim Law concerning Guardianship for
marriage. Power of legal guardian alienation of minor’s property.
INTRODUCTION:- In chapter iv of the holy ‘Quran’ it is mentioned that, “ to
restore the orphans when they come of age, their substance do not substitute bad for
good, nor devour their substance by adding it to your own, for this is an enormous
crime.” However the term Guardianship (wilayat) means the guardianship of a
minor. Minor is one who has not attained the age of majority, Puberty and majority
are in the Muslim Law one and the same. Puberty is presumed to have attained on
the completion of 15 years but now the Muslims are governed by the Indian Majority
Act, except in the matters relating to marriage, divorce and dower. However 15 years
is the age of majority for the purposes of marriage, dower and divorce under the
Muslim Law.
DEFINITION OF GUARDIAN:-The term guardian is defined in theGuardians
and Wards Act, “A person having care of the person of a minor or of his property,
or both his person and his property.”
In Muslim Law, Quran is the basis of the law relating to guardianship and therefore
there is very little room for differences between Shia and Sunni’s.
GUARDIANSHIP IN MARRIAGE (JABAR):-1.One of the most essential part
of a valid marriage that the parties are competent to enter into marriage contract,
i.e. among other things they must have attained the age of puberty. However there is
exception which is most distinguishing feature of Islam which empowers a father to
impose status of marriage on his minor children. This power of imposition is
called Jabar. Under this exception the marriage is contracted on behalf of the
minors by the guardian.
2. No one can be appointed guardian by the Court in respect of marriage
guardianship.
3. The Court also cannot appoint Wali for marriage; however in some casesQuazi
or Court itself can act as a marriage guardian.
4. Under the Muslim Law of all schools, the father has the power to give his children
of both sexes in marriage without their consent until they reach the age of puberty
i.e. known as bulugh.
5. The following persons who can act as guardians in the marriage of a minor:-
1. Father.2.The father’s father how high-so-ever. 3. Full brother and other male
relations on the father’s side. 4. Mother. 5. Maternal relation within prohibited
degrees. 6. The Quazi or the Court.
Legal Guardian: - The person entitled in the order mentioned below to be guardian
of the property of a minor: - 1. Father. 2. The executor appointed by the father’s
will. 3. The father’s father. 4. The executor appointed by the will of the father’s
father. Thus mother, brother and uncle etc. are not entitled as of right to be the legal
guardians of the property of minor as held in the case of Sayed Shah Gulam Ghoshe
v/s Sayed Shah Ahmad-1971.
POWERS OF LEGAL GUARDIAN:- 1.Regarding Immovable
Property:- Legal guardian cannot alienate by sale of mortgage the immovable
property of the minor except when alienation is absolutely necessary or for the clear
benefit of the minor.
When the minor has no other means of livelihood and sale is absolutely necessary
for maintenance. Where the double price of the property can be obtained by
him. Where the expenses exceed he income of the property.When the property is
falling into decay. The legal guardian has no power to carry on business of his ward
especially if the business is one which may involve his minor’s estate in speculation
or loss. When the property has been usurped and the guardian has reason to fear that
there is no chance of fair restitution. A legal guardian is empowered to enter into
contracts on behalf of minor provided that such contracts are for the benefit of the
minor.
2. Powers regarding movable properties:- The guardian is empowered to sell
or pledge the goods and chattels of the minor for the minor’s necessities as food,
clothing and nursing etc. Muslim Law does not impose upon minors any
obligation to pay interest on sums advanced to them. The legal guardian is bound
to deal with the property as carefully as he has dealt with it if it were his own
property, as held by Madras High Court in l940.
3. De facto Guardian: A person who is neither a legal guardian nor a guardian
appointed by the Court but has voluntarily placed himself in charge of the person
and property of the minor is known as de facto guardian. He is mere custodian of the
minor’s person and property but has no right over either as held in the case of
M.Fiaz v/s Iftkhar-1932. He has only the responsibility towards the minors person
or property or both but no rights in respect thereof. He has no power or authority to
alienate the minor’s property. However authority given by the Court is void as
provided in Guardians and ward Act.
18.Discuss the concept of legitimacy under Muslim Law. Mention the
conditions of a valid acknowledgment.
Introduction:- Muslim law insist on the existence of a valid marriage between the
begetter and the bearer of the child at the time of its conception. A person born in
lawful wedlock is said to be the legitimate child of the spouses. The main point in
the case of legitimacy of a child is marriage between its parents. In the case
of Habibur Rahman Choudhari v/s Altaf Alii Choudhary: It was held that the
term wife necessarily connotes marriage, but as marriage may be constituted without
any ceremony the existence of a marriage in any particular case may be an open
question. Direct proof may be available but if there be no such proof indirect proof
may be suffice.
Muslim Law does not recognize the institution of adoption which is
recognized by other systems. Under Hindu Law adoption is intimately connected
with religion having relation to the repose of the souls of the departed and the
preservation of the house hold divinities. Amir Ali explained that in fuller terms that
adoption similar to what was practised in the ‘Days of Ignorance’ created no such
tie between the adopted and the adopting as resulted from blood relationship. On the
one hand Muslim Law recognizes the institution of ‘iris or acknowledgment on the
other hand it disapproves legitimating.
The doctrine of acknowledgment relates only to cases where either the
fact of marriage itself or the exact time of occurrence with reference to the legitimacy
of the acknowledged child is not proved in the sense of the law as distinguished from
disproved. In a case of Mohammad Khan v/s Ali Khan-1981.
ESSENTIALS OF LEGITIMACY
When there is a direct proof of marriage or there are circumstances from
which marriage may be presumed the question of acknowledgment of legitimacy
does not arise because in such cases the legitimacy is ‘ipso facto’ established or
presumed to be established. If there is no such direct proof of legitimacy indirect
proof may suffice and one of the ways of indirect proof is by acknowledgment of
legitimacy by father (not mother) in favour of a son. In other words the doctrine
applies only to cases of uncertainty as to legitimacy and in such cases
acknowledgment has its effect but that effect always proceeds upon the assumption
of a lawful union between the parents of the acknowledgment child.
In the case of a good acknowledgment of legitimacy the marriage
between the parents of the child acknowledged will be held proved and this
legitimacy established unless the marriage is disproved as held in the case of
Mohammad sadiq v/s Mohammad Hassan- 1943.
In case the marriage between the parents of the child could not be
proved the acknowledgment shall carry no force in the eyes of law. The
 acknowledger must acknowledge the child specifically as held in a case of Haribur
Rahman v/s Altaf Ali-1921.
EXPRESS OR IMPLIED ACKNOWLEDGMENT
It is not necessary that an acknowledgment should be express it may
also be implied as was held in the case of Mohammad Amin v/s Valil Ahmad -
1952: where a person habitually and openly treat another as hislegitimate child this
fact may give rise to a valid presumption of legitimacy.
The acknowledgment may be of son or of daughter but it must be made
the father. The acknowledgment of the child must not be casual. In a case of
Mohabat Ali v/s Mohammad Ibrahim-1929: The father made the
acknowledgment of the child in a casual manner. He never intended that his
acknowledgment should have serious effects. It was held that the act of the father
is not sufficient to confer the status of legitimacy.
Conditions:-1.When a man expressly or impliedly acknowledges another as his
lawful child the paternity of the child will be established in the man provided
the following conditions are fulfilled:-
 Intention to Confer Legitimacy: The acknowledgment must be made in such a way
that it shows that the acknowledger is to accept the other not only as his son but as
his legitimate son as held in Habibur Rahman v/s Altaf Ali-1921.
 Age of the Acknowledger:- The age of the parties must be such that it is possible
that they may be father and son.
 Child of Others: - The child so acknowledged must not be known to be the child of
another.
 Person Acknowledged should confirm acknowledgment:- The child, if adult,
must confirm, or acquiesce in acknowledgment. It is very important that the
acknowledged child should verify acknowledgment.
 Legal Marriage possible between Parents of the child acknowledged:- The
acknowledger and the mother of the child must have been lawfully joined in
marriage at the time when the child was begotten. It is essential to show that a lawful
marriage is possible between the acknowledger and child’s mother because the child
is not the fruit of an adulterous intercourse.
 Competency of the Acknowledger:- The acknowledger must be competent to
make a contract, that is, he should be adult and sane.
 Offspring of ‘Zina’:- An offspring Zina is one who is born either without marriage,
or of a mother who was the married wife of another, or of a void marriage.
 An acknowledgment once made cannot be revoked:- In a case ofAshrfod
Dowlah v/s Hyder Hussain-1886: It was held that acknowledgment of paternity is
a recognition not simply of son-ship but of legitimacy as a son.
Rules of legitimating:- depends on the assumption of legitimacy and its establishment
by avoidance of the hypothesis of unlawful relationship between the parents. Refer
the case of Nazibunnissa Bibi-1864.
 This rule is based on contractual form of marriage under Muslim Law.
 No ceremony is prescribed for a valid marriage.
 It is also not necessary that the marriage should be published.
 Muslim Law does not recognize western concept of legit
effects of acknowledgmrnt:-Acknowledgment of paternity raises a two-fold
presumption. B) One in the favour of son-claimant. C) The other in favour of the
wife claimant i.e. mother of the acknowledge. D) It produces all the legal effect of
natural paternity and vests in the child right of inheriting from the acknowledger in
case of a son. E) The mother of the acknowledged son gets the status of legal wife
and hence the right of inheritance.
21.Define Acknowledgement and kinds of Guardianship under Muslim Law.
Introduction:- The Quran is the basis of law relating to guardianship which
connotes the look after of the minor. A minor is one who has not attained the age of
Majority. Puberty and majority are in the Muslim Law one and the same. The term
guardianship means a person having the care of that person who is minor. He takes
care for his property and for him. The guardian has to be appointed lawfully under a
will in accordance with the law to which the minor is subject. Guardian has to
perform his duties properly for the custody of the minor and his property.
Definition of Acknowledgment:- Where the paternity of a child that is his
legitimate descent from his father cannot be proved by establishing a marriage
between his parents at the time of his conception of birth, Muslim Law recognizes
‘acknowledgment’ as a method whereby such marriage and legitimate descent can
be established as a matter of substantive for the purpose of inheritance.”
Definition:- The guardianship has been defined in the Guardianship and Wards
Act, “That a person having the care of the person of a minor or of his property or of
both person and property.” The meaning of guardianship is that a guardianship of a
minor. But there is no mention of disposal in marriage in any part of the Act and
nothing to indicate that it was intended to interfere with the rules of Muslim Law.
The Quran is the basis of law relating to guardianship which assigns that function
under name of ‘jabar’ entitled to care and custody of the (hiznat) ward’s person
(Wilson).
Who is Minor:- A minor is one who has not attained the age of majority. Puberty is
presumed to have been attained on the completion of the fifteenth years. But now
the Muslims are governed by the Indian Majority Act, 1875except in the matters
relating to marriage, divorce and dower. In Muslim Law fifteen years is the age of
majority for the purposes of marriage, dower and divorce. At or above this age, he
or she is free to do anything in the sphere of marriage dower and divorce.
As regards other matters of guardianship of person and property, a
Muslim will be governed by the Majority Act which prescribes 18 years as the age
of majority. Thus in cases of wills, waqfs etc. the minority will terminate on the
completion of 18 years.
Appointment of a Guardian:- When the Court is satisfied that it is for the welfare
of a minor then an order is to be made for the appointment of a guardian of his person
or property or both as declaring a person to be such guardian, the Court make an
order accordingly. Under Section 15(1) of the Guardian and Wards Act-1890 it
permits for the appointment of joint guardian where the court has appointed joint
guardian and any one of them has died, the survivor continues to act as guardian.
Section 20 of the act imposes a duty on the guardian to deal with the
wards property carefully and honestly. Section 24, 25 and 26 of the act provides for
custody of the child by the guardian and to look minor’s support, health and
education and such other matters as the law to which the wards subject
required. Under sec. 33 guardian can seek the advice of the court with regard to the
management of the ward’s property.
Kinds of Guardianship:- Muslim Law makes a distinction between guardian of the
person, guardian of the property and guardian for the purposes of marriage (
willayat-ul-nikah ) in the case of minors. Mohammedan Law recognises three kinds
of guardianship. They are as under:-
1.Guardianship in Marriage (Jabar) :- This exception is main feature of Islamic
because it empowers a father to impose status of marriage on his minor
children. This power of imposition is called (jabar) the abstract right of guardianship
(wilayat) and the guardian so empowered is known as Wali. The persons entitled
who can act as guardians in the marriage of a minor:-
i) Father. ii) The father’s father, how high so ever. Iii) Full brother and other male
relatives on the father’s side in order of inheritance. Iv) Mother v)maternal
relations within prohibited degrees.vi) The Qazi or Court.
As mentioned in the chapter of Marriage, it is one of the essentials of a valid
marriage that the parties are competent to enter into marriage contract i.e. among
other things they must have attained the age of puberty. However this general rule
has one exception i.e. where the marriage is contracted on behalf of the minors by
the guardian. Shia Law recognises only the father and failing him the father’s father
how high-so-ever as guardian in the marriage of a minor.
2. The Guardian of the person of the minor for Custody (hizanat):-Regarding
the nature and extent of the right to custody of a minor child, it was observed by the
Privy Council in the case of Immambandi v/s Mutasaddi-1918, “It is perfectly
clear that under the Muslim Law the mother is entitled only to the custody of the
person of her minor child up-to a certain ages according to the sex of the child but
she is not the natural guardian. The father alone or if he s dead his executor (under
the Sunni Law) is the legal guardian. In Shia Law she is entitled to the custody of
her male child till the age of 2 years and to a female child till the age of 7years.
3. Guardianship for Property of Minor: - If a minor owns movable or immovable
property a guardian is necessary to manage it. Muslim Law prescribes certain
persons in an order of preference who can be guardian of a minor’s property. The
guardianship of the property of the minor under Muslim Law may be classified as
under:-
1. Legal (de jure) or natural guardian.
2. Guaradian appointed by the court or certified guardian.
3. De facto guardian.
22.What are the grounds of Judicial Separation under Muslim Law? And
Discuss about conjugal rights?
Introduction:- Marriage or Nikah in Muslim Law is a contract and needs nothing
in writing. There is only necessary is offer and acceptance made in the presence and
hearing of two male or female witness and recording the factum of the marriage in
the concerned register maintain in every mosque. Signed by the parties and attested
by the witness.
Muslim Marriage Laws:- Under the Muslim Personal Law a suit has been filed by
the husband or wife on withdrawal from the society of other without lawful ground.
Muslim law recognized two forms of divorce by mutual consent Khul or
Khula (Divorce at the request of wife) and Mubaraa or Mubaraat (by agreement).
No provision so far enabling parties o the marriage parties to the marriage to
seek the remedy of Judicial Separation.
A Muslim wife may seek Judicial Separation on the following grounds:-
i. Absence of the husband:- When a Muslim wife does not know where about the
husband for the last four years.
ii. Failure of husband to provide maintenance:- when a husband is failed to
provide maintenance to his wife from the last two year. Refer case Fazal Mahmud
v/s Ummatur Rahim, 1949 .
iii. Imprisonment of Husband:- When a husband has been sentenced of
imprisonment for seven years or more.
iv. Failure to perform to martial obligation:- When a husband is fail to perform
martial obligation in between the families.
v. Impotency of husband:- If the husband was impotent at the time of marriage and
continues to be so.
vi. Insanity, leprosy, venereal disease:- If the husband is has been insane for a
period of two years or suffering from Leprosy or venereal disease.
vii. Repudiation of marriage by wife:- If she having been given in marriage by her
father or other guardian before the attaining the age of fifteen year, repudiated the
marriage before 18 years and marriage is not consummated. She is able to seek for
Judicial Separation.
viii. Option of Puberty:- Option of puberty is the right of a minor boy or girl whose
marriage has been contracted through a guardian to repudiate or confirm the
marriage on attaining the age of puberty. Under this obligation a boy or girl has the
option of repudiating the marriage. In case of any negligence of father or the
guardian. Refer case Abhul Karim v/s Amina Bai, 1935.
Cruelty of Husband:- Judicial Separation may also be claimed by the Muslim wife
if the husband treats her with cruelty.
Conclusion:- A Muslim women may file a suit of Judicial Separation in courts of
India on the basis of facts mention above under Muslim Law which has been
recognized by the Muslim Society. As per provision laid down in Muslim law a
husband after marriage become responsible to maintain her wife and fulfil her
reasonable requirement with in his capacity but not on sake of his personal image.
23.Distinguish between Acknowledgment and Adoption.
Introduction:- Adoption differs materially from acknowledgment of paternity. In
adoption, the adoptee is the known son of another person while one of the
essentials of acknowledgment is that the acknowledgee must not be known son of
another.
In Mohammedan Law the acknowledger is presumed to be the lawful
father of the acknowledgee. The acknowledgee is supposed to have been born out
of a lawful wedlock. Acknowledgment of paternity under Muslim Law is the
nearest approach to adoption, but the two processes of filiations are quite different
and their comparison will give a clear idea of the subject:-

Adoption Acknowledgment

An adoptee is a son of another person. It proceeds on the basis of actual

It is established by a gift from the
natural parents to the adoptive parents.
Parentage of the adoptive family is
affiliated after renouncing the natural
family.
It has no connection between the
natural descent of the adoptee and the
adoptive father.
The motive of adoption may be
religious and spiritual.
paternity. If the son is proved to be
others acknowledgment is ineffective.
It is possible only when the paternity
of the child is not known and at the
same time child is not proved to be a
child of another person.
No such transplantation is possible in
acknowledgment.
It relates to the theory of actual
descent of the acknowledgee by
legitimate means.
There is no such religious or spiritual
motive.

CONCLUSION:- The adoption is the transplantation of a son from the family in

which he is born into another family by gift made by his natural parents to the
adopting parents. Muslim Law does not recognize adoption. In Acknowledgment
the paternity of a child that is his legitimate descent from his father cannot be
proved by establishing a marriage between his parents at the time of his conception
of birth. Muslim Law recognizes Acknowledgment.

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