Meaning of Muta Marriage

The meaning of ‘Muta’ is enjoyment. Muta Marriage is a marriage for a fixed period of time that is only for sexual pleasure. Muslim Law in the Shia sect (Athna Ashria school) recognises the concept of Muta Marriage.

Conditions and Essentials of Muta Marriage

1. The parties must have attained the age of puberty, which is above 15 years of age.

2. There is no restriction on the number of Muta wives.

3. There must be free consent by the parties.

4. The time period and Dower must be mentioned in the nikah nama.

5. The cohabitation between the parties is lawful.

6. The children born out of such marriage are legitimate and have the right to inherit the properties of both parents.

7. The husband and wife don’t have any mutual right of inheritance.

8. Muta wife is not entitled to claim maintenance under personal law, but she can claim under Section 125 of CrPC.

9. The wife is entitled to get full Dower if the husband cohabits, but if the husband doesn’t cohabit, then the wife is entitled to half dower.

10. Divorce is not recognised under Muta Marriage.

Termination of Muta Marriage

Muta Marriage can be terminated by one of the following reasons.

1. Expiry of the time period.
2. Death of either party.
3. Hiba I Muddat, that is, husband gifts the unexpired term of the marriage.

Note: The parties must not be under a prohibited degree of relationship.

Read Next:
1. What Is Bigamy Under Indian Laws and What Happens When a Hindu Converts to Islam for Second Marriage
2. Legality of Child Marriage Under Indian Laws

What Is Muta Marriage and What Are Its Conditions
WritingLaw

Muslim Marriage as a Contract

It is said that marriage under Muslim law is simply a contract that unites the bride and groom, fulfilling certain conditions like consent, witness, etc. But what I want to ask is, “how can a marriage be a contract?”

Why are we putting a sacrament called marriage into the shutter of contract! Is it only because its essentials correlate or are similar to that of a contract. Is this why we have termed it as a contract?

The revelation of the holy Quran was made in 610 CE, and the Indian Contract Act came in the year 1872. Then how come the essentials of marriage are similar to conditions of contract. Prophet Mohammad revealed the requisites for Muslim marriage in the early centuries.

At-Tirmidhi Hadith 3096 Narrated by Anas ibn Malik Allah’s Messenger (peace be upon him) said,

“When a man marries, he has fulfilled half of the deen (din, creed, religion), so let him fear Allah regarding the remaining half.”

In my view, marriage is purely a sacrament irrespective of any religion.

“It is said that when a man marries, he completes half of his religion.”

By this, we can relate how marriage is considered a sacrament in Hadiths.

The Prophet had called talaq the most abhorrent practices made permissible by the holy Quran. It was supposed to be the last resort of a couple who found they could no longer live together and when all attempts at reconciliation and counselling failed. In such a case, it was better that the woman was “allowed to go with kindness” [Qur’an, 2:229] and left free to remarry.

Nikah Halala in India

The concept of Nikah Halala is practised in different parts of India, deteriorating the honour of women.

Halala means a man can remarry the same woman if she first marries another man, consummates the marriage (that is, have sexual intercourse), and only if the man dies or willingly asks for a divorce, can the woman go back to her first husband and remarry him.

The holy Quran nowhere sanctions the Halala of a woman. It says,

“And if he has divorced her (for the third time), then she is not lawful to him afterwards until (after) she marries a husband other than him. And if the latter husband divorces her (or dies), there is no blame upon the woman and her former husband for returning to each other if they think that they can keep (within) the limits of Allah. These are the limits of Allah, which He makes clear to people who know.” (Quran 2:230)

It was to ensure that a man does not divorce his wife at any resort as marriage is a bond for whole life, but the purpose of the above words failed. This practice is misused and is against Islam as no religion teaches immorality. After giving divorce to wife and in wish of remarrying, her practising Halala is not just. It is against the spirit of Islam as well as humanity. How can a woman be a tool for satisfying the unjustified wishes of a man (husband)!

Why is there such a thing in practice in a country like India, where we proudly denote that the Constitution is the supreme guardian of citizens’ rights?

Recent Halala Case in India

In a recent case in Bareilly, a woman was given triple talaq twice and was forced to sleep with her father-in-law to facilitate her remarriage to her first husband. But the woman’s ordeal did not end here. She was pronounced triple talaq again by her husband after remarriage and was again forced to sleep with her brother-in-law in order to consummate her marriage. What nonsense is this! Where do we see in the above lines that wife was being treated as ‘wife.’ She was treated like a free prostitute living inside the boundaries of a house and used only as a ‘tool’ to satisfy the lust of three blood-related men! Is this humane?

There have been sting operations by reporters at various places like Hyderabad, Delhi, Mumbai, etc., where the mosque officials and other prominent Muslim holy figures have been caught on camera explaining the process of Nikah Halala and terming it as too easy. These people ask for huge sums of money (even going up to rupees 100000), and they assure that after one night, they would divorce the woman so that her first husband can remarry! Is this the 21st century we live in? The prevalence of these practices takes us many centuries back! (You can watch these by web searching for ‘Nikah Halala Sting Operation’)

Islam and Woman Rights

Ironically Islam was among the first religion to give women rights of inheritance. (This ‘being the first’ has contradictions, and there can be a debate around this. Nonetheless, it is established that Islam gives inheritance rights to women.)

Islamic law made girls’ education a sacred duty and gave women the right to own and inherit property.

Islam also imposed women’s consent as a condition for legitimate marriage.

But what people do and what religion prescribes are two different things.

In fact, the Prophet denounced it-

“Curse be upon the one who marries a divorced woman with the intention of making her lawful for her former husband and upon the one for whom she is made lawful.”
– Abu Dawud, Book 005, Hadith Number 2071, narrated by Ali Ibn Abu Talib.

A practice that deteriorates a woman’s dignity, attacks the identity of being a woman, and treats marriage just a contract and not anything beyond contract is a bane and should be abolished.

Original publication: September 2018
Revised for grammar: September 2021

Read Next:

• Legality of Child Marriage Under Indian Laws
• Cases Related to Muslim Women Protection of Rights on Divorce Act

Muslim Marriage and Nikah Halala in India
Arushi

Guardianship In Muslim Law

Muslim Law recognises three kinds of guardianship. They are:

1. Guardianship in Marriage
2. Guardian of the Body of Minor (Hizanat)
3. Guardianship of Minor’s Property (Wilayat-e-mal). It is classified into three parts-
   • Legal Guardian (De jure)
   • Guardian Appointed by the Court (Certificated)
   • De-facto Guardian

Let us get right in and learn more about guardianship under Muslim Law in easy words.

Note: In the case of marriage, Mahr, and divorce, 15 years is the age of majority in Muslim Law. Other than these provisions, the age of majority is 18 years.

Guardianship in Marriage (Jabar)

It is one of the essentials of a valid marriage that the parties are competent to enter into a marriage, which means they must have attained the age of puberty.

This general rule admits one exception- where the marriage is solemnised on behalf of the minor by the guardian.

Under Muslim law, the father has the power to give his children of both sexes in marriage without their consent to enter into marriage, but it is before the Shariri stage.

Note: Shariri or sariri stage means between 7 to 15 years of age, the father can give consent of marriage.

Persons Entitled

The list of the persons who can act as a guardian in the marriage of minor in the following order:-
i. Father
ii. Father’s father, how high so ever.
iii. Full brother and other male relations on father’s side.
iv. Mother
v. Maternal relations within the prohibited degree.
vi. Kaazi or the Court.

Under Shia Law, only the father and failing him the father’s father how high so ever, can act as a guardian in the marriage of a minor.

Testamentary Guardian for Marriage

Under Muslim law, testamentary guardian for marriage is not recognised. A father has no power to appoint any person as guardian for marriage by his will.

Guardian of the Body of Minor (Hizanat)

1. Mother
2. Female Relations in Default of Mother
3. Other Male Relations

1. Mother

The mother is entitled-
1. In Hanafi Law, the custody of her male child until he has completed the age of seven years and of her female child until she has attained puberty.

2. In Shia Law, the custody of her male child till the age of two years and the custody of her female child till the age of seven years. The right continues though she is divorced by the father of the child unless she marries a second husband, in which case the custody belongs to the father.

Where Wife Loses Her Right of Custody

1. If she leads an immoral life.
2. If she neglects to take proper care of the child.
3. If she remarries.
4. If, during the marriage, she goes and resides at a distance from the husband’s place.

2. Female Relations in Default of Mother

On the failing of the mother, the custody of the boy under the age of seven years and of a girl who has not attained puberty (Hanafi school) goes to these female relatives in the following order:-
i. Mother’s mother
ii. Father’s mother
iii. Full sister
iv. Uterine sister
v. Full sister daughter
vi. Uterine sister daughter
vii. Maternal aunt
viii. Paternal aunt

Note: Uterine means related to uterus or womb or born to the same mother but not the same father.

3. Other Male Relations

In default of the mother and other female relations the right of custody in Hanafi Law belongs to the following persons:-
i. Father
ii. Nearest paternal grandfather
iii. Full brother
iv. Full brother’s son
v. Full brother’s of father
vi. Son of father’s full brother

Father is entitled in Hanafi Law to the custody of a boy over seven years of age and of an unmarried girl who has attained puberty.

In Shia Law, custody of a male child over two years and an unmarried girl of seven years or more.

When Court Will Interfere With Father’s Guardianship

The following are the grounds where a court will interfere with the father’s guardianship of his children:-
1. If he is unfit in character and conduct.
2. If he is unfit as regards to external circumstances.
3. If he waives his right.
4. If he enters into an agreement to the contrary.
5. If he is out of justification of court and intents to go abroad.

Guardianship of Minor’s Property (Wilayat-e-mal)

If a minor owns movable or immovable property, a guardian is necessary to manage it. The guardianship of the property of minor may be classified as follows-

1. Legal Guardian
2. Guardian Appointed by the Court
3. De-facto Guardian

1. Legal Guardian (De jure)

The person entitled in the following order as a guardian of minor’s property:-
i. Father
ii. Executor appointed by the father’s will.
iii. Father’s father
iv. Executor by the will of the father’s father.

The mother, brother, uncle, etc. are not entitled to be the legal guardian of the property of the minor.

In the case of, Ghulam Hussaini Qutubdin Maner vs Abdul Rashid Abdul Razzaq Maner, 2000, the Supreme Court of India has held that the mother of the minor cannot be appointed as his guardian to accept gift on his behalf during the lifetime of the minor’s father.

2. Guardian Appointed by the Court (Certificated)

In the absence of a legal guardian, the duty of appointing a guardian for the protection and preservation of minor’s property fall in the Court. While appointing a guardian, the court takes into consideration the welfare of the minor.

For Example, the Court may appoint a mother instead of a paternal uncle as the guardian of the property of the minor.

Without the previous permission of the court, the guardian appointed by the court cannot:-
a. Charge the immovable property of the minor.
b. Mortgage
c. Transfer by sale
d. Exchange
e. Lease any part of the immovable property for a term exceeding five years or for any term extending not more than one year beyond the date when the ward will cease to be a minor.

3. De-facto Guardian

A person who is neither a legal guardian nor a guardian appointed by the court but has voluntarily placed himself in charge of the body and property of the minor.

The position of the de-facto guardian is quite different from the legal guardian and the guardian appointed by the court. He has no power or authority to alienate the minor’s property.

Kinds of Guardianship in Muslim Law and Minor’s Property
WritingLaw

Muslim law is a part of personal laws or family laws. It is not a codified law. People belonging to Islam are governed through shariyat. While studying, there are many terminologies that are difficult to understand. Most of the terms are in Arab. To help, here is a list of fifty important words, terms, and phrases of Muslim Law with their easy meaning. These words are important for all law exams.

50 Important Terms in Muslim Law

1. Ayyam-e-jahiliya– It refers to the pre-Islamic era.

2. Hejarat– The holy journey from mecca to medina is Hejarat.

3. Islam– The term means submission to the will of God.

4. Qurra– It means “to read.” The word ‘Quran’ has been derived from the word qurra.

5. Sunnat– It means the model behaviour of the Prophet.

6. Sunnat-ul-fail– It implies the conduct of the Prophet.

7. Sunnat-ul-qual– It implies the words said by the Prophet.

8. Sunnat-ul-tuqrir– It implies to the silence of the Prophet.

9. Hadis– It means what Prophet said, did, or allowed is Hadis. The traditions which have been followed for a long time.

10. Fiqh– The term is given to the human interpretation of Muslim Law.

11. Nikah– It means the union of two sexes. It is considered as a civil contract under Muslim Law.

12. Shagir– When the person is below 7 years of age, this stage of life is shagiri. Marriage at this stage is void.

13. Sariri– When the person is between 7 to 15 years of age, this stage of life is sariri. Marriage can be done under guardianship.

14. Bulugh– When the person is above 15 years of age, this stage of life is called Bulugh. A person is free to marry on his will.

15. Khyar-ul-bulugh– It is the right of a boy or girl to repudiate the marriage on attaining puberty. Subject to a condition that marriage has not been consummated.

16. Repudiate– To refuse to accept the marriage.

17. Consanguinity– It means Qurabat. If the parties to the marriage are related to each other through blood relations, then it is void.

18. Affinity– It means Musharat. If the parties to the marriage are related through marriage, then it is void.

19. Fosterage– It means Riza. If the parties to the marriage are related through the foster mother, then it is void.

20. Sahih– A valid marriage is termed as sahih. The marriage which meets all essential requirements of a valid marriage.

21. Batil– A void marriage is termed as Batil. If the marriage is done under prohibited degrees, it is void.

22. Fasid– An irregular marriage is termed as Fasid. Like marrying with the fifth wife, or with a woman undergoing Iddat.

23. Iddat– It means the waiting period. It is performed after the divorce or death of a husband by a woman to ascertain her pregnancy.

24. Mahr– The customary practice of dower is termed as Mahr. It is a sum payable by the husband to the wife at the time of marriage.

25. Talaq– It means divorce. The dissolution of marriage by divorce. Related: 13 Ways of Divorce in Muslims

26. Talaq-e-tafweez– It means when the wife uses her delegated power given by the husband to divorce herself from marriage.

27. Tuhr– It is a period when the woman is free from her menstrual course.

28. Talaq-ul-biddat– It is the pronouncement of “I divorce you” three times. It dissolves the marriage immediately.

29. Ila– Husband’s oath not to perform sexual intercourse with his wife for a period of four months.

30. Zihar– It means to compare the wife with the woman under a prohibited degree of relationship.

31. Mubarat– It is a kind of mutual divorce.

32. Khula– It is the divorce at the request of the wife.

33. Fask– It means to cancel, annul, revoke, abrogate, or abolish the marriage. It is a judicial divorce on the option of the wife.

34. Ikrar-e-Nasab– It means an acknowledgement by the father for his child. Acknowledgement of paternity.

35. Nafaqa– It refers to maintenance. To provide food, shelter, clothing, and other essentials things for livelihood.

36. Kharcha-i-pandan– It means betel box expense. It the expense which a husband gives to her wife for personal needs. It is the absolute property of the wife.

37. Waliyat– The guardianship of a person is termed as waliyat.

38. Wilayat-e-nafs– The guardian of a minor in person and property.

39. Hizanat– The custody of a minor child is termed as hizanat. It may be with the father or mother depending upon circumstances.

40. Hiba– It means a gift without consideration given by a living person to another living person.

41. Hiba-bil-iwaz– It is a gift given by a person to another person in exchange for other gifts. Donor and donee both exchange gifts.

42. Hiba-ba-shartul-iwaz– It is a gift that is given on the condition that the donee will give consideration to the donor.

43. Sadaqah– A gift given or dedicated to God is Sadaqah.

44. Ariyat– When a person transfers the right to use and enjoy the property to the other person for a specific time period is ariyat.

45. Waqf– It is tying up of property in the ownership of God. It is given for religious and charitable purposes.

46. Mutawalli– He is the person who takes care of the waqf property like a manager or supervisor.

47. Ijma– It means consensus or opinion by the persons who have knowledge of the law.

48. Pardanashin– A woman who observes pardah is a pardanashin lady. She is not allowed to meet anyone.

49. Dakhul– It means the consummation of the marriage by the husband and wife.

50. Kitabiya– A woman who follows any scriptural religion.

You will also like to read:
1. Must-know Legal Maxims
2. Important Words of Hindu Law
3. Muta Marriage – A Marriage for Pleasure
4. Important Case Nomenclatures Used in Indian Courts

50 Important Words of Muslim Law
WritingLaw

Muslim law is believed to have been derived from the divine. Muslim law in India is considered as that portion of the Islamic law that is applicable as personal law to Muslims (though not in all matters).

8 Sources of Muslim Law

The sources of Muslim law are classified into two major heads:

A. Primary sources

1. The Quran – the book of Allah
2. The Sunnat
3. Ijma
4. Qiyas

B. Secondary sources

5. Customs
6. Judicial Decisions
7. Legislation
8. Justice Equity and Good Conscience

A. Primary Sources

1. The Quran – the book of Allah

Quran is the supreme source of Muslim law as it is believed to contain the verses of God himself. It consists of philosophical laws, code, conduct and punishment, which regulates the social, secular and spiritual life of the Muslims. Quran consists of 114 chapters and 6236 ayats.

2. The Sunnat

Sunnat refers to traditions. It includes the Prophet’s modal behaviour, the procedure that was followed by the Prophet, his way of action, whatever were the actions of the Prophet, his sayings, and his doings. All these are considered traditions. Sunnat has been classified as:

• Sunnat-ul-fail: Practices done by the Prophet himself.
• Sunnat-ul-qual: Practices which the Prophet enjoined (instruct or urge to do something) by words.
• Sunnat-ul-tuquir: Practices that were done in his presence without his disapproval.

3. Ijma

Ijma is the approved and agreed opinion of Muslim jurists. According to Sir Abdul Rahim, Ijma is the agreement of the jurists among the followers of Prophet Mohammad in the particular question of law. These are the different kinds of Ijma:

• Ijma of companions of the Prophet- universally acceptable.
• Ijma of jurist- best after Ijma of companions.
• Ijma of people- not of much importance.

4. Qiyas

Qiyas is the analogy from the Quran, the Sunnat and the Ijma. Qiyas doesn’t purport to create new law but applies the old principles to the new circumstances.

B. Secondary Sources

5. Customs

These are termed as urf in Muslim law. It was never recognized as a source of law but was sometimes considered supplementary. Not every custom holds importance in Muslim law.

Requisites of valid customs under Muslim law are:

• It must be ancient.
• It must be territorial.
• It must be continuous.
• It must not oppose the public policy.
• It must not oppose the Quran or Ijma.

6. Judicial Decisions

It includes the decisions given by the Privy Council, the Supreme Court and the High Courts of India. It acts as precedents for future cases. Judicial decisions are supplementary to Muslim law. To some extent, judicial decisions have modified Muslim law. For instance, in Shayara Bano vs Union of India, the Triple Talaq practise was held unconstitutional, being arbitrary in nature.

7. Legislation

Muslims are governed by various legislations passed by many legislatures, which have considerably supplemented the Muslim law. Some of them are:

• Guardian and Wards Act, 1890
• Shariat Act, 1937
• Muslim Women Protection of Rights and Divorce Act, 1986
• The Mussalman Waqf Act, 1923
• The Dissolution of the Muslim Marriage Act, 1939

8. Justice Equity and Good Conscience

It refers to as ‘istihsan’ in Muslim law, which means juristic equity (or juristic discretion). According to Abu Hanifa, the man has been endowed with intelligence to use his common sense to do what he thinks fit. Several portions of Muslim law have been modified so as to meet the changing conditions in India.

Here is a different take on Sources of Muslim Law by another author (Dinky).

The essence of Mahomedanism (Islam: Peace) consists of the faith that there is only one God and that Mohammed is his Prophet. A person becomes a Mahomedan, usually by birth to parents professing Mahomedanism. A person belonging to another faith may also convert to Mahomedanism.

Sources of Muslim Law:
(a) The Quran;
(b) Sunna;
(c) Ijmaa; and
(d) Qaiyas.

(a) The Quran

The Quran is the main and primary source of Muslim Law. It is the scripture of the Muslims and is of divine origin. It contains 6000 plus verses revealed to the Prophet by the angel Gabriel as the message of God. This revelation was spread over several years, and the first Wahi or message was received in the 40th year of the Prophet. About 80 verses of the Quran deal with legal matters such as inheritance, guardianship, marriage, divorce, the prohibition of usury etc. The Quran represents the voice of God, and thus its authority is supreme.

usury: the action or practice of lending money at unreasonably high rates of interest.

Post-death of the Prophet, during the third Caliph, the authentic factual version of the Quran was composed, and all other versions were destroyed. The scribe, whom the Prophet himself had employed during the Prophet’s lifetime, assisted the third Caliph in preparing the standard text.

(b) Sunna (Tradition)

Sunna consists of the precedents or usage of the Prophet. The mystic, spiritual pronouncements made by the Prophet are the interpreted foundation of Sunna, which deals with the fundamental essence of the Islamic religion contrasting with the positive law. Since Sunna bears a divine insight, it is spiritually designated equivalent to the Quran.

(c) Ijmaa

Ijmaa is the consensus of the jurists. The aim of the law is to satisfy the needs and requirements of society. There is a Hadia of the Prophet to the effect: “God will not allow his chosen people to agree on an error”. The effectiveness of Ijmaa is based on this text. Ijmaa has validity so long as it is not opposed to the Quran or the Sunna.

(d) Qiyas

Qiyas is an analogical deduction from a comparison of the other three sources. The authority of Qiyas as a source of law also rests on the Hadis of the Prophet. The Prophet questioned Yemen’s Chief Justice as to how he would decide if there was no guidance on a particular point from the Quran or Sunna. The Chief Justice replied that he would proceed by analogy using his own reason in such a case. The Prophet approved this. The Shias, one of the sects of Mahomedans, do not accept the binding authority of Qiyas as a source of Muslim law.

What Are the Sources of Muslim Law?
Nupur

Divorce In Islam

Muslim Marriage Act: Divorce under Muslim Law is of two types:-
1. Extra Judicial Divorce
2. Judicial Divorce

Extra Judicial Divorce in Islam

Extra judicial divorce in Islam consists of the following divisions:-
I. By husband: Talaq, Ila, Zihar
II. By wife: Talaq-i-tafweez
III. By mutual consent: Khula, Mubarat

Talaq in Islam

1. Talaq-e-Ahsan: It consists of a single pronouncement of divorce. It is irrevocable even after the expiration of the period of iddat.

2. Talaq-e-Hasan: When the husband repudiates his wife during a Tuhr (period of purity) in which he has not had carnal connection with her, and he repeats the repudiation during the next two Tuhrs, which makes the divorce final and irrevocable.

3. Talaq-ul-Biddat: Three pronouncements are made in a single breath. It becomes irrevocable as soon as it is pronounced. It is considered to be the worst form of divorce.

New: The supreme court in Shayara Bano vs Union of India, 2017 has declared talaq-ul-biddat as unconstitutional, stating that, it leaves a woman in a miserable situation and there is no scope of reconciliation once the pronouncement is made.

4. Ila: If a husband, after having attained puberty, swears by god not to have sexual intercourse with his wife for a period of four months or for any unspecified period, he is said to make Ila.

5. Zihar: If the husband compares his wife to his mother or to a female within prohibited degrees of relationship, the wife has the right to avoid him until he performs punishment for his wrong done/sin.

6. Khula: Khula is separation by putting an end to the matrimonial bonds and rights. It is that right in which the wife agrees to give a certain amount of consideration to the husband for her release from the marriage ties.

7. Mubarat: Mubarat is the dissolution of marriage by mutual agreement. The offer may be made by any party, either husband or wife.

8. Talaq-e-Tafweez: A husband may delegate his power of talaq to his wife. An agreement is made before or after marriage, providing that the wife is at liberty to take divorce from his husband provided that such power is not absolute and unconditional and that the conditions are reasonable and not opposed to law.

Judicial Divorce in Islam

Dissolution of Muslim Marriage act, 1939: Judicial divorce in Islam consists of – Lian and Fask.

1. Lian: When the husband puts charges of adultery on the wife, and later the charges are proved false, the wife is entitled to sue and ask for a divorce.

2. Fask: Muslim law allows a lady to approach a qazi for dissolving a marriage under the following conditions:
I. If the marriage is irregular.
II. If the marriage was within prohibited degrees, etc.

Grounds on Which Muslim Woman Can Seek Divorce

Under section 2 of this Act, a Muslim woman can seek divorce on the following grounds:

1. Where the husband is not heard of alive for a period of four years.
2. The husband has failed to provide maintenance to the wife for at least two years.
3. The husband has been under imprisonment for seven or more years.
4. The husband is unable to meet the marital obligations.
5. If the girl is married before fifteen and decides to end the relationship before she turns eighteen.

Related: Muta Marriage: A temporary marriage mainly for sexual enjoyment.

Read Next:

• What are the financial rights of a woman at the time of divorce?
• Muslim Women Protection of Rights on Divorce Act, 1986
• Right of Muslim Women to Take Divorce Under Faskh
• Cases Related to Grounds for Dissolution of Muslim Marriage

13 Ways of Divorce in Muslims
WritingLaw

Meaning of Wakf in Muslim Law

Wakf literally means tying up or detention. The one who makes Waqf is called Wakif. Deed is Wakf-nama.

According to the accepted view, Wakf is the detention of the property in the ownership of God.

Quran is silent regarding Wakf, but Quran does say something about charity. In simple words, when a person ties up his property to God and keeps the usufruct for the benefit of the public. It may be religious or charitable.

Essentials of Wakf

1. There must be a permanent dedication of a property (movable or immovable).
2. By a person professing Islam.
3. For any purpose recognised by Islam.

Other Elements

1. There must be a clear intention on the part of the Wakif to create the Wakf. (Wakif is a creator of Wakf.)

2. Wakif must declare his intention either orally or in writing.

3. The Wakf must be perpetual, which means there should not be a fixed period.

4. The Wakif must be the owner of the property

5. The object of Wakf should not be in conflict with Islamic principles.

6. The Wakif must be of Muslim, major, and of sound mind. Wakf by minor is void ab initio. The guardian cannot create a Wakf on behalf of a minor.

7. Wakf should be by a person who is professing Islam.

Exceptionally, Wakf by a non-Muslim is recognised under certain conditions. It means a Wakf may be created by a person belonging to any religion, but in such a case, the object of Wakf must not be opposed to the creed (faith) of the Wakif.

It means a Muslim cannot create a Wakf for the construction of a Hindu temple, nor can a Hindu create a Wakf for the construction of a mosque.

But where the objects are secular in nature such as college, hospital, etc. then whether the Wakif is a Hindu or Muslim or Christian, the Wakf would be valid.

8. Wakf must not be contingent or conditional.

Legal effects of Wakf

1. Non-transferable
2. Irrevocable
3. Perpetual

Modes of Creation of Wakf

1. Inter vivos: transfer or gift made during one’s lifetime
2. By will (only one third)
3. By immemorial use
4. On death bed – Wakif can create only one third.

Note: Generally, a Wakf is irrevocable, but if the Wakf is created by will, then it may be revoked before the death of the testator.

Types of Wakf

1. Public Wakf → Waqf-ull-Allah (where the beneficiaries are public at large)
2. Private Wakf → Waqf-ull-Aulad (where the beneficiaries are the family member, relative, friends of Wakf)

What is Mutawalli

Mutawalli is the caretaker or manager of Waqf property. Wakif himself can also be Mutawalli.

Who may appoint Mutawalli?

1. Wakif himself
2. Executor
3. The Mutawalli appoints subsequent Mutawalli.
4. Court
5. Waqf Board

Who may be Mutawalli?

A trustworthy person and the person must be Muslim, major, male, and of sound mind.

A female or a non-Muslim may also be Mutawalli in a Wakf where the religious duties are not involved.

In simple words, a non-Muslim or female may be appointed the Mutawalli for a charitable or secular Wakf.

Minor as a Mutawalli

As a general rule, a minor cannot be appointed as a Mutawalli.

Syed Hasan vs. Mir Hasan: Court held that the minor Mutawalli is void. But where the office of Mutawalli is hereditary, and the person entitled to succeed the office is minor, then minor maybe a Mutawalli but court will appoint another person for taking care of the property till the age of 18 years.

Removal of Mutawalli

Once Mutawalli lawfully appointed cannot be removed except by the court.

Doctrine of Cypres

When the fulfilment of the object of Wakf becomes impossible, then Mutawalli may act for fulfilling any object which is similar to the object mentioned in Wakf.

Garib Das vs. M.A Hamid, 1970: Supreme Court held that a Wakf is completed by only a declaration by the Wakif. It may be oral or in writing. No formalities are needed for the creation of Wakf.

What is Wakf in Muslim Law
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Parentage in Muslims Law

Parentage is the relation of parents to their children. The parentage includes maternity and paternity.

Maternity is the legal relationship between the mother and the child. Paternity is the legal relationship between the father and the child.

Parentage is generally used for a legal relationship which the child has with the parents. These legal relationships are associated with certain rights and duties such as rights of inheritance, maintenance, and guardianship.

How Maternity is Established in Muslim Law

Under Sunni Law, the maternity of a child is established in the woman who gives birth to the child irrespective of whether the birth was the result of a valid marriage or adultery (Zina).

But under Shia Law, only birth is not sufficient to establish maternity. It has to be also proved that the birth was a result of a lawful marriage.

So we can say under Sunni Law, an illegitimate child has his maternity in the woman who gave birth, and the child is entitled to inherit from mother alone.

But under Shia Law, an illegitimate child has neither maternity in the woman who gave birth nor paternity in the father. So in Shia Law, the illegitimate child can inherit neither from father or mother.

How Paternity is Established in Muslim Law

Paternity of a child can only be established by marriage between his or her parents. The marriage may be valid or be irregular. But it does not become void. Paternity is established in the husband of the mother of a child.

Paternity is established in a person said to be a father by proof or legal presumption that the child was begotten by him on a woman who was at the time of conception his lawful wife and was in good faith and reasonably believed by him to be such or whose marriage being valid.

An issue of void marriage has neither paternity nor maternity under Shia Law.

Legitimacy in Muslim Law

A person born in lawful marriage is said to be the legitimate child of the spouses. So the main point in case of the legitimacy of a child is the marriage between his or her parents.

Special notes regarding the Presumption of Legitimacy

1. A child born within six months after the marriage: the child is illegitimate unless the father acknowledges the child.

2. A child born after six months from the date of marriage is presumed to be legitimate.

3. A child born after the dissolution of marriage is legitimate-
a. Under Shia Law, if born within 10 months.
b. Under Hanafi Law, if born within 2 years.
c. Under Shefai and Maliki, if born within 4 years.

Legitimacy When Conclusively Presumed

According to section 112 of the Indian Evidence Act, if a child is born during the marriage or within 280 days after the dissolution of marriage, the child shall be presumed to be the legitimate child of the spouses.

The Evidence Act supersedes the rule of Muslim law. The question arises whether the provision of the Indian Evidence Act supersedes the provisions of Muslim law. Opinions are divided, but the balance of authority remains in favour of the Indian Evidence Act.

Acknowledgement in Muslim Law

Muslim law does not recognise the institute of adoption, which is recognised by other systems.

Muslim law recognises the institution of ‘IKRAS’ (acknowledgement) where the paternity of a child, which means his legitimate decent from his father, cannot be proved by establishing a marriage between his parents at the time of conception of birth.

Muslim law recognises acknowledgement as a method whereby such marriage and legitimate decent can be established as a matter of substantive law for the purpose of inheritance.

Mohammed Allahdad Khan vs Mohammed Ismail Khan (1887)

Justice Mehmood held that where marriage cannot be proved by direct evidence and no legitimacy be established, Muslim law prescribes a means whereby the marriage and legitimacy may be established as a matter of substantive law, and that is acknowledgement of paternity.

Acknowledgement under Muslim law is a rule of Substantive Law and not a rule of evidence. It means it is not a presumption under the Evidence Act.

It confers the status of sonship and rights to succeed. A child whose illegitimacy is proved by reason of the union between the parents not being lawful; such a child cannot be proved by acknowledgement.

Necessity of Acknowledgement of Legitimacy

When there is direct proof of marriage and a child born out from such marriage, the question of acknowledgement does not arise because, in such cases, the legitimacy is ipso facto established.

If there is no such direct proof of legitimacy, then legitimacy may be proved by indirect proof, which is called acknowledgement.

Note: Acknowledgement is made by the father only not the mother. In other words, the doctrine applies only to cases of uncertainty about legitimacy. Acknowledgement is made on the assumption of a lawful union of the parents and the acknowledged child.

Basic Principles of Acknowledgement

1. Express or implied acknowledgement

It is not necessary that an acknowledgement should be express. It may also be implied. The acknowledgement may be of a son or daughter, but it must be made by the father only. The acknowledgement of the child must not be casual.

Muhammad Ali Khan vs Muhammad Ibrahim Khan 1929 PC

The father made the acknowledgement of the child in a casual manner. He never intended that his acknowledgement should have serious effects. It was held by the Privy Council that the act of the father is not sufficient to confer the status of legitimacy.

2. Age of the Acknowledger

The age of the parties must be such that it is possible that they may be father and son. According to Bailie, the acknowledger must be at least 12.5 years older than the person acknowledged.

3. The child of others

The child who is acknowledged must not be known as a child of another.

4. Offspring of Zina

An offspring of Zina is one who is born either without marriage or a mother who was the married wife of another or of void marriage.

When the man has committed Zina with a woman, and she has delivered a son, such a son cannot be acknowledged. So the acknowledgement must be of the child who is offspring of a legal marriage.

5. Legal marriage possible between parents of the child acknowledged

The acknowledger and the mother of the child must have been lawfully joined in marriage at the time when the child was begotten. It is essential to show that lawful marriage is possible between the acknowledger and the mother of child. And the child is not the fruit of an adulterous intercourse.

Similarly, if it is definitely proved that no marriage took place between the parties, the issue will be illegitimate, and the acknowledgement will be ineffective.

6. Person acknowledged should confirm acknowledgement

The child, if adult, must confirm the acknowledgement.

7. Competency of the Acknowledger

The acknowledger must be competent to make a contract, which means he must be major and of sound mind.

Effects Of Acknowledgement

Acknowledgement produces all the legal effect of a natural paternity and vests in the child the right of inheriting from the acknowledger.

In the case of wife, which means the mother of an acknowledged son, it has the effect of giving her the status of legal wife and hence the right of maintenance and inheritance.

You may also like to read:
1. Legitimacy of a Child under Indian Evidence Act
2. Maintenance Under The Criminal Procedure Code
3. Laws and Policies for Protection of Children in India

Parentage, Legitimacy, and Acknowledgement of Child in Muslim Law
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An Act to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto.

BE it enacted by Parliament in the Seventieth Year of the Republic of India as follows:-

CHAPTER I – PRELIMINARY

1. Short title, extent and commencement.

(1) This Act may be called the Muslim Women (Protection of Rights on Marriage) Act, 2019.

(2) It shall extend to the whole of India except the State of Jammu and Kashmir.

(3) It shall be deemed to have come into force on the 19th day of September, 2018.

2. Definitions.

In this Act, unless the context otherwise requires,

(a) “electronic form” shall have the same meaning as assigned to it in clause (r) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000);

(b) “Magistrate” means a Judicial Magistrate of the first class exercising jurisdiction under the Code of Criminal Procedure, 1973, in the area where the married Muslim woman resides; and

(c) “talaq” means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.

CHAPTER II – DECLARATION OF TALAQ TO BE VOID AND ILLEGAL

3. Talaq to be void and illegal.

Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.

4. Punishment for pronouncing talaq.

Any Muslim husband who pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.

CHAPTER III – PROTECTION OF RIGHTS OF MARRIED MUSLIM WOMEN

5. Subsistence allowance.

Without prejudice to the generality of the provisions contained in any other law for the time being in force, a married Muslim woman upon whom talaq is pronounced shall be entitled to receive from her husband such amount of subsistence allowance, for her and dependent children, as may be determined by the Magistrate.

6. Custody of minor children.

Notwithstanding anything contained in any other law for the time being in force, a married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband, in such manner as may be determined by the Magistrate.

7. Offence to be cognizable, compoundable, etc.

Notwithstanding anything contained in the Code of Criminal Procedure, 1973,-

(a) an offence punishable under this Act shall be cognizable, if information relating to the commission of the offence is given to an officer in charge of a police station by the married Muslim woman upon whom talaq is pronounced or any person related to her by blood or marriage;

(b) an offence punishable under this Act shall be compoundable, at the instance of the married Muslim woman upon whom talaq is pronounced with the permission of the Magistrate, on such terms and conditions as he may determine;

(c) no person accused of an offence punishable under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person.

8. Repeal and savings.

(1) The Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019 (Ord. 4 of 2019) is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019 (Ord. 4 of 2019), shall be deemed to have been done or taken under the provisions of this Act.

Read Next: Cases Related to Muslim Women Protection of Rights on Divorce Act

Muslim Women Protection of Rights on Marriage Act, 2019
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An Act to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie.

WHEREAS it is expedient to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie; It is hereby enacted as follows:-

Dissolution of Muslim Marriages Act, 1939

1. Short title and extent.

(1) This Act may be called the Dissolution of Muslim Marriages Act, 1939.

(2) It extends to the whole of India.

(The words “except the State of Jammu and Kashmir” omitted by Act 34 of 2019, s. 95 and the Fifth Schedule (w.e.f. 31-10-2019).)

2. Grounds for decree for dissolution of marriage.

A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:-

(i) that the whereabouts of the husband have not been known for a period of four years;

(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two
years;

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

(v) that the husband was impotent at the time of the marriage and continues to be so;

(vi) that the husband has been insane for a period of two years or is suffering from * a virulent venereal disease;

* The words “leprosy or” omitted by Act 6 of 2019, s. 3 (w.e.f 1-3-2019).

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years :
Provided that the marriage has not been consummated;

(viii) that the husband treats her with cruelty, that is to say,-

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

(b) associates with women of evil repute or leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her from exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran;

(ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim law:

Provided that-
(a) no decree shall be passed on ground (iii) until the sentence has become final;

(b) a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfies the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and

(c) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.

3. Notice to be served on heirs of the husband when the husband’s whereabouts are not known.

In a suit to which clause (i) of section 2 applies-

(a) the names and addresses of the persons who would have been the heirs of the husband under Muslim law if he had died on the date of the filing of the plant shall be stated in the plaint,

(b) notice of the suit shall be served on such persons, and

(c) such persons shall have the right to be heard in the suit:

Provided that paternal uncle and brother of the husband, if any, shall be cited as party even if he or they are not heirs.

4. Effect of conversion to another faith.

The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage:

Provided that after such renunciation, or conversion, the woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in section 2:

Provided further that the provisions of this section shall not apply to a woman converted to Islam from some other faith who re-embraces her former faith.

5. Rights to dower not to be affected.

Nothing contained in this Act shall affect any right which a married woman may have under Muslim law to her dower or any part thereof on the dissolution of her marriage.

6. Repeal of section 5 of Act 26 of 1937.

Rep. by the Repealing and Amending Act, 1942 (25 of 1942), s. 2 and the First Schedule.

Dissolution of Muslim Marriages Act, 1939
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