NATURE & SOURCES OF FAMILY LAW

SOURCES IN HINDU LAW (MID-SEMESTER EXAM ONLY):

1. Ancient Law:
A. Shruti
B. Smrithi
C. Commentaries
D. Digest
E. Customs
2. Modern Law:
A. Judicial Decision
B. Legislation
C. Justice, equity & good conscience

OVERVIEW AND IMPACT OF CODIFITCATION : :

 Codification of hindu law only happened from 1940’s. till then, traditions of
dayabhaga and mitakshara ruled the customs of marriage, succession, adoptions
etc. after 1955, there was no marriage which was governed by M and D, as
everything was now in accordance with HMA. Courts would apply codified law
rather than D and M and to the extend that the codified law would allow customs.
-for example. HAS 1956 has application to property disputes regarding all self
equired, but not ancestry property. Claims regarding ancestral property are still
governed by traditional law.

 Impact #2: Earlier JHF partition would earlier take place based on D and M
which did not recognize women’s rights. 1957 onwards, self acquired property
division was governed by HSA. as per codification, equal rights were given to
daughters in father and mother’s self acquired property as per HSA. Thus, while
in 2005 daughters acquired ancestral rights, they acquired property rights in
codification itself.

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 Equal rights given to wife, widows, daughters in parent’s self acquired property
by HSA. however equal rights given to daughter in ancestral property only (and
only daughter) in 2005 amendment of Section 6.

 2015 saw many legislations repealed, including the Amendment Act. However,
daughters continue to have these rights as such an amendment was made integrral
to the entire HSA act. the act of 2015 had no effect on HAS because 2005 had
already amended the entire HAS. only on the repeal of the entire law would it be
annulled.

ANCIENT SOURCES

A. SHRUTI: They have come come up from the Vedas as with respect what was
heard. Vedas are considered to be at the highest level as words of gods conveyed
to people. There are four Vedas from which Yajurveda & Samveda are the most
important ones. Vedas laid down the principles but it was a little vague. Todays,
Hindu law that is followed is different from what existed previously based on the
Vedas.
B. SMRITHI: It was considered to be written by seers & sages called Rishis who
interpreted the Vedas. Vedas were divided in two parts: A) Prose (Dharmasutra)
B) Poetry (Dharmashastra)
C. COMMENTARIES & DIGESTS: Commenatires are interpreation of Smrithi along
w/ that of Vedas which gives an overall comsideration and analysis. It records all
the traditions and customs. Digests on the other hand deals w/ interpretation of
multiple Smriti’s with repsect to the Vedas & Puranas. Since, it exetensively
deals with a lot of material it is considered to be better than Commentaries.
Principle commentaries & digests:
1. Dayabhag: Jimutvahana
2. Mitakshara: Vijnaneshwara
3. Vivada Patnakara: Chandreshwara
4. Dayatatwa: Raghunandan
5. Smrithi Chandrika: Devananda Bhatta
6. Viramitroditya: Mitra Mishra
D. CUSTOMS: Section 3(a) of Hindu Marriage Act considered ‘customs’ and ‘usage’.
Custom has three essentials, it must be continuous, and it must be followed in a

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 uniform manner for a long period. Parties must prove that the custom is prevalent
in the society, tribe, local area, community. A custom would then have equivalent
force of law in society. Thus, customs can prevail over law.
Customs: S.7 of the Hindy Marriage Act 1955 gives recognition to Custom. In
many cases customs are recognized and prevail over legal provisions.
 Marriage may be solemnized by either the a) HMA, b) Customs of husband, c)
Customs of Wife. Question of saptapadi etc. is decided by custom.
 Important because it determines the validity of marriage due to performance of
rituals etc.
 Applicability of custom is not umbrella-like, and must be seen provision to
provision. In Guardianship cases, in certain cases it is applicable but not to
HAMA and HSA.

SCHOOLS OF HINDU LAW:

1. Mitakshara: A commentary
2. Dayabhaga: Digest

Dayabh aga is considered more developed & modern system with respect to Mitakshara.
It gave new rights to daughters & widows. Sub schools arose because even when
Mitakshara commentary was proposed many people wanted modifications to it, which
when made came up with their own schools. Since Dayabhaga was applicable in smaller
parts, no modifications were proposed. The main difference between the both are
Survivorship (M) and Successhionship (D.)

SUB SCHOOLS IN MITAKSHARA:

1. Dravida or Madras
2. Maharashtra or Bombay
3. Mithila – Bihar, Chhattisgarh, Jharkhand
4. Banaras
5. Punjab School

MITAKSHARA SCHOOL:

 This school is based on the commentary of Vijneshwara.

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  It was written after 11 th century.
 It is the supreme authority in North East & Bengal region.
 It recognized 8 types of marriages. Thus, the court will try to determine which
system you fall under & determine the validity of that marriage. Earlier, each
marriage would fall under those 8 categories. In this 4 forms of marriages were
recognized which gave rights to the parties while 4 forms were not recognized,
where there was no rights.

Illustration 2.1:

F + W (1st Generation)
˅

S1 + W ---- S2 + W---- S3 + W----- D1----D2 + H (2nd Generation)

˅ ˅ ˅ ˅

rd
S1S1---S1S2 S2S1---S2S2 S3S1---S3S2 D2S1 ( 3 Generation)

th
S1S1S1 (4 Generation)

S1S1S1S1 (5th Generation)

 Rights in Mitakshara are based on birth in a family. Purely because of birth, a

child has some rights from the family including:
a) Right to property: If birth is within 4 generations, person is also entitled to his
share of ancestral property, but not self0acquired propoerty. He thus gets
rights to ancestral property irrespective of age. Existence of coparcenery is
considered from day of conceivement and not date of actual birth. Thus,
conception would lead to a share of property earmarked for unborn child.
-Rights will continue for the lifetime of the person
-Original M system did not recognize these rights for women, daughters.
b) Right to maintenance
c) Right to other necessities
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  Women: If F dies, W, D1 & D2 will not get any property rights. But, W & D1 are
given maintenance rights and so will D2 if it proven that even after marriage she
was dependent on F.
 If it’s a JHF then every person born in this family except D1 & D2 will be
entitled to residency & maintenance rights.
 As soon as D2 gets married her family will become part of another family. For
any reason (death/divorce from husband) is she comes back to the family she will
be called dependant and she will not be considered as a family member like her
initial status.
 Coparcenery Rights Generation wise: In JHF, after every generation there is
creation of absolute right that of residence & maintenance. But, this right is
limited till the 4 th generation which starts from the eldest surviving member.
 S1S1S1S1 will have no property right but will have maintenance rights. But, all
of them will be considered a part of JHF.
 Thus, all males till the 4 th generation are entitled to property rights.
 In ancestral property of F, a child receives property rights as soon as he is born.
They all have joint ownership till 4 generations.
 Partition (defining characteristic): If one member/coparcener asks for right in
property then everybody will be given their part. JHF will come to an end w/
parition.
 Karta: Seniority is not necessary to be Karta.

Note: If a JHF comes in paper (examination) then assume its Mitakshara unless
otherwise give.

DAYABHAGA SCHOOL:

 It is written by Jimutvahana and considered to be a digest.

 There are no sub-school under this.
 It is considered to be reformed Hindu law.
 It has specific rules with respect to succession and recognized cognatic as well
agnatic relations.
Illustration 2.1 is continued. (Property type = Self acquired)

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  In Dayabhaga, the holder of ancestrial property (F) has absolute entitlement to the
property throughout his life, with no share going to any other family member.
 Here, if the next generation is born then they will not have not have property
rights by birth. Maintence: Yet, they can claim for maintenance. Rights are
therefore given to the next generation and not 4 generations .
 Even here, the widow & daughters do not have right immediately after birth.
Their rights are only recognized after F’s death.
 As long as F is alive, nobody gets property. But, if F died the property only goes
to the next generation that is S1’s generation.
 If S1 is not alive, then the property rights will go to S1S1, S1S2 and his W.
 The ancestral property shall stay with F only. It is after his death that his share
will go to the next generation. Property will go in 6 parts. Even though after F’s
death, S1’s generation receives it as ancestral property, he will have absolute
ownership over it. There is no difference b/w ancestral and self acquired property.

In Hindu Succession Act, if D2 receives property after death of F + W, that property will
be considered as her absolute property. If D2 dies, the property will go to her son &
daughter. If D2 not there, then property will not go to her H, but will go back to
daughters family.

Section 9, 10, 11, 12, and 13 of Hindu Succession Act deal with the situation mentioned
above. The closest person of the deceased is given more importance. Descendants are
given more importance than predecessors.

Illustration 2.2:

S1--------S2-------S3------D1 + H

˅ ˅ ˅

S1S1 S2S1 D1S1

˅ ˅ ˅

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 S1S1S1 S2S1S1 D1S1S1

 Here, S1 & S2 families are example of collateral or parallel generations. They have the
same origin of (F) which branches out.
 Current law scheme for distribution of property is as follows:
1. Descending
2. Ascending
3. Agnatic
4. Cognatic
 There is no direct relation b/w S1S1S1 & S3 but they have a long flowing relation. So,
their relation can be shown in this manner:
S1S1S1→S1S1→S1→F→S3 (No females exists in this line. This is agnate relation)
 If relation is to be considered b/w S1S1S1 & D1S1S1. A female D1 comes in b/w and
that is why this is a cognate relation.
 AGNATE > COGNATE for distribution of property
 Property is distributed to agnates and not cognates in Mitakshara system. If there is no
person available then it will govt. but not to the cognates.
 Dayabhaga recognized both. If agnates are not there then it will go to cognates. In
Dayabhaga system because of concept of absolute ownership, property can be disbursed
in anyway. Dayabhaga recognized everybody till 7 generations.

Mitakshara Dayabhaga
1. Orthodox Considered developed
2. Equal rights to sons like daughters Equal rights since inception
since 2005 HAS amendment in
ancestral property
3. Followed in majority states Limited states- WB and North East
4. Commentary, several smritis were Digest where only one was referred
referred to
5. Includes few sub-schools with Smaller territories thus no
modifications modifications
6. Basis of survivorship Basis of successionship
7. Rights are vested at birth of a Rights vested at the time of death of
member. At the time of coneption, 4 property holder. Only to next
generations. generation.

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 HISTORY OF FAMILY LAW IN INDIA:

 Constituent Assembly & the committee came up with Hindu law and 4 other different
laws. They codified certain portion & left certain portions. This was because of the
opposition of certain communities for the same.
BEFORE BRITISHERS-ADVENT OF BRITISHES
 Hindu law is considered to have divine origin. They are non-homogenous & diverse
which deal with different personal laws.
1. Before Britishers, people either followed Dayabhaga or Mitakshara system. When
they came they realized everybody in India had different customs and traditions and
thus realized that it was very difficult to deliver justice.
2. The Courts that were established for dealing with Family law, took help from
Maulvi’s & Pandits to deliver justice as per the traditions and customs. People did
not want any interference in their traditions. In both Hindu & Muslim law they
followed religious scriptures to deliver justice.
3. Thus, the Britishers failed to remove the religious ambit from the justice system. Privy
Council took help from religious heads and recognized customs and delivered justice
by using religious commentaries and digest.

LEGISLATION

4. In 1928, H.S. Gaur Bill (Dissolution of Marriage) was tabled. H.S. Gaur was the first
person to suggest dissolution of marriage. Smritis did not recognize divorce. It is
because of this reason that people did not immediately pick up the idea of dissolution of
marriage because they had the concept of marriage that lasts till 7 lives.
5. In 1932, H.B. Sarda bill (property rights) was proposed: The law given by Sarda was
extremely new. It dealt with property rights. People once again did not accept it
because as per Mitakshara system, women did not have property rights. (FUCK
MISOGYNY)

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6. In 1937, Hindu women rights bill (Deshmukh Act) was presented: Deshmukh also
tried the same. British govt. had appointed him under the committee. The British govt.
had accepted his draft which was implemented in both the systems. Major focus was on
the rights of widows. This stated that widow should also get share of pre-deceased
son after the husband’s death.Only possession.  1956

7. CRITICISMS OF THESE DRAFTS: There were a few religious texts which made
reference to divorce, being: Naradsmriti and Parasarsmriti. It stated that in cases of
hardship divorce may be allowed. But, people mostly followed Manusmriti and its
commentaries. Thus, people were not ready to accept the concept of divorce as they had
the concept that the wife submits herself to her husband. The principle of Dharma was
applicable. Thus, only husband could leave her and there was no place for the wife to
come out of that relationship. People opposed against Gaurs Bill. This was not accepted
but it was the first proposal for codification.
8. He also proposed Hindu law code which was not taken into consideration because it
required abandonment of religious ideologies.

9. Sir John Peter Grant prepared Lex Loci report of 1840, which was also the time the
discussion of Uniform Civil Code (UCC) had begun in Constituent Assembly around
Dec. 1946. Article 44 of the Constitution was thus inserted.
10. John raised an essential question. Q: Whether they were bound by the law of the land or
Indian traditions or customs?
He said that in India societies were different as compared to theirs back home. Indians
had different religion, caste, sub-caste. He said that there is a need to codify law and
stop following religion and customs. When he finally saw Indian societies, he realized
they cannot be given one codified law.
RENEWED ATTEMPTS

 When codification happened in 1941, British govt. appointed Rao committee

(Bengals Sir Naringh Rao) to draft Hindu code incorporating traditions & customs.

In 1944, the proposed draft w/ 8 parts called Hindu Code Bill dealing w/ succession,
maintenance, guardianship & adoption was proposed. People opposed it. Discussion over
it took place in 1946. No uniform opinion on UCC in 1946. Hindu code bill was
discussed again which led to agitation amongst Hindu groups. Hence, because of the

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 violence, discussions were stopped. In 1947, the report was discussed again. Rao was
asked to refine it and another report was submitted in which some major points were
suggested which were once again not accepted by the govt., they were as follows:

1. Abolition of joint family property system: JHF only for M as D gave equal rights.
Wasn’t accepted as infringement on religion.
2. Daughters succession w/ the son to the fathers estate:
3. Inter-caste marriage allowed (Hindu law to provide for it): Interference in Varna system
4. Assimilation of civil concepts of marriage and sacramental essence of marriage
5. Introduction of divorce for higher castes: As marriage is divine, rejected.
 This was once again not accepted, hence a new committee was formed called B.R.
Amedkar Committee, 1948 which was asked to review everything that had taken place
from 1944. He discussed w/ all religious groups and consulted them. They did not
accept a 100% codification within the system. He eventually had issues with Jawaharlal
Nehru and later resigned.

 Draft was divided in 8 parts as mentioned earlier. It was presented and had been
defeated. The committee was immensely criticized for 1 st part.
1. Abolishing JHF – WHO CAN BE A HINDU
2. Property rights to women
3. Caste System
4. Marriage
5. Guardianship
6. Adoption
7. Succession
8. Maintenance
 Further the question that was raised was: Who would be considered as a Hindu?
 Even though the recommendations made by Rao committee were criticized, it was also
appreciated for a few things. It was appreciated for the well drafted schemes especially
succession and maintenance. The major criticism was only for the 1 st part.
 The Constituent Assembly further rejected it on the ground that they had a problem w/
abolishment of the caste system and joint family system as people could not accept
encroachment of law in property matters.

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PHASed

 Amedkar said that the preparation of UCC was easy but the implementation would cause
violence amongst minorities. He thus, recommended implementing it in stages as it is
difficult to leave religious ideologies immediately. He initially excluded Islamic law as
for even for the implementation of UCC for Hindu law it would take a very long time.
Thus, he suggested codification for Hindu law and then Muslim law. A unique
combination was made as he incorporated the concept of divorce, etc. Even Parsi and
Christian laws were codified to some extent.
 In 1952, there was ideological difference b/w Nehru & Ambedkar. After Nehru’s victory,
the bill was bifurcated into four separate bills namely: Hindu Marriage Act, Hindu
Succession Act, Hindu Minority & Guardianship Act, Hindu Adoption & Maintenance
Act.

FINALLY THIS HAPPENED

 So, instead of going ahead w/ UCC, they went ahead with the idea of codification of
Hindu law in different phases. They initially codified Hindu Marriage Act, 1955. Then
in 1956 the other three laws came.
 The abolishment of JHF was not accepted because everything was governed by
Mitakshara system. JHF provided social security to people and could not be removed.
 Even wrt property they went ahead in phases and made two essential divisions:
1. Self-acquired property – which is governed by Hindu Succession Act
2. Ancestral property – Mitakshara/ Dayabhaga system govern it.
 In 2005, amendment was made to the Hindu succession act where the proposed changes
of 1947 were properly incorporated.
 Dead people shares in JHF system during parition shall be dealt wrt Hindu Succession
Act.

Illustration 2.3: This illustration is wrt to the Mitakshra system

F +W

S1-----------S2----------S3--------D

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 ˅ ˅ ˅

S1S1—S1S2 S2D1 S3S1

˅ ˅

S1S1S1 S3S1S1

Here, S1S1 is dead. Initially, only those people who were alive had share to the division
of the property. So, the dead persons share would be distributed. As per the 2005
amendment, Section 6(3) of Hindu Succession Act, not only son but the daughter will
also be given coparcener status.

If any member if the JHF dies after 2006 i.e. after the amendment, his share in the
property has to be given to him. Deemed partition will happen. S1S1 shall be assumed to
be alive and his share shall be identified which here is X (property value)/ 11. This right
will continue as his property. Remaining people will stay part of the JHF but his property
share shall be given to his legal heir.

SOURCES OF MUSLIM LAW:

 Islamic law is not codified and has very little legislation. In 1937, the Sharia Act (only
deals w/ application) was passed. This act has exclusive authority wrt the application of
traditional or codified law. Section 2 & 3 of the Sharia Act are extremely important
which deals w/ - divorce, maintenance, children, wakf, etc. The ROL here shall be
Muslim/Islamic law (traditional law), thus the courts shall recognize traditional laws.
 There are three codified acts: 1. Dissolution of Muslim Marriage Act 2. Protection of
Woman Act, 1986 3. Wakf Act, 1954
 The question that came before the court was: Whether you had to follow Marriage
Dissolution Act or traditional laws? Section 3 gives right to parties to declare the
applicable law on the parties to the dispute in some matters. Thus, they have the option
to choose through declaration.
 The Wakf act deals with administration of Wakf. It has dealt with certain lacuna from
traditional law but it has covered only certain aspects and not all the aspects.

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 There is no conflict as the traditional law itself is codified. Eg: If “A” is a wife, they she
can claim maintenance for only 3 months after which her parents will have to provide for
her and if they are also unable to provide for her then the person who has inherited her
property, they will provide for her and if even they can’t provide then the Wakf Board
will provide for her.
 In Islamic law, the in-law have no obligation or the husbands parents do not have any
obligation to provide maintenance beyond 3 months.
 As per Dissolution of Muslim Marriage Act, certain rights are given to the females under
it. In traditional law wife is not given right. Hence, when the wife approaches the court,
the law which gives the wife the rights are to be followed which is the Dissolution of
Muslim Marriage Act. So, even if the husband wants to exercise his rights under
traditional law he shall not be able to the same because she shall be deriving her rights
from Dissolution of Muslim Marriage Act.
 Mechanism of dissolution of marriage under traditional law is different because the
rights of divorce given to women under traditional law are different than the codified
law.
 The only way a woman can voluntary take divorce in traditional law is when there is
delegation of right to take divorce from the husband to wife. This power to give divorce
is also through the contract. Thus, traditional law does give wives certain rights but it is
not absolute.
 There are two types of divorce under traditional law:
 Mubarak – when the parties approach w/o consideration
 Khula – approaching the husband to give divorce in return for a consideration.

In this the husband will finally decide whether he wants to give divorce or not.

 If the husband makes false charges of adultery against the wife and is she is able to
prove the same, then it shall be considered as ground of divorce under traditional law.
This is the method of Lien.
 Meher is a prompt or deferred payment. It may be given to the wife as a mark of respect
before the marriage, at the time of the marriage or after the marriage. The husband may
later ask back for the same. A deferred Meher is when the payment is paid after death or
divorce. Husband cannot demand restitution of conjugal rights till payment of Meher.

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 SOURCES OF MUSLIMS LAW:
1. QURAN : It is the most important source of law and all personal matters are dealt with
Quran, it includes: marriage, divorce and successions. It is the supreme authority which
discussed the code of way of ideal life. It has approximately 80 verses which deal w/
personal matters which include marriage, divorce, rights, etc. Quran prevails over any
other form of law. It is the equivalent of Vedas in Hindu law.
2. SUNNA & HADIS: It essentially means the traditions of the prophet. It includes whatever
the prophet said or did w/o reference to God is treated as his traditions and is the second
source of Muslim law. It is considered to be prophet’s reply.

Hadis is the narration of a particular occurrence in the life of prophet. It was like the
narration of an event. When you don’t find the answer in Quran directly, you search for
the same in Hadis. The prophet lived strictly as per the Quran.
The differentiating point is that Sunna is the prophets own reply whereas Hadis is
narration of prophet’s reaction or some incident. Thus, its REPLY v. REACTION
3. IJMA: It is considered to be the most developed and modern scope of Islamic law. When
Quran & all the other sources could not supply the ROL for a new problem, the jurist
used to agree unanimously & gave their common opinion over that point. The people
who had knowledge of law were called Mujahids. Thus, this consenting opinion amongst
jurist was called Ijma.
Abur Rahim: He defined them as agreements of jurist amongst the followers of the
prophet Mohammed in particular age on particular question.
These jurists can give different opinion of the same problem after 20 years. Thus, Ijma is
dynamic in nature as there is always scope of improvement to incorporate ideological
differences, scope of development. Thus, through Ijma, new laws are possible.
Every person who is well versed and has adequate knowledge on Muslim law could take
part in an Ijma formation. There are different kinds of Ijma, they are as follows:
i) Ijma of the companions: It is the concurrent opinion of the companions of the prophet. It
was considered as the most valuable and reliable source of law.
ii) Ijma of Jurist: It is the unanimous decision of jurist/body of jurists.
iii) Ijma of the people: It is the opinion of the majority or popular opinion like that of prayer,
fasting, etc. It is now a diminishing source of law.
Fuzee: Quran and traditional law look into the past whereas Qiyas deal with future of
Islamic jurisprudence.
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4. QIYAS: When even Ijma cannot offer answer to a certain question then popularly Qiyas
are referred. It means “measurement”. In other words, it means measuring or comparing
a thing in relation to a standard, or to establish analogical deduction. This is also
unanimous deductions of jurists. It gives analogical deduction from reasons as provided
in texts for cases not covered by Quran.
5. FATWA: In ancient perspective it would be a source of law but in present times Fatwa’s
are issued extremely frequently. Eg: In Meerut new Fatwas come up everyday not in
recommendatory form but actually in compulsory form. Thus, the law changes everyday
w/ issuance of a new Fatwa. Thus, it can be considered a source of law.
QUESTION: Whether Fatwas are source of law or not?
The most important Fatwa that was issued was Fatwa-e-Alamgiri by Aurangzeb who
gave a detailed issuance which dealt w/ governance, administration, personal law, etc.
These Fatwas then became law. Thus, in ancient times, Fatwas were actually considered
as source of law but in present times it is not. It can be considered by analysing the
following cases:

Vishwa Lochan Madan v. UOI (2014) (SC) dealt with this and included 3 extremely
important cases:
1. Imrana case
2. Asoobi case
3. Jatsoonara case

1. IMRANA CASE : Here, the father-in-law raped the daughter-in-law. A Fatwa was issued
through which the daughter-in-laws marriage was dissolved. As per Quran, if a woman is
raped she is considered as unlawful for her husband. The father-in-law was not punished.
Thus, the marriage was dissolved. But, the Husband & wife did not want divorce and
wanted the marriage to continue as it would later raise the issue of property rights and
maintenance which will be taken away from the daughter-in-law. She did not follow the
Fatwa. Question was raised if she was bound by the Fatwa. The court ruled that these
Fatwas created a parallel legal system with the courts and thus delivered justice contrary
to the judiciary and this cannot be entertained.
2. ASOOBI CASE: Father-in-law raped the daughter-in-law. The girl was not allowed to file
FIR against him as the husband can only file and FIR on her behalf.

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3. JATSOONARA CASE : Father-in-law raped daughter-in-law. Fatwa was issued that stated
that the marriage is terminated w/ husband and the daughter-in-law would have to accept
the father-in-law as her husband.

After these cases, the validity of Fatwas came into question and whether one should
recognize such parallel adjudication system. Finally in the Vishwa Lochan case the SC
state the following things:

 Since, there are innumerable bodies giving out Fatwas it must be cleared that Islamic law
does not recognize any specific body for adjudication of these matters. The Govt. &
other acts that are present do not give any such right for these organizations to act as
authority and issue Fatwas. Thus, they are not legal machinery.
 With respect to religious matters can issue Fatwas but nothing can be in contravention to
law of land and create a parallel adjudication machinery.
 Even if people approach these organizations voluntarily and they issue a Fatwa, these
Fatwas are not binding and are merely advisory in nature.
 Thus, the court finally held that Fatwas are not binding and are not a source of law.

PROPHET MUHAMMAD:

 Father Abdulla belonged to the Qurreish tribe and was married to a wealthy woman
called Kadija.
 His life is considered as an ideal life and as per the Quran, individuals should strive to
live like this.
 In Ancient Arabia there was no proper Islamic law. They followed the Caliphs words
which were considered as law. These practices continued for years and became
traditions.
 Caliphs can change the ruling given by a previous Caliph as per their wish. Traditions
may continue from generation to generation. But, new Caliphs were allowed to issue
their own Fatwas and create a parallel system i.e. traditional law & new law together.
 The traditions that existed were not favourable for women. Women were considered as
commodities that can be bought, sold or exchanged. The Caliphs themselves bought
and sold women. There was no property right given to women and maintenance right
existed only during the period of marriage, thereafter nothing was provided. The king

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 may or not may not provide for their maintenance. Although, sons always secured their
right to maintenance.
 Multiple marriages were allowed. It was a male dominated society and women were not
allowed to work. One could marry as many times as they wanted. Females agreed to
this unjust system because it was the only way for them to secure maintenance.
 There was no regulation for divorce & dissolution of marriage and hence there were
multiple divorces throughout.
 Prophet Muhammad came and then changed the system. In form of revelations by god he
introduced new law in society. People started to follow these revelations and new
teachings as they slowly started accepting it. The Prophet slowly started spreading his
own teachings and because of this the king felt threatened and sent Prophet to exile. He
had to thus travel from Mecca to Madina (Yasrab). This journey is known as Hijrat.
People had already been following him and when he started out new followers joined
him. Through this entire journey he continued his teachings.
 In Madina there were 4 groups of people:
 Mahajirins: Migrated w/ prophet from Mecca
 Ansars: Supporters in Madina
 Omayeds: Qurreish tribe & last to convert to Islam.
 Ashab-Al-Nass-Wal-Tayin: Supporters of Ali
 After his journey a lot of people started following him. He slowly became the supreme
authority and became the Caliph. His opponents were now in a minority. As the kind he
gave teachings of Islam through the revelations of the angel/god.
 This slowly became religion and the Prophet came to be known as the messenger of god.
 After the Prophets death, Quran was written by his successors.
 The main question that arose was, after the death of Prophet who would succeed him? In
this there were two opposing opinions:
1. Sunni: Who believed that there should be fresh election for the appointment of the
new Caliph as the Prophet never mentioned anything about his successors.
2. Shia: Who believed that the new Caliph should be Prophets successors. It was
rumoured that during his lifetime he said that his son-in-law should be considered
as the next Prophet.
 Initially the election system prevailed and Abu Bakr came to power and became the new
Caliph. He compiled everything the prophet said.

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 These are Abu Bakr’s successors as the Calip:
Abu Bakr
˅
Umar Ibn Al-Khattab
˅
Usman Ibn Affan
 Usman was murdered as per the conspiracy of Ali and he was appointed as the 4 th Caliph.
During Usmans tenure the writing of the Quran was almost over.
 Initially the process of election was chosen over hereditary appointment but soon Ali &
his supporters came in majority and he became the next Caliph.
 Abu Bakr’s supporters and those who supported the concept of elections were known as
Sunni Muslim and those who favoured hereditary appointment were known as Shia
Muslim.
 Marriage in Islamic law is a mixture of contractual law & has sacramental value.
 Concept of Muta marriage existed in Islamic law. It was a specialized kind of marriage
where the parties enter into marriage for a specified period. This is allowed only under
Shia law and not Sunni law. Under this marriage there were no property rights for
women. This marriage had less rights gives as given u/ regular form of marriage.
People belonging to Isna Asharia are the only people allowed to get in Muta marriage.
 In Sunni law with respect to marriage, if the father has not given the child in marriage
then the marriage is void and thus there will be no property rights. Minor child can be
given only by father, grand-father, paternal uncle, maternal uncle and other long of
guardians as listen in the Wali-il-nikah.
 In Shia law, only the father and grand-father can give a minor child in marriage.
 Witness system for marriages:
Sunni: 2 males (during marriage)
Shia: No male

Sunni- 2 witnesses not required (during dissolution of marriage)

Shia- 2 witnesses required

One male = Two females

Four females cannot be allowed to be witnesses. Atleast, one male should be present.

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