MUSLIM LAE
INTRODUCTION
A personal law is that branch of civil law which applies upon the persons of a particular religious community. Thus, the Mohammedan Law applies upon the Muslims. 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 the 'practice' of the Prophet (Sunna), of the common opinion of the jurists (Ijma), of the analogical deductions of these three (Qiyas), and of the pre-Islamic customs not abrogated by the Prophet Mohammad. Further, it has been supplemented by the juristic preference (Istihsan), public policy (Istislah), precedents (Taqlid) and independent interpretation (ljtihad). It has been further supplemented and modified by State Legislation and modern judicial precedents of the High Courts and the Supreme Court of India and also of the Privy Council.
QURAN, THE FOUNDATION OF MOHAMMEDAN LAW.
Muslim Law is founded upon Al-Quran which is believed by the muslims to have existed from eternity, subsisting in the very essence of God. The Prophet Mohammad
PRE-ISLAMIC ARABIA “AYYAM-E-JAHILIYA”
This law had no existence before Mohammad became a Prophet and there was no general law of the races inhibiting the Arabian Peninsula. Each tribe was governed by its own laws, and matters in dispute were either referred to the Chief, or decided by an appeal to the sword. The conduct of the Arabs was regulated by customs. Most of the customs of the Arab people were barbarous and inhuman. Often the parents buried alive their female child. Usury, i.e., taking a very high interest on the debts, was common. Gambling was rampant. It was days of superstition and idolatory; the position of women was not much better than that of animals; they had no legal rights; in youth they were the goods and chattels of the father; after marriage the husband became their lord and master. Polygamy was universal, divorce was easy and female infanticide was common.
The Arabs themselves were so much conscious of this change that they began to refer to the period before Mohammad as the Ayyam-e-jahiliya, i.e., the period of ignorance or rather wildness or savagery in contrast to the moral reasonableness of a civilised man.
WHAT IS ISLAM?
In the religious sense Islam means 'submission to the will of God' and in secular sense Islam means the 'establishment of peace’.
WHO IS A MUSLIM?
Muslim is one, who says that there is one God and that Mohammad is "His Prophet" It is not necessary that a Muslim be so by birth. In fact Islam depends on belief. A man can be Muslim even by profession or by conversion or upbringing. Even if one of the parents is Muslim, the child will be Muslim. However in India it was held in the case of skinner v. orde. that the child is presumed to belong to the religion of the father.
ORIGIN OF MUSLIM LAW
The place of Muslim Law's origin is Arabia, where Mohammad promulgated Islam. it is of divine origin, that is to say, Muslim Law originates from divinity. It is that law which is established by a communication from God with reference to men's acts, expressive either of demand or indifference on his part or being merely declaratory.
SOURCES OF MUSLIM LAW
1. PRIMARY SOURCES,
1.THE QURAN.
The Sunnat and Ahadis.
The Ijma (Consensus of opinion).
The Qiyas (Analogical deductions.)
2. SECONDARY SOURCES.
The Urf or Custom.
Judicial decisions.
Legislation.
Justice, equity and good conscience.
I. PRIMARY SOURCES.
1. THE QURAN.
The word Quran which is the 'divine communication' and revelation to the Prophet of Islam is the first source of Muslim Law. It is the paramount and universal authority of Muslim Law. It contains the revelation of God to His Prophet Mohammad, through angel Gabriel.
Thus it embodied the very word of God as they were communicated to the Prophet. The Quran in its present form is a book divided into 114 Chapters and consists of approximately 6666 verses. The chapters were arranged under the personal direction of the Prophet, who used to ask the scribe present to insert the revealed passage in a particular chapter. Thus it is not arranged in chronological order, not by oversight but as commanded by the Prophet.
The verses of Quran are called Ayat and the chapters of this Holy Book are called Sura. Not more than 200 verses are concerned with legal principles and nearly about 80 verses are concerned with marriage, dower, divorce and inheritance.
The word "Quran". derived from the verb "Qara" (together to read) signifies properly reading or rather that which ought to be read. it was revealed to him by the angel "Gabriel" in various portions and at different times. Its texts are held by Muslims to be decisive as being the words of God (Kalam allah) transmitted to man through the Prophet. Besides inculcating religion and theology, the 'Quran' contains also passages which are applicable to jurisprudence, which form the principal basis of the 'Sharia.'
The Quran is, Al-furqan, i.e., one showing truth from falsehood and right from wrong. It is in the form of a series of communications addressed by God to the Prophet. The communications were revealed to the people on a number of different occasions in the last twenty-three years of the Prophet's life, and dealt with a great variety of problems, one after another, as they arose.
But whenever the Quran was silent on any particular matter, guidance was taken from the 'Sunnat', i.e. whatever the Prophet had done, said or tacitly allowed; and also to Hadis, i.e., to the Prophet's sayings or the narration of what was said or done by him or was in silence upheld by him. All these are considered by the Muslims to be the supplement to the Quran and are of the rank, next to Quran.
2. THE SUNNAT AND AHADIS (TRADITIONS).
KINDS OF TRADITIONS-
The Traditions are of two kinds:-
1. Sunnat; and
2. Ahadis
"Sunna" denotes what the Prophet said, did, approved, and disapproved of, explicitly or implicitly. "Ḥadīth," on the other hand, refers to the reports of such narrations or which sunnah recorded in writing.
It is the belief of Muslims that revelations were of two kinds-Manifest (zahir) and internal (batin). revelations consisted of the communications which were made by the angel Gabriel under the direction of God to Mohammad in the very words of God. Quran is composed of manifest revelations. Internal revelation s consisted of the opinions of the Prophet and delivered from time to time on questions that happened to be raised before him. Sometimes, it happened that no direct revelation came to the Prophet and in the meantime some question had to be decided. In such circumstances, the Prophet exercised his own judgment and frequently consulted his companions. The ideas contained in such opinions of the Prophet were inspired by God. During his lifetime, the Prophet pronounced his verdicts, did certain things and also allowed tacitly the doing of certain things permitted by Islam.
Consequently "what was said or done or upheld in silence by the Prophet" becomes a primary source of Muslim Law. And The narrations of what the Prophet said, did or tacitly allowed" is called Hadis or Traditions. Traditions, however, were not reduced to writing during the lifetime of Mohhamad, They have been preserved as Traditions handed down from generation to generation by authorized persons.
3. THE IJMA (CONSENSUS OF OPINION).
Ijma, a fundamental concept in Islamic jurisprudence, plays a crucial role as a source of Muslim law. It refers to the consensus or agreement among Islamic scholars on specific legal issues not explicitly addressed in the Quran or Sunnah. Ijma enables Muslims to adapt their legal framework according to changing situations and contemporary needs. Ijma has been defined by Sir Abdul Rahim as the “agreement of the jurists among the followers of Prophet Mohammad in a particular question of law”.
The principle of Ijma ensures that Islam remains relevant across generations and cultures by allowing for flexibility within its legal system. This approach fosters unity among Muslims worldwide while preventing discord stemming from divergent interpretations of religious texts. When scholars reach an Ijma on a particular issue, it becomes binding on the entire Muslim community. In this way, Ijma serves as an essential guiding force that shapes the lives of millions adhering to Islamic teachings.
Such consensus–driven decision-making demonstrates how Islam values collective wisdom over individual opinions. The process also safeguards against potential misinterpretations or deviations from core principles enshrined in sacred texts like the Quran and Sunnah. In essence, Ijma empowers communities with practical solutions derived from authentic sources while maintaining harmony between tradition and modernity –ensuring relevance within contemporary contexts without compromising fidelity to divine guidance.
ESSENTIALS OF A VALID IJMA
For a valid Ijma following criteria must be met.
1.First and foremost, a consensus must be reached by the scholars of a particular community or region]. The majority of the jurists believe that Ijma will not be constituted even though there is a small disagreement by a small community. However, some of the jurists also believe that Ijma may also be constituted if the majority of the community agrees with. It is binding in action, but it is not obligatory, it is not absolute like Ijma constituted by unanimity.
Secondly, A Muslim jurist should give Ijma, only their opinions are relevant.
Thirdly, the Ijma should not contradict any clear injunctions of the Quran or Sunnah. In other words, it cannot go against any established Islamic teachings.
KINDS OF IJMA
The Ijma is of three kinds-
IJMA OF THE COMPANIONS OF THE PROPHET –
These are Ijma given by the companions of the Prophet Mohammad. It is universally acceptable, throughout the Muslim world and is unrepeatable & unalterable.
IJMA OF JURISTS –
These are Ijma given by the Muslim jurists, those who are not the companions of the Prophet Mohammad but have studied the Quran & followed the way of living of the Prophet Mohammad.
IJMA OF PEOPLE-
These are Ijma given by common people of the Muslim community. It consists of what a majority of the Muslim community agreed. However, it is rarely invoked.
4.THE QIYAS (ANALOGICAL DEDUCTIONS).
This is the fourth universally accepted and last primary source of Muslim Law. it means reasoning by analogy from the above three sources, i.e., the Quran, the Sunnat and the ijma. In Qiyas rules are deduced by the exercise of reason.
This is often the case when a general principle can be applied to new situations. Unlike the other three sources, which are based more or less directly on the divine commandments, qiyas depends on the judgment of man. Qiyas represents the attempt to deduce, from earlier decisions, a rule that could be applied to a case not directly covered by either the Qur’an or the Sunnah.
The general principle behind the process of qiyas is based on the understanding that every legal injunction guarantees a beneficial and welfare satisfying objective. Thus, if the cause of an injunction can be deduced from the primary sources, then analogical deduction can be applied to cases with similar causes.
I. SECONDARY SOURCES
1. URF OR CUSTOM.
Custom was never formally recognized as a source of Muslim Law, though it has been occasionally referred to as supplementing the law. The Muslim Law includes many rules of pre-Islamic customary law, which have been embodied in it by express or implied recognition. The ground-work of Mohammedan legal system, like that of any other legal system, is to be found in the customs and usages of the people among whom it grew and developed. Those customs and usages of the people of Arabia, which were not expressly repealed during the lifetime of the Prophet, are held to have been sanctioned by the Law-giver by his silence.
Muslim jurists stipulate four criteria for a custom to be considered legitimate:
REGULAR REPETITION:
The custom should be consistently and noticeably repeated.
UNIVERSAL APPLICABILITY:
It must be applicable to everyone and possess rationality.
CONSISTENCY WITH ISLAMIC TEXTS:
It should not contradict any implicit teachings of the Quran or the Sunnah.
TEMPORAL RELEVANCE:
Age is not a strict criterion; a custom does not necessarily have to be ancient to be considered valid.
2. JUDICIAL DECISIONS (PRECEDENT)-
These include the decisions of the Privy Council, the supreme Court, as well as of the High Courts of India. In deciding particular cases the judges enunciate what that law is. These decisions are regarded as decedents for future cases. A precedent is not merely an evidence of law but a source of it and the courts of law are bound to follow the precedents. Strictly speaking judicial decisions only declare the law as it is and are not a source of they undoubtedly supplement and modify the Law.
Judicial precedent are cases already decided by courts which aids judges to apply their decisions on coming related cases.
The principle of stare decisis, applies as judicial precedent.
The precedent refers to the fact that Lower Courts are bound to follow the procedural rules established by higher Courts in previous decisions.
1. LEGISLATION-
In India, Muslims are also governed by the various legislations passed either by the Parliament or by State Legislature.
The following are the instances of the legislation in India-
the Guardians and Wards Act, 1890, the Mussalman Wakf Validating Act, 1913, the Mussalman Wakf Validating Act, 1930, Wakf Act, 1954, the Child Marriage Restraint Act, 1929, the Shariat Act, 1937, and the Dissolution of Muslim Marriage Act, 1939, the Indian Contract Act, 1872, have considerably affected, supplemented and modified the Muslim Law. In 1986 an Act i.e., Muslim Woman (Protection of Rights on Divorce) Act, 1986 to provide separate law in respect of divorced Muslim women was enacted by the Indian Parliament.
2. JUSTICE, EQUITY AND GOOD CONSCIENCE-
Under Muslim Law principles of justice, equity and good conscience can also be regarded as one of the source. Abu Hanifa, the founder of the Hanafi sect of Sunnis, expounded the principle that the rule of law based on analogy could be set aside at the option of the Judge on a liberal construction or juristic preference to meet the requirements of a particular case These principles of Muslim Law are known as Istihsan or "juristic equity".
ISTIHSAN-
literally means approbation and may be translated as "liberal construction" or "juristic preference". This term was used by the great Jurist Abu Hanifa to express the liberty that he assumed of laying down the law, which in his discretion, the special circumstances required, rather than law which analogy indicated.
SOURCES OF LAW ACCORDING TO SHIAS-
The following are the sources of law according to Shias:
1. The Quran;
2. Ahadis; and
3. The Ijma.
Like the sunni the shia also hold the Quran as the first and foremost source of Muslim Law, the difference between them is due to the fact that they differ in its interpretations, the Shias hold only those Ahadis as authentic which came down from the Prophet or his family members and are very strict in this respect, and, therefore, the Shias have got very few Ahadis. In the absence of the first two sources of law the Shias take recourse to the Ijma and particularly when the Imam could not be consulted. Shias do not accept Qiyas as a valid source of law.
1. Which of the following is considered the primary source of Muslim law?
a. Ijma
b. Qiyas
c. The Quran
d. all of the above
Answer: d. all of the above
2. What does the term 'Sunna' refer to in Islamic jurisprudence?
a. Consensus of jurists
b. Analogical reasoning
c. Traditions and practices of Prophet Muhammad
d. Legislative enactments
Answer: c. Traditions and practices of Prophet Muhammad
3. Which source of Muslim law is based on the consensus of Islamic jurists?
a. Ijma
b. Qiyas
c. The Quran
d. Sunna
Answer: a. Ijma
4. What is 'Qiyas' in the context of Islamic law?
a. Customary practices
b. Analogical reasoning
c. Legislative enactments
d. Judicial precedents
Answer: b. Analogical reasoning
5. Which of the following is a secondary source of Muslim law in India?
a. The Quran
b. MSunna
c. Judicial decisions
d. Ijma
Answer: c. Judicial decisions
6. In Muslim law, what is the role of customary practices (Urf)?
a. They are the primary source of law.
b. They are considered valid as long as they do not contradict Islamic principles.
c. They are not recognized in Islamic jurisprudence.
d. They override the Quran and Sunna.
Answer: b. They are considered valid as long as they do not contradict Islamic principles.
7. Which legislation governs marriage, succession, and inheritance issues under Muslim personal law in India?
a. The Hindu Marriage Act, 1955
b. The Muslim Personal Law (Shariat) Application Act, 1937
c. The Special Marriage Act, 1954
d. The Indian Succession Act, 1925
Answer: b. The Muslim Personal Law (Shariat) Application Act, 1937
8. What is the significance of judicial precedents in Muslim law?
a. They have no role in Muslim law.
b. They are considered primary sources of law.
c. They help in interpreting and applying Muslim law in contemporary contexts.
d. They override the Quran and Sunna.
Answer: c. They help in interpreting and applying Muslim law in contemporary contexts.
9. The legal code 'Fatawa Alamgiri' was compiled during the reign of which Mughal Emperor?
a. Akbar
b. Shah Jahan
c. Aurangzeb
d. Babur
Answer: c. Aurangzeb
MARRIAGE [ NIKAH]
INTRODUCTION
Muslim marriage, also known as Nikah, is a sacred and legal contract between a man and a woman that is recognised by Islamic law. Nikah is a religious and social institution that aims to create a bond between two individuals that is based on mutual respect, love, and understanding. In Islam, the main goal of marriage is to have children (procreate) and give them a place to grow up where they can feel safe and cared for. People also believe that marriage can bring spiritual satisfaction and make a person closer to God.
MARRIAGE: -
Pre Islamic Position of marriage
Before the birth of Islam there were several traditions in Arab. These traditions were having several unethical processes like:-
I. Buying of girl from parents by paying a sum of money.
II. Temporary marriages.
III. Marriage with two real sisters simultaneously.
IV. Freeness of giving up and again accepting women
MARRIAGE DEFINED
It is quiet relevant to know whether the Muslim marriage is a sacrament like the Hindu marriage, for this let us get acquainted with some of the definitions of Muslim marriage.
Mahmood J-Marriage according to the Mahomedan law is not a sacrament but a civil contract.
Ameer Ali - Marriage is an organization for the protection of the society. This is made to protect the society from foulness and unchestity.
NATURE OF MUSLIM MARRIAGE: —
There is 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 text 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 instance—
THE ESSENTIALS OF A CIVIL CONTRACT ARE:
Proposal
Acceptance
Consideration
Free Consent
Lawful Object
Competency of The Parties
SIMILARLY, ESSENTIALS OF MUSLIM MARRIAGE ARE:
Ijab (Proposal)
Qubool (Acceptance)
Dower (Consideration)
Free Consent
Competency Of the Parties
Comparing both it seems the same conditions for both, thus we can say that marriage under Muslim is a civil contract.
The object of civil contract:
1. Legalizing the sexual intercourse
2. Procreation of children
Some jurists have opinion that Muslim marriage as Sacrament and not a contract the reasons are following:
No consideration, and dower is not a consideration it is a mark of respect to the woman. And without consideration a contract would be void.
Two Muslims are required for a valid marriage but it’s not an essential for a valid contract.
There are contingent contracts but there is no provision for contingent marriage.
Age of marriage in Muslim law is generally 15 or age of puberty but for a valid contract the age is of 18 years.
Islam named Muslim marriage as Ibadah it is half of deen.
ESSENTIALS OF MARRIAGE
The essentials of valid Muslim marriage include free consent from both parties,
competency of individuals (major, sound mind,
and Muslims), an offer (proposal or ‘ijab’) and acceptance (‘qubool’) made during the same meeting (one meeting),
the presence of competent witnesses.
Dower (‘mahr’) terms must be agreed upon, and the marriage should not violate any prohibitions, such as those related to close blood relations, affinity, or fosterage etc.
ESSENTIALS OR FORMAL REQUIREMENTS OF MARRIAGE —
Though in the Muslim communities certain social functions and ceremonial rites are performed at the time of marriage, such functions or rites are not legally necessary.
The solemnization of marriage requires adherence to certain forms and formulas. They are called the essentials of valid marriage. If any of these requirements is not fulfilled the marriage becomes either void or irregular, as the case may be.
These essentials are that there should be a proposal made by or on behalf of one of the parties to the marriage and an acceptance of the proposal by or on behalf of the other, in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Muslims. The proposal and acceptance must both be expressed at one meeting. A proposal made at one meeting and an acceptance made at another, do not constitute a valid marriage. Neither writing nor any religious ceremony is essential. Thus, in short, the essentials are as follows
1. Proposal and acceptance.
2. Competent parties.
3. No legal disability
1. PROPOSAL AND ACCEPTANCE —
Marriage like any other contract is constituted by ijab-o-qabool that is by declaration and acceptance. One party to the marriage must make an offer (ijab) to the other party. The marriage becomes complete only when the other party has accepted that offer.
According to Muslim law it is absolutely necessary that the man or someone on his behalf and the woman or someone on her behalf should agree to the marriage at one meeting and the agreement should be witnessed by two adult witnesses.
As woman is in pardah, it is customary to send a relation of the woman to her inside the house accompanied by two witnesses. The relation asks the girl within the hearing of the witnesses whether she authorizes him to agree to the marriage on her behalf for the dower money offered by the husband. He explains to her the detail of the dower proposed. When the girl says yes or signifies her consent by some other method, the three persons come out. The future husband and those three persons are then placed before the Qazi. Qazi asks the boy whether he offers to marry the girl on payment of the specified dower. He says yes then the relation, who had gone inside, tells the Qazi that he is the agent of the girl. Qazi asks him whether he agrees to the marriage on payment of the specified dower. The relation says ‘Yes’. The witnesses are present there so that if the Qazi has any doubt he should question them. When both the sides have said ‘Yes’ Qazi reads the same portion of the Quran and in this way marriage is complete.
PRESENCE —
The words conveying proposal and acceptance must be uttered in each other’s presence or in the presence of their agents, who are called Vakils. In case the words are uttered in each other’s presence, the parties should hear the words. The significance of this requirement, according to Wilson, lies in the fact that the contract should be understood by both the parties.
ONE MEETING—
The third requirement of a valid marriage is that the transaction must be completed at one meeting. A proposal made at one meeting and an acceptance at another meeting do not constitute a valid marriage.
RECIPROCITY—
There must be reciprocity between offer and acceptance. The acceptance must not be conditional. Where A offers to many B on Rs. 2000/- as dower and B accepts the proposal on condition that Rs. 4000/- should be paid to her as dower, there is no reciprocity between offer and acceptance and therefore there is no marriage.
WITNESSES—
Under Sunni Law, the proposal and acceptance must be made in the presence of two males or one male and two female witnesses who are sane, adult and Muslims. Absence of witnesses does not render marriage void but irregular.
Under Shia law,
Witnesses are not necessary at the time of marriage.
They are required at the time of dissolution of marriage.
When the guardian of a minor contracts the marriage on his or her behalf, such marriage also requires two adult witnesses.
FREE WILL AND CONSENT —
The parties contracting a marriage must be acting under their free will and consent. The consent should be without fear or undue influence or fraud. In the case of a boy or girl who has not attained the age of puberty, the marriage is not valid unless the legal guardian consented to it, The ‘consent may be express or implied’—Smiling or laughter or remaining silent may be construed to imply consent, Wilson says “as to what amounts to coercion or compulsion depends upon the circumstances of each case”. Free consent in case of adult persons is not only essential for a valid marriage but is absolutely necessary. Consent is an essential factor in a marriage and the father’s consent is no substitute for the girl’s consent, where marriage of a Shafei girl, who had attained puberty was performed by her father against her consent, the Court held that the marriage was void
2. COMPETENT PARTIES—
I. AGE OF MARRIAGE -
The parties to a marriage must have the capacity of entering into a contract. In other words, they must be competent to marry. Muslim who is of sound mind and who has attained puberty may enter into a contract of marriage.
The parties must be able to understand the nature of their Act. A marriage contract by a majnoon (lunatic) is void except when it is contracted in lucid intervals. However, lunatics can be contracted in marriage by their respective guardians.
II. PUBERTY —
Puberty means the age at which a person becomes capable of performing sexual intercourse and procreating children. Puberty and majority are in the Muslim law one and the same.
The presumption is that a person attains majority at the age of 15.
In the case of a Shia female, the age of puberty begins with menstruation.
III. MARRIAGE OF MINORS AND GUARDIANSHIP IN MARRIAGE —
It should be noted that marriage of a minor without the consent of the guardian is invalid unless it is ratified after the attainment of majority. A boy or girl who has attained puberty is at liberty to marry any one he or she likes and the guardian has no right to interfere if the match be equal.
GUARDIANSHIP IN MARRIAGE (JABR) —
The right to contract to give a minor in marriage belongs successively to the following persons:
1. father,
2. paternal grandfather how highs ever,
3. brother and other male relations on the father’s side in the order of inheritance enumerated in the Table of Residuary,
4. the mother,
5. the maternal uncle or aunt and other maternal relations without the prohibited degrees; and]
6. The State.
Under Shia Law, only the father and the paternal grandfather how highsoever are recognised as guardians for contracting marriage of minor.
MARRIAGE CONTRACTED BY AN UNAUTHORISED PERSON (AKD FAZULI) —
This is known as Akd Fazuli and is invalid.
Where the marriage of minor was contracted by a remoter guardian and the nearer one is present and available and such nearer guardian does not give consent to the marriage, the marriage is void.
But if it is ratified by the parties after attaining the age of puberty, it is valid
IV. OPTION OF PUBERTY (KHYAR-UL-BULUGH) —
ln certain circumstances, a minor contracted in marriage by the guardian for marriage has the right of repudiating or ratifying the marriage contract on attaining puberty, this right of the minor is known as the option of puberty. (Khyar-uI-Bulugh).
Thus, “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 puberty.”
Old Law on option of puberty —ln old law, if the marriage of minor had been contracted by his/her father or grandfather he/she had no right to repudiate the marriage after attaining the age of puberty. This disability has been removed by Dissolution of Muslim Marriage Act, 1939.
In Abdul Karim v. Amina Bai the Bombay High Court held that the option of repudiation given to the wife is based on principles repeatedly emphasized in the Quran.
A Muslim wife must exercise the option of puberty immediately on attaining puberty and the right is lost if she permits the marriage to be consummated thereafter.
If she is living with her husband when she arrives at puberty, her option is not determined unless she assents explicitly or by implication to the marriage; nor is the mere consummation sufficient”.
There must be consummation with wife’s consent.
For the sake of convenience we may divide a, mans or woman’s life into three stages:
1. Saghir, is the first stage when the boy or the girl is below seven years of age. In this stage, the marriage is void ab initio. The question of his or her consent or his or her option does not arise. In no circumstances can a marriage in this stage be recognised.
2. Sariri, is the second stage when his or her age is above seven years but below 15 years. In the stage though he or she can be married, his or her consent for marriage is not recognised and has no validity. In this stage, he or she can be validly married by his or her guardian for marriage. He or she cannot marry on his or her own free consent.
3.Bulugh, is the third stage when he or she is above 15 years of age and becomes major. It is now when he or she can enter into contract for marriage on his or her own free consent.
3. NO LEGAL DISABILITY —
Legal disability means the existence of certain circumstances under which marriage is not permitted. These prohibitions have been classified into four classes as follows:
1. Absolute incapacity or prohibition.
2. Relative incapacity or prohibition.
3. Prohibitory incapacity or prohibition.
4. Directory incapacity or prohibition.
1. ABSOLUTE INCAPACITY—
Absolute incapacity to marry arises from —
a. Consanguinity (Qurabat),
b. affinity, or
c. fosterage
A. CONSANGUINITY (QURABAT) —
Consanguinity means blood relationship and bars a male from marrying—
I. his mother or grandmother how high so ever.
II. his daughter or grand-daughter how low so ever,
III. his sister whether full, consanguine or uterine,
IV. his niece or great-niece how low so ever,
V. his aunt (father’s sister, mother’s sister) or great aunt, how high so ever whether paternal or maternal.
(Where two persons hive the common mother and Father, they are called full brothers or sisters. Where mother is common, but fathers are different, these two persons are called uterine brothers or sisters. Where mothers are different but father is common, such two persons are called consanguine brothers or sisters.)
A marriage with a woman prohibited by reason of consanguinity is void.
Issues from such marriage are illegitimate.
B. AFFINITY (MUSHAARAT) —
A man is prohibited from marrying
1. his wife’s mother or grand-mother how high so ever;
2. his wife’s daughter or grand-daughter how low so ever (if the marriage with the wife was consummated);
3. wife of his father or paternal grand-father how high so ever;
4. wife of his son or son’s son or daughter’s son how low so ever
A marriage with a woman prohibited by reason of affinity is void.
In case (2), marriage with the wife’s daughter or grand-daughter is prohibited only if the marriage with the wife was consummated.
C. FOSTERAGE (RIZA) —
When a child under the age of two years has been suckled by a woman other than its own mother, the woman becomes the foster-mother of the child.
A man may not, for instance, marry his foster-mother or her daughter, or his foster-sister.
EXCEPTIONS —
Under Sunni Law, there are a few exceptions to the general rule of prohibition on the ground of fosterage and a valid marriage may be contracted with
1. sister’s foster-mother, or
2. foster-sister’s mother or
3. foster-son’s sister, or
4. foster-brother’s sister.
The Shia jurists place fosterage and consanguinity on the same footing and refuse to recognise the exception permitted by the Sunnis.
The abovementioned prohibitions on account of consanguinity’, affinity’ or ‘fosterage’ are absolute and the marriages contracted in contravention of these rules are void.
2. RELATIVE INCAPACITY -
Incapacity springs from cases which render the marriage invalid only so long as the cause which creates the bar exists. The moment it is removed, the incapacity ends and the marriage becomes valid and binding. Thus, it differs from the case of absolute incapacity where the marriage is void ab initio and can never become valid. For instance, a man is prohibited from marrying more than four wives at a time. His marriage with the fifth will be invalid until he divorces one of them. The following are the cases of relative incapacity.
a. Unlawful conjunction
b. Polygamy, or marrying a fifth wife,
c. Absence of proper witnesses,
d. Differences of religion,
e. Woman undergoing iddat.
A. UNLAWFUL CONJUNCTION—
It means contemporaneously marrying two women so related to each other by consanguinity, affinity or fosterage. That they could not have lawfully intermarried with each other if they had been of different sexes.
Thus, a Muslim cannot marry two sisters, or an aunt and her niece. The reason behind this prohibition is to avoid confusion of kindred, i.e., dual relationship.
A Muslim therefore, cannot contract a valid marriage with his wife’s sister till his first wife is living. This bar may, however, be removed by divorcing his first wife or when she is dead.
The bar or unlawful conjunction renders a marriage irregular not void.
Under the Shia law,
a Muslim may marry his wife’s aunt,
but he cannot marry his wife’s niece without her permission.
Marriage prohibited by reason of unlawful conjunction is void under Shia Law.
B. POLYGAMY OR MARRYING A FIFTH WIFE—
It means plurality of wives, i.e. marrying a fifth wife.
It is unlawful for a Mohammedan to have more wives than four.
Marriage with the fifth wife is irregular but this irregularity may be removed by divorcing one of them.
Under Shia Law, marriage with the fifth wife is not merely irregular, it is void.
In ancient times before the promulgation of Islam, a man was not restricted from marrying any number of wives, but the Prophet limited the number to four and represented monogamy as an ideal form of marriage.
as is evident from the text of the Holy Quran. “Marry such women as seem good to you, two three or four; but if you fear that you cannot do justice (between them) then marry only one, this is better so that you may deviate from the right path” (Quran IV: 4).
A Muslim woman cannot carry more than one husband. If a Muslim woman marries a second husband, she is liable for bigamy under Section 494, Indian Penal Code and the issues of such a marriage are illegitimate.
C. ABSENCE OF PROPER WITNESSES—
It is essential amongst the Sunnis that at least two male witnesses or one male and two female witnesses must be present to testify that the contract was properly entered into between the parties.
The Hanafi Jurists insisted upon the presence of witnesses because in connection with the testimony of marriage, they had in view the authentication of its factum. Absence would affect its contractual completeness. Such marriages have, therefore, been held invalid but not void, as the condition of testimony is not so essential that it cannot be dispensed with
The witnesses must be of sound mind, adult and Muslim.
In Shia Law, a marriage contracted by the spouses themselves or their guardians in private are held valid. Thus, at the time of contract of marriage the presence of witnesses is not necessary, but at the time of dissolution of marriage the presence of witnesses is mandatory.
D. DIFFERENCES OF RELIGION—
A Sunni male can marry a Muslim female (of any sect) or a Kitabia. Marriage with the Kitabia, i.e. a woman who believes in a revealed religion possessing a Divine Book viz Islam, Christianity and Judaism is valid under Sunni Law. But he cannot marry an idolatress or fire-worshipper.
A marriage, however, with an idolatress or a fire worshipper is merely irregular in Sunni Law, but void in Shia Law.
A Muslim woman cannot marry any man who is not a Muslim, whether he is Kitabi (i.e., a man believing in a revealed religion possessing a Divine Book) or not Kitabi.
Under Shia Law, --
no Muslim, whether male or female can marry a non- Muslim in the Nikah form.
Marriage of a Shia male with a non-Muslim female or a Shia female with a non-Muslim mate in the Nikah form is totally void.
However, Shia male can contract a Mutta marriage with a kitabia (including a fire-worshipper).
Muslims belonging to different sects may intermarry. Thus, the marriage of a Sunni male with a Shia female is valid.
E. WOMAN UNDERGOING IDDAT —
a period during which a woman is prohibited from marrying again after the dissolution of her first marriage. woman, whose marriage has been dissolved by divorce or death of her husband
Under Sunni Law marriage with a woman undergoing iddat is irregular and not void. But under Shia Law marriage with a woman who is undergoing, Iddat is void.
The object of Iddat is to ascertain the pregnancy of the wife so as to avoid confusion of parentage.
DURATION OF IDDAT
I. IDDAT OF WIDOWHOOD —
When a person dies leaving a widow, she is prohibited from marrying before the expiration of 4 months and 10 days.
II. IDDAT OF PREGNANT WOMAN —
If the widow is pregnant at the death of her husband, the Iddat will not terminate until delivery or miscarriage. If delivery or its miscarriage comes before 4 months and 10 days the remaining period will have to be observed.
III. IDDAT OF TALAQ —
The period of Iddat in case of Talaq is three courses, if the woman is subject to menstruation; otherwise three lunar months. If the woman is pregnant at the time of divorce, the Iddat will not terminate till delivery.
IV. IDDAT WHEN MARRIAGE IS IRREGULAR—
If the marriage is irregular and parties have separated before actual consummation, there is no iddat. If the consummation has taken place the wife is bound to observe iddat.
V. If the marriage is not consummated, iddat has to be observed in the case of death, but not in the case of divorce.
VI. The period of iddat begins from the date of the divorce or death of the husband and not from the date on which the woman gets the information of the divorce or of the death of the husband.
VII. If she gets the information after the expiry of the specified term she need not observe the required iddat.
VIII. Where a husband had divorced his wife and has died before the completion of the iddat, the woman is required to undergo a fresh iddat for four months and ten days from the date of the husband’s death.
RIGHTS AND DUTIES WHEN OBSERVING IDDAT —
1. If the wife observes iddat, the husband is bound to maintain the wife during the period of iddat.
2. The wife cannot marry another person until completion of her iddat, and if the husband has four wives including the divorced one, he cannot marry a fifth one until the completion of iddat of the divorced wife.
3. The wife becomes entitled to a deferred dower, and if the prompt dower has not been paid, it becomes immediately payable.
4. In the event of death of either party before the expiration of the period of iddat the other is entitled to inherit from him or her in the capacity of wife or husband, as the case may be, if the divorce has not become irrevocable before the death of the deceased.
5. If the divorce is pronounced in death-illness and the husband dies before completion of wife’s iddat the wife is entitled to inherit from him even if the divorce has become irrevocable prior to his death, unless the divorce has been effected with her consent.
6. Rights and Duties when observing Iddat —
7. If the wife observes iddat, the husband is bound to maintain the wife during the period of iddat.
3. PROHIBITIVE INCAPACITY—
It arises in the following cases:
a. Polyandry, and
b. A Muslim woman marrying a non-Muslim.
A. POLYANDRY —
Polyandry means the fact of having more than one husband. Polyandry is forbidden in the Muslim system and a married woman cannot marry second time so long as the first marriage subsists. A Muslim woman marrying in contravention of this rule shall be liable to be punished under Section 494, I.P.C., and the issues from such marriage will be illegitimate.
B. MUSLIM WOMAN MARRYING A NON-MUSLIM —
A marriage of Muslim female with a non Muslim made whether he be a Christian or a Jew or an Idolater or a fire worshipper is irregular under Sunni Law and void under Shia Law.
KINDS OF MARRIAGES ACCORDING TO VALIDITY —
On the basis of the validity a marriage may be of three kinds under Sunni Law, namely:
1. valid (Sahih);
2. void (Batil);
3. Irregular or invalid (Fasid) --- (only in Sunny) ----- (in Shia these are void)
1. VALID (SAHIH) MARRIAGE—
A marriage which is neither void nor invalid is valid. In other words a marriage which conforms in all respects with the legal requirements is a valid marriage.
A marriage to be valid must satisfy the following requirements:
1. There must have been a proposal by one party and its acceptance by the other.
2. The consent of parties is free.
3. Proposal and acceptance must have taken place at one meeting and before two witnesses. They must be major and of sound mind. Under Shia law no witness is necessary.
4. The parties must have capacity to contract marriage i.e. they should be,
a. of Sound mind,
b. major,
c. capable to give free consent. If they are minor or lunatic, it should be done through their guardians
5. There should be no impediment to marriage whether absolute on the ground of consanguinity, affinity, fosterage and polyandry or temporary, viz relative, prohibitive or directory.
2. VOID (BATIL) MARRIAGE—
A marriage which has no legal results is called a void marriage. A marriage contracted by parties suffering from absolute incapacity, i.e. prohibition on the grounds of consanguinity, affinity or foster age, is void. Similarly marriage with a woman who is wife of another, or remarriage with a divorced wife, when the legal bar still exists will be void. They are of no legal effect and issues of a void marriage are illegitimate.
SHIA LAW—
Under Shia law, following marriages are void:—
1. marriage in violation of absolute incapacity,
2. marriage with the wife of another person, whose marriage is still subsisting,
3. remarriage with one’s own divorced wife, when there is a legal bar,
4. marriage prohibited by reason of unlawful conjunction,
5, marriage with the fifth wife,
6. marriage during pilgrimage,
7. marriage with any non-Muslim, and
8. marriage with a woman undergoing iddat
3. IRREGULAR OR INVALID (FASID) MARRIAGE —
(only in Sunny)
A marriage contracted by parties suffering from relative prohibitory or directory incapacity is irregular both according to Baillie and Ameer Ali.
Some grounds which make the marriage irregular (fasid) are as under:
1. marriages contracted without witnesses;
2. marriage with a fifth wife;
3. marriage with a woman undergoing iddat;
4. marriage with a non-scriptural (i.e. idolatress or fire worshipper) woman;
5. marriage by an un-authorised person
6. marriage contrary to the rules of unlawful conjunction.
According to Shia Law marriage may only be either:
1. valid (sahih) or
2. void (fasid).
There is nothing like invalid marriage under Shia law and hence marriages that are not valid are void. Those marriages which are irregular under Sunni law are void under Shia law. However, under Shia law, marriage contracted without witnesses is valid, it is not void.
CONSEQUENCES OF A VOID, IRREGULAR AND VALID MARRIAGE
VOID MARRIAGE —
A void marriage is of no legal effect either before or after consummation. It does not create any rights or obligations between the parties. The wife is not entitled to maintenance. One cannot inherit from the other but the woman is entitled to dower if the void marriage has been consummated. The offspring’s of a void marriage are illegitimate. The parties can separate from each other at any time without divorce and may contract another marriage lawfully.
IRREGULAR MARRIAGE —
The consequences of an irregular or invalid marriage may be studied from two different angles i.e.
1. before consummation, and
2. after consummation
1. BEFORE CONSUMMATION —
Like a void marriage, it has no legal effect. If the marriage has not been consummated, the wife is not entitled to dower.
Spouses may separate from each other without divorce. Neither divorce, nor the intervention of a Court is necessary.
Wife is not bound to observe iddat.
2. AFTER CONSUMMATION —
Wife has to observe iddat, but the duration of iddat both on divorce and death is three courses.
She is entitled to get specified or proper dower, whichever is less.
She is not entitled to maintenance during iddat
The children of such a marriage are legitimate But an irregular marriage, though consummated does not create mutual rights of in heritance between husband and wife.
Such marriage may be terminated by a single declaration on either side. The wife is bound to observe iddat of divorce but not the iddat of death.
The parties must be separated by the courts.
VALID MARRIAGE —
A marriage contract which is valid (Sahih) creates certain rights and duties between the wife and the husband.
RIGHTS AND DUTIES OF HUSBAND AND WIFE UNDER A VALID MARRIAGE -
These may for the sake of convenience, be studied under the following three heads
a. Mutual Rights and Obligations
b. Rights of wife and duties of the husband
c. Rights of a husband and the duties of wife.
A. MUTUAL RIGHTS AND OBLIGATIONS—
A valid marriage contract legalises sexual intercourse and the children born of it are legitimate. Husband and wife get a right of mutual inheritance and prohibited degree of relationship are created, so that they cannot marry within such degree. Thus the parties are entitled to the following rights and duties:-
I. the parties become entitled to inherit one another;
II. sexual intercourse is legalised;
III. prohibited degrees of relationships are created between the parties;
IV. lawful conditions between them become binding on them.
B. RIGHTS OF WIFE AND DUTIES OF THE HUSBAND —
The wife is entitled to receive maintenance from her husband.
She is entitled to dower as a necessary consequence of marriage even if no stipulation for dower has been made.
She has a right to live with her husband and to have an apartment for her exclusive use.
She has a right to visit and be visited by her blood relations within prohibited degrees.
C. RIGHTS OF A HUSBAND AND THE DUTIES OF WIFE—
She is bound to observe strict conjugal fidelity.
She is bound to allow her husband conjugal union with her, with due regard to her own health, decency and place. The husband has the right to enjoy all the benefits of marital life.
She is bound to obey his legal commands.
ENFORCEMENT OF LAWFUL CONDITIONS OF MARRIAGE
1. LEGAL -
Legal conditions are valid and effective.
2. ILLEGAL-
Illegal conditions are such as to affect the validity of the contract and render the contract voidable, unless consummation takes place, and if consummation takes place the conditions alone become void while the marriage remains valid.
LEGAL CONDITIONS
1. That the husband shall not remove the wife from the conjugal domicile without her consent.
2. That the parties shall live in a particular place.
3. That an amount is fixed as maintenance.
4. That her second husband shall maintain the children by her former husband.
5. That he shall not prevent her from visiting or receiving the visits of her relations.
6. That the marriage shall not be consummated up to a certain period.
7. That the husband would earn his livelihood and maintain his wife and move to live in a house approved by her parents and that on the failure of the husband to keep all the conditions entered into by him the wife is entitled to divorce her husband
8. A stipulation for desertion of her husband’s residence in case of ill treatment.
9. That the husband will not marry another wife.
10. That a certain portion of dower shall be paid at once or within certain period while the remainder shall be paid on dissolution of the marriage.
ILLEGAL CONDITIONS
1. A condition that the wife will have liberty to live permanently with her parents or leave her husband’s residence without any cause.
2. A stipulation binding the husband that he will live in his wife house.
3. An agreement for future separation between the parties without a cause.
4. A stipulation negativing the husband’s freedom for pronouncing divorce.
5. A condition limiting the duration of the marriage to specified time under the Sunni Law.
6. A condition that the wife cannot be prevented by the husband from frequenting immoral places.
7. That the husband shall prevent her from visiting or receiving visits of her relations.
8. A condition that –
I. the woman should forgo her right of maintenance,
II. she should not be entitled to any dower, or that
III. they would have no mutual rights of inheritance.
PRESUMPTION OF MARRIAGE
The question of marriage is one of fact, and has to be proved by direct evidence, e.g., calling witnesses present at the time of marriage or producing the Nikahnama (Marriage deed) signed by the parties. Thus the direct evidence is the best evidence. Sometimes direct evidence is not available as a Muslim marriage often takes place without any ceremony. In the case of absence of direct evidence, the marriage may be inferred from the circumstances. This is called presumption of marriage.
A marriage is presumed from the following circumstances and conduct—
1. A prolonged and continuous cohabitation as husband and wife. Mere cohabitation will not be sufficient. It must fulfil the following conditions—
The cohabitation must be a prolonged one.
The parties must have been cohabiting as husband and wife
They should not come within prohibited degrees.
The woman should not be prostitute or a concubine.
The woman must have been treated as his wife and she has been recognised as such with intention and knowledge of giving her the status of wife.
From the recognition of the relation of husband and wife, by friends, neighbors and relations.
From the acknowledgment by the husband of the wife, provided the relation of husband and wife be not impossible between them.
From the acknowledgment by the man of the children resulting from such union with woman as legitimate.
In Gazanfar Ali v. Kaniz Fatma, Their Lordships of the Privy Council held that where a woman is a prostitute, cohabitation, however, prolonged can never give rise to the presumption of marriage.
RESTITUTION OF CONJUGAL RIGHTS
When either the husband or the wife has, without lawful cause, withdrawn himself or herself from the society of the other, the aggrieved party may bring a suit for the restitution of conjugal rights.
The concept of matrimonial remedies is an indigenous part of Muslim, Christian, Jews and Parsi religions. A marriage under Muslim Law is essentially a contract and a stilt for restitution of conjugal rights would be a suit for the specific performance of the terms of the marriage contract.
In India, the courts have recognised the right of restitution of conjugal rights. In Moonshree Buzloor Raheem v. Shumsoonissa begum’ it was said that where a wife without lawful cause ceases to cohabit with her husband, the husband may sue the wife for restitution of conjugal rights.
When the suit is brought by the husband, the wife can contest it or the following grounds:—
1. VALIDITY OF THE MARRIAGE
Valid marriage is a prerequisite for the suit of conjugal restitution. She may plead that the marriage is not valid and this denial of the factum of Nikah is a good defence.
2. LEGAL CRUELTY
The Court leans in favour of the wife and the law recognises circumstances which would justify her in refusing to live with him. Hence, in a husband’s suit for restitution, the wife may take the plea of legal cruelty by her husband.
A husband’s second marriage may in certain circumstances, involve cruelty to first wife, justifying her refusal to live with him.
In Itwari v. Asghari, it was laid down that in a suit for restitution of conjugal rights by a Muslim husband against the first wife after he has taken a second, if the Court feels that the circumstances are such as to make it inequitable for the Court to compel the first wife to live with him, it will refuse such relief. Muslim Law permits polygamy but does not encourage it and the Quranic injunctions show that in practice perfect equality of treatment on the part of the husband is, for all practical purposes, impossible of achievement. Hence, Muslim Law, as enforced in India has considered polygamy as an Institution to be tolerated but not encouraged. This strong judgment shows clearly that since the passing of Dissolution of Muslims Marriage Act, 1939, the courts have learned heavily in favour of the wife in all such cases and restitution cannot be had by the husband unless the wife is clearly in the wrong.
3. FALSE CHARGE OF ADULTERY
A false charge of adultery by a husband against his wife is a valid plea of defence for the wife in a restitution suit by her husband.
But if the wife is actually living in adultery, and the charge is proved to be true, it will not be a proper defence, and the husband is entitled to the decree sought for.
4. NON-PAYMENT OF PROMPT DOWER
The wife may take the defence that her refusal of the society of her husband is due to the fact that she has not been paid her prompt dower on demand.
MUTA MARRIAGE
MEANING AND NATURE
Muta marriage is a kind of ‘temporary marriage but fixed period after specifying dower recognized in the Shia School of Muslim Law and conquered as void under the Sunni Law. The term Muta implies ‘enjoyment’ or ‘use’.
in its legal context it may be rendered as a marriage for pleasure.
It is not recognized in Sunni Law because according to that school the marriage contract should not be restricted in its duration and the words used at the time of proposal and acceptance must denote an immediate and permanent union. Thus under Sunni Law, a marriage specifically declared for a limited period is void. Hence Muta marriage is void under the Sunni Law but valid under Shia Law.
A male Shia Muslim may contract muta marriage with a Muslim, Christian, Jewish or a fire-worshipping woman but not with the follower of any other religion. Muta marriage with a Hindu woman is void.
A female Shia is not free to contract muta with a non-Muslim.
The rule of limiting the number of wives to four as in regular marriages, does not apply to Muta marriage
ORIGIN OF MUTA MARRIAGE
Amongst the pre-Islamic Arabs, certain woman entertained men in their own tents; neither party acquiring any right over the other. The woman could dismiss the man at any time she chose, there being on either side entire freedom to terminate the relation at any time. The children belonged to her, it was in fact prostitution and nothing else. The practice was found convenient by the pre-Islamic Arabs particularly during long travels. Muta is modification of this though it differs from this pre-Islamic institution in two respects
1. The period or time is to be fixed while contracting muta marriage.
2. Mahr must be fixed in the contract or a muta.
ESSENTIALS OF MUTA MARRIAGE
1. The period for which the union is to last should be fixed at the time when the muta is contracted.
If no period is mentioned, the contract would be treated as permanent marriage.
The specified period may be a day, a month or a year or a term of years.
Where two persons having marriage under the muta form for a fixed period continue to live as husband and wife beyond the expiry of that period or till the death of the husband, the presumption in the absence of evidence to the contrary wilt be that marriage had been extended.
There is no minimum time for duration of muta marriage.
Where cohabitation continues beyond the specified period for which muta marriage was contracted, it has been held in Shoharat Singh v. jafri Bibi, that in absence of evidence the term of muta may be treated as extended for the period over which cohabitation continues and, the issues born after the term of muta are legitimate and entitled to inherit from both the parents.
2. SOME DOWER SHOULD BE SPECIFIED IN THE CONTRACT.
When the term and the dower have been fixed, the contract is valid.
If the term is fixed, but the dower is not specified, the contract is void.
But if the dower is specified and the term is not fixed the contract, though void at muta, may operate as a permanent marriage.
3. THERE MUST BE A PROPER CONTRACT, DECLARATION AND ACCEPTANCE
The parties must have attained the age of puberty and must be of sound mind.
The consent of both the parties must be free.
There must not exist any prohibited degree of relationship between the parties.
LEGAL INCIDENTS —
1. The following are the legal incidents of muta marriage
2. No mutual rights of inheritance between parties are created. But if there is an express stipulation that there should be mutual or unilateral right of inheritance, then this agreement will be enforced and effective.
3. The children born out of such marriages are legitimate and have the right of inheritance from both the parents.
4. The marriage is dissolved ipso facto on the expiry of the fixed period or by mutual consent or by death of the either party.
5. Divorce is not recognised in muta marriage. The husband may, if he likes, make a gift of the unexpired period to the wife which is called Hiba-i-muddat. If the wife leaves the husband before the term, he may deduct a proportionate part of the dower.
6. The wife is not entitled to maintenance under Shia Law because according to the Shara-i-at-Islam the name of the wife does not in reality apply to a woman contracted in Muta, but she may claim maintenance under Section 125 of the Criminal Procedure Code.
7. There is no limit to the number of wives.
8. The husband is not bound to provide residence to the muta wife.
1. Which of the following is an essential requirement for a valid Nikah under Muslim law?
a. Registration of marriage
b. Physical consummation
c. Proposal (Ijab) and Acceptance (Qubul) in one sitting
d. Performance of ceremony in a mosque
Correct Answer: c
2. Under Muslim law, a valid marriage (Nikah) results in:
a. Legitimacy of children
b. Mutual inheritance rights
c. Sexual relations become lawful
d. All of the above
Correct Answer: d
3. Who can act as a Wali (guardian) in the case of a minor girl's marriage under Sunni Muslim law?
a. Elder brother
b. Father only
c. Father, then grandfather, then brother, in order of proximity
d. Any male relative above 18
Correct Answer: c
4. Muta marriage is recognized under:
a. Sunni law
b. Hanafi law
c. Shia law
d. None of the above
Correct Answer: c
5. In Muslim law, Mehr (dower) is:
a. A voluntary gift
b. Optional depending on husband's financial status
c. A mandatory consideration of marriage
d. A post-marriage formality
Correct Answer: c
6. The minimum age of marriage under the Child Marriage Restraint Act, 1929 as amended is:
a. 16 for females and 18 for males
b. 18 for both male and female
c. 18 for females and 21 for males
d. No minimum age under Muslim law
Correct Answer: c
7. If a Muslim woman has not attained puberty, her marriage:
a. Is void
b. Is voidable at the option of the wife on attaining puberty
c. Is valid without any condition
d. Cannot be contracted under Muslim law
Correct Answer: b
8. In which landmark case did the Supreme Court of India discuss the concept of Mehr as a debt?
a. Shah Bano case
b. Shamim Ara v. State of U.P.
c. Abdul Kadir v. Salima
d. Hamidullah v. Faizunnisa
Correct Answer: c
9. Marriage is prohibited under Muslim law between persons related by:
a. Blood (consanguinity)
b. Affinity
c. Fosterage (Riza)
d. All of the above
Correct Answer: d
10. Which of the following relations fall under the prohibited degree due to consanguinity?
a. Father's sister (paternal aunt)
b. Wife's sister
c. Foster mother
d. Stepmother
Correct Answer: a
11. Under Muslim law, marriage with whom is prohibited due to affinity?
a. Sister of foster-mother
b. Mother-in-law
c. Cousin
d. Daughter of foster-mother
Correct Answer: B
12. Which relationship causes a prohibition of marriage under fosterage (Riza)?
a. Marriage with the daughter of a woman who suckled the man
b. Marriage with a cousin
c. Marriage with a wife's niece
d. Marriage with a stepdaughter
Correct Answer: a
13. Marriage with a woman who breastfed the man during infancy is:
a. Valid
b. Voidable
c. Void (Batil)
d. Irregular (Fasid)
Correct Answer: c
14. Marriage with a stepmother under Muslim law is:
a. Valid if both are consenting adults
b. Voidable at the option of father
c. Void ab initio (Batil)
d. Valid with court permission
Correct Answer: c
15. Under Muslim law, the prohibition based on consanguinity includes:
a. Aunt, niece, sister, mother
b. Wife's sister, wife's mother
c. Stepdaughter, stepmother
d. All female in-laws
Correct Answer: a
16. Which of the following statements is true regarding prohibited degrees in Muslim law?
a. A man can marry his foster-sister if both are adults
b. A man can marry his wife's sister during the subsistence of the first marriage
c. A man can marry his cousin
d. A man can marry his stepmother
Correct Answer: C
17. Under Shia law what kind of marriages are recognized?
a. Batil (void)
b. Fasid (irregular)
c. sahih (valid)
d. only (a) and (c)
Correct Answer: d
