Mohd. Ahmed Khan vs Shah Bano Begum And Ors
Writ petition no: Civil Appeal No.7454 of 1981
Date of Judgment: 23-04-1985

The Shah Bano case, officially known as “Mohd. Ahmed Khan vs Shah Bano Begum and Others,” is a landmark legal case in India that had significant implications for Muslim women’s rights and the intersection of personal laws, religion, and gender equality. The case revolved around the issue of maintenance for a divorced Muslim woman.

Facts

Shah Bano, an elderly Muslim woman, was divorced by her husband, Mohd. Ahmed Khan, in 1978. After the divorce, she filed a maintenance petition under section 125 of the Code of Criminal Procedure (CrPC) in a lower court, seeking financial support from her husband.

Legal Issue

The key issue in the case was whether Muslim women could claim maintenance under section 125 of the CrPC, which allows destitute wives, children, and parents to seek maintenance from their relatives.

Extra Info: Under the new Bharatiya Nagarik Suraksha Sanhita of 2023, maintenance is mentioned under Chapter X.

Court Decisions

Here’s what the High Court and the Indian Supreme Court said.

High Court

The High Court initially ruled in favour of Shah Bano, granting her maintenance. This decision was based on the interpretation that section 125 of the CrPC was applicable to all Indian citizens, regardless of their religion.

Supreme Court

The case was subsequently appealed to the Supreme Court of India. The petitioner’s contentions were based on the belief that personal laws should prevail over general laws like section 125 of the CrPC and that religious customs and practices should not be subjected to legal scrutiny.

This argument was rooted in the belief that the state should not interfere with religious matters, particularly in a diverse and pluralistic society like India.

The petitioner’s contentions raised complex issues related to personal laws, gender justice, and the intersection of religious freedom and the rule of law.

In a landmark judgment in 1985, a five-judge bench of the Supreme Court, led by Chief Justice YV Chandrachud, ruled in favour of Shah Bano. The Supreme Court held that Muslim women were indeed eligible to seek maintenance under section 125 of the CrPC, emphasising the principle of gender equality and the Fundamental Rights enshrined in the Indian Constitution.

Controversy and Legislative Response

The Supreme Court’s decision in favour of Shah Bano created controversy, especially among certain Muslim religious groups, who argued that it was an interference in personal laws governed by Islamic principles.

In response to the controversy, the Indian government, led by Prime Minister Rajiv Gandhi, passed the Muslim Women (Protection of Rights on Divorce) Act, 1986. This Act effectively nullified the Supreme Court’s decision by limiting the maintenance period for divorced Muslim women and shifting the responsibility of maintenance from the state to the Muslim husband or relatives.

Impact

The Shah Bano case and its aftermath had a significant impact on the debate surrounding personal laws, religious rights, and gender equality in India. While it highlighted the issue of gender justice and the need for reforms in personal laws, it also underscored the complexities involved in reconciling religious practices with modern legal principles in a diverse and pluralistic society like India.

The case brought attention to the larger debate over a uniform civil code in India, which seeks to establish a common set of personal laws that are applicable to all citizens, irrespective of their religion. The issue of personal laws and gender justice remains a topic of ongoing discussion and reform efforts in the country.

Shah Bano Begum Case Explained in Simple Words
Sravani Ravinuthala

The Muslim Women (Protection of Rights on Divorce) Act, 1986, is a legislative measure enacted by the Indian Parliament to safeguard the rights of Muslim women who have undergone divorce or obtained a divorce from their husbands.

This law applies to Muslim women who were married under Muslim law, and it outlines their entitlements following divorce. It addresses issues related to maintenance, the payment of Mahr or Dower, and the distribution of properties given to the woman before or during marriage. The Act empowers Magistrates to adjudicate matters of maintenance, mahr, and property distribution, ensuring that divorced Muslim women receive fair and reasonable provisions.

Additionally, the Muslim Women Protection of Rights on Divorce Act offers an option for divorced women and their former husbands to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973, if they jointly or separately declare their preference in writing.

The Act also grants the Central Government the authority to create rules for its effective implementation, covering various procedural aspects. It includes transitional provisions for pending applications under the Code of Criminal Procedure, ensuring a smooth transition to the new legal framework.

Overall, the Muslim Women Protection of Rights on Divorce Act aims to provide legal protection and support to Muslim women who have been divorced, addressing their financial rights and ensuring a fair and just resolution of related matters.

In this article, we deal with notable cases related to various sections of the Muslim Women Protection of Rights on Divorce Act, 1986, providing insights into legal judgments and interpretations of the provisions of the Act. These cases cover key aspects of the Act, including maintenance, entitlements, constitutional challenges, and its impact on other legal provisions. Below is a summary of the cases and the sections of the Act they pertain to.

Section 3

These are some notable cases related to section 3 of the Muslim Women (Protection of Rights on Divorce) Act of 1986.

All India Muslim Advocates Forum vs Osman Khan, 1990 (1) ALT 360

The maintenance provision covers only the “Iddat” period. The husband is no longer obligated to pay maintenance after Iddat.

Ali vs Sufaira, 1988 (2) KLT 94

A divorced woman is not entitled to maintenance but is entitled to a fair and reasonable financial supply from her ex-husband during the Iddat period.

Anowaruddin Ahmed vs State, 1989 CrLJ NOC 20 (Cal)

The husband’s application under section 127 of the CrPC to change any information in his wife’s application is unmaintainable.

Abdul Mannan vs Saira Khatoon and Others, 2000 (4) Crimes 438 Pat. (DB)

A divorced woman is no longer eligible to make a support claim under section 125 of the CrPC as of the effective date of this Act (Muslim Women Protection of Rights on Divorce Act, 1986).

Danial Latifi vs UOI, II (2001) DMC (SC) 714

Articles 14, 15, and 21 of the Indian Constitution are not violated by the provisions of the Muslim Women Protection of Rights on Divorce Act, 1986.

Nizar vs Hyrunneessa, I (2000) DMC (Ker) 229

The Magistrate’s order will not be invalidated or unsupportable just because the Magistrate neglected to note the causes for the delay in deciding the application.

Sirazuddin Ahmed Saheb Bagwan vs Smt. Khatija Sirajuddin and Others, II (1996) DMC (BOM) 449

If a court has previously issued a judgement or order providing wife maintenance, section 3 of the Muslim Women Protection of Rights on Divorce Act does not apply.

Section 4

Here are some important cases related to section 4 of the Muslim Women (Protection of Rights on Divorce) Act.

Sakina vs Salim Khan, I (1998) DMC (HP) 684

After the divorce, the wife is only entitled to maintenance for the duration of Iddat and not any longer. Her claim for maintenance under section 125 of CrPC is also deemed unmaintainable in light of the Muslim Women Protection of Rights on Divorce Act’s provisions.

Syed Fazal Pookoya Thangal vs UOI, II (1993) DMC (Ker) 285

The contention that section 4(2) of the Muslim Women Protection of Rights on Divorce Act, 1986, contravenes Article 25 and Article 26 of the Indian Constitution is unsubstantiated. This is because section 4(2) does not amount to an abuse of legislative authority, as alleged. Furthermore, it has been established that only the resources of the Wakf Board, and not those of the Wakfs, are utilized for the maintenance payments mandated by section 4(2).

Section 5

Here are a couple of landmark cases related to section 5 of the Muslim Women Protection of Rights on Divorce Act.

Bishnu Charan Mohanty vs UOI through Secretary, II (1993) DMC (ORI.) 451

Hindus lack a personal law governing the support paid to their divorced wives. When this portion was read, there was no bias in favour of a Muslim husband, and the classification is valid. Therefore, the argument that section 5 of the Muslim Women Protection of Rights on Divorce Act violates Article 15(1) of the Indian Constitution cannot be upheld.

Rashida Khanum vs SK Salim 1996 AIHC (Ori)

The husband’s responsibility is capped at the Iddat period once the Muslim Women Protection of Rights on Divorce Act has taken effect. Section 125 of the CrPC would only be applicable if both parties chose to be governed by it at the initial hearing under section 3(2) and in no other circumstance.

Section 7

Here are three important cases related to section 7 of the Muslim Women Protection of Rights on Divorce Act.

Sakinabai vs Fakruddin, II (1999) DMC (MP) 576

When the Muslim Women Protection of Rights on Divorce Act of 1986 went into effect, any pending applications under section 125 CrPC had to be resolved by the Magistrate in accordance with this Act’s (Muslim Women Protection of Rights on Divorce Act) rules.

Anowaruddin Ahmed vs State, 1989 CrLJ NOC 20 (Cal)

In accordance with section 7 of the Muslim Women Protection of Rights on Divorce Act, a divorced woman, not her husband, may apply. The husband cannot maintain his request for a modification under section 127 CrPC.

Usman Khan Bahamani vs Fathimunnisa Begum, 1990 CrLJ 1364 (AP)

After the 1986 Muslim Women (Protection of Rights on Divorce) Act went into effect, the provisions of sections 125 and 127 of the Criminal Procedure Code no longer apply.

Cases Related to Muslim Women Protection of Rights on Divorce Act
Dinesh Verma

Section 2 of the Dissolution of Muslim Marriages Act, 1939, outlines the various grounds for a woman married under Muslim law to seek a decree to dissolve her marriage.

Grounds for Decree

Section 2 of the Dissolution of Muslim Marriages Act specifies the following grounds on which a woman can seek the dissolution of her marriage:

1. Absence of husband for four years: If the whereabouts of the husband have not been known for a period of four years.
2. Neglect of maintenance: If the husband has neglected or failed to provide maintenance for the wife for a period of two years.
3. Husband’s imprisonment: If the husband has been sentenced to imprisonment for seven years or more.
4. Failure to perform marital obligations: If the husband has failed to perform his marital obligations without reasonable cause for a period of three years.
5. Husband’s impotence: If the husband was impotent at the time of marriage and continues to be so.
6. Husband’s insanity or diseases: If the husband has been insane for two years or suffers from leprosy or a virulent venereal disease.
7. Repudiation of child marriage: If the wife was given in marriage before the age of fifteen and repudiated the marriage before turning eighteen, provided that the marriage was not consummated.
8. Cruelty by the husband: If the husband habitually assaults the wife, associates with women of ill repute, forces her into immoral activities, disposes of her property, obstructs her religious practices, or mistreats her when having multiple wives.
9. Any other valid ground: Any other ground recognized as valid for dissolution under Muslim law.

Note: Provisions and Conditions:

• The section contains provisions regarding passing decrees based on these grounds, including the requirement that a decree under ground 3 (Husband’s imprisonment) can only be passed when the sentence has become final.
• It also mandates a waiting period of six months for a decree based on ground 1 (Absence of husband for four years). It provides an opportunity for reconciliation if the husband appears willing to fulfil his marital duties.
• Ground 5 (Husband’s impotence), related to impotence, requires the husband to prove his ability to perform within one year if he wishes to avoid a decree on that ground.

Related: 13 Ways of Divorce in Muslims

Protection of Women’s Rights

Section 2 of the Dissolution of Muslim Marriages Act aims to protect Muslim women’s rights by allowing them legal recourse to seek the dissolution of their marriages under specific circumstances.

Legal Safeguards

The Dissolution of Muslim Marriages Act incorporates legal safeguards to ensure fairness and the protection of both parties’ rights, such as the waiting periods and opportunities for reconciliation.

Applicability

Section 2 of the Dissolution of Muslim Marriages Act applies to women married under Muslim law and provides a legal framework for seeking dissolution of marriage in cases of hardship or injustice.

Cases Related to Section 2 of the Dissolution of Muslim Marriage Act

Here are ten important cases related to this.

Itwari vs Asghani, AIR 1960 ALL 684

According to the court, if the husband marries a second woman against the wishes of the first wife and then asks the civil court for help, forcing the first wife to live with him, the court will respect the sanctity of the second marriage, but it will not force the first wife to live with the husband against her will and share his consortium with another woman if the court determines after reviewing the evidence that it will be unfair.

Mahmooda Begum vs Mohd. Abdul Majeed 1971 APHN 70

The phrase “neglected or has failed to provide for her maintenance for two years” indicates that the husband is accountable for the dissolution of the marriage if he does not support his wife for two years. The wife’s motives for living separately from her spouse are unimportant.

Amna Khatoon vs Md. Kasim Ansari, AIR 2001 Jhar 28

Islam acknowledges the existence of marriage upon the wife’s request, and the law itself upholds this as a saving clause under this section. In this instance, it was determined that the wife was entitled to a divorce judgment due to the husband’s harsh behaviour.

Abdul Zalil Ahmed vs Mustt. Marina Begum, II (1999) DMC (Gau.) 172

The ruling in this case that the Dissolution of Muslim Marriage Act, 1939, does not allow for divorce by mutual consent is correct. Still, it should also be remembered that the parties can settle this issue, and a decree may be issued by the settlement agreement if doing so does not conflict with the grounds listed in section 2.

Nurjehan Bibi vs Md. Kajim Ali. AIR 1977 Cal 90

Any other reason recognized by Muslim Law as sufficient for the dissolution of a marriage would be constituted when one spouse falsely accuses the other of adultery.

Ahmed Abdul Qadeer vs Raffat Banu 1978 (1) ALT 533

The husband’s failure to provide maintenance to his wife, who has been living separately for two years, does not grant the wife the right to seek divorce on those grounds.

Akila vs Shafi Mohd, I (1993) DMC (MP) 581

The lower appellate court’s decree was overturned, and the trial court’s findings were reinstated because the lower appellate court had reserved the trial court’s conclusions on the issue of whether the plaintiff could use the grounds for divorce.

A Yusuf vs Sowramma, AIR 1971 Ker 261

According to section 2(ii) of the Dissolution of Muslim Marriage Act, 1939, a Muslim woman may file a dissolution lawsuit because she has not been maintained as a reality, even if there is justification for it. The voice of the law, echoing public policy, is frequently that of the realist, not the moralist.

Ghulam Lakina vs Falak Sha Allah Baksh, AIR 1950 Lah 45

Anything a minor did while still being a minor would not invalidate a right that could only develop after puberty. Thus, a minor female cohabitating would not eliminate the opportunity to end the marriage after puberty. The consent and the consummation should have happened with her consent, and neither should have happened before puberty.

Abdul Azeem vs Fathimunnisa Begum, AIR 1969 Mys 226

The court ruled that the Dissolution of Muslim Marriage Act of 1939 demands an opportunity to convince the court that the impotence has ended, and that opportunity is only accessible when the husband requests it.

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

Cases Related to Grounds for Dissolution of Muslim Marriage
Dinesh Verma

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

Succession under Muslim Law is the transfer of the property on the person’s death to the rightful heir. When a Muslim person dies, all of his property can be passed on to his heirs regardless of whether he acquired it himself or received it from the ancestors.

The non-testamentary succession under Muslim Law is governed by the Muslim Personal Law (Shariat) Application Act, 1937. In the case of testamentary succession, the succession is governed under the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis. The Muslim Law of succession is based on:

1. Rules regarding it given under the holy book Quran.
2. Rules regarding it given in Hadis and Sunnah.
3. The prevailing customs and usages.
4. The rules established under Ijma, Qiyas and Fatwas.
5. Acts and statutes relating to Muslims Law succession.

General Principles of Inheritance Under Muslim Law

1. Under Muslim Law, the entire property devolves through succession. There is no distinction between movable property, immovable property, self-acquired and ancestral property.

2. The heirs under Muslim Law do not get any right by birth, whatever be the nature of the property. The right of inheritance arises at the death of the ancestor.

3. The heirs can only claim their share of what is left, that is, after appropriations like debt, valid legacies, and statutory liabilities have been made out.

4. Muslim Law makes no distinction between the rights of men and women. A female, as well as a male, can become legal heir of property on the death of the ancestor.

5. Under Muslim Law, a widow is not excluded from inheritance. A Muslim widow with no children is entitled to a quarter of the deceased husband’s property after covering his funeral expenses and debt.

6. A person who was not conceived before the death of the propositus cannot be an heir. However, a child who is then in its mother’s womb can inherit if it is born alive. Propositus means the person from whom a line of descent is traced.

7. When a deceased Muslim has no heir, his property is inherited by the government under the process of escheat.

8. Step relations have got no mutual right of succession or inheritance.

Heirs Under Muslim Law

Heirs under Muslim Law can be classified into the following categories:

1. Sharers.
2. Residuary.
3. Distant Kindred.

1. Sharers

They are the Quranic heirs and are entitled to a prescribed share of the property under the rules of the Quran. They are 12 in number. They are as following:
(1) Husband,
(2) Wife,
(3) Daughter,
(4) Daughter of a son (or son’s son or son’s son and so on),
(5) Father,
(6) Paternal Grandfather,
(7) Mother,
(8) Grandmother on the male line,
(9) Full sister,
(10) Consanguine sister,
(11) Uterine sister, and
(12) Uterine brother.

2. Residuary

Also known as agnatic heirs as they are related to the deceased only through males. They are entitled to a residual share in the property. They are entitled to take a portion after the sharers take the prescribed share.

3. Distant Kindred

If the sharers and the residuary are not present, the property will then devolve upon the distant kindred (one’s family and relations). They are the uterine heirs (persons descended from common mother but by different husbands).

Doctrine of Aul – Doctrine of Increase

Generally, the property of the deceased equals the total shares of heirs. There may be cases when the property to be distributed is less than the shares specified as per Quranic distribution of property. When the total number of shares exceeds one, each person’s share is reduced by making a common denominator. Then the denominator is increased to total shares and then allotted as per the new denominator.

For instance, a female Muslim dies surviving her husband and two full sisters, as shown in the table below:

Doctrine of Radd – Doctrine of Return

Generally, the property of the deceased person equals the total shares of the heirs. But in certain cases, the property available is more than the shares specified as per Quranic distribution of property, and there are no residuary. The surplus is not given to distant kindred but is returned to the sharers.

For instance, a male Muslim dies surviving mother and a daughter and no residuary, as illustrated in the table below:
Generally, husband and wife are not entitled under the doctrine of Radd. However, if there is no other surviving heir, the residue returns to the husband and wife.

Conclusion

Succession under Muslim Law purely ensures compliance with the Quranic traditions. The succession rules promote a conflict-free succession of property at the ancestor’s death or by prescribing defined rights for heirs/individuals. It is stated in Holy Quran that:

From what is left by parents and those nearest related there is a share for men and a share for women, whether the property be small or large, a determinate share.

Read Next: Procedure for the Succession of Property of Female Hindu

Succession Under Muslim Law
Nupur

Faskh means cancellation, abolishment, recision, revocation and abrogation annulment. Under Muslim law, a lady can move towards Qazi for dissolving her marriage. This can be done when husband and wife both conclude that they cannot live together as husband and wife. The Qazi, after a thorough analysis, terminates the marriage.

Before the Dissolution of Muslim Marriage Act, 1939 came into force; there was no law or legislation under which a Muslim woman could plead for the dissolution of her marriage. Accordingly, she could plead for the dissolution of her marriage under the doctrine of Faskh only.

Following were the main reasons for dissolving the marriage at the wife’s wish:
(a) the marriage is irregular.
(b) the person who has the option of avoiding marriage has exercised his option.
(c) the marriage was performed within prohibited degrees.
(d) the marriage is contracted by non-Muslims, with parties adopting Islam.

Recent judgement on the dissolution of marriage in Muslim

Recently, the High Court discussed the various modes of dissolution of marriage in a detailed manner in a judgement. The Bench first discussed the general modes of dissolution in Muslim personal law and then discussed the modes particularly available to women. The court explained the modes that are available to a woman are:

1. Talaq-e-tafwiz, where the wife can dissolve the marriage if her husband fails to keep his end of the marriage contract.
2. Khula, where a wife can unilaterally divorce her husband by returning his Dower.
3. Mubara’at, dissolution by mutual consent, and
4. Faskh, dissolution with the intervention of a third person such as a Qazi.

The court has noted that Section 2 of the Shariat Act mainly recognized all modes of extra-judicial divorce except Faskh.

In KC Moyin vs Nafeesa, 1972, the High Court had contended that a woman could only make use of remedies under the Dissolution of Muslim Marriages Act and could not request remedies under personal law (extra-judicial remedies).

In Raseena Pareekunju vs Muhammed Asif, the court has disagreed with the above statement after examining the provisions of the dissolution of the Muslim Marriage Act and has ruled that:

“On an overall analysis of the scheme of the Shariat Act as well as the Dissolution of Muslim Marriages Act as above, we are of the considered view that the Dissolution of Muslim Marriages Act restrict Muslim women to annul their marriage invoking Faskh except through the intervention of the Court. All other forms of extra-judicial divorce as referred to in Section 2 of the Shariat Act are thus available to a Muslim woman. We, therefore, hold that the law declared in KC Moyin’s case (supra) is not good law”.

Earlier, a Muslim woman could plead for the dissolution of her marriage under the doctrine of Faskh only, and she was not allowed to request remedies under personal law (extra-judicial remedies). With the passing of recent judgement (Raseena Pareekunju vs Muhammed Asif), the Kerala High Court overrules a 49 year old verdict that a woman could only make use of remedies under the Dissolution of Muslim Marriages Act and could not request remedies under personal law (extra-judicial remedies). As of now, a Muslim woman can now dissolve or end her marriage via four modes, that are:

1. Talaq-e-tafwiz
2. Khula
3. Mubarat, and
4. Faskh

Read Next:

• Cases Related to Grounds for Dissolution of Muslim Marriage
• Cases Related to Muslim Women Protection of Rights on Divorce Act

Right of Muslim Women to Take Divorce Under Faskh
Subhashini Parihar

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

What is Dower/Mahr? Dower or Mahr is a sum of money that a husband pays to his wife on marriage. According to Mulla, “It is an obligation imposed upon the husband as a mark of respect to the wife.”

There existed many forms of sexual relationship between a man and a woman in the pre-Islamic era. Men, after using a woman as a chattel, used to make them move out. The condition of women was helpless, and their existence was of no vital use.

Therefore, the concept of Dower worked as a sense of security for the wife. If in case, the husband abandons the wife or compels her to move out, the amount of Dower becomes the source of her livelihood.

• Dower Essential For Muslim Marriage
• Classification Of Dower
  • What is Specified Dower
  • What is Customary Dower
• Remedies To Wife On Non-Payment Of Dower

Dower Essential For Muslim Marriage

Dower or Mahr is considered as an important essential to perform marriage (nikah) in Islam. It is regarded as a consideration to the wife in marriage. Without it, the marriage is deemed incomplete. It is in the form of a gift given by a husband to the wife.

Abdul Kadir vs. Salima, 1886

In this case, Justice Mahmood said that in Muslim Law, Dower is a sum of money that a husband promises to pay to the wife in consideration of nikah. And if the Dower is not fixed at the time of marriage, then the law gives rights to the wife to decide upon the non-payment of Dower.

Classification Of Dower

Dower can be classified into two categories:
1. Specified Dower
a. Prompt Dower
b. Deferred Dower
2. Customary Dower

What is Specified Dower

If the amount of Dower is decided at the time of marriage, it is known as specified Dower. It may be settled even before or after the ceremony of marriage. If the parties to the marriage are minor, then the guardian can fix the sum of Dower on behalf of the minor.

Prompt Dower

Prompt means ‘immediately.’ This Dower is paid by the husband to the wife on demand immediately after the marriage. If the husband doesn’t give the sum of Dower to the wife, she may refuse herself to her husband.

Even if the marriage has been consummated, the right of prompt Dower of a wife does not extinguish. The wife has the right to recover that amount afterwards. For recovering the prompt Dower, the wife has three years of limitation period.

Deferred Dower

The deferred Dower is given to the wife if the marriage dissolves or the husband dies. The purpose of giving this Dower is the maintenance* of the wife after the husband.

The Dower, which is to be paid at the time of marriage like prompt Dower, can become deferred Dower if the wife doesn’t demand immediately after marriage. The moment she demands the sum of Dower, the Dower is no more deferred and has to be paid to the wife immediately.

What is Customary Dower

If at the time of marriage, the amount of Dower is not fixed by the parties or the parties agree to the fact that the wife will not claim any dower after marriage. Then in such a situation, the wife is entitled to customary Dower.

The basis for determining customary Dower is-

1. The personal qualification of the wife. Everything is considered from her beauty to intelligence.
2. The social status of the wife’s father and family background is considered.
3. The amount of Dower given to her family females is considered.
4. The economic and social status of the husband is also taken into consideration.
5. The other factors, such as present circumstances and family situations at the time of determining Dower.

Remedies To Wife On Non-Payment Of Dower

1. If the amount of Dower is not paid to the wife, she can refuse to cohabit with her husband until the sum is paid to her. If the marriage is consummated then, she can’t deny cohabiting.

2. If the Dower is not paid to the wife then she can file a suit against her husband and recover the sum of Dower. Or, if the husband has died, she may recover it from his property or heirs.

3. The wife can remain in possession of the husband’s property until the amount of Dower is paid. But she does not have the right to sell or alienate the property.

A Thought About Dower

So many writers say that Dower is like a consideration given in a contract. But it is not a mere consideration. It is a mark of respect given to the wife at the time of marriage.

Dower or Mahr is a security which is given to the wife for a secured livelihood. This is the reason it has been made an essential element in the performance of Muslim marriage.

*User query: I think the word maintenance should not be there?
Ans: A deferred dower is payable after the husband’s death or if divorce is given to the wife. So the sum of mahr which she receives upon it is basically for her to maintain herself. It’s a mark of respect to the wife. This sum helps the woman to continue her life necessities even after death or divorce from her husband. So in this sense, it is written as maintenance. Because here, we are not mentioning this under any case head.

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

What is Dower or Mahr in Muslim Law
Arushi

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