MUSLIM WOMEN’S RIGHTS
IN
MUSLIM PERSONAL LAW






TARANNUAM SIDDIQUI










SAROJINI NAIDU CENTRE FOR WOMEN’S STUDIES
JAMIA MILLIA ISLAMIA
NEW DELHI 110025
2006

Foreword

The status of Muslim women has been a subject of considerable debate in India. Muslims, being a minority community, have always had a sense of insecurity. Every voice of reform from other communities is termed as interference in the Personal laws of Muslims. In the communally vitiated political atmosphere in India, the demand for abolishing polygamy and ridiculing triple talaq created very strong polarization, and further increases the growing sense of insecurity among Muslims. The recent cases of Gudiya and Imrana have further provided a boost to those people who see Islam as anti -women.

The biggest irony of the subject is that a Muslim husband’s right to polygamy and triple talaq is known to every common man on the street. On the other hand, the fact that Islam emancipated the status of women by prohibiting female infanticide (so relevant in the contemporary times in India), introduced the concept of contractual marriage as a dissoluble union, provided female’s right of inheritance and the right of Mahr as a security for the wife and as a restraint upon the husband’s power of arbitrary divorce, introduced the concept of compulsory reconciliation before divorce and provided protection to female heirs by restraining the male power of testamentary succession are only known to people in the academic circles. Truly speaking, it is the basic ignorance and unawareness about the Islamic laws that lead to various misconceptions, misgivings and biases. For this pathetic situation, it is the Muslims themselves who are responsible. It must be borne in mind how intimately law and religion are interconnected in the Islamic system. Both cannot be dissevered from each other. The reason behind the problems faced by Muslim women are lack of awareness, illiteracy, lack of proper knowledge and understanding of Islamic laws, the insensitive attitude of agencies responsible for implementation of Islamic Laws and last, but not the least, the callous attitude of men. Hence the practices governing women’s personal status, their legal capacity and role in the family continue to deny women’s rights.

The study of rights of Muslim women focuses on the effects of Muslim Personal law. Like other systems of law, Muslim Personal Law also raises a number of issues for critical evaluation. To understand and make an intelligent opinion about the pending debate on the subject of Muslim Personal Law, one has to make a thorough study of the subject. This book is an excellent piece of work in this direction. The author has, while trying to do justice with the subject, also provided guidelines, which will help in removing all kinds of misgivings about Muslim Personal Law resulting in clarity on the subject. Muslim Personal Law is often misunderstood and this book is going to be a great help to the society at large in removing all kind of misunderstanding about Muslim Personal Law is often misunderstood and this book is going to be a great help to the society at large in removing all kinds of misunderstandings about Muslim Personal Law and the rights of Muslim women under Islam. It will further lead to formation of an intelligent opinion which will further lead to removal of all kinds of doubts prevalent in the society about Islam, which is of course a very noble deed.

Dr. KahkashaDanyal
Faculty of law
Jamia Millia Islamia


Preface

A woman in Islam is an independent entity and, thus, a fully responsible human being. Islam addresses her directly and does not approach her through the agency of Muslim men. On the basis of her own acts, a woman earns rewards or punishment. No man is allowed to plead or intercede for a woman, nor is he held responsible for her actions and their consequences. The doctrine of ultimate accountability does not take the family as a unit for collective responsibility, rather each individual, male or female, is an autonomous unit of reckoning in front of Allah, and is held directly responsible for his or her actions or his or her share in joint acts. “For on the day of judgment, every one of them will come singly” (Surah Maryam).

The individuality of a woman is the principle in Islam. The concept of gender equality in Islam is stressed by the non-superiority of either sex over the other. The equality of women in Islam is evident by the unprecedented legal rights given to them under a monotheistic religion as defined in the Holy Quran. As one of the many examples, if we take the rights of women in marriage and divorce, both men and women have the right to contract a marriage agreement as well as seek divorce. The precondition of marriage is merely a mutual agreement between both parties. Islam gives women the right to ownership, which entitles them to have personal possessions. The Holy Quran also explicitly outlines women’s inheritance rights. As for as social rights, Islam has always recognized the prominent role that women play in the society.

But women in general, and Muslim women in particular, are a downtrodden section of the Indian society. When we analyze the status of Muslim women statistically, we find that they are much more backward than the women of other communities. That is why urgent action is needed to upgrade and elevate their social status.

I congratulate the author of this book Ms. Tarannum Siddiqui, and Sarojini Naidu Centre for Women’s Studies, Jamia Millia Islamia for bringing it out. It consists of four sections: Marriage, Divorce, Maintenance and Inheritance. It is a useful contribution in the field of Muslim women’s studies. The conclusion attempts to shed light on some of the contentious issues of Muslim society. Many of the wrong notions and misinformation about the marriage, divorce, maintenance and inheritance have been cleared and doubts removed. The real and factual picture has been presented in the light of Holy Quran and Sunnah. It is hoped that this authentic work will be of immense help to the readers in general and Muslim society in particular.




Prof. Haseena Hashia
Dept. of Geography, Jamia Millia Islamia
Member, All India Muslim Personal Law Board,
New Delhi


Contents

Marriage

Introduction
Formation of a Valid Marriage
Type of Marriages
Puberty and the Age of Marriage
Iddat
Marital Rights


Divorce

Introduction
Classification of Divorce
Divorce by the death of husband or wife
Divorce by the act of the parties
Divorce by judicial process


Maintenance

Introduction
Maintenance Issues of Muslim Women in India
Section 125 Criminal Procedure Code of 1973
Muslim Women (Protection of Rights on Divorce) Act


Inheritance Law and Right to Property

Introduction
Transfer of Property
Hanafi Law
Shia Law
Right to Inheritance
Difference in Inheritance between Men and Women
Women’s Inheritance Rights



Marriage

Introduction

Marriage is an important social institution, which helps in creating a basic unit of human society called ‘family’. The institution is common to all communities, though there are some differences in the norms regulating them. Under Islamic law, marriage (nikah) is considered as a solemn pact between the spouses. According to Ameer Ali, “Marriage is an institution ordained for the protection of the society and in order that human beings may guard themselves from foulness and unchastity[1]”. Where as according to Abdur Rahim, “The Mohammedan jurists regard the institution of marriage, as partaking both of the nature of ibadat or devotional acts and muamlat or dealings amongst men”[2].

The Prophet has said in Hadith: “When a man has married, he has completed one half of his religion. Then let him fear for the remaining half”. [3]

The Islamic law prevents the human being from committing what is prohibited by the religion. Its objectives are to regulate physical, social, and psychological as well as the legal relations between the partners. Under Islamic law, marriage (nikah) is considered as a solemn pact between the spouses. There are three aspects of marriage in Islamic law:

1. Legal
2. Social
3. Religious

Legal aspect- A Muslim marriage is contractual in form because it makes free consent of the parties an essential element for its validity. This is to ensure that the bride is not getting married under any kind of compulsion.

Social aspect – Islamic law gives the woman an important role at home and in the society. The Prophet, both by example and precept, encouraged the institution of marriage and recognized it as the basis for society.

Religious aspect— The Prophet has said, "Marriage is my Sunnah (that is recommended action of the Prophet) and whoever does not follow my Sunnah is not my true follower” [4]

Marriage is a peculiar mechanism of regulating human relations with religious sanction and therefore, termed as a sacred covenant. The Prophet was determined to raise the status of women and accordingly attributed legal and religious importance to marriage.[5]


Freedom of Choice

According to the laws of Islam, a man and a woman have the right to choose their partner and they should not be forced into marriage. For example it is narrated that when Amir al Momenin Ali asked for Fatima’s hand in marriage the Prophet did not respond to Ali until he asked Fatima for her decision.

Nature of Obligations

Since a Muslim marriage is contractual in nature, all the rights and obligations it creates arise immediately, and are not dependent on any condition precedent. Such rights and obligations include the entitlement of wife to mahr and maintenance mutual rights of inheritance, prohibitions regarding marriage due to the rules of affinity etc.


Formation of a Valid Marriage

The following conditions are necessary for a valid marriage.

Offer from one party
Acceptance by the other party
Presence of two witnesses, where the parties are Hanafis, no witnesses are required if parties are Shiahs.
The words with which the marriage is contracted should be clear and unambiguous.
The proposal and acceptance must be expressed in one and the same meeting.


Capacity to Marry

a) A Sunni Muslim male can marry besides a Muslim woman, an Ahle-Kitab i.e. a female belonging to a religion with a revealed book e.g. a Christian or Jew, but not a Hindu, Sikh or Zoroastrian under any situation.
b) A Shia Muslim male or female cannot marry a non-Muslim female or male but a Shia male can marry a non-Muslim female by way of ‘Muta’ (temporary marriage).
c) Both the woman and the man should be mentally sound at the time of marriage.
d) Minors, who have not attained puberty, may be validly contracted in marriage by their respective guardians. The expected age of puberty is 15 years.
e) A male who is a major, of sound mind is entitled to and is capable of contracting his own marriage.
f) Regarding the capacity of a female virgin major of sound mind, there is a difference of opinion. Among the Hanafis, she has the capacity to contract her marriage without the intervention of a guardian, whereas according to Shafeis and Malikis a female virgin of sound mind cannot contract her own marriage.
g) A widow or a divorced woman (sayyiba-a woman who has experienced married life) has capacity of contracting her marriage.
h) In India, a marriage between a Muslim and a non-Muslim can be solemnized under the Special Marriage Act, 1954.


It is the girl's right to take the decision concerning her marriage and her father or guardian cannot over-ride her objections or ignore her wishes. The words of proposal and acceptance must be uttered by the contracting parties or their agents (vakils) in each other’s presence and hearing and in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Muslims and the whole contract must be completed at one meeting. The proposal and acceptance made at different meetings do not constitute a valid marriage. Writing of Nikahnama or performance of any religious ceremony is preferable but not essential.

Nikahnamas are admissible in evidence as written records of marriage. Qazis who perform the nikah can give satisfactory evidence of marriage. Where the person who performed the nikah is dead, the evidence of a witness can prove the nikah.


Prohibited Degree of Relationship

The woman, a man is getting married to must not be prohibited for him either perpetually or temporarily. There are 19 classes of woman who are prohibited to a man and with whom marriage is unlawful. They are:
(i) Mother (ii). Daughter (iii) Sisters (iv) Father’s sister (v) Mother’s sister (vi) Brother’s sister (vii) Sister’s daughter (viii) Foster mother (ix) Foster sister (x) Mother in- law (xi) Wife’s daughter (step daughter) (xii) Son’s wives (xiii) Father’s wife (step mother) (xiv) Two sisters in conjunction (xv) Married women (xvi) Idolatress (xvii) One’s thrice divorced wife (xviii) Woman in iddat (xix) marriage contracted with a fifth woman.

Proof of Marriage

Marriage may either by proved by direct evidence or may be presumed as a valid marriage by.
(1). Evidence of Marriage
(2). Acknowledgment
(3) Acknowledgment of marriage proof
(4.) Continued cohabitation


Type of Marriages

1. Valid (sahih)
2. Void (batil)
3. Irregular (fasid)

Valid (Sahih)— This marriage is in accordance with Shariah and without any legal impediments. A marriage is considered sahih when all the essentials as per the Islamic law have been fulfilled. A valid marriage confers upon the wife, the right to mahr, maintenance and residence in her husband’s home and imposes on the spouses the obligation to be faithful to each other and to admit each other to sexual intercourse. It creates mutual rights of inheritance, prohibition of affinity.

Void (Batil)—When the essential requirements of a marriage have not been fulfilled, it is batil (void as initio). A batil (void) marriage is no marriage at all. It creates no legal rights nor imposes obligations on the parties. The ground of marriage contract to be void is consanguinity, fosterage, affinity, and unlawful conjunction, pronouncing three divorces to one’s wife, contracting marriage with another’s wife. Effects of a void marriage are as follows; Marriage contract is null and void ab initio, no dower is due, iddat not be observed, issues are illegitimate, no rights of inheritance between husband and wife, no right of maintenance to the wife and no right of maintenance and inheritance to the issues.

Fasid—It is a marriage in which some conditions of a valid marriage are missing. A fasid marriage is one which is contracted without witnesses, marriage contracted with a female during her iddat, marriage contracted with a fifth woman in spite of four subsisting wives, marriage contracted by a man with his wife’s sister during period of probation of his wife, who stands divorced by him.

Effects of a Fasid Marriage

Dower – If there is no consummation of marriage and separation takes place, no dower would become due from the man, no iddat is required. If there is consummation, the man has to pay the specified dower or proper dower, whichever is less and iddat has to be observed.
Legitimacy of Children – Issues of an irregular marriage are legitimate, and are entitled to inherit and maintenance of children is incumbent upon the father.
Affinity- If consummation takes place, prohibition of affinity is established.
Maintenance –Women are entitled to get maintenance till irregularity is not discovered and not after that.
Inheritance – The couple cannot inherit from each other.



Mut’a

The Mut’a is a temporary marriage for a fixed period of time. This is approved only by the Ithna Ashari school of thought. A Shia can contract Mut’a with a Muslim woman, a kitabi and also a fire worshiper. A Shia woman may contract a Mut’a marriage with a Muslim male only.

In a mut’a marriage, the period of cohabitation should be fixed whether a day, a month, a year, or a term of years. Mahr (dower) should be specified. If no period is mentioned, whether inadvertently or intentionally, the contract would be treated as one of a permanent marriage. There is no difference in Mut’a for unspecified period and Mut’a for life.

Mut’a marriage creates no rights of inheritance between the spouses unless there is an agreement between the parties. The children conceived during Mut’a marriage are legitimate and can inherit from both parents[6]. There is no minimum limit for the duration of the marriage and no divorce is required. A woman married in Mut‘a is not entitled to any maintenance. The husband is not bound to provide a residence for the wife. Married women shall be bound to observe iddat, in case of termination by death for four months and ten days, and in case of pregnancy till delivery.


Puberty and the Age of Marriage

In Muslim law, a Muslim who has attained puberty and is of sound mind can marry. If a Muslim has not attained puberty, his or her guardian can give him or her in marriage. He or she can repudiate such a marriage on attaining puberty in certain circumstances. This concept is called option of puberty. The minor on attaining the age of puberty can repudiate when his lawful guardian, other than the father or paternal grandfather, marries a minor such a marriage.

In India under the Child Marriage Restraint Act, 1929, it is an offence to solemnize the marriage of a male below 21 years or of a female below 18 years. But violation of this prohibition does not affect the validity of the marriage.
Puberty

A minor suffers from a legal disability to enter into a binding contract and also enjoys a privilege from being always bound by a contract entered into by a guardian on his or her behalf. The minor can, on attaining puberty, ratify such a contract if he or she so chooses. Under the Islamic law, a minor’s marriage is governed by the same principle. When a guardian contracts a marriage for a minor, he or she, on attaining puberty has a right, subject to certain conditions, to either ratify or repudiate the marriage. This right of dissolution of marriage on attaining puberty is called khiyar-ul-bulugh (option of puberty). Since a Muslim adult husband can dissolve marriage by talaq also, the doctrine of khiyar-ul-bulugh gains more importance for women. Thus the doctrine is one of the safeguards against an undesirable marriage and a protection for minors (especially females) from any unscrupulous or undesirable exercise of authority by marriage guardians.

The doctrine of khiyar--ul-bulugh enjoys sanction under hadith as well. Hazrat Ibn Abbas narrates that a virgin girl came to the Prophet and said that her father had given her in a marriage, which was not to her liking. The Messenger of Allah then gave her option for and against the relationship. After that, this option became available to all. Capacity to exercise the option however occurs only when a minor attains puberty. The minimum age at which children attain puberty in the case of boys and girls is twelve and nine respectively. However, fifteen is the maximum age to attain puberty. Thus, a minor is deemed to have attained puberty when he or she has attained the age of fifteen years. After attaining that age, option may be exercised expressly or by conduct, that is, consummation with willingness.

Regarding waiving of marriage, a minor can waive the right of option of puberty only on attaining puberty. Cohabitation before attaining puberty with or without the girl’s consent does not destroy her right because a minor is not capable of giving her consent to any act as long as she is a minor. The right to exercise this option arises only when she has become a major and so is not lost by anything done or a happening before that time. The right shall be considered waived only by allowing the marriage to be consummated freely after attaining puberty. Abu Daud reported that the father of a girl name Khansa, gave her in marriage while she was a virgin, she did not like the match and so she came to the Prophet. He annulled her marriage. The repudiation of marriage if so chosen must be made within a reasonable period of time. Any unreasonable delay shall vitiate the right. The time period may, however, be extended if the wife was ignorant of her marriage or of her right to cancel the same. Under the precedent, a period of three years after puberty is deemed as sufficient and reasonable, within which the option must be exercised, otherwise the right is lost.

When separation takes place by exercise of the option and if the marriage has not been consummated, the wife has no right to mahr. But if the marriage had been consummated, she is entitled to her full mahr. This is irrespective of the fact whether separation has taken place by her own option or by the option of her husband. Some of the jurists are of the view that marriage contracted for a minor by her father or paternal grandfather is binding on the minor and can be repudiated only if the father or the grandfather has ignored the interests of the minor, or has acted fraudulently or negligently and the marriage is to the manifest disadvantage of the minor. There is no such requirement about the marriage contracted by a guardian other than father or grandfather. It may be noted here that the Dissolution of Muslim Marriage Act, 1939 does not provide for any such distinction.


Guardianship

According to the Hanafi law, for the purposes of marriage the wali (guardian) of every person primarily is her or his father, and in his absence, the paternal grandfather and then the great grandfather. The responsibility to act as the wali, passes on from one to another male relative. In the absence of any such male, the guardianship goes to the mother, the paternal or maternal grandmother, the maternal grandfather, a sister, a uterine brother or sister, a paternal aunt, or a maternal uncle or aunt.[7]



Iddat

Iddat is the period of probation incumbent upon a woman whose marriage is dissolved. She must wait for the end of this period before she re-marries. During the period of iddat the Muslim wife cannot contract another marriage. She is entitled to maintenance from her husband or from his property. The purpose of iddat is biological i.e. to decide the paternity of a possible child of the union and to avoid confusion of parentage. In case of dissolution of a marriage by divorce or death, iddat is required (whether the marriage is valid or irregular), if the marriage has been consummated. In case of dissolution of marriage by apostasy too iddat is necessary if the marriage was consummated. Iddat is not required to be observed in an unconsummated marriage.

Period of Iddat

Iddat period of a valid marriage on dissolution by death is four months and ten days and by divorce, if she is subject to menstruation, three menstrual courses, in other cases, three lunar months. In the case of pregnancy, iddat shall be extended up to the date of delivery or miscarriage, as the case may be.




Marital Rights

Mahr or Dower

The Holy Qur'an says: “And give women (on marriage) their dower as a free gift, but if they of their own good pleasure, remit any part of it to you, take it and enjoy it with right good cheer.”[8]

According to the Hedaya, “the payment of dower is enjoined by the law merely as a token of respect for its object (the women) therefore its mention, if it is not absolutely essential to the validity of a marriage and the marriage is valid although the man were to engage in the contract on the special condition that there would be no dower.”[9]

Mahr (dower) is a sum of money or other property, which the wife is entitled to receive from the husband by virtue of marriage. It may be specified in the nikahnama. The entire amount of the mahr shall be presumed to be payable on demand if no time for payment is fixed. Mahr is not a requisite for the validity of marriage but becomes compulsory on marriage. The amount of mahr ordinarily fixed by oral contract is valid.

Marriage is valid though no dower is mentioned. Because conjugal rights are far too precious to be equated with what is normally given as mahr. It is not a consideration of marriage but its effect is imposed by the law on the husband as a token of respect and honour for the woman.

Prompt Dower- mahr- i-mu’ajjal- it is derived from a root which means ‘to hasten’ ‘to proceed’. It means dower which is promptly paid at the time of marriage or is payable promptly on demand.

Deferred dower- mahr- i-nuwajjal. It is derived from a root, which means ‘to delay or postpone’. It means what is payable on the dissolution of marriage by death or divorce.

Minimum Mahr

1. Hanafi law-10 dirhams
2. Maliki law-3 dirhams
3. Shafi law and Shiite law-no fixed minimum

A dirham is silver coin 2.97 grammas in weight

Quantum of dower differs from place to place. It depends upon the social position of the parties and upon the economic condition of the society. It must be adjudged on different principles.

Classification of Mahr

The mahr is payable whether the sum has been fixed or not. Mahr may first of all, be either specified or not specified.

There are two of kinds of mahr in Islam.
a. Specified mahr (al-mahr al- musamma)
b. Proper dower or customary dower (mahr al mithl)

Specified mahr may again be divided into two types; a. Prompt (mu ‘ajjal), b. Deferred (mu’ajjal)

Specified Mahr—Specified Mahr is fixed at the time of marriage and the Quazi performing the ceremony enters the amount in the register. The wife is entitled to recover whole of such mahr. The sum may be fixed either at the time of marriage or later, and a father’s contract on behalf of a minor son is binding on the minor. Once the amount has been specified, the husband will be compelled to pay the whole of it, however excessive it may seem to the court, having regard to the husband’s means.

Proper Mahr

If the amount of mahr is not fixed, the wife is entitled to proper mahr even if contracted on the condition that she should not claim any mahr. In such cases, proper mahr of women is to be fixed with reference to the dower settled upon other female members of her fathers’ family and her own personal qualifications. The social position of the husband and his means are of little account.

Enforcement of Mahr

The claim of wife and widow for the unpaid portion of mahr is an unsecured debt due to her from her husband or his estate, respectively. If a husband refuses to pay prompt mahr, the guardian of a minor wife has the right to refuse to allow her to be sent to the husband’s house and similarly, the wife may refuse the husband his conjugal rights provided no consummation has taken place. Under Muslim law the wife is entitled to refuse herself to her husband until the prompt mahr is paid: and if in such circumstances she happens to reside apart from him, the husband is liable to provide maintenance to her.

If dower is not fixed in the contract of marriage according to Abu Hanifa, proper dower will become due merely on the ground of marriage itself. If she dies without consummation proper dower shall be recoverable from the husband. If the husband dies before consummation, the woman shall be entitled get her proper dower, which shall be realized from the estate of her deceased husband’s property. According to Imam Shafei proper dower does not become due merely on the basis of marriage. It becomes due in case of two events only.

First, when it is fixed dower and secondly, when consummation has taken place. If dower is not fixed and one of them dies before consummation, even proper dower shall not become due instead only a suit of deaths shall be due. Only, once there is consummation and dower is not fixed and the divorce is given before consummation of marriage –proper dower shall not become due, instead only a suit of clothes shall be due.
In certain cases, an inflated amount is fixed in public for the glorification of the bridegroom’s family or, where no dower is fixed, and then proper dower should be paid to the wife. But the exorbitant dower is valid and legal even if it is beyond the means of the husband.

Amount of Dower

No hard and fast rule is laid down in the Holy Quran. It may consist of a ring, a bucket of barley, dates, cash, immovable property, goods, merchandise etc. But dower must be certain, lawful, capable of being taken into possession. In case of specified dower, the wife is entitled to her whole dower upon consummation of marriage or the death of her husband. If she is divorced before consummation, then she is entitled to receive half the amount of her specified dower. A wife can refuse to live with the husband on account of non-payment of dower if there is no consummation of marriage. Whereas, if there has been consummation of marriage, the non- payment of dower is not a defense for an action of restitution of conjugal rights.


Effect of Death of either party on Dower

If marriage is dissolved by death of either party, dower is payable as:

Valid Marriage Full dower- If not specified, then proper
dower (whether marriage consummated or not)

Irregular Marriage Full Specified or proper dower, whatever is less (if
marriage is consummated)

Effect of Consummation on Dower

I. In case of a consummated marriage – dower is not lost in any case, (even in case of apostasy, adultery, concealing illicit pregnancy) dower is made binding by consummation or by its substantial valid retirement) just as by death.
II. In case of a valid marriage- full specified dower, proper dower if not specified.
III. In case of an irregular marriage- full-specified dower or proper dower whichever is less.
IV. In case of an unconsummated marriage- valid marriage- dower will only be due if marriage is dissolved by death- full specified or proper dower, if it has not been specified.

Objectives and the Effects of Dower

Main objectives:

(1) To protect the wife against arbitrary power of the husband in exercising the right of divorce.

(2). Fixing of high dower operates as a healthy check on the husband’s capricious exercise of such right.

(3) It is a mark of respect for the wife.

A contract of dower need not be reduced to writing. It may be fixed either before or at the time of marriage or after the marriage. Dower may also be increased at any time after it is fixed even during the continuance of the marriage. Dower cannot be decreased. Even the court has no power to decrease the contractual amount. The court is bound to allow the amount settled between the parties even if it is in excess, which the husband possessed at the time of marriage or was expected to acquire. If marriage is dissolved by apostasy or any other act of the husband, then half of the specified dower if it has been specified, otherwise a gift to be given.

Effect of Apostasy on Dower

Apostasy of either party after consummation does not affect the right of the wife to get her dower and the right of the husband to given her dower. But if before consummation the husband apostatizes (if dower is specified) then half of the dower, but if dower is not specified, then a present is due. If before consummation, the wife dies then nothing is due. Parties to a marriage make certain stipulation in the marriage contract, which they are binding. If the husband makes a breach of such conditions, the wife would be entitled to recover her proper dower even if it her specified dower.


Widow’s Right of Retention

A Muslim widow is entitled to retain possession of her husband’s estate, till her dower debt is not satisfied. But this is so when she gets possession of the estate lawfully and without the use of force or fraud. The legal heirs cannot disturb her possession until they satisfy the dower debt. The right of retention does not confer on the widow any title to the property. Her rights are twofold: one, as heir of the deceased, and two, as widow entitled to her mahr and, if necessary, to retain possession of the estate until her Mahr has been paid. The right to hold possession must, therefore, is sharply distinguished from her right as an heir. The right to retain property is a personal right, it cannot be transferred and it can be alienated or mortgaged. But the right is heritable.

In Muslim law, a widow has a lien over that property and such lien she continues to have till her dower debt is discharged. While that is so, it cannot be said that her liability to account for the income received by her from the properties of her husband does not exist. While she can exercise her right of lien, she is liable to account to the other sharers with regard to the income as a co-sharer. Dower is a debt, but not a secured debt.

The Supreme Court has laid down that a Muslim widow in possession of her husband’s estate in lieu of her claim for dower, whether with the consent of the other heirs or otherwise, is not entitled to priority as against her other unsecured creditors[10]. Her right is not greater than that of any unsecured creditor except that she has a widow’s lien. She is not entitled to any priority over other creditors[11]. Widow’s lien over her husband’s property remains only so long as she remains in possession. But if she wrongfully dispossessed, she is entitled to recover possession. As soon as the debt is satisfied, she must deliver possession to the legal heirs of the husband.


Maintenance for Women

In Muslim law, maintenance for women is of special significance. In the underdeveloped societies, an overwhelming majority of the female population is not able to earn their own living on account of social taboos, and consequently, they depend on the male members of the family for their bare subsistence. One good aspect of Muslim law is that it makes legal provision for maintenance for wives, dependent children and other relatives who are unable to maintain themselves. There is a special term for ‘maintenance’ called nafaqa.

The husband is bound to maintain his wife, so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to him or is otherwise disobedient unless the refusal or disobedience is justified by non-payment of prompt mahr or she leaves the husband’s house on account of his cruelty. If the husband neglects or refuses to maintain his wife without any lawful cause, the wife can sue him for maintenance.

The Holy Quran says “If divorce takes place the mothers shall give suck to their offspring for two whole years, if the father of the child desires to complete the term. But he shall bear the cost of their food and clothing on equitable term.”[12] The Quran says: "Lodge them where you dwell, according to your means, and harass them not so as to strain life for them. And if they are pregnant, then spend for them till they bring forth their burden. Then, if they give suckle for you, give them their due payment and enjoin one another among you to do well; but if you disagree, then let other (woman) suckle for him. Let him who has abundance spend of his abundance, and he whose provision is measured, let him spend of that which Allah has given him; Allah does not lay a burden an any soul, except that which He has given it. Allah will bring about ease after hardship."[13] In the Muslim law, the wife has the right of being properly maintained by her husband and he is responsible for providing his wife with food, clothes, residence, medical treatment, adornment (as per his means) and other expenditures needed by the wife and according to her social status, on one hand, and falling within the husband's financial means, on the other.

In India, under Sections125 to 128 of the Criminal Procedure Code 1973, if a husband has sufficient means to maintain his wife who is unable to maintain herself, but refuses or neglects to do so, he can be ordered by a magistrate to provide maintenance to her by way of a monthly allowance amounting to a maximum of Rs. 5000. Provided that she is not living in adultery and has not refused to live with him except for a legally sufficient reason, and is not living separate by mutual consent.

Under the new provision of Section 125, Criminal Procedure Code, a divorced wife can now claim maintenance even if the divorce had taken place before the new code came into force. Section 127 (3) (b) provides that where any order has been made under Sec.125 in favour of a woman who has been divorced or has obtained divorce from her husband, the magistrate shall, if he is satisfied that she has received, whether before or after the date of said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such an order. Section 125 has to be read with Sec. 127 and if there has been a divorce and the wife has received her dower and other dues then she cannot claim maintenance under Sec.125.







Divorce

Introduction

Islam regards marriage as a religious obligation but not an indissoluble union. If the situation demands, the marriage can be dissolved. Islam has permitted divorce, but it lays emphasis on the fact that divorce should be resorted to only in unavoidable circumstances when there is no other alternative. The Prophet has said:

“Of all things permitted, divorce is the most hateful in the sight of God”[14]

The literal meaning of talaq is “to snap off or to separate or freedom from bondage”. In Shariah, it means terminating with explicit or implied words the bond created by marriage contract. The relevant verses of the Holy Quran that deal with the procedure for divorce says:

“If ye fear a breach,
Between them twain,
Appoint two arbiters,
One from his family
And the other from hers;
If they wish for peace,
God will cause
Their reconciliation:
For God hath full knowledge,
And is acquainted
With all things”[15]


If the husband and wife are unable to live together or even after genuine efforts fail to adjust themselves with each other, the marriage could be properly dissolved. The husband and wife should be first persuaded to reconcile and overcome the conflict inter se through arbiters; one each from the husband’s and wife’s parental families. Even after that, if the parties are unable to resolve their differences, they should be separated instead of being allowed to perish in a failed marriage. Thus Islam accepts divorce as a necessary evil but does not see it as a desirable option.

Divorce can occur by the act of the parties i.e. can be pronounced by the husband, by the wife, by mutual consent or through judicial process. The marriage can also be dissolved due to the death of the husband or wife.

Talaq may be given Orally or in Writing

Oral- If the words are expressed and well understood as implying divorce, no proof of intention is required. If the words are ambiguous, the intention must be proved. It is not necessary that the talaq should be pronounced in the presence of the wife or even addressed to her. In a Calcutta case, the husband merely pronounced the word “talaq” before a family council and this was held to be invalid as the wife was not named. But, this case was approved by the Court where the talaq was considered valid though pronounced in the wife’s absence.[16]

Talaq in Writing

A talaqnama executed in writing, in the presence of witnesses and in the customary form, takes effect immediately even if not brought to the wife’s knowledge at the time of its execution. It can subsequently be communicated to her within a reasonable time. [17]


Classification of Divorce

1. By the death of husband or wife
2. By the act of the parties
3. By judicial process


By death of Husband or Wife

With the death of the husband or wife, the marriage comes to an end. If the wife dies, the husband can immediately marry, but if the husband dies, the wife has to wait till the end of the period of iddat (four months and 10 days), or if pregnant, till the delivery.

By act of the Parties

By the husband: The attributes of divorce, (masnun according to the traditions of the Prophet) are of two kinds (1) Talaq al Sunnat (2) Talaq al Bidaat (ghayr masnun ) not according to the rules known in the traditions of the Prophet.

Talaq al Sunnat: It is of two kinds: -

Talaq al Ahsan: It is a single pronouncement of divorce during tuhr (period when wife is free from menstruation i.e ritual purity) followed by abstinence from sexual intercourse for the period of iddat. The husband can revoke this talaq any time during iddat by words or by conduct. The talaq may be pronounced orally or in writing.

Talaq-al-hasan: This is by a husband who has consummated the marriage. It consists of three successive pronouncements, during three consecutive periods of ritual purity. One pronouncement is made during a period of ritual purity in which there has been no cohabitation. It may be revoked within the same period of ritual purity. Again the same process is repeated the second time. Now if the third pronouncement is made in the third consecutive period of purity, the divorce becomes irrevocable and then the same parties cannot ordinarily remarry unless there is an intervention through a third person, consummation of that marriage, divorce, observance of iddat. The Holy Quran says:

“Divorce may be pronounced twice, and then a woman must be retained in humour or allowed to go with kindness. The verse means that a man who has twice given notice of divorce over a period of two months should remember God before giving notice a third time. Then he should either keep the spouse in a spirit of good will or release her, giving her full rights without any injustice. The prescribed methods of divorce has ensured that it is a well considered planned arrangement and not just a rash step taken in a fit of emotion”[18]

Marriage Dissolution by the Wife
Talaq-e-tafweedh (Delegated Divorce)

Delegation of the right of divorce is an entrustment by the husband to the wife as a right to act as her husband’s delegate in effecting divorce to him. Delegation of authority can be either at the time of entering the marriage contract or at any time during married life. The divorce is as effective as pronounced by the husband himself. It is recognized by all school of thoughts.

Under Islamic law, a man and a woman entering into a contract of marriage may choose certain mutually agreed conditions upon which their marriage is to take place. The agreed conditions would define their future marital rights and obligations in addition to the ordinary one’s under a valid marriage contract. The spouses may, for example, agree that the wife under such an agreement shall have the power to divorce herself on behalf of the husband. Such an agreement amounts to a delegation (tafweedh) of his power by the husband to the wife. The pronouncement of divorce by the wife under such an agreement is tantamount to the husband’s pronouncement of divorce. Such delegation of power may be either conditional or unconditional. When it is conditional, the wife would be at liberty to declare divorce on behalf of the husband whenever he commits a breach of the conditions agreed upon, resulting into dissolution of her marriage tie with the husband. If it is unconditional, the wife has an absolute power, as per the terms of agreement, to dissolve the marriage. [19]

The doctrine of tafweedh is based on the Quranic verse, wherein it is provided:
“O Prophet! Say to thy consorts, if it be that ye desire the life of this world and its glitter- then come- I will provide for your enjoyment and set you free in a handsome manner”.

In obedience to this Quranic injunction, the Prophet had empowered his wives to choose either him or a separation, that is, they might either get the marriage dissolved or prefer its continuation. His wives, however, chose continuation of marriage. Thus, a husband can lawfully delegate to his wife power to dissolve the marriage, if she so wants. This doctrine enjoys judicial recognition also. [20]

In talaq-e-tafweedh, the husband retains his power of divorce as the same has not been transferred to the wife but she becomes an agent to effectuate divorce. This doctrine, therefore, brings the spouses at par with the husband about exercising the power of divorce though the right actually vests with the husband.

The doctrine has proved useful in restraining husbands from contracting second marriage and securing some other benefits to the wives depending upon the terms of the agreement under which the power of talaq has been delegated to the wife. The following are some of the conditions that are valid and on whose breach the wife can be made entitled to divorce her self by talaq- e-tafweedh.

(i) The husband shall not absent himself from their place of residence for a specified period of time.
(ii) The wife shall not be forced to reside in the same house with his other wife/wives.
(iii) The husband shall not stop the wife from going to her parents or other relatives once in a week.
(iv) The husband shall not indulge in gambling.
(v) The husband shall not mistreat the wife.
(vi) The husband shall pay to the wife maintenance every month by a specified date or give her a specified sum of money by a certain date.
(vii) The husband shall not be guilty of immorality.

Therefore, if the conduct of the husband is against any of the agreed conditions, the wife can talaq herself on behalf of the husband by virtue of the doctrine of talaq-e-tafweedh.

Khula

It may be reiterated that the contract of marriage is ordinarily supposed to last for the entire lifetime of the husband and wife. But when the relations between the spouses become strained and the continuation of their union becomes undesirable, the spouses are, thereupon, allowed to terminate it. It can be terminated either by the husband on his own initiative or at the instance of the wife or by mutual agreement. In the first two cases, there is a breach of implied agreement that the marriage will subsist during the lifetime of the parties. If it is the husband is guilty of this breach, he is penalized by becoming liable for the immediate payment of his wife’s deferred dower (mahr al muajjal) and mata’ (other thing/gifts). While, if it is the wife who wants the termination of the marriage, she has to compensate the husband. This termination of the marriage at the instance of wife is called khula. Under Shariah, it means that a husband after accepting compensation from his wife renounces his rights and authority over her under the marriage contract.

The word khula literally means, “to put off”. Thus, khula’ is a divorce with the consent and at the instance of the wife in which she gives or agrees to pay compensation to the husband for her release from the marriage. Therefore, assuming a situation in which the wife finds difficult to live a contended life with her husband and she is likely to deviate, the Quran says:

“Then if you fear that they (the spouses) would be unable to keep within the limits of Allah, there is no blame on either of them if she gives up something to become free thereby”[21].

Accordingly, the Prophet educated his followers about what had been revealed upon him and also put that to practice. One day, Jamila, the daughter of Abd Allah Bin Ubyyb Salul and the wife of Thabit Ibn Qays appeared before the Prophet and said, “O Messenger of Allah, I and Thabit can never live together. I saw him coming from the other side with some men. I found that he had the smallest stature, was the blackest and ugliest among them; I swear by Allah that I do not dislike him on account of any religious or moral turpitude of…….. O’ Messenger of Allah! You can see how beautiful I am while Thabit is an ugly person…. I fear that I may be guilty of transgression of the limits set by Islam”. The Prophet asked her if she would return the orchard given by Thabit to her as mahr. She replied, “Yes and if he demands more then, I am ready to give him more than that”. The messenger of Allah said “No, not more than what he had given you”. He then asked Thabit to take back the orchard and release her from the marriage tie by divorcing her, which he did. There is a tradition of the Prophet which says: “Only that property should be accepted back from the wife released under Khula which had been given by the husband to her and not more than that.”[22]

The object of khula is to enable the wife to get released from her husband when she finds that it is not possible for her to live with her husband in harmony and peace. It is to be noted that in the relevant Quranic provision cited above, there is nothing to indicate the husband’s power to refuse the dissolution of the marriage when the wife demands a release by khula. It is an irrevocable divorce.

It may thus be observed that khula is an important right of the Muslim wife enabling her to get rid of an unwanted marriage. The right is available to her under the general principles of Islamic Law, irrespective of the terms of the marriage contract. She also need not offer any explanation for her option to dissolve the marriage. It can be affected by the intervention of the court also, i.e. if the husband objects to her exercise of the option, the court can pass a decree in her favour. In either case, she has to pay the iwaz (recompense).

Mubaraat

It literally means ‘releasing from each other’. The proposal may be made by either of the two the husband or the wife and with its acceptance by the other, the marriage is completely dissolved. It is a mutual agreement between the husband and the wife that becomes effective by the consent of the parties. It is a mutual discharge, an irrevocable divorce.


By Judicial Process

Talaq al bidaat: It is an irregular divorce. It is of two kinds:

a. Divorce by three declarations b. Divorce by one irrevocable declaration.

In this form, three pronouncements are made in a single tuhr (period of ritual purity) in three sentences “I divorce thee, I divorce thee, I divorce thee”. Such a talaq is lawful, although sinful, only under Hanafi law. It is not permissible under Shia or Shafi’e law. Bidd’ ah means an innovation beyond the Quranic provisions and the Sunnah. People should desist from such a kind of talaq.[23]

Divorce by three declarations: In this form, three pronouncements are made at a time in one sentence during one period of purity.

Divorce by one declaration: Here the husband neither pays any attention to the period of purity or abstention from intercourse. He pronounces one bain talaq (irrevocable bain divorce), which is valid, but the person pronounces shall be a sinner.[24] Such a divorce is sinful but lawful under Hanafi law.

Talaq al bidaat is not recognized under Shiah Law.

According to Hamilton’s Hedaya, the divorcee is an offender against the law[25]. People should desist from such a kind of talaq.[26]

Divorce under intoxication, under compulsion, divorce pronounced in jest are all valid kinds of divorce under Hanafi school of thought.

Ila’

Literally ila means ‘vow’ and the maker of vow is called m’uli. In law, it implies ‘cessation of sexual relations between the husband and the wife’. In pre-Islamic days the husbands used to harass their wives by depriving them of their sexual intimacy without proper dissolution of marriage so that she could not contract another marriage. Islam has provided a check on the evil effects of such practices.

If a man makes a vow saying to his wife “by Allah! I will not have sexual intercourse with you” and the period exceeds four months, then two consequences follow: One, the man commits the breach of vow and has sexual intercourse with the wife. He does not lose the wife but shall be liable to penalty (kafara). Second, if the husband does not resume sexual contact with the wife within four months, the wife has a right to seek dissolution of marriage and get rid of the cruel situation. By exercising this right the wife can protect herself from harassment by the husband.

Zihar

The word ‘zihar’ is a derivative from word ‘zahr’ (back). Zihar means ‘to oppose back to back’. In the language of law, it signifies a man comparing his wife to any of his female relatives within such prohibited degrees of relationship, whether by blood, fosterage or by marriage as render marriage with her invariably unlawful. Zihar, therefore may be used by a husband to deprive the wife of his company and tie her to a miserable life. For instance, if husband says to his wife “you are to me like my mother’s back”, this amounts to both desertion as well as cruelty. In such a situation, Islam gives the wife a right to seek marriage dissolution.

The husband can re-establish the matrimonial relationship with her only on paying the prescribed penalty (making expiation). He must free a captive before they touch one another. But he, who has not the means, should fast for two months successively and he who is unable to do so should feed sixty needy ones. In Zihar unlike ila, no time limit is prescribed to make expiation or to go back to what has been said. The wife may seek dissolution of marriage immediately after husband’s making of such injurious comparison. [27]

Lian

Lian literally means to ‘drive away’. Here it means to drive away from the mercy of Allah on account of imprecations involving the curse and wrath of Allah. When a husband accuses his lawfully wedded wife of adultery, she has a right to apply to the Qazi to order the husband either to support his accusation by taking the specially prescribed oaths or to admit the falsity of his charge. Where the husband has made a false charge of adultery against the wife, it will be a valid ground for the dissolution of marriage by Qazi. The law will be clear by the following Quranic verse:

“And those who launch a charge against chaste women, and produce not four witnesses (to support their allegation), flog them with eighty stripes and reject their evidence even after for such men are wicked transgressors.

And those who launch a charge against their spouses and have (in support) no evidence but their own, their solitary evidence (can be received) if they bear witness four times (with an oath) by Allah that they are solemnly speaking the truth, and the fifth (oath) should be that they solemnly invoked the curse of Allah on themselves if they tell a lie. But it could avert the punishment from the wife, if she bears witness four times (with an oath). By Allah her husband is telling lie, and the fifth (oath) should be that she solemnly invokes the wrath of Allah on herself if (her accuser) is telling the truth”. [28]

One Hilal Bin Umayyah accused his wife of having committed adultery. This verse was revealed when the Prophet was deciding their case. Hilal and his wife then took the prescribed oaths and the Prophet allowed them to separate. Ibn Umar reported, “The Prophet allowed imprecation between a man and his wife. He first admonished the husband, told him that chastisement of this world is easier than the chastisement of the hereafter. Then he (Prophet) called her (the wife) and gave her similar admonition and warning. After the spouses had taken the prescribed oaths, he (Prophet) separated them”.

The attempt of the Qazi must be to discourage imprecations, which lead to the dissolution of marriage. The Qazi should first ask the husband either to take the prescribed oaths or to admit falsity of his charge against his wife. If the husband persists in his accusation, the Qazi shall first administer the oath to him four times by repeating each time. “I call Allah to witness to the truth of my testimony concerning the adultery with which I charge this woman” pointing to his wife. After that the husband will be required to pronounce the imprecation by saying “May the curse of Allah fall upon me if I have spoken falsely concerning the adultery with which I charge this woman”. After this, the Qazi admonishes the wife and advises her to give up her demand, but if she persists, he would ask her either to take the prescribed oaths or to admit her guilt. If she admits her guilt of adultery, the marriage shall not be dissolved. Should she persist that her husband’s accusation is false, the Qazi must administer to her the prescribed oaths. She must repeat four separate times saying “I call Allah to witness that my husband’s words respecting this adultery with which he charges me are altogether false” and then pronounce the imprecations saying a fifth time, “May the wrath of Allah light upon me if my husband is just in bringing a charge of adultery against me”.

When both the parties have taken the imprecations and invoked the curse and wrath of Allah, the judge is to order the husband to divorce his wife and on his refusal or failure to do so, the Qazi shall himself dissolve the marriage, if the wife so desires. It is to be noted that the accusation does not automatically lead to dissolution of marriage but only gives to the wife right to seek the dissolution of marriage.


Faskh

Muslim women are also allowed to seek marriage dissolution through court or Qazi on certain grounds dictated by reason and rationality. This aspect of the Islamic law has been statutorily granted recognition in India and shaped in the form of Dissolution of Muslim Marriage Act 1939. These grounds are given below:

a. Missing husband: Where the husband has disappeared and his whereabouts are not known for a period of four years or more, the wife can apply for faskh
b. Non-maintenance: Where the husband fails or neglects to provide maintenance to the wife for a period of two years or more, she can pray for faskh.
c. Imprisonment: If the husband has been sentenced to imprisonment for a period of seven years or more the wife can approach the court for faskh.
d. Non-performance of marital obligations: Wife can apply for faskh if the husband has failed to perform his marital obligations for a period of three years or more. The nature of marital obligations is to be ascertained with reference to Islamic law.
e. Impotency: The main purpose of marriage is lawful satisfaction of natural urges and a chaste and happy companionship of the parties to it. When the husband is incapable of consummating the marriage on account of some defect, physical or otherwise, the said object of marriage gets defeated. Islam lays great stress on the performance by the husband of the marital obligations to satisfy the natural desires of his wife, to be intimate with her at reasonable intervals and not to neglect this important obligation. Islamic law therefore gives the wife of an impotent person, who cannot perform these marital obligations, a right to get her marriage dissolved with the intervention of the court or the Qazi.
f. Mental or bodily disease: Mental as well as physical fitness of a person is necessary for continuation of a marriage. In the absence of such basic state of health, the relationship may grow tense and break. In view of this fact, it has been provided that if the husband is suffering from insanity for two years or more, the wife can sue for faskh. She can also claim dissolution of marriage with a husband suffering from leprosy or a virulent venereal disease, irrespective of the duration of the disease in either case. However dissolution of marriage may be refused where the wife has herself infected the husband with the disease. The same principle can apply in case of HIV/AIDS cases.
g. Option of puberty: Where her father or guardian has given a wife in marriage, before she attained the age of puberty, she can seek dissolution of such marriage on attaining puberty by repudiating the marriage.
h. Cruelty: Under Islamic law, a wife can claim dissolution of marriage anytime if the husband treats her with “cruelty”. No precise specific definition of ‘cruelty’ has been adopted in this respect and basic human standards of pain and suffering can be applied to determine the violence of cruelty. Ordinarily, the cruelty can include:

i) A habitual assault or making the wife’s life miserable by physical ill treatment or by mental torture.
ii) Association with women of evil repute or otherwise leading an infamous life.
iii) Attempt to force the wife to live an immoral life.
iv) Disposing of her property or preventing her from exercising her rights thereupon.
v) Obstructing her in the observance of religious profession or practice.
vi) Inequitable treatment by a polygamous husband contrary to the Quranic injunction in this behalf.
vii) Any other like treatment.
viii) The relationship of husband and wife is severed on the husband’s apostasy.


Maintenance

Introduction

The dictionary meaning of the word ‘maintenance’ is the money someone given to a person that they are legally responsible for, in order to pay for their food, clothes, and other necessary things. The implied meaning here is the money given by the husband to maintain his wife and children. The following versus of the Holy Quran gave rise to the rights and obligations of maintenance: “Let the man of means spend according to his means, and the man whose resources are limited, let him spend according to what God has given him”[29]. “Let the women live (in iddat) in the same style as ye live, according to your means”.[30] “But he shall bear the cost of their food and clothing on equitable terms”[31].

What is nafah (maintenance)? Generally, it includes food, clothing, dwelling and other necessary articles, which are necessary for the livelihood and comfort of a woman. The basis for the liability of maintenance is marriage. Under the Shariah, a wife cannot be compelled to cook and stitch her clothes; it is the husband who has to provide her with cooked food and stitched clothes or he has to provide her with a servant for that work. The husband is also bound to provide her with a separate house or a separate portion of a house with a separate entrance or exit. If the wife resides at her parent’s house for a valid reason, her right of maintenance is not affected. It is obligatory on the part of the husband to maintain his wife, behave with her on equitable terms and take proper care of the wife. If he has more than one wife, he should provide maintenance to all of them and treat them equitably, should not discriminate between them in providing maintenance and should not prefer one against the other.

In a valid marriage, it is the liability of the husband to maintain the wife. There is no liability of maintenance in case of an irregular marriage where irregularity is due to absence of witnesses at the time of Nikah ceremony. Where the wife refuses to live with the husband due to non payment of prompt dower, her refusal will be considered valid and her right of maintenance is not affected whether the marriage has been consummated or not. Where the wife refuses to live with the husband or return to his house due to some valid reason e.g. his cruelty, the right of maintenance is not affected.

Maintenance during the period of Iddat

Iddat can be of two kinds, one on the death of the husband and the other on divorce by the husband. In case of iddat on the death of the husband, the wife is not entitled to maintenance unless she is pregnant at the time of death of the husband and she is entitled to maintenance till her pregnancy is over. In case of iddat on divorce, the wife is entitled to maintenance only till the period of iddat.

Fixing the Amount of Maintenance

Under the Shariah, according to Hanafi School of thought, the status of the wife is taken into consideration while fixing the amount of maintenance. According to Shafei School, the status and capacity of the husband is the determining factor. According to other jurists, the status and capacity of both the husband wife should be taken into consideration while fixing the amount of maintenance.

Past Maintenance

According to Hanafi school of thought the wife cannot claim past maintenance from her husband unless there is an agreement between them or there is a decree of a Court entitling her to get maintenance from her husband, whereas according to Shafeis, the wife is entitled to past maintenance. This is so because according to Hanafis, maintenance is a gratuity while according to Shafeis maintenance is a debt.

If the husband neglects or defaults continuously in providing maintenance to his wife, the wife has a right to go to the Court. The Court on being satisfied of the wife’s claim shall pass an order against the husband for maintenance allowance. If the husband still neglects to pay the maintenance amount, the Court is empowered to pass an order for the husband’s imprisonment for a fixed period.

An agreement, whether anti nuptial or past nuptial between the husband and wife in which the husband agrees to pay maintenance to the wife is valid under Shariah and enforceable in law. Whereas an agreement between the husband and wife that no maintenance shall be due on the husband or an undertaking by the wife that she would not claim maintenance allowance from the husband is void. Under Shariah such a contract is against public policy.


Maintenance Issues of Muslim Women in India

On the continuance of marriage it was held in a case that a husband is bound to maintain his wife so long as she is faithful to him and obeys his reasonable orders. A husband is not bound to maintain a wife who disobeys him by refusing to live with him. But what degree of disobedience will disentitle the wife to claim maintenance is not laid down. For entitlement of maintenance, it is immaterial that she has the means to maintain herself while the husband has no means.

The wife loses her right to maintenance in the following circumstances:
1. She is a minor, incapable of consummation.
2. She refuses free access to him at all reasonable times.
3. She is disobedient.
4. She refuses to live with him in the conjugal home or abandons the conjugal home without any reasonable ground.
5. She deserts him.

But if the husband is guilty of cruelty or keeping a concubine at home, she retains the right of maintenance.


“For divorced women maintenance should be provided on a reasonable scale. This is a duty on the righteous”. [32] “Thus doth God make clear this signs to you, in order that ye may understand.”[33] “Let the women (live in iddat) in the same style as ye live, according to your means, annoy them not, so as to restrict them, and if they carry life (in their wombs) then spend (your substance) on them until they deliver their burden; and if they suckle your offspring’s give them their recompense and take mutual counsel together according to what is just and reasonable…”[34]

These verses (ayats) make it very clear that the Holy Qur’an imposes an obligation on Muslim husbands to provide maintenance to their divorced wives. If the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to Section 125 of the Criminal Procedure Code 1973. This was the position prior to the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986.



Section 125 Criminal Procedure Code of 1973 &
Muslim Women (Protection of Rights on Divorce) Act

Section 125 Criminal Procedure Code 1973 empowers the Magistrate to order maintenance in favour of women. A ‘wife’ includes, a divorced wife for the purpose of Section 125. Hence, any woman who has been divorced or has obtained divorce from her husband and has not remarried can seek a maintenance order against her former husband, if she is unable to maintain herself and her husband has failed to maintain her despite having sufficient means to do so. On such an application by the wife, the Magistrate can order the husband to pay a monthly allowance (maximum up to Rs. 5000). If he fails to comply with the order of the Magistrate, the Magistrate can issue a warrant for levying the amount fixed in the order. If he still continues to evade the order and the amount remains unpaid in full or part, the Magistrate can sentence him to imprisonment up to one month or till due payment is made, whichever is earlier. Under Section 127(2), the Magistrate shall have to cancel or vary his order if it appears to him that competent civil Court has passed an order of maintenance in a civil suit between the parties. Under Section 127(3) the Magistrate shall also cancel the order of maintenance (i) if the woman in whose favour the order has been passed gets remarried, (ii) where she was divorced by the husband and if she has received, whether before or after the date of the said order, the whole of the sum which under any customary or Personal Law applicable to the parties was payable on such divorce or (iii) where she had obtained divorce from the husband and if she had voluntarily surrendered her right of maintenance after her divorce.

The most important judgment, which changed the course of Muslim law regarding Muslim women in India, was Mohd. Ahmad Khan v. Shah Bano[35]. The Supreme Court held that a Muslim husband is liable to provide maintenance to a divorced wife who is unable to maintain herself. The Court also held that dower is not payable in consideration of marriage but is an obligation imposed by law on the husband as a mark of respect for the wife. The Court further held that the fact that deferred dower (mahr) is payable at the time of dissolution of marriage cannot justify the conclusion that it is payable on divorce. Divorce may be a convenient or identifiable point of time at which the deferred amount is to be paid by the husband to the wife. Hence mahr is not the amount, which is mentioned under Section 127(3) (b). This judgment led to a large scale protests by Muslims throughout the country and it was regarded as interference into the Personal Law of the Muslims. The intense controversy led to the passing of the Muslim Women (Protection of Rights on Divorce) Act 1986.

Let us now examine the provisions of the Muslim Women (Protection of Rights on Divorce) Act 1986. This is a declamatory law. The jurisdiction under the Act rests with the Criminal Courts to ensure speedy disposal of cases. Under Section 2(a) of the Act a ‘divorced woman’ means a Muslim woman who was married according to Muslim Law and has been divorced by or has obtained divorce from her husband in accordance with Muslim law. Section 2(b) defines ‘iddat period’ in the case of a divorced woman as (i) three menstrual courses after the date of divorce if she is subject to menstruation, (ii) three lunar months after her divorce, if she is not subject to menstruation and (iii) if she is enceinte at the time of divorce, the period between the divorce and delivery of her child or the termination of her pregnancy, whichever is earlier. Under section 2(c) a Magistrate means a Magistrate in the first class exercising jurisdiction under the Code of Criminal Procedure 1973 in the area where the divorced woman resides.

Section 3(i) lays down that notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband (b) where she herself maintains the children borne to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children, (c) an amount equal to the sum of mahr agreed to be paid to her at the time of her marriage or at anytime thereafter according to Muslim law; and (d) all the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends. Under Section 3(2) where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been paid, or the properties referred to in clause (d) of sub Section (i) have not been delivered to a divorced woman on her divorce, she or anyone duly authorized by her may, on her behalf, make an application to the Magistrate for an order for payment of such provision and maintenance, mahr or dower, or the delivery of properties, as the case may be.

Under Section 3(3) where an application has been made under sub Section (2) by a divorced woman, the Magistrate may, if he is satisfied that (a) her husband, having sufficient means has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children, or (b) the amount equal to the sum or dower has not been paid or that the properties referred to in clause (d) of sub Section (1) have not been delivered to her, make an order within one month of the date of filing of application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage, and the means of her former husband and as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub Section (I) to the divorced woman. Under Section 3(4), if any person against whom an order has been made under Section 3(3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973, and may sentence such person for the whole or any amount remaining unpaid after execution of the warrant, to imprisonment for a term which may extend to one year or until payment, is sooner made.

Under Section 4(1), if the Magistrate is satisfied that a divorced woman has not remarried and is not able to maintain herself after the ‘iddat period’, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine as fit and proper. While making such order, the Magistrate shall have regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such period as he may specify in the order. The provision says that if the divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in case the children are unable to pay such maintenance, the Magistrate shall order the parents of the divorced woman to pay maintenance to her. The second provision says that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on a proof of such inability furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to have the means of paying the same in such proportions as the Magistrate may think fit.

Under Section 4(2), if the divorced woman is unable to maintain herself and she has no relatives as mentioned in sub Section (1), or such relatives or any of them have not enough means to pay the maintenance ordered by the Magistrate, or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the provision to sub-Section (1), the Magistrate may, by order direct the State Waqf Board functioning in an area where the woman resides, to pay such maintenance as determined under sub-Section (1) or to pay the shares of such of the relatives who are unable to pay.

Under Section 5, if on the date of the first hearing of the application under sub-Section (2) of Section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing either jointly or separately that they would prefer to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973 and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly. Section 6(1) provides for power to the Central Government to make rules for carrying out the purpose of this Act. Under Section 6 (2) the rules may provide for the form of affidavit and deceleration to be filled under Section 5 and the procedure to be followed by the Magistrate while disposing of the application under the Act. Section 7 is a transitional provision. It provides that where an application by a divorced woman under Section 125-127, Code of Criminal Procedure, 1973 is pending before a Magistrate on the commencement of this Act, shall, notwithstanding anything contained in that Code and subject to the provisions of Section 5 of the Act, be disposed of by such Magistrate in accordance with the provisions of this Act.

It was held in Aga Mohamed Jaffar Bindaneen V. Koolsum Beebee[36] that a Muslim widow had no right of maintenance out of her deceased husband’s estate in addition to what she takes by inheritance or by will.

In Danial Latifi V.UOI[37], the Supreme Court held that reasonable and fair provision and maintenance under Section 3(i)(a) is not limited for the iddat period, it extends for the entire life of the divorced wife, until she marries. The Court further held that right to a reasonable and fair provision referred to in Section 3 is a right enforceable only against the divorced women’s former husband and is in addition to what he is obliged to pay as maintenance. Reasonable and fair provision would be worked out with reference to the needs of the divorced woman, the means of the husband and the standard of life enjoyed during subsistence of marriage.

Again in Sabra Shamim V. Maqsood Ansari[38] it was held by the Supreme Court held that under Section 3(I)(a) and Section 4 of the Muslim Women (Protection of Rights on Divorce) Act 1986,a divorced wife is entitled to maintenance not merely till iddat period but for her entire life until she remarries.




Maintenance under Section 4 of the Act

In Tamil Nadu Waqf Board V. Syed Fatima Nochi[39] the Court held that it is futile for a divorced woman seeking maintenance to run after relatives who are not possessed of means to offer her maintenance and fighting litigation in succession against them in order to get negative orders justifying her last resort of moving against the state Waqf Board. She can plead and prove such relevant facts regarding the inability of her relatives to maintain her in one proceeding and direct her claim against the State Waqf Board in the first instance.


Anti Nuptial Agreement for Grant of Maintenance

In Muhammad Moinuddin V. Jamal Fatima [40] a case the parties had entered into a pre-nuptial agreement for grant of an allowance in case of disunion or dissension between the couple. On dissension the husband divorced her and the wife claimed the allowance. The Court held that contract valid and held the divorced wife to be entitled to receive the allowance as per the contract.

In Mydeen Beevi Ammal V. T.N. Mydeen Rowthe[41], the husband settled certain properties on his first wife for maintenance for her life (after he married for the second time without her consent). Subsequently, he divorced the first wife and filed a suit for the possession of the properties settled on her. The Court held the wife entitled to the income of the properties for her lifetime whether she was divorced or not.

In Nawab Khwaja Muhammad Khan V. Nawab Hussaini Begum[42] the father of the minor bridegroom had agreed to pay to his son’s wife Rs. 50/-PM in perpetuity for her ‘kharchi pandan’ or pocket money. Later, on account of disagreement between the spouses, the wife left the matrimonial home and filed a suit to recover the amount due to her. The father-in-law contended that the agreement was without consideration, against pubic policy and by ceasing to live with her husband, she had forfeited her rights under the agreement. The Court held that there is no condition in the agreement that it should be paid only when the wife is living in the husband’s house. Moreover, the Court held the wife to be entitled to recover the whole amount, notwithstanding the Act that she was not a party to the agreement.







Impotency of Husband

In Siraj Mohd. Khan Jan Mohd. Khan V. Hafizunnissa Yasin Khan[43] the Court held that impotency of husband amounts to both mental and legal cruelty, hence is a just ground for wife’s refusal to live with the husband and claim maintenance from him.

Cruelty
A wife can refuse to live with the husband on the ground of his cruelty and still claim maintenance from him. Attribution of un-chastity to a wife without justification or proof amounts to mental cruelty thereby amounting to legal cruelty for the purpose of deciding the claim of maintenance. In a case the husband leveled false and baseless allegations of un-chastity on the wife, disowned the paternity of his two children and in another case, the husband made allegations of adultery against the wife. In both the cases, the Court held that the behavior of the husband amounts to cruelty, and the wife is entitled to live separately and claim maintenance.






Inheritance Law and Right to Property

Introduction
In pre- Islamic Arab counties, women were totally excluded from inheritance. Prophet Muhammad emancipated the status of women and restored them their rightful position in the society.
"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."[44]
"Allah (thus) directs you as regards your children's (Inheritance): to the male, a portion equal to that of two females: if only daughters, two or more, their share is two-thirds of the inheritance; if only one, her share is a half. For parents, a sixth share of the inheritance to each, if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased left brothers (or sisters) the mother has a sixth. (The distribution in all cases ('s) after the payment of legacies and debts. Ye know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah; and Allah is all-knowing, al-wise.[45] "Sura 4: 11
Proponents of Shari’a argue that this is fair, given that a Muslim male is obligated to spend part of his inheritance on his wife, children and house, while the female may keep all of it for herself. Financial support for home and family is said to be solely the responsibility of the husband. In most Muslim nations, the law of the state concerning inheritance is in accordance with this law. In the Muslim law the principle, which has been zealously guarded and enforced by courts, is that a woman's property belongs only to her. Consequently, any property which a Muslim wife contributes towards the 'family's assets' (i.e. all the property accumulated during the marriage) remains heir’s alone and is not subject to division or sharing by the husband in the event of a marriage breakdown (unless otherwise agreed upon between the husband and wife). In other words, under the Muslim Law, her 'Net Family Property,' remains hers alone and with no corresponding obligation to share with her husband (unless both husband and wife have agreed to share the same). Muslim law fully recognizes the two facets of property known to the modern law –corpus and usufruct –which it calls ain and manafe respectively. While ain refers to the body or substance of a particular thing itself, and manafe signifies the benefits that may be derived from it.
Ain may comprise aqar (landed property) or other movables and immovable, manafe may include samarat (fruit), basit (produce), ghalla (proceeds), sakna(dwelling rights)etc. All these are forms of property in Muslim law.

Transfer of Property
The transfer of property Act 1882 contains the law relating to transfer of property – to sale, mortgage, and charge lease, exchange transfer of actionable claims and gifts of property. It, however, does not affect the Muslim law of Hiba (gifts).
Hiba
According the Muslim law the terms "hiba" and "gift" are often indiscriminately used but the terms "hiba" is only one of the kinds of transactions, which are covered by the general term "gift". A hiba is a transfer without consideration.
Section 122 of the Act, the Transfer of Property, 1882, states that a gift is a transfer of certain existing movable or immovable property made voluntarily and without consideration by one person called the donor, to another, called a donee and accepted by or on behalf of the donee. The essential elements of a gift are:
1.) The donor (ijab).
2.) The donee (qabul).
3.) The subject-matter
4.) The transfer, and the acceptance
The Allahabad High Court in the case of Mohd. Aslam v. Khalilur Rahman[46] held that a gift with a reservation of possession of property by the donor during his life is void. Islamic law on hiba requires, subject to certain exceptions, delivery of possession of the gifted by the donor to the donee for completion of the gift. The courts in India will recognize this general rule as also its exceptions. The said general rule was affirmed by the Privy Council; and one of the exceptions- the case of a gift by one of the co residents of the gifted property to the other co-resident by the Allahabad High Court.

Essentials Of Gift Under Mohammedan Law
Under Mohammedan law, to be a valid gift, three essentials are required to exist: (a) declaration of gift by the donor (b) an acceptance of the gift, express or implied, by or on behalf of the donee, and (c) delivery of possession of the subject of gift.
Courts have consistently held that when there is no compliance of any of the above three essential conditions, the gift renders itself as invalid. Another characteristic of Mohammedan law is that writing is not essential to the validity of a gift either of movable or immovable property.[47]

Capacity to make Hiba

The donor must be the owner of the property, which is the subject matter of the hiba. There must be a clear intention to transfer property with free consent. Soundness of mind, attainment of the age of puberty and free consent are basic requirements for making a hiba. A hiba, to be valid must ‘therefore’ be made by a person with his free consent and not under compulsion. The donor must not be insane but a mere weakness of the intellect would not be sufficient to invalidate the gift if the donor was able to apprehend the transaction. If a Muslim makes a hiba with a clear intention to defraud his or her creditors, the latter can seek its cancellation. However, the mere fact that the maker of the hiba owed some debt does not raise a presumption that the hiba was made with such an intention.

Capacity to receive Hiba
The donee is the person who accepts the hiba. A minor therefore may be a donee; but if the hiba is onerous, the obligation cannot be enforced against him while he is a minor. But when he attains the age of puberty he must either accept the burden or return the hiba. A hiba, being the absolute transfer of all rights in property, cannot be made to an unborn person, as there is no one to take possession of his interest. But limited interests and usufructs stand on a different footing; they can be created in favour of a person not in being at the time of the grant, provided he is in being when his interest opens out. Thus, if a life interest is granted to X, and thereafter to Y, it is sufficient if Y is in being at the death of X.[48]
Gifts may be made validly to mosques and charitable institutions like schools. Such gifts are treated as sadaqa. A hiba cannot be made in favour of a dead person. If a widow makes a hiba of her mahr to her deceased husband, it is in fact a unilateral foregoing of the right to mahr by the widow to which the principles of hiba do not apply.
Subject of Hiba
The subject matter of the hiba must be certain, existing movable or immovable property. Any property or right, which has some legal value, may be the subject of a hiba. It may be land, goods, or actionable claims. It must be transferable under Section 6 but it cannot be future property. A hiba of a right of management is valid. It is submitted that the release of a debt is not a hiba as it does not involve a transfer of property but is merely a renunciation of a right of action. In a deed of hiba the meaning of the word 'money' should not be restricted by any hard and fast rule but should be interpreted having regard to the context, properly construed in the light of all the relevant facts. Therefore, in order to constitute a valid hiba, there must be an existing property.
Possession of Hiba
The delivery of possession is an essential condition for the validity of the hiba. It is however not necessary that in every case there should be a physical delivery of possession. The delivery of which would complete a hiba, may be either actual or constructive. All that is necessary is that the donor should divest himself completely of all ownership and dominion over the subject of the hiba. The relinquishment of control is thus necessary to complete the action. Constructive possession of the subject of the hiba is therefore sufficient for the purpose of validity. The donor must divest himself of the ownership and dominion over the gifted property by doing all that he can do in order to complete the gift and to make the donee the owner of the gifted property.
Revocation of Gifts
According to Muslim law relating to revocability of gift is not uniform. As the donor and the donee in a particular case of gift may belong to different schools of law, the question of its revocability will be governed by that school of law to which the donor belong to.

Hanafi Law

Two of the close legal heirs of every dead person are invariably regarded as his or her Quranic heirs – the mother and the surviving spouse.
Seven other female relatives of the deceased may be regarded as Quranic heirs in some prescribed circumstances. These are the mother’s mother, the father’s mother, daughter, son’s daughter, and sister-full, half and uterine.
Three male relatives of the deceased may be regarded as Quranic heirs in some prescribed circumstances. These are the father, father’s father and uterine brother. Among the twelve Quranic heirs, notably, as many as nine are women.

Surviving spouse
Share of the husband

if no entitled descendants exist (ie; children/grandchildren)
then
husband = 1/2

if entitled descendants exist (i.e.; children/grandchildren)
then
husband = 1/4

*Note: entitled descendants = sons, daughters, son’s son, son’s daughter. Daughter’s children are not entitled.

Share of the wife

if no entitled descendants exist (i. e; children/grandchildren)
then
wife = 1/4
if entitled descendants exist (ie; children/grandchildren)
then
wife = 1/8


Parents

Share of the father

if entitled descendants exist
(sons, daughters, son’s sons, son’s daughters)
then
father = 1/6

if no male descendants exist (sons, son’s sons)
then
father = 1/6 plus residue
(residue = remainder after all legal shares are distributed)

if no entitled descendants exist
then
father =2/3 residue

Share of the mother

if entitled descendants or brothers/sisters exist
then
mother = 1/6

if no entitled descendants exist
then
if no brothers/sisters, no father, no spouse exist
then
mother = 1/3

if brothers/sisters, father, or spouse exist
then


mother= 1/3 of residue

Share of the daughter’s

if only one daughter (and no sons)
then
daughter = 1/2
if two or more daughters only (and no sons)
then
daughters = 2/3
(to be shared equally between all of them)
if both son’s & daughters exist,
then
son’s daughter = 1/2
=2/3(2or more daughter)
son’s son’s daughter =1/6


Uterine brother/sister
Uterine brother/sister (from same mother, different father)

if one uterine brother/sister exist
then
if no entitled descendants and no male ascendants
(father /father’s father etc)
then
uterine brother = 1/6 or uterine sister = 1/6

if two or more uterine brothers/sisters exist
then
if no entitled descendants .and. no male ascendants
(father /father’s father etc.)
then
all uterine brothers & sisters = 1/3 (each taking 1/6)

*Note: if there are uterine brothers/sisters in addition to full brothers/sisters (same father/mother), then they share in the residue.





Share of the son’s daughter

if one son’s daughter exist
then
if no daughters exist
then
if no son’s son exist
then
son’s daughter = 1/2
if son’s son exist
then
son’s daughter = half share of son’s son
( i.e. son’s son share: son’s daughter share = 2:1)

if two or more son’s daughters exist
then
if no daughters exist
then
if no son’s sons exist
then
2son’s daughters = 2/3 (equally between them)

if son’s son exists
then
son’s daughter = half share of son’s son
( i. e. son’s son share: son’s daughter share = 2:1)


Share of the full brother/sister
(full brother/sisters are brothers/sisters from the same father & mother)

brothers & sisters inherit only when there are no descendants (son/sons, son’s son
etc.) And no ascendants (father/grandfather etc.)

The Arabic word “al-khalala” is used in the Quran, chapter 4 - al-nisa, verses 12 & 176, which is translated by almost all the translators of the Quran to mean “ascendants & descendants” thus giving rise to the interpretation that they include “parents and children” However, many scholars have preferred to classify the word as meaning “father or son” thus excluding the female components of both ascendants and descendants (mother & daughters).

if no full brother and no female entitled descendant exist
(daughter, son’s daughter etc.)
then
if deceased was male,
then full sister = 1/2 (if only one)

if no full sister and no female entitled descendant exist
then
if deceased was female,
then
full brother = 1 (if only one)

if two or more brothers & sisters
then
full sisters = 2/3 (shared equally between them)
full brother’s & sister’s (combination) = 2:1

if no full brother exist but female entitled descendant exist (daughter, son’s daughter etc.)




then
full sister = 1/6 (if only one)

if no full sister exist but female entitled descendant exist
then
full brother = 1/6 (if only one)

if female entitled descendant exist
then
Full sisters & brothers = 1/3 (share equally)



Consanguine sister (sister from same father but different mother)

Consanguine sisters inherit only when there are no son’s or son’s son(s) and no father and no full brother.

if only one full sister and no consanguine brother
then
Consanguine sister (if only one) = 1/2
Consanguine sister(s) (if two or more) = 2/3


if one full sister and consanguine brother(s)
then
(Consanguine) brother: sister = 2:1

True grandmother

True grandmother is defined as the one whose line of connection with the deceased is not interrupted by a male between two females. They are entitled only if the father or mother do not exist.

e.g.; Mother’s mother, father’s mother
Father’s father’s mother, mother’s mother’s mother

True grandmother = 1/6


True grandfather

True grandfather is the one whose line of connection with the deceased is not interrupted by a female between two males. They are entitled only if the father or mother do not exist.

e.g.; father’s father
father’s father’s father
mother’s father
mother’s father’s father

True grandfather = 1/6 if male descendants exist (son, etc)
True grandfather = 1/6 + residue if female descendants exist
True grandfather = residue if no male/female descendants exist


Uncles & aunts (father’s/mother’s brothers & sisters)

Uncles and aunts are only entitled in the absence of grandparents. This means that they will receive shares only if there are no parents and grandparents because grandparents do not inherit when the parents are living. They will also not inherit if the children (or children’s children) of the deceased are living. Proportions here are also in the ratio of 2:1 for male: female.


Nephews & nieces (children of brothers/sisters)

Nephews and nieces are only entitled in the absence of brothers and sisters. This means that they take the shares of the brothers/sisters of the deceased in their absence. Hence a nephew/niece will receive what his/her parent (brother/sister of the deceased) would have received if he/she were alive. They will also not inherit if the children (or children’s children) of the deceased are living. Proportions here are also 2:1 for male: female.

Stepchildren

Step –children do not inherit from step- parents, nor do step- parents inherit from step- children. In the case of Allah Baksh v.Mohd Umar,[49]. Begum v. Jalal Din, [50]. A step-son or a step- mother is not heirs.

Bastard

An illegitimate child is considered to be the child of its mother only, and as such it inherits from its mother and its relations, and they inherit from such child. But it has been held that an illegitimate son cannot inherit from the legitimate son of the same mother. In the case Rehmat Ullah v. Budh Singh (1884) 7 all. 297: Mairaj v Abdul Wahid (1921)
43 [51].

Missing heir

According to the Sec.126 if a hair is missing, his share will be reserved and he is until for reappears and claims it or he is proved to be dead.


Children of women divorced by lian

Under the Sec, 68 a child whose mother has been divorced by lian he shall have mutual rights of inheritance with the same relations as an illegitimate person but not with the imprecator.


Quranic Heir, Sunnite (Hanafi) Law


Table of Quranic Heir, Sunnite (Hanafi) Law
Sharers
Share of

Entirely excluded by
Affected by
How affected
One
Two or more collectively
Husband
1/4

None
Where on child or child of son h.l.s.
Share increased to 1/2
Wife
1/8
1/8
None
Where no child or child of son h.l.s.
Share increased to 1/4
Father
1/6

None
Where no child or child of son h.l.s.
Made agnatic heir
True Grandfather
1/6

Father, nearer true grand father
Where no child or child of son h.l.s
Made agnatic heir
Mother
1/6

None
Where (1) no child (2) no child of son h.l.s (3) one brother or sister (4) husband or wife co-exist with father
Share increased to 1/3 of whole estate in case (1) to (3) and 1/3 of the residue after deducting husband or wife’s share in case (4)
Grandmother h.h.s.(maternal)
1/6
1/6
Mother, nearer maternal or paternal grandmother
None


(Paternal)


Mother, nearer maternal or paternal grandmother, father. Nearer true grandfather
None

Daughter
1/2
2/3
None…
Existence of son…
Made agnatic heir
Son’s Daughter
1/2
2/3
Son, more than one daughter, higher son’s son, more than one higher son’s daughter.
Existence of (1) only one daughter (2) only one higher son’s daughter,(3) equal son’s daughter (3) equal son’s son.
Share reduced to 1/6 in cases (1)and (2)made: residuary in case(3)
Full sister…
1/2
2/3
Son, son h.l.s. `Father, true grandfather.
Existence of full brother …
Made Agnatic heir.
Consanguine sister.
1/2
2/3
Son. Son h.l.s. Father, true grandfather, full brother more than one full sister.
(1) Existence of only one full sister.
(2) Existence of consanguine brother.
(1) Share reduce4to 1/6
(2) Made Agnatic Heir.
Uterine Brother & Sister
1/6
1/3
Child, child of a son h.l.s. Father, true grandfather
None.

(The table is not a complete statement of the law)[52]


Shia law

‘Shia law’ in India is very different form the doctrine of Hanafi law and requires separate consideration. The Shias divide heirs into two groups.
1. Blood relations (Nasab)
2. Heirs by marriage, that is husband and wife (Sabab )
1. Blood relations, fruther divided into two groups –
a. Quranic heir
b. blood relation agnate or cognate
2. Sabab is also subdivided into two groups
a. the status of a spouse
b. special legal relationship


Nasab

Heirs by consanguinity are divided into three classes and each class is divided into two groups.
i. Parents
ii Children and lineal descendants
i. Grandparents h.h.s.
ii. Brothers and sisters and their descendants
i. Paternal and
ii. Maternal uncles and aunts of the deceased and of his parents and grandparents h.h.s. and their descendants h.l. s.

Of these three classes of heirs the first excludes the second from inheritance and the second excludes the third. But the second group of each class succeeds together, the degree in each group excluding the more remote in the group.


Husband and Wife

The husband or wife is never disqualified from sequence but inherits together with nearest heirs by consanguinity the husband taking 1/2 if there are no children and 1/4if there are, and wife taking 1/4 there are no children and 1/8 if there are.

Father and Mother

The deceased leaves any descendent the father and mother or both the parents are treated as belonging to the class dhu fard, and each of them take 1/6.
The mother takes 1/3 where there are no descendants and 1/6
a. If there are descendants
b. If there are the father and two or more brothers, full or consanguine and in certain other case.
Share of husband, mother, and father
Husband =1/2
Mother = 1/3 as Quranic heirs
Father = 1/6 as blood relation
Share of wife, mother, and father.

Wife =1/4
Mother =1/3 as Quranic heir
Father =5/12 as blood relation

Share of father, mother, and son

Father =1/6
Mother =1/6
Son = 2/3 as Quranic heir

Share of father mother and two daughters

Father =1/6
Mother =1/6 as Quranic heir
Two daughter = 2/3 as Quranic heir



Eldest Son

The deceased being a male, on leaving more sons than one, the eldest son is entitled to take as his special perquisite the garments of the deceased, his signet ring, sword and Quran .

Daughter

If there is a son, he takes the residue after allotting portions to the Quranic heirs. If the daughter survives with him, she shares the residue with him in the proportion of one and two. When the daughter survives and there is no son, she take 1/2 alone, and 2/3 jointly with other daughters.

Grandparents without Brother and Sister or their Descendants

If there are no brothers or sister or descendants of brother and sister the estate and is to be divided it among grandparents according to the rules. If there are applicants only on the parental side they make it to the whole estate and divide it among themselves according to the rule of a double share to the male. If there are applicants only on the maternal side they make it to the whole estate and divide it among themselves equally. If there are applicants on both the sides, than assign a 2/3 share to the paternal side to be divided according to rule of a double share to the male and 1/3 to the maternal side to be divided equally.

a. Mother’s mother 1/2
Mother’s father 1/2

b. Father’s father 2/3
Father’s mother 1/3

c. Father’s father 2/3X23=4/9=8/18
2/3
Father’s mother 1/3X2/3=2/9=4/18
Mother’s father 1/2X1/3=1/6=3/1
1/3
Mother’s father 1/2X1/3=1/6=3/11
1
d. Father’s mother 2/3
Mother’s father 1/3


Grandparents with Brothers and Sisters

If grandparents exist together with brother and sister continue according to the rules-
A paternal grandfather counts as a full or consanguine brother, and a paternal grandmother counts as a full or consanguine sister.
A maternal grandfather counts as a uterine brother, and a maternal grandmother counts as a uterine sister.
Divide as a brother and sister.
a.
Mother’s father (uterine brother) 3/18 1/3 as
Mother’s mother (=uterine sister) 3/18 shares.

Con. Brother 4/18 2/3 as
2/18 reliquaries}
Father’s father (= con. Brother) 4/18

Father’s mother (= con. Sister) 2/18


b.
Wife (uterine sister) 1/4 = 3/12(Sh.)
(Uterine brother) 1/3 = 4/12 (Sh. Equally).


Mat. Grand fathers (= uterine brother)
5/12
Pat. Grant father (= full brother)


Distribution among Uncles and Aunts

In rule to distribute the property among the uncles and aunts of the deceased or of his ancestors continue.
1. A 2/3 share to the paternal side and 1/3 share to the maternal side, if both sides are represented, but if there are claimants only on one side, divide the whole among the claimants on the side.
2. Divide the portion assigned to the paternal side exactly as if the claimants were brothers and sisters of the deceased, that is to say ---
a. Assign their share to the uterine uncles and aunts and divide equally.
b. Divide the remainder among the other claimants according to the rule of a double share to the male.
3. Divide the portion assigned to the maternal side.
a. Assign their share to the uterine uncles and aunts and divide equally.
b. Divide the remainder among other claimants equally.


U=uncle, A= aunt, P=paternal, M= maternal, F= full, C=consanguine, Ut = uterine
Ut. P. U. 1/3 of 2/3=2/9 (Sh.) 1/2 of 2/9=2/18=6/54
Ut.P.A. 1/2of 2/9=2/18= 6/54
F. P.U. 2/3 of 2/3 =4/9 (R.) 2/3 2/3of 4/9= 8/27=16/54
F. P. A. 1/3of 4/9=4/27=8/54
Ut.M.U. 1/2 of 1/3 1/6=9/54
Tt.M.A. 1/2of1/8 1/3 1/6=9/54
1


Share in the Shia Law


Table of Share in the Shia Law
The possible sharers
Shares
Circumstance in which a share would succeed as a share to the shares specified in col. B
When a share is converted into a residuary
Of one
Collectively of tow or more
1
2
3
4
5
1. Father
1/6

When there is a lineal
When there is no lineal descendent
2. Mother
1/6

a) When there is a lineal descendant;
b) When there is father and also two or more brother (full or consanguine) or one such brother and two such sister or four such sisters.

3.Daughter
1/2
2/3
When there is no son
When there is a son
4.Full sister
1/2
2/3
When there is no parent, b) lineal descendant, c) full brother d) paternal grandfather
If there is no parent or lineal descendant, becomes a residuary in two cases
a) With a full brother,
With a paternal grandfather (h.h.s.)

5.Consanguine sister
1/2
2/3
When there is no parent b) lineal descendant, c) full brother d) full sister. e) Consanguine brother f) paternal grandfather (h.h.s.)
If there is no parent or lineal descendant, becomes residuary in two cases a) With a consanguine brother b)with a paternal grandfather (h.h.s.)
6. Uterine brother and uterine sister
1/6
1/3
When there is no parent or lineal descendant.

7. Husband
1/2


1/4

When there is a no lineal descendant
When there is a lineal descendant


8.Wife
1/4


1/8
1/4


1/8
When there is a no lineal descendant
When there is a lineal descendant

Note- the descendant’s h.l.s. of sharers are also sharers.(Sec. 164)[53]





Right to Inheritance
A pre-Islamic Arab woman did not have the right to inherit from anybody, neither her father nor even her husband. According to the Medinan customs, only male adults, capable of taking up arms in a war, had the right to inheritance. So even a minor son had no right to the property of his deceased father. Arabian society and privileges were denied to women, being exclusively a man’s domain. The Arabian society was not alone in keeping women deprived of share in inheritance. The social order of the world on the basis of these and other pretexts their kept her out of it, only the male offspring and the first born getting away with it in its entirety.
Islam raised its voice against this gross injustice to the weaker sex, proclaiming aloud that women had as much right to their share in the inheritance. The Quran declared: “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”. [54]
The social and legal reform introduced by Islam emphasized the extended family in contradistinction to the tribe and tribal loyalties. It abolished many unjust customs and usages and gave inheritance rights to the disadvantaged members of the family. According to Sunni law of inheritance, if both son and daughters survive the propositions each son will get double the share of the daughter. If there are only one daughter and no son, she will take half the property and two or more daughter and no son, she will take half the property and two or more daughters will take two –thirds of the property.


Inherited Property
There is no distinction in the Muslim law of inheritance between moveable and immoveable property, or between ancestral and self-acquired property. The Quranic directives legislation concerning the distribution of a deceased person’s estate is just equitable and a great advance upon the unjust customs of the pre-Islamic time.
Before the period of the Prophet women were substances of inheritance and they were considered part of the possession of a man. At such a critical juncture of history, Islam brought about a revolution in the domain of human thought and outlook towards women and established the right of women to inherit and own property that they have a determined share specified by the Quranic word cannot be denied by anyone. "To everyone, we have appointed shares and heirs to property left by parents and relatives…." [55] The amount of the share of inheritance is dependent on the closeness of the heirs' relationship to the deceased. "Blood-relations among each other have closer ties, in the Book of Allah than (the brotherhood of) believers and Muhajirs" [56]
In another verse-"From that is left by parents and those nearest related there is a share for men and a share of women, whether the property be small or large-a determined share.' [57]
Difference in Inheritance between Men and Women

The law of inheritance in Islam makes known the variation in the shares of inheritance for men and those for women. However, this variation is not due to gender difference, but rather due to divine wisdom and objectives that many fail to see. They even regard this difference between the shares of men and women in some cases of inheritance as something to prove the position of women in Islam. However, the Islamic law of inheritance is controlled by the following three criteria:
1. The degree of kinship between the receiver (man or woman) and the deceased. The closer the relation, the greater the share given, regardless of the heir’s gender. 2. The position of the inheriting generation in the chronological sequence of generations. The younger generations usually receive larger share than the older ones regardless of gender. For instance, the daughter of a deceased man receives a bigger share than his mother does, and the daughter of a deceased woman receives a bigger share than her father does even if the daughter is an infant.
3. The financial responsibility imposed by law upon the heir. This criterion is the one from which difference results between males and females. However, such difference does not lead to any injustice done to women; it could even prove to be quite the other way. Furthermore, the following four points should be known:
1. Women receive half of men’s share in four cases only.
2. In many cases, women receive the same share of inheritance as men. 3. In ten cases or more, women’s share is bigger than men’s.
4. In some cases, women receive shares of inheritance while corresponding men do not.

In other words, in more than thirty cases, women take the same or more than men take, or women take a share while men do not, while there are only four definite cases in which women receive half of men’s share.




Is Men’s Share of Inheritance Double than Women's?

In Islamic law, a son receives double as much as a daughter, a brother double as much as a sister and a husband double as much as a wife. The case of father and mother is the only exemption. If a deceased has children and his parents are also alive, each of his parents will get one-sixth of the property left by him. It is because of women's special position with regard to dower, maintenance, military service and some of the criminal laws, that their share has been fixed at half that of men.
Allah says in the Qur'an, “Allah charged you concerning (the provision for) your children: to the male the equivalent of the portion of two females.” [58](An-Nisa' 4: 11)
Men undoubtedly, have been given more responsibilities than women. As a father, husband, son, or brother, a man should provide for his children, wife, mother, sister; he should strive hard to make both ends meet. Islam, as a divine religion, does not ignore the above fact and sets down rules that strike a balance between men's responsibilities and women's rights.
Islam gives the girl half of her brother's share in inheritance because Islamic Law doesn't force her to spend any money on anybody other than herself. On the other hand, a Muslim male, who is usually the breadwinner of the family, is obliged to spend on his wife, his children, his brothers, his sisters, and his mother and father.

Women’s Inheritance Rights
According to Muslim law, female sex is no bar to inheriting property is to be excluded from inheritance in Muslim law only on the basis of sex. Women have, like men, an unconditional right to inherit property – not merely to receive maintenance or hold property in lieu of maintenance.
Hussain v. Rahim,[59] Mohitan v. Zubeda [60]. In these cases, the courts allowed transfer of the right to the lieu –one for the widow’s lifetime, and the other perpetually, along with transfer of the property itself.
The Muslim Personal Law (Shariat) Application Act 1937 specifically refers to “special property to females” including personal property inherited or obtained under contract or gift or any other provision of Personal law.
The law of inheritance is quite complicated, for the shares of different heirs vary according to individual circumstances: the daughter alone or in the presence of a son, the mother alone or in the presence of the father, with children or without them, the sister alone or in the presence of the brother, father or children of the deceased, inherit in different proportions according to individual cases. It is not our intention to describe it here in full detail. The shares of female heirs, may however, be mentioned briefly. The wife gets one-eighth if the deceased also leaves a child otherwise she gets a quarter. The daughter when alone gets a half, whereas several daughters get two-thirds which they divide between themselves in equal proportions; all this where there is no son. In the presence of a son, the daughter gets half of her brother. The mother, when alone, gets one-third; in the presence a father, child or brothers and sisters of the deceased, she gets one-sixth. The sister does not inherit if the deceased leaves a son; but when alone, she gets a half; two or more sisters get two-third, which they divide between themselves equally. In the presence of a daughter, the sister gets one-sixth; in the presence of a brother, she gets the half of what he gets. There are also differences between the shares of full sisters, consanguine and uterine sisters.


[1] Ameer Ali, Mohammedan law, 7th edn; p. 97.
[2] Abdur Rahim, The Principles of Mohammadan Jurisprudence, 1958, p. 327.
[3]Al-Bayhaqi:Kitab al- Sunan al Kubra, Vol VIII, p,78.
[4] Ibn Majah, Kitab-al-Nikah, 1/593.
[5] .Fyzee, AAA, Outlines of Mohammadan law ,1974, 4th edn; p.p 88-89.
[6] Supra note, p.279.
[7] HidayatullahM.,,& Hidayatullah Arshad, Mulla’s, Principals of Mohammadan Law, p.233.
[8] Al-Quran, Surah- An-Nisa IV:4.
[9] Charles Hamilton, The Hedaya or Guide, A Commentary on the Musalman Laws, 1979, p.44.
[10] Kapore Chand vs Kaderunnissa Begum, 1950, SCR, 747.
[11] Ameer, Ali, Mohammedan law, 1929, 5th edn. p.434.


[12] Holy Quran (11:233).
[13] Holy Qur'an (65:6-7).

[14] Abu Daud, Sunnan, Kitab al- Falaq, 2/255.
[15] Al Quran, Surah Nisa, IV: 35.
[16] Furzund Hussein v. Jami Bibee (1878) 4 Cal.588.
[17] Hidayatullah M., Hidayatullah Arshad , Mulla’s Principle of Mohammadan Law p.260.
[18] Al-Quran Surah Al-Baqara, 11:229.
[19] Mahmood, Tahir, The Muslim Law of India, pp.99-100.
[20] Supra Note 6 p. 159.
[21] Al-Quran, Surah Al- Baqara.11: 229.
[22] Al-Bayhaqi ,Al Suna, Al-Kubra , Vol. VII, p. 314.
[23] Fyzee A. A.A., Outline of Mohammadan Law, 1974, p.154.
[24] Al Kasani, Imam Ala A-Din.
[25] Charles Hamilton, The Hedaya, A Commentary on the Musalman Laws, 1979. p.25.
[26] Supra Note 6.
[27] Supra Note 6 at p.162.
[28] Al-Quran Surah An -Noor XXIV:6-9.
[29] Al-Qur’an,Surah, Al-Talaq, LXV:7
2 Al-Qur’an,Surah, Al-Talaq, LXV:6
[31] Al-Quran,Surah, Al Baqara,11:233
[32] Al Quran, Surah Al-Baqara, 11:241.
[33] Al Quran, Surah Al-Baqara, 11: 242.
[34] Supra note 2.
[35] AIR 1985, SC, 945.
[36] (1897) 24 IA, 196.
[37] AIR 2001, SC, 3958.
[38](2004) 9, SCC, 616.
[39] AIR, 1995, Mad, 88.
[40](1921) ILR 43 AII 650.
[41] AIR, 1951 MAD 992.
[42] (1930) 37 IA 152.
[43] AIR 1981, SC, 1972.
[44] Al- Quran Sura 4:7
[45] Al-Quran Sura 4:11
[46] AIR1947 PC, p.98.
[47]Hidayatullah M & A. Hidayatullah, Mulla’s Principles of Muhammadan, 9th Edn, p. 118.

[48] Fyzee, A A.A.,Outlines of Muhammadan law, 1974, 4th edn. P. 226.
[49] A.I.R.1992 Lah, 444at p. 444;Mst.
[50]52 P.R 182, No. 50 :41 I.C.263.
[51] All.673, 631.C.286, 21, A.A.175.

[52] Fyzee, A A.A. Outlines of Mohammedan law, p.404

[53] Verma, B.R.Mohammedan Law 8th edn, p.p..548-549.
[54] Al Quran 4:7
[55] Al-Quran, Surah Nisa-33
[56] Al-Quran, Surah Ahjab-6
[57] Al-Quran Surah Nisa-7
[58] Al-Quran, An-Nisa' 4: 11.
[59] AIR, 1954, Mys 24.
[60] AIR, 1954, Pat 17.




MUSLIM WOMEN’S RIGHTS
IN
MUSLIM PERSONAL LAW






TARANNUAM SIDDIQUI










SAROJINI NAIDU CENTRE FOR WOMEN’S STUDIES
JAMIA MILLIA ISLAMIA
NEW DELHI 110025
2006

Foreword

The status of Muslim women has been a subject of considerable debate in India. Muslims, being a minority community, have always had a sense of insecurity. Every voice of reform from other communities is termed as interference in the Personal laws of Muslims. In the communally vitiated political atmosphere in India, the demand for abolishing polygamy and ridiculing triple talaq created very strong polarization, and further increases the growing sense of insecurity among Muslims. The recent cases of Gudiya and Imrana have further provided a boost to those people who see Islam as anti -women.

The biggest irony of the subject is that a Muslim husband’s right to polygamy and triple talaq is known to every common man on the street. On the other hand, the fact that Islam emancipated the status of women by prohibiting female infanticide (so relevant in the contemporary times in India), introduced the concept of contractual marriage as a dissoluble union, provided female’s right of inheritance and the right of Mahr as a security for the wife and as a restraint upon the husband’s power of arbitrary divorce, introduced the concept of compulsory reconciliation before divorce and provided protection to female heirs by restraining the male power of testamentary succession are only known to people in the academic circles. Truly speaking, it is the basic ignorance and unawareness about the Islamic laws that lead to various misconceptions, misgivings and biases. For this pathetic situation, it is the Muslims themselves who are responsible. It must be borne in mind how intimately law and religion are interconnected in the Islamic system. Both cannot be dissevered from each other. The reason behind the problems faced by Muslim women are lack of awareness, illiteracy, lack of proper knowledge and understanding of Islamic laws, the insensitive attitude of agencies responsible for implementation of Islamic Laws and last, but not the least, the callous attitude of men. Hence the practices governing women’s personal status, their legal capacity and role in the family continue to deny women’s rights.

The study of rights of Muslim women focuses on the effects of Muslim Personal law. Like other systems of law, Muslim Personal Law also raises a number of issues for critical evaluation. To understand and make an intelligent opinion about the pending debate on the subject of Muslim Personal Law, one has to make a thorough study of the subject. This book is an excellent piece of work in this direction. The author has, while trying to do justice with the subject, also provided guidelines, which will help in removing all kinds of misgivings about Muslim Personal Law resulting in clarity on the subject. Muslim Personal Law is often misunderstood and this book is going to be a great help to the society at large in removing all kind of misunderstanding about Muslim Personal Law is often misunderstood and this book is going to be a great help to the society at large in removing all kinds of misunderstandings about Muslim Personal Law and the rights of Muslim women under Islam. It will further lead to formation of an intelligent opinion which will further lead to removal of all kinds of doubts prevalent in the society about Islam, which is of course a very noble deed.

Dr. KahkashaDanyal
Faculty of law
Jamia Millia Islamia


Preface

A woman in Islam is an independent entity and, thus, a fully responsible human being. Islam addresses her directly and does not approach her through the agency of Muslim men. On the basis of her own acts, a woman earns rewards or punishment. No man is allowed to plead or intercede for a woman, nor is he held responsible for her actions and their consequences. The doctrine of ultimate accountability does not take the family as a unit for collective responsibility, rather each individual, male or female, is an autonomous unit of reckoning in front of Allah, and is held directly responsible for his or her actions or his or her share in joint acts. “For on the day of judgment, every one of them will come singly” (Surah Maryam).

The individuality of a woman is the principle in Islam. The concept of gender equality in Islam is stressed by the non-superiority of either sex over the other. The equality of women in Islam is evident by the unprecedented legal rights given to them under a monotheistic religion as defined in the Holy Quran. As one of the many examples, if we take the rights of women in marriage and divorce, both men and women have the right to contract a marriage agreement as well as seek divorce. The precondition of marriage is merely a mutual agreement between both parties. Islam gives women the right to ownership, which entitles them to have personal possessions. The Holy Quran also explicitly outlines women’s inheritance rights. As for as social rights, Islam has always recognized the prominent role that women play in the society.

But women in general, and Muslim women in particular, are a downtrodden section of the Indian society. When we analyze the status of Muslim women statistically, we find that they are much more backward than the women of other communities. That is why urgent action is needed to upgrade and elevate their social status.

I congratulate the author of this book Ms. Tarannum Siddiqui, and Sarojini Naidu Centre for Women’s Studies, Jamia Millia Islamia for bringing it out. It consists of four sections: Marriage, Divorce, Maintenance and Inheritance. It is a useful contribution in the field of Muslim women’s studies. The conclusion attempts to shed light on some of the contentious issues of Muslim society. Many of the wrong notions and misinformation about the marriage, divorce, maintenance and inheritance have been cleared and doubts removed. The real and factual picture has been presented in the light of Holy Quran and Sunnah. It is hoped that this authentic work will be of immense help to the readers in general and Muslim society in particular.




Prof. Haseena Hashia
Dept. of Geography, Jamia Millia Islamia
Member, All India Muslim Personal Law Board,
New Delhi


Contents

Marriage

Introduction
Formation of a Valid Marriage
Type of Marriages
Puberty and the Age of Marriage
Iddat
Marital Rights


Divorce

Introduction
Classification of Divorce
Divorce by the death of husband or wife
Divorce by the act of the parties
Divorce by judicial process


Maintenance

Introduction
Maintenance Issues of Muslim Women in India
Section 125 Criminal Procedure Code of 1973
Muslim Women (Protection of Rights on Divorce) Act


Inheritance Law and Right to Property

Introduction
Transfer of Property
Hanafi Law
Shia Law
Right to Inheritance
Difference in Inheritance between Men and Women
Women’s Inheritance Rights



Marriage

Introduction

Marriage is an important social institution, which helps in creating a basic unit of human society called ‘family’. The institution is common to all communities, though there are some differences in the norms regulating them. Under Islamic law, marriage (nikah) is considered as a solemn pact between the spouses. According to Ameer Ali, “Marriage is an institution ordained for the protection of the society and in order that human beings may guard themselves from foulness and unchastity[1]”. Where as according to Abdur Rahim, “The Mohammedan jurists regard the institution of marriage, as partaking both of the nature of ibadat or devotional acts and muamlat or dealings amongst men”[2].

The Prophet has said in Hadith: “When a man has married, he has completed one half of his religion. Then let him fear for the remaining half”. [3]

The Islamic law prevents the human being from committing what is prohibited by the religion. Its objectives are to regulate physical, social, and psychological as well as the legal relations between the partners. Under Islamic law, marriage (nikah) is considered as a solemn pact between the spouses. There are three aspects of marriage in Islamic law:

1. Legal
2. Social
3. Religious

Legal aspect- A Muslim marriage is contractual in form because it makes free consent of the parties an essential element for its validity. This is to ensure that the bride is not getting married under any kind of compulsion.

Social aspect – Islamic law gives the woman an important role at home and in the society. The Prophet, both by example and precept, encouraged the institution of marriage and recognized it as the basis for society.

Religious aspect— The Prophet has said, "Marriage is my Sunnah (that is recommended action of the Prophet) and whoever does not follow my Sunnah is not my true follower” [4]

Marriage is a peculiar mechanism of regulating human relations with religious sanction and therefore, termed as a sacred covenant. The Prophet was determined to raise the status of women and accordingly attributed legal and religious importance to marriage.[5]


Freedom of Choice

According to the laws of Islam, a man and a woman have the right to choose their partner and they should not be forced into marriage. For example it is narrated that when Amir al Momenin Ali asked for Fatima’s hand in marriage the Prophet did not respond to Ali until he asked Fatima for her decision.

Nature of Obligations

Since a Muslim marriage is contractual in nature, all the rights and obligations it creates arise immediately, and are not dependent on any condition precedent. Such rights and obligations include the entitlement of wife to mahr and maintenance mutual rights of inheritance, prohibitions regarding marriage due to the rules of affinity etc.


Formation of a Valid Marriage

The following conditions are necessary for a valid marriage.

Offer from one party
Acceptance by the other party
Presence of two witnesses, where the parties are Hanafis, no witnesses are required if parties are Shiahs.
The words with which the marriage is contracted should be clear and unambiguous.
The proposal and acceptance must be expressed in one and the same meeting.


Capacity to Marry

a) A Sunni Muslim male can marry besides a Muslim woman, an Ahle-Kitab i.e. a female belonging to a religion with a revealed book e.g. a Christian or Jew, but not a Hindu, Sikh or Zoroastrian under any situation.
b) A Shia Muslim male or female cannot marry a non-Muslim female or male but a Shia male can marry a non-Muslim female by way of ‘Muta’ (temporary marriage).
c) Both the woman and the man should be mentally sound at the time of marriage.
d) Minors, who have not attained puberty, may be validly contracted in marriage by their respective guardians. The expected age of puberty is 15 years.
e) A male who is a major, of sound mind is entitled to and is capable of contracting his own marriage.
f) Regarding the capacity of a female virgin major of sound mind, there is a difference of opinion. Among the Hanafis, she has the capacity to contract her marriage without the intervention of a guardian, whereas according to Shafeis and Malikis a female virgin of sound mind cannot contract her own marriage.
g) A widow or a divorced woman (sayyiba-a woman who has experienced married life) has capacity of contracting her marriage.
h) In India, a marriage between a Muslim and a non-Muslim can be solemnized under the Special Marriage Act, 1954.


It is the girl's right to take the decision concerning her marriage and her father or guardian cannot over-ride her objections or ignore her wishes. The words of proposal and acceptance must be uttered by the contracting parties or their agents (vakils) in each other’s presence and hearing and in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Muslims and the whole contract must be completed at one meeting. The proposal and acceptance made at different meetings do not constitute a valid marriage. Writing of Nikahnama or performance of any religious ceremony is preferable but not essential.

Nikahnamas are admissible in evidence as written records of marriage. Qazis who perform the nikah can give satisfactory evidence of marriage. Where the person who performed the nikah is dead, the evidence of a witness can prove the nikah.


Prohibited Degree of Relationship

The woman, a man is getting married to must not be prohibited for him either perpetually or temporarily. There are 19 classes of woman who are prohibited to a man and with whom marriage is unlawful. They are:
(i) Mother (ii). Daughter (iii) Sisters (iv) Father’s sister (v) Mother’s sister (vi) Brother’s sister (vii) Sister’s daughter (viii) Foster mother (ix) Foster sister (x) Mother in- law (xi) Wife’s daughter (step daughter) (xii) Son’s wives (xiii) Father’s wife (step mother) (xiv) Two sisters in conjunction (xv) Married women (xvi) Idolatress (xvii) One’s thrice divorced wife (xviii) Woman in iddat (xix) marriage contracted with a fifth woman.

Proof of Marriage

Marriage may either by proved by direct evidence or may be presumed as a valid marriage by.
(1). Evidence of Marriage
(2). Acknowledgment
(3) Acknowledgment of marriage proof
(4.) Continued cohabitation


Type of Marriages

1. Valid (sahih)
2. Void (batil)
3. Irregular (fasid)

Valid (Sahih)— This marriage is in accordance with Shariah and without any legal impediments. A marriage is considered sahih when all the essentials as per the Islamic law have been fulfilled. A valid marriage confers upon the wife, the right to mahr, maintenance and residence in her husband’s home and imposes on the spouses the obligation to be faithful to each other and to admit each other to sexual intercourse. It creates mutual rights of inheritance, prohibition of affinity.

Void (Batil)—When the essential requirements of a marriage have not been fulfilled, it is batil (void as initio). A batil (void) marriage is no marriage at all. It creates no legal rights nor imposes obligations on the parties. The ground of marriage contract to be void is consanguinity, fosterage, affinity, and unlawful conjunction, pronouncing three divorces to one’s wife, contracting marriage with another’s wife. Effects of a void marriage are as follows; Marriage contract is null and void ab initio, no dower is due, iddat not be observed, issues are illegitimate, no rights of inheritance between husband and wife, no right of maintenance to the wife and no right of maintenance and inheritance to the issues.

Fasid—It is a marriage in which some conditions of a valid marriage are missing. A fasid marriage is one which is contracted without witnesses, marriage contracted with a female during her iddat, marriage contracted with a fifth woman in spite of four subsisting wives, marriage contracted by a man with his wife’s sister during period of probation of his wife, who stands divorced by him.

Effects of a Fasid Marriage

Dower – If there is no consummation of marriage and separation takes place, no dower would become due from the man, no iddat is required. If there is consummation, the man has to pay the specified dower or proper dower, whichever is less and iddat has to be observed.
Legitimacy of Children – Issues of an irregular marriage are legitimate, and are entitled to inherit and maintenance of children is incumbent upon the father.
Affinity- If consummation takes place, prohibition of affinity is established.
Maintenance –Women are entitled to get maintenance till irregularity is not discovered and not after that.
Inheritance – The couple cannot inherit from each other.



Mut’a

The Mut’a is a temporary marriage for a fixed period of time. This is approved only by the Ithna Ashari school of thought. A Shia can contract Mut’a with a Muslim woman, a kitabi and also a fire worshiper. A Shia woman may contract a Mut’a marriage with a Muslim male only.

In a mut’a marriage, the period of cohabitation should be fixed whether a day, a month, a year, or a term of years. Mahr (dower) should be specified. If no period is mentioned, whether inadvertently or intentionally, the contract would be treated as one of a permanent marriage. There is no difference in Mut’a for unspecified period and Mut’a for life.

Mut’a marriage creates no rights of inheritance between the spouses unless there is an agreement between the parties. The children conceived during Mut’a marriage are legitimate and can inherit from both parents[6]. There is no minimum limit for the duration of the marriage and no divorce is required. A woman married in Mut‘a is not entitled to any maintenance. The husband is not bound to provide a residence for the wife. Married women shall be bound to observe iddat, in case of termination by death for four months and ten days, and in case of pregnancy till delivery.


Puberty and the Age of Marriage

In Muslim law, a Muslim who has attained puberty and is of sound mind can marry. If a Muslim has not attained puberty, his or her guardian can give him or her in marriage. He or she can repudiate such a marriage on attaining puberty in certain circumstances. This concept is called option of puberty. The minor on attaining the age of puberty can repudiate when his lawful guardian, other than the father or paternal grandfather, marries a minor such a marriage.

In India under the Child Marriage Restraint Act, 1929, it is an offence to solemnize the marriage of a male below 21 years or of a female below 18 years. But violation of this prohibition does not affect the validity of the marriage.
Puberty

A minor suffers from a legal disability to enter into a binding contract and also enjoys a privilege from being always bound by a contract entered into by a guardian on his or her behalf. The minor can, on attaining puberty, ratify such a contract if he or she so chooses. Under the Islamic law, a minor’s marriage is governed by the same principle. When a guardian contracts a marriage for a minor, he or she, on attaining puberty has a right, subject to certain conditions, to either ratify or repudiate the marriage. This right of dissolution of marriage on attaining puberty is called khiyar-ul-bulugh (option of puberty). Since a Muslim adult husband can dissolve marriage by talaq also, the doctrine of khiyar-ul-bulugh gains more importance for women. Thus the doctrine is one of the safeguards against an undesirable marriage and a protection for minors (especially females) from any unscrupulous or undesirable exercise of authority by marriage guardians.

The doctrine of khiyar--ul-bulugh enjoys sanction under hadith as well. Hazrat Ibn Abbas narrates that a virgin girl came to the Prophet and said that her father had given her in a marriage, which was not to her liking. The Messenger of Allah then gave her option for and against the relationship. After that, this option became available to all. Capacity to exercise the option however occurs only when a minor attains puberty. The minimum age at which children attain puberty in the case of boys and girls is twelve and nine respectively. However, fifteen is the maximum age to attain puberty. Thus, a minor is deemed to have attained puberty when he or she has attained the age of fifteen years. After attaining that age, option may be exercised expressly or by conduct, that is, consummation with willingness.

Regarding waiving of marriage, a minor can waive the right of option of puberty only on attaining puberty. Cohabitation before attaining puberty with or without the girl’s consent does not destroy her right because a minor is not capable of giving her consent to any act as long as she is a minor. The right to exercise this option arises only when she has become a major and so is not lost by anything done or a happening before that time. The right shall be considered waived only by allowing the marriage to be consummated freely after attaining puberty. Abu Daud reported that the father of a girl name Khansa, gave her in marriage while she was a virgin, she did not like the match and so she came to the Prophet. He annulled her marriage. The repudiation of marriage if so chosen must be made within a reasonable period of time. Any unreasonable delay shall vitiate the right. The time period may, however, be extended if the wife was ignorant of her marriage or of her right to cancel the same. Under the precedent, a period of three years after puberty is deemed as sufficient and reasonable, within which the option must be exercised, otherwise the right is lost.

When separation takes place by exercise of the option and if the marriage has not been consummated, the wife has no right to mahr. But if the marriage had been consummated, she is entitled to her full mahr. This is irrespective of the fact whether separation has taken place by her own option or by the option of her husband. Some of the jurists are of the view that marriage contracted for a minor by her father or paternal grandfather is binding on the minor and can be repudiated only if the father or the grandfather has ignored the interests of the minor, or has acted fraudulently or negligently and the marriage is to the manifest disadvantage of the minor. There is no such requirement about the marriage contracted by a guardian other than father or grandfather. It may be noted here that the Dissolution of Muslim Marriage Act, 1939 does not provide for any such distinction.


Guardianship

According to the Hanafi law, for the purposes of marriage the wali (guardian) of every person primarily is her or his father, and in his absence, the paternal grandfather and then the great grandfather. The responsibility to act as the wali, passes on from one to another male relative. In the absence of any such male, the guardianship goes to the mother, the paternal or maternal grandmother, the maternal grandfather, a sister, a uterine brother or sister, a paternal aunt, or a maternal uncle or aunt.[7]



Iddat

Iddat is the period of probation incumbent upon a woman whose marriage is dissolved. She must wait for the end of this period before she re-marries. During the period of iddat the Muslim wife cannot contract another marriage. She is entitled to maintenance from her husband or from his property. The purpose of iddat is biological i.e. to decide the paternity of a possible child of the union and to avoid confusion of parentage. In case of dissolution of a marriage by divorce or death, iddat is required (whether the marriage is valid or irregular), if the marriage has been consummated. In case of dissolution of marriage by apostasy too iddat is necessary if the marriage was consummated. Iddat is not required to be observed in an unconsummated marriage.

Period of Iddat

Iddat period of a valid marriage on dissolution by death is four months and ten days and by divorce, if she is subject to menstruation, three menstrual courses, in other cases, three lunar months. In the case of pregnancy, iddat shall be extended up to the date of delivery or miscarriage, as the case may be.




Marital Rights

Mahr or Dower

The Holy Qur'an says: “And give women (on marriage) their dower as a free gift, but if they of their own good pleasure, remit any part of it to you, take it and enjoy it with right good cheer.”[8]

According to the Hedaya, “the payment of dower is enjoined by the law merely as a token of respect for its object (the women) therefore its mention, if it is not absolutely essential to the validity of a marriage and the marriage is valid although the man were to engage in the contract on the special condition that there would be no dower.”[9]

Mahr (dower) is a sum of money or other property, which the wife is entitled to receive from the husband by virtue of marriage. It may be specified in the nikahnama. The entire amount of the mahr shall be presumed to be payable on demand if no time for payment is fixed. Mahr is not a requisite for the validity of marriage but becomes compulsory on marriage. The amount of mahr ordinarily fixed by oral contract is valid.

Marriage is valid though no dower is mentioned. Because conjugal rights are far too precious to be equated with what is normally given as mahr. It is not a consideration of marriage but its effect is imposed by the law on the husband as a token of respect and honour for the woman.

Prompt Dower- mahr- i-mu’ajjal- it is derived from a root which means ‘to hasten’ ‘to proceed’. It means dower which is promptly paid at the time of marriage or is payable promptly on demand.

Deferred dower- mahr- i-nuwajjal. It is derived from a root, which means ‘to delay or postpone’. It means what is payable on the dissolution of marriage by death or divorce.

Minimum Mahr

1. Hanafi law-10 dirhams
2. Maliki law-3 dirhams
3. Shafi law and Shiite law-no fixed minimum

A dirham is silver coin 2.97 grammas in weight

Quantum of dower differs from place to place. It depends upon the social position of the parties and upon the economic condition of the society. It must be adjudged on different principles.

Classification of Mahr

The mahr is payable whether the sum has been fixed or not. Mahr may first of all, be either specified or not specified.

There are two of kinds of mahr in Islam.
a. Specified mahr (al-mahr al- musamma)
b. Proper dower or customary dower (mahr al mithl)

Specified mahr may again be divided into two types; a. Prompt (mu ‘ajjal), b. Deferred (mu’ajjal)

Specified Mahr—Specified Mahr is fixed at the time of marriage and the Quazi performing the ceremony enters the amount in the register. The wife is entitled to recover whole of such mahr. The sum may be fixed either at the time of marriage or later, and a father’s contract on behalf of a minor son is binding on the minor. Once the amount has been specified, the husband will be compelled to pay the whole of it, however excessive it may seem to the court, having regard to the husband’s means.

Proper Mahr

If the amount of mahr is not fixed, the wife is entitled to proper mahr even if contracted on the condition that she should not claim any mahr. In such cases, proper mahr of women is to be fixed with reference to the dower settled upon other female members of her fathers’ family and her own personal qualifications. The social position of the husband and his means are of little account.

Enforcement of Mahr

The claim of wife and widow for the unpaid portion of mahr is an unsecured debt due to her from her husband or his estate, respectively. If a husband refuses to pay prompt mahr, the guardian of a minor wife has the right to refuse to allow her to be sent to the husband’s house and similarly, the wife may refuse the husband his conjugal rights provided no consummation has taken place. Under Muslim law the wife is entitled to refuse herself to her husband until the prompt mahr is paid: and if in such circumstances she happens to reside apart from him, the husband is liable to provide maintenance to her.

If dower is not fixed in the contract of marriage according to Abu Hanifa, proper dower will become due merely on the ground of marriage itself. If she dies without consummation proper dower shall be recoverable from the husband. If the husband dies before consummation, the woman shall be entitled get her proper dower, which shall be realized from the estate of her deceased husband’s property. According to Imam Shafei proper dower does not become due merely on the basis of marriage. It becomes due in case of two events only.

First, when it is fixed dower and secondly, when consummation has taken place. If dower is not fixed and one of them dies before consummation, even proper dower shall not become due instead only a suit of deaths shall be due. Only, once there is consummation and dower is not fixed and the divorce is given before consummation of marriage –proper dower shall not become due, instead only a suit of clothes shall be due.
In certain cases, an inflated amount is fixed in public for the glorification of the bridegroom’s family or, where no dower is fixed, and then proper dower should be paid to the wife. But the exorbitant dower is valid and legal even if it is beyond the means of the husband.

Amount of Dower

No hard and fast rule is laid down in the Holy Quran. It may consist of a ring, a bucket of barley, dates, cash, immovable property, goods, merchandise etc. But dower must be certain, lawful, capable of being taken into possession. In case of specified dower, the wife is entitled to her whole dower upon consummation of marriage or the death of her husband. If she is divorced before consummation, then she is entitled to receive half the amount of her specified dower. A wife can refuse to live with the husband on account of non-payment of dower if there is no consummation of marriage. Whereas, if there has been consummation of marriage, the non- payment of dower is not a defense for an action of restitution of conjugal rights.


Effect of Death of either party on Dower

If marriage is dissolved by death of either party, dower is payable as:

Valid Marriage Full dower- If not specified, then proper
dower (whether marriage consummated or not)

Irregular Marriage Full Specified or proper dower, whatever is less (if
marriage is consummated)

Effect of Consummation on Dower

I. In case of a consummated marriage – dower is not lost in any case, (even in case of apostasy, adultery, concealing illicit pregnancy) dower is made binding by consummation or by its substantial valid retirement) just as by death.
II. In case of a valid marriage- full specified dower, proper dower if not specified.
III. In case of an irregular marriage- full-specified dower or proper dower whichever is less.
IV. In case of an unconsummated marriage- valid marriage- dower will only be due if marriage is dissolved by death- full specified or proper dower, if it has not been specified.

Objectives and the Effects of Dower

Main objectives:

(1) To protect the wife against arbitrary power of the husband in exercising the right of divorce.

(2). Fixing of high dower operates as a healthy check on the husband’s capricious exercise of such right.

(3) It is a mark of respect for the wife.

A contract of dower need not be reduced to writing. It may be fixed either before or at the time of marriage or after the marriage. Dower may also be increased at any time after it is fixed even during the continuance of the marriage. Dower cannot be decreased. Even the court has no power to decrease the contractual amount. The court is bound to allow the amount settled between the parties even if it is in excess, which the husband possessed at the time of marriage or was expected to acquire. If marriage is dissolved by apostasy or any other act of the husband, then half of the specified dower if it has been specified, otherwise a gift to be given.

Effect of Apostasy on Dower

Apostasy of either party after consummation does not affect the right of the wife to get her dower and the right of the husband to given her dower. But if before consummation the husband apostatizes (if dower is specified) then half of the dower, but if dower is not specified, then a present is due. If before consummation, the wife dies then nothing is due. Parties to a marriage make certain stipulation in the marriage contract, which they are binding. If the husband makes a breach of such conditions, the wife would be entitled to recover her proper dower even if it her specified dower.


Widow’s Right of Retention

A Muslim widow is entitled to retain possession of her husband’s estate, till her dower debt is not satisfied. But this is so when she gets possession of the estate lawfully and without the use of force or fraud. The legal heirs cannot disturb her possession until they satisfy the dower debt. The right of retention does not confer on the widow any title to the property. Her rights are twofold: one, as heir of the deceased, and two, as widow entitled to her mahr and, if necessary, to retain possession of the estate until her Mahr has been paid. The right to hold possession must, therefore, is sharply distinguished from her right as an heir. The right to retain property is a personal right, it cannot be transferred and it can be alienated or mortgaged. But the right is heritable.

In Muslim law, a widow has a lien over that property and such lien she continues to have till her dower debt is discharged. While that is so, it cannot be said that her liability to account for the income received by her from the properties of her husband does not exist. While she can exercise her right of lien, she is liable to account to the other sharers with regard to the income as a co-sharer. Dower is a debt, but not a secured debt.

The Supreme Court has laid down that a Muslim widow in possession of her husband’s estate in lieu of her claim for dower, whether with the consent of the other heirs or otherwise, is not entitled to priority as against her other unsecured creditors[10]. Her right is not greater than that of any unsecured creditor except that she has a widow’s lien. She is not entitled to any priority over other creditors[11]. Widow’s lien over her husband’s property remains only so long as she remains in possession. But if she wrongfully dispossessed, she is entitled to recover possession. As soon as the debt is satisfied, she must deliver possession to the legal heirs of the husband.


Maintenance for Women

In Muslim law, maintenance for women is of special significance. In the underdeveloped societies, an overwhelming majority of the female population is not able to earn their own living on account of social taboos, and consequently, they depend on the male members of the family for their bare subsistence. One good aspect of Muslim law is that it makes legal provision for maintenance for wives, dependent children and other relatives who are unable to maintain themselves. There is a special term for ‘maintenance’ called nafaqa.

The husband is bound to maintain his wife, so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to him or is otherwise disobedient unless the refusal or disobedience is justified by non-payment of prompt mahr or she leaves the husband’s house on account of his cruelty. If the husband neglects or refuses to maintain his wife without any lawful cause, the wife can sue him for maintenance.

The Holy Quran says “If divorce takes place the mothers shall give suck to their offspring for two whole years, if the father of the child desires to complete the term. But he shall bear the cost of their food and clothing on equitable term.”[12] The Quran says: "Lodge them where you dwell, according to your means, and harass them not so as to strain life for them. And if they are pregnant, then spend for them till they bring forth their burden. Then, if they give suckle for you, give them their due payment and enjoin one another among you to do well; but if you disagree, then let other (woman) suckle for him. Let him who has abundance spend of his abundance, and he whose provision is measured, let him spend of that which Allah has given him; Allah does not lay a burden an any soul, except that which He has given it. Allah will bring about ease after hardship."[13] In the Muslim law, the wife has the right of being properly maintained by her husband and he is responsible for providing his wife with food, clothes, residence, medical treatment, adornment (as per his means) and other expenditures needed by the wife and according to her social status, on one hand, and falling within the husband's financial means, on the other.

In India, under Sections125 to 128 of the Criminal Procedure Code 1973, if a husband has sufficient means to maintain his wife who is unable to maintain herself, but refuses or neglects to do so, he can be ordered by a magistrate to provide maintenance to her by way of a monthly allowance amounting to a maximum of Rs. 5000. Provided that she is not living in adultery and has not refused to live with him except for a legally sufficient reason, and is not living separate by mutual consent.

Under the new provision of Section 125, Criminal Procedure Code, a divorced wife can now claim maintenance even if the divorce had taken place before the new code came into force. Section 127 (3) (b) provides that where any order has been made under Sec.125 in favour of a woman who has been divorced or has obtained divorce from her husband, the magistrate shall, if he is satisfied that she has received, whether before or after the date of said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such an order. Section 125 has to be read with Sec. 127 and if there has been a divorce and the wife has received her dower and other dues then she cannot claim maintenance under Sec.125.







Divorce

Introduction

Islam regards marriage as a religious obligation but not an indissoluble union. If the situation demands, the marriage can be dissolved. Islam has permitted divorce, but it lays emphasis on the fact that divorce should be resorted to only in unavoidable circumstances when there is no other alternative. The Prophet has said:

“Of all things permitted, divorce is the most hateful in the sight of God”[14]

The literal meaning of talaq is “to snap off or to separate or freedom from bondage”. In Shariah, it means terminating with explicit or implied words the bond created by marriage contract. The relevant verses of the Holy Quran that deal with the procedure for divorce says:

“If ye fear a breach,
Between them twain,
Appoint two arbiters,
One from his family
And the other from hers;
If they wish for peace,
God will cause
Their reconciliation:
For God hath full knowledge,
And is acquainted
With all things”[15]


If the husband and wife are unable to live together or even after genuine efforts fail to adjust themselves with each other, the marriage could be properly dissolved. The husband and wife should be first persuaded to reconcile and overcome the conflict inter se through arbiters; one each from the husband’s and wife’s parental families. Even after that, if the parties are unable to resolve their differences, they should be separated instead of being allowed to perish in a failed marriage. Thus Islam accepts divorce as a necessary evil but does not see it as a desirable option.

Divorce can occur by the act of the parties i.e. can be pronounced by the husband, by the wife, by mutual consent or through judicial process. The marriage can also be dissolved due to the death of the husband or wife.

Talaq may be given Orally or in Writing

Oral- If the words are expressed and well understood as implying divorce, no proof of intention is required. If the words are ambiguous, the intention must be proved. It is not necessary that the talaq should be pronounced in the presence of the wife or even addressed to her. In a Calcutta case, the husband merely pronounced the word “talaq” before a family council and this was held to be invalid as the wife was not named. But, this case was approved by the Court where the talaq was considered valid though pronounced in the wife’s absence.[16]

Talaq in Writing

A talaqnama executed in writing, in the presence of witnesses and in the customary form, takes effect immediately even if not brought to the wife’s knowledge at the time of its execution. It can subsequently be communicated to her within a reasonable time. [17]


Classification of Divorce

1. By the death of husband or wife
2. By the act of the parties
3. By judicial process


By death of Husband or Wife

With the death of the husband or wife, the marriage comes to an end. If the wife dies, the husband can immediately marry, but if the husband dies, the wife has to wait till the end of the period of iddat (four months and 10 days), or if pregnant, till the delivery.

By act of the Parties

By the husband: The attributes of divorce, (masnun according to the traditions of the Prophet) are of two kinds (1) Talaq al Sunnat (2) Talaq al Bidaat (ghayr masnun ) not according to the rules known in the traditions of the Prophet.

Talaq al Sunnat: It is of two kinds: -

Talaq al Ahsan: It is a single pronouncement of divorce during tuhr (period when wife is free from menstruation i.e ritual purity) followed by abstinence from sexual intercourse for the period of iddat. The husband can revoke this talaq any time during iddat by words or by conduct. The talaq may be pronounced orally or in writing.

Talaq-al-hasan: This is by a husband who has consummated the marriage. It consists of three successive pronouncements, during three consecutive periods of ritual purity. One pronouncement is made during a period of ritual purity in which there has been no cohabitation. It may be revoked within the same period of ritual purity. Again the same process is repeated the second time. Now if the third pronouncement is made in the third consecutive period of purity, the divorce becomes irrevocable and then the same parties cannot ordinarily remarry unless there is an intervention through a third person, consummation of that marriage, divorce, observance of iddat. The Holy Quran says:

“Divorce may be pronounced twice, and then a woman must be retained in humour or allowed to go with kindness. The verse means that a man who has twice given notice of divorce over a period of two months should remember God before giving notice a third time. Then he should either keep the spouse in a spirit of good will or release her, giving her full rights without any injustice. The prescribed methods of divorce has ensured that it is a well considered planned arrangement and not just a rash step taken in a fit of emotion”[18]

Marriage Dissolution by the Wife
Talaq-e-tafweedh (Delegated Divorce)

Delegation of the right of divorce is an entrustment by the husband to the wife as a right to act as her husband’s delegate in effecting divorce to him. Delegation of authority can be either at the time of entering the marriage contract or at any time during married life. The divorce is as effective as pronounced by the husband himself. It is recognized by all school of thoughts.

Under Islamic law, a man and a woman entering into a contract of marriage may choose certain mutually agreed conditions upon which their marriage is to take place. The agreed conditions would define their future marital rights and obligations in addition to the ordinary one’s under a valid marriage contract. The spouses may, for example, agree that the wife under such an agreement shall have the power to divorce herself on behalf of the husband. Such an agreement amounts to a delegation (tafweedh) of his power by the husband to the wife. The pronouncement of divorce by the wife under such an agreement is tantamount to the husband’s pronouncement of divorce. Such delegation of power may be either conditional or unconditional. When it is conditional, the wife would be at liberty to declare divorce on behalf of the husband whenever he commits a breach of the conditions agreed upon, resulting into dissolution of her marriage tie with the husband. If it is unconditional, the wife has an absolute power, as per the terms of agreement, to dissolve the marriage. [19]

The doctrine of tafweedh is based on the Quranic verse, wherein it is provided:
“O Prophet! Say to thy consorts, if it be that ye desire the life of this world and its glitter- then come- I will provide for your enjoyment and set you free in a handsome manner”.

In obedience to this Quranic injunction, the Prophet had empowered his wives to choose either him or a separation, that is, they might either get the marriage dissolved or prefer its continuation. His wives, however, chose continuation of marriage. Thus, a husband can lawfully delegate to his wife power to dissolve the marriage, if she so wants. This doctrine enjoys judicial recognition also. [20]

In talaq-e-tafweedh, the husband retains his power of divorce as the same has not been transferred to the wife but she becomes an agent to effectuate divorce. This doctrine, therefore, brings the spouses at par with the husband about exercising the power of divorce though the right actually vests with the husband.

The doctrine has proved useful in restraining husbands from contracting second marriage and securing some other benefits to the wives depending upon the terms of the agreement under which the power of talaq has been delegated to the wife. The following are some of the conditions that are valid and on whose breach the wife can be made entitled to divorce her self by talaq- e-tafweedh.

(i) The husband shall not absent himself from their place of residence for a specified period of time.
(ii) The wife shall not be forced to reside in the same house with his other wife/wives.
(iii) The husband shall not stop the wife from going to her parents or other relatives once in a week.
(iv) The husband shall not indulge in gambling.
(v) The husband shall not mistreat the wife.
(vi) The husband shall pay to the wife maintenance every month by a specified date or give her a specified sum of money by a certain date.
(vii) The husband shall not be guilty of immorality.

Therefore, if the conduct of the husband is against any of the agreed conditions, the wife can talaq herself on behalf of the husband by virtue of the doctrine of talaq-e-tafweedh.

Khula

It may be reiterated that the contract of marriage is ordinarily supposed to last for the entire lifetime of the husband and wife. But when the relations between the spouses become strained and the continuation of their union becomes undesirable, the spouses are, thereupon, allowed to terminate it. It can be terminated either by the husband on his own initiative or at the instance of the wife or by mutual agreement. In the first two cases, there is a breach of implied agreement that the marriage will subsist during the lifetime of the parties. If it is the husband is guilty of this breach, he is penalized by becoming liable for the immediate payment of his wife’s deferred dower (mahr al muajjal) and mata’ (other thing/gifts). While, if it is the wife who wants the termination of the marriage, she has to compensate the husband. This termination of the marriage at the instance of wife is called khula. Under Shariah, it means that a husband after accepting compensation from his wife renounces his rights and authority over her under the marriage contract.

The word khula literally means, “to put off”. Thus, khula’ is a divorce with the consent and at the instance of the wife in which she gives or agrees to pay compensation to the husband for her release from the marriage. Therefore, assuming a situation in which the wife finds difficult to live a contended life with her husband and she is likely to deviate, the Quran says:

“Then if you fear that they (the spouses) would be unable to keep within the limits of Allah, there is no blame on either of them if she gives up something to become free thereby”[21].

Accordingly, the Prophet educated his followers about what had been revealed upon him and also put that to practice. One day, Jamila, the daughter of Abd Allah Bin Ubyyb Salul and the wife of Thabit Ibn Qays appeared before the Prophet and said, “O Messenger of Allah, I and Thabit can never live together. I saw him coming from the other side with some men. I found that he had the smallest stature, was the blackest and ugliest among them; I swear by Allah that I do not dislike him on account of any religious or moral turpitude of…….. O’ Messenger of Allah! You can see how beautiful I am while Thabit is an ugly person…. I fear that I may be guilty of transgression of the limits set by Islam”. The Prophet asked her if she would return the orchard given by Thabit to her as mahr. She replied, “Yes and if he demands more then, I am ready to give him more than that”. The messenger of Allah said “No, not more than what he had given you”. He then asked Thabit to take back the orchard and release her from the marriage tie by divorcing her, which he did. There is a tradition of the Prophet which says: “Only that property should be accepted back from the wife released under Khula which had been given by the husband to her and not more than that.”[22]

The object of khula is to enable the wife to get released from her husband when she finds that it is not possible for her to live with her husband in harmony and peace. It is to be noted that in the relevant Quranic provision cited above, there is nothing to indicate the husband’s power to refuse the dissolution of the marriage when the wife demands a release by khula. It is an irrevocable divorce.

It may thus be observed that khula is an important right of the Muslim wife enabling her to get rid of an unwanted marriage. The right is available to her under the general principles of Islamic Law, irrespective of the terms of the marriage contract. She also need not offer any explanation for her option to dissolve the marriage. It can be affected by the intervention of the court also, i.e. if the husband objects to her exercise of the option, the court can pass a decree in her favour. In either case, she has to pay the iwaz (recompense).

Mubaraat

It literally means ‘releasing from each other’. The proposal may be made by either of the two the husband or the wife and with its acceptance by the other, the marriage is completely dissolved. It is a mutual agreement between the husband and the wife that becomes effective by the consent of the parties. It is a mutual discharge, an irrevocable divorce.


By Judicial Process

Talaq al bidaat: It is an irregular divorce. It is of two kinds:

a. Divorce by three declarations b. Divorce by one irrevocable declaration.

In this form, three pronouncements are made in a single tuhr (period of ritual purity) in three sentences “I divorce thee, I divorce thee, I divorce thee”. Such a talaq is lawful, although sinful, only under Hanafi law. It is not permissible under Shia or Shafi’e law. Bidd’ ah means an innovation beyond the Quranic provisions and the Sunnah. People should desist from such a kind of talaq.[23]

Divorce by three declarations: In this form, three pronouncements are made at a time in one sentence during one period of purity.

Divorce by one declaration: Here the husband neither pays any attention to the period of purity or abstention from intercourse. He pronounces one bain talaq (irrevocable bain divorce), which is valid, but the person pronounces shall be a sinner.[24] Such a divorce is sinful but lawful under Hanafi law.

Talaq al bidaat is not recognized under Shiah Law.

According to Hamilton’s Hedaya, the divorcee is an offender against the law[25]. People should desist from such a kind of talaq.[26]

Divorce under intoxication, under compulsion, divorce pronounced in jest are all valid kinds of divorce under Hanafi school of thought.

Ila’

Literally ila means ‘vow’ and the maker of vow is called m’uli. In law, it implies ‘cessation of sexual relations between the husband and the wife’. In pre-Islamic days the husbands used to harass their wives by depriving them of their sexual intimacy without proper dissolution of marriage so that she could not contract another marriage. Islam has provided a check on the evil effects of such practices.

If a man makes a vow saying to his wife “by Allah! I will not have sexual intercourse with you” and the period exceeds four months, then two consequences follow: One, the man commits the breach of vow and has sexual intercourse with the wife. He does not lose the wife but shall be liable to penalty (kafara). Second, if the husband does not resume sexual contact with the wife within four months, the wife has a right to seek dissolution of marriage and get rid of the cruel situation. By exercising this right the wife can protect herself from harassment by the husband.

Zihar

The word ‘zihar’ is a derivative from word ‘zahr’ (back). Zihar means ‘to oppose back to back’. In the language of law, it signifies a man comparing his wife to any of his female relatives within such prohibited degrees of relationship, whether by blood, fosterage or by marriage as render marriage with her invariably unlawful. Zihar, therefore may be used by a husband to deprive the wife of his company and tie her to a miserable life. For instance, if husband says to his wife “you are to me like my mother’s back”, this amounts to both desertion as well as cruelty. In such a situation, Islam gives the wife a right to seek marriage dissolution.

The husband can re-establish the matrimonial relationship with her only on paying the prescribed penalty (making expiation). He must free a captive before they touch one another. But he, who has not the means, should fast for two months successively and he who is unable to do so should feed sixty needy ones. In Zihar unlike ila, no time limit is prescribed to make expiation or to go back to what has been said. The wife may seek dissolution of marriage immediately after husband’s making of such injurious comparison. [27]

Lian

Lian literally means to ‘drive away’. Here it means to drive away from the mercy of Allah on account of imprecations involving the curse and wrath of Allah. When a husband accuses his lawfully wedded wife of adultery, she has a right to apply to the Qazi to order the husband either to support his accusation by taking the specially prescribed oaths or to admit the falsity of his charge. Where the husband has made a false charge of adultery against the wife, it will be a valid ground for the dissolution of marriage by Qazi. The law will be clear by the following Quranic verse:

“And those who launch a charge against chaste women, and produce not four witnesses (to support their allegation), flog them with eighty stripes and reject their evidence even after for such men are wicked transgressors.

And those who launch a charge against their spouses and have (in support) no evidence but their own, their solitary evidence (can be received) if they bear witness four times (with an oath) by Allah that they are solemnly speaking the truth, and the fifth (oath) should be that they solemnly invoked the curse of Allah on themselves if they tell a lie. But it could avert the punishment from the wife, if she bears witness four times (with an oath). By Allah her husband is telling lie, and the fifth (oath) should be that she solemnly invokes the wrath of Allah on herself if (her accuser) is telling the truth”. [28]

One Hilal Bin Umayyah accused his wife of having committed adultery. This verse was revealed when the Prophet was deciding their case. Hilal and his wife then took the prescribed oaths and the Prophet allowed them to separate. Ibn Umar reported, “The Prophet allowed imprecation between a man and his wife. He first admonished the husband, told him that chastisement of this world is easier than the chastisement of the hereafter. Then he (Prophet) called her (the wife) and gave her similar admonition and warning. After the spouses had taken the prescribed oaths, he (Prophet) separated them”.

The attempt of the Qazi must be to discourage imprecations, which lead to the dissolution of marriage. The Qazi should first ask the husband either to take the prescribed oaths or to admit falsity of his charge against his wife. If the husband persists in his accusation, the Qazi shall first administer the oath to him four times by repeating each time. “I call Allah to witness to the truth of my testimony concerning the adultery with which I charge this woman” pointing to his wife. After that the husband will be required to pronounce the imprecation by saying “May the curse of Allah fall upon me if I have spoken falsely concerning the adultery with which I charge this woman”. After this, the Qazi admonishes the wife and advises her to give up her demand, but if she persists, he would ask her either to take the prescribed oaths or to admit her guilt. If she admits her guilt of adultery, the marriage shall not be dissolved. Should she persist that her husband’s accusation is false, the Qazi must administer to her the prescribed oaths. She must repeat four separate times saying “I call Allah to witness that my husband’s words respecting this adultery with which he charges me are altogether false” and then pronounce the imprecations saying a fifth time, “May the wrath of Allah light upon me if my husband is just in bringing a charge of adultery against me”.

When both the parties have taken the imprecations and invoked the curse and wrath of Allah, the judge is to order the husband to divorce his wife and on his refusal or failure to do so, the Qazi shall himself dissolve the marriage, if the wife so desires. It is to be noted that the accusation does not automatically lead to dissolution of marriage but only gives to the wife right to seek the dissolution of marriage.


Faskh

Muslim women are also allowed to seek marriage dissolution through court or Qazi on certain grounds dictated by reason and rationality. This aspect of the Islamic law has been statutorily granted recognition in India and shaped in the form of Dissolution of Muslim Marriage Act 1939. These grounds are given below:

a. Missing husband: Where the husband has disappeared and his whereabouts are not known for a period of four years or more, the wife can apply for faskh
b. Non-maintenance: Where the husband fails or neglects to provide maintenance to the wife for a period of two years or more, she can pray for faskh.
c. Imprisonment: If the husband has been sentenced to imprisonment for a period of seven years or more the wife can approach the court for faskh.
d. Non-performance of marital obligations: Wife can apply for faskh if the husband has failed to perform his marital obligations for a period of three years or more. The nature of marital obligations is to be ascertained with reference to Islamic law.
e. Impotency: The main purpose of marriage is lawful satisfaction of natural urges and a chaste and happy companionship of the parties to it. When the husband is incapable of consummating the marriage on account of some defect, physical or otherwise, the said object of marriage gets defeated. Islam lays great stress on the performance by the husband of the marital obligations to satisfy the natural desires of his wife, to be intimate with her at reasonable intervals and not to neglect this important obligation. Islamic law therefore gives the wife of an impotent person, who cannot perform these marital obligations, a right to get her marriage dissolved with the intervention of the court or the Qazi.
f. Mental or bodily disease: Mental as well as physical fitness of a person is necessary for continuation of a marriage. In the absence of such basic state of health, the relationship may grow tense and break. In view of this fact, it has been provided that if the husband is suffering from insanity for two years or more, the wife can sue for faskh. She can also claim dissolution of marriage with a husband suffering from leprosy or a virulent venereal disease, irrespective of the duration of the disease in either case. However dissolution of marriage may be refused where the wife has herself infected the husband with the disease. The same principle can apply in case of HIV/AIDS cases.
g. Option of puberty: Where her father or guardian has given a wife in marriage, before she attained the age of puberty, she can seek dissolution of such marriage on attaining puberty by repudiating the marriage.
h. Cruelty: Under Islamic law, a wife can claim dissolution of marriage anytime if the husband treats her with “cruelty”. No precise specific definition of ‘cruelty’ has been adopted in this respect and basic human standards of pain and suffering can be applied to determine the violence of cruelty. Ordinarily, the cruelty can include:

i) A habitual assault or making the wife’s life miserable by physical ill treatment or by mental torture.
ii) Association with women of evil repute or otherwise leading an infamous life.
iii) Attempt to force the wife to live an immoral life.
iv) Disposing of her property or preventing her from exercising her rights thereupon.
v) Obstructing her in the observance of religious profession or practice.
vi) Inequitable treatment by a polygamous husband contrary to the Quranic injunction in this behalf.
vii) Any other like treatment.
viii) The relationship of husband and wife is severed on the husband’s apostasy.


Maintenance

Introduction

The dictionary meaning of the word ‘maintenance’ is the money someone given to a person that they are legally responsible for, in order to pay for their food, clothes, and other necessary things. The implied meaning here is the money given by the husband to maintain his wife and children. The following versus of the Holy Quran gave rise to the rights and obligations of maintenance: “Let the man of means spend according to his means, and the man whose resources are limited, let him spend according to what God has given him”[29]. “Let the women live (in iddat) in the same style as ye live, according to your means”.[30] “But he shall bear the cost of their food and clothing on equitable terms”[31].

What is nafah (maintenance)? Generally, it includes food, clothing, dwelling and other necessary articles, which are necessary for the livelihood and comfort of a woman. The basis for the liability of maintenance is marriage. Under the Shariah, a wife cannot be compelled to cook and stitch her clothes; it is the husband who has to provide her with cooked food and stitched clothes or he has to provide her with a servant for that work. The husband is also bound to provide her with a separate house or a separate portion of a house with a separate entrance or exit. If the wife resides at her parent’s house for a valid reason, her right of maintenance is not affected. It is obligatory on the part of the husband to maintain his wife, behave with her on equitable terms and take proper care of the wife. If he has more than one wife, he should provide maintenance to all of them and treat them equitably, should not discriminate between them in providing maintenance and should not prefer one against the other.

In a valid marriage, it is the liability of the husband to maintain the wife. There is no liability of maintenance in case of an irregular marriage where irregularity is due to absence of witnesses at the time of Nikah ceremony. Where the wife refuses to live with the husband due to non payment of prompt dower, her refusal will be considered valid and her right of maintenance is not affected whether the marriage has been consummated or not. Where the wife refuses to live with the husband or return to his house due to some valid reason e.g. his cruelty, the right of maintenance is not affected.

Maintenance during the period of Iddat

Iddat can be of two kinds, one on the death of the husband and the other on divorce by the husband. In case of iddat on the death of the husband, the wife is not entitled to maintenance unless she is pregnant at the time of death of the husband and she is entitled to maintenance till her pregnancy is over. In case of iddat on divorce, the wife is entitled to maintenance only till the period of iddat.

Fixing the Amount of Maintenance

Under the Shariah, according to Hanafi School of thought, the status of the wife is taken into consideration while fixing the amount of maintenance. According to Shafei School, the status and capacity of the husband is the determining factor. According to other jurists, the status and capacity of both the husband wife should be taken into consideration while fixing the amount of maintenance.

Past Maintenance

According to Hanafi school of thought the wife cannot claim past maintenance from her husband unless there is an agreement between them or there is a decree of a Court entitling her to get maintenance from her husband, whereas according to Shafeis, the wife is entitled to past maintenance. This is so because according to Hanafis, maintenance is a gratuity while according to Shafeis maintenance is a debt.

If the husband neglects or defaults continuously in providing maintenance to his wife, the wife has a right to go to the Court. The Court on being satisfied of the wife’s claim shall pass an order against the husband for maintenance allowance. If the husband still neglects to pay the maintenance amount, the Court is empowered to pass an order for the husband’s imprisonment for a fixed period.

An agreement, whether anti nuptial or past nuptial between the husband and wife in which the husband agrees to pay maintenance to the wife is valid under Shariah and enforceable in law. Whereas an agreement between the husband and wife that no maintenance shall be due on the husband or an undertaking by the wife that she would not claim maintenance allowance from the husband is void. Under Shariah such a contract is against public policy.


Maintenance Issues of Muslim Women in India

On the continuance of marriage it was held in a case that a husband is bound to maintain his wife so long as she is faithful to him and obeys his reasonable orders. A husband is not bound to maintain a wife who disobeys him by refusing to live with him. But what degree of disobedience will disentitle the wife to claim maintenance is not laid down. For entitlement of maintenance, it is immaterial that she has the means to maintain herself while the husband has no means.

The wife loses her right to maintenance in the following circumstances:
1. She is a minor, incapable of consummation.
2. She refuses free access to him at all reasonable times.
3. She is disobedient.
4. She refuses to live with him in the conjugal home or abandons the conjugal home without any reasonable ground.
5. She deserts him.

But if the husband is guilty of cruelty or keeping a concubine at home, she retains the right of maintenance.


“For divorced women maintenance should be provided on a reasonable scale. This is a duty on the righteous”. [32] “Thus doth God make clear this signs to you, in order that ye may understand.”[33] “Let the women (live in iddat) in the same style as ye live, according to your means, annoy them not, so as to restrict them, and if they carry life (in their wombs) then spend (your substance) on them until they deliver their burden; and if they suckle your offspring’s give them their recompense and take mutual counsel together according to what is just and reasonable…”[34]

These verses (ayats) make it very clear that the Holy Qur’an imposes an obligation on Muslim husbands to provide maintenance to their divorced wives. If the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to Section 125 of the Criminal Procedure Code 1973. This was the position prior to the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986.



Section 125 Criminal Procedure Code of 1973 &
Muslim Women (Protection of Rights on Divorce) Act

Section 125 Criminal Procedure Code 1973 empowers the Magistrate to order maintenance in favour of women. A ‘wife’ includes, a divorced wife for the purpose of Section 125. Hence, any woman who has been divorced or has obtained divorce from her husband and has not remarried can seek a maintenance order against her former husband, if she is unable to maintain herself and her husband has failed to maintain her despite having sufficient means to do so. On such an application by the wife, the Magistrate can order the husband to pay a monthly allowance (maximum up to Rs. 5000). If he fails to comply with the order of the Magistrate, the Magistrate can issue a warrant for levying the amount fixed in the order. If he still continues to evade the order and the amount remains unpaid in full or part, the Magistrate can sentence him to imprisonment up to one month or till due payment is made, whichever is earlier. Under Section 127(2), the Magistrate shall have to cancel or vary his order if it appears to him that competent civil Court has passed an order of maintenance in a civil suit between the parties. Under Section 127(3) the Magistrate shall also cancel the order of maintenance (i) if the woman in whose favour the order has been passed gets remarried, (ii) where she was divorced by the husband and if she has received, whether before or after the date of the said order, the whole of the sum which under any customary or Personal Law applicable to the parties was payable on such divorce or (iii) where she had obtained divorce from the husband and if she had voluntarily surrendered her right of maintenance after her divorce.

The most important judgment, which changed the course of Muslim law regarding Muslim women in India, was Mohd. Ahmad Khan v. Shah Bano[35]. The Supreme Court held that a Muslim husband is liable to provide maintenance to a divorced wife who is unable to maintain herself. The Court also held that dower is not payable in consideration of marriage but is an obligation imposed by law on the husband as a mark of respect for the wife. The Court further held that the fact that deferred dower (mahr) is payable at the time of dissolution of marriage cannot justify the conclusion that it is payable on divorce. Divorce may be a convenient or identifiable point of time at which the deferred amount is to be paid by the husband to the wife. Hence mahr is not the amount, which is mentioned under Section 127(3) (b). This judgment led to a large scale protests by Muslims throughout the country and it was regarded as interference into the Personal Law of the Muslims. The intense controversy led to the passing of the Muslim Women (Protection of Rights on Divorce) Act 1986.

Let us now examine the provisions of the Muslim Women (Protection of Rights on Divorce) Act 1986. This is a declamatory law. The jurisdiction under the Act rests with the Criminal Courts to ensure speedy disposal of cases. Under Section 2(a) of the Act a ‘divorced woman’ means a Muslim woman who was married according to Muslim Law and has been divorced by or has obtained divorce from her husband in accordance with Muslim law. Section 2(b) defines ‘iddat period’ in the case of a divorced woman as (i) three menstrual courses after the date of divorce if she is subject to menstruation, (ii) three lunar months after her divorce, if she is not subject to menstruation and (iii) if she is enceinte at the time of divorce, the period between the divorce and delivery of her child or the termination of her pregnancy, whichever is earlier. Under section 2(c) a Magistrate means a Magistrate in the first class exercising jurisdiction under the Code of Criminal Procedure 1973 in the area where the divorced woman resides.

Section 3(i) lays down that notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband (b) where she herself maintains the children borne to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children, (c) an amount equal to the sum of mahr agreed to be paid to her at the time of her marriage or at anytime thereafter according to Muslim law; and (d) all the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends. Under Section 3(2) where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been paid, or the properties referred to in clause (d) of sub Section (i) have not been delivered to a divorced woman on her divorce, she or anyone duly authorized by her may, on her behalf, make an application to the Magistrate for an order for payment of such provision and maintenance, mahr or dower, or the delivery of properties, as the case may be.

Under Section 3(3) where an application has been made under sub Section (2) by a divorced woman, the Magistrate may, if he is satisfied that (a) her husband, having sufficient means has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children, or (b) the amount equal to the sum or dower has not been paid or that the properties referred to in clause (d) of sub Section (1) have not been delivered to her, make an order within one month of the date of filing of application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage, and the means of her former husband and as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub Section (I) to the divorced woman. Under Section 3(4), if any person against whom an order has been made under Section 3(3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973, and may sentence such person for the whole or any amount remaining unpaid after execution of the warrant, to imprisonment for a term which may extend to one year or until payment, is sooner made.

Under Section 4(1), if the Magistrate is satisfied that a divorced woman has not remarried and is not able to maintain herself after the ‘iddat period’, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine as fit and proper. While making such order, the Magistrate shall have regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such period as he may specify in the order. The provision says that if the divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in case the children are unable to pay such maintenance, the Magistrate shall order the parents of the divorced woman to pay maintenance to her. The second provision says that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on a proof of such inability furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to have the means of paying the same in such proportions as the Magistrate may think fit.

Under Section 4(2), if the divorced woman is unable to maintain herself and she has no relatives as mentioned in sub Section (1), or such relatives or any of them have not enough means to pay the maintenance ordered by the Magistrate, or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the provision to sub-Section (1), the Magistrate may, by order direct the State Waqf Board functioning in an area where the woman resides, to pay such maintenance as determined under sub-Section (1) or to pay the shares of such of the relatives who are unable to pay.

Under Section 5, if on the date of the first hearing of the application under sub-Section (2) of Section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing either jointly or separately that they would prefer to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973 and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly. Section 6(1) provides for power to the Central Government to make rules for carrying out the purpose of this Act. Under Section 6 (2) the rules may provide for the form of affidavit and deceleration to be filled under Section 5 and the procedure to be followed by the Magistrate while disposing of the application under the Act. Section 7 is a transitional provision. It provides that where an application by a divorced woman under Section 125-127, Code of Criminal Procedure, 1973 is pending before a Magistrate on the commencement of this Act, shall, notwithstanding anything contained in that Code and subject to the provisions of Section 5 of the Act, be disposed of by such Magistrate in accordance with the provisions of this Act.

It was held in Aga Mohamed Jaffar Bindaneen V. Koolsum Beebee[36] that a Muslim widow had no right of maintenance out of her deceased husband’s estate in addition to what she takes by inheritance or by will.

In Danial Latifi V.UOI[37], the Supreme Court held that reasonable and fair provision and maintenance under Section 3(i)(a) is not limited for the iddat period, it extends for the entire life of the divorced wife, until she marries. The Court further held that right to a reasonable and fair provision referred to in Section 3 is a right enforceable only against the divorced women’s former husband and is in addition to what he is obliged to pay as maintenance. Reasonable and fair provision would be worked out with reference to the needs of the divorced woman, the means of the husband and the standard of life enjoyed during subsistence of marriage.

Again in Sabra Shamim V. Maqsood Ansari[38] it was held by the Supreme Court held that under Section 3(I)(a) and Section 4 of the Muslim Women (Protection of Rights on Divorce) Act 1986,a divorced wife is entitled to maintenance not merely till iddat period but for her entire life until she remarries.




Maintenance under Section 4 of the Act

In Tamil Nadu Waqf Board V. Syed Fatima Nochi[39] the Court held that it is futile for a divorced woman seeking maintenance to run after relatives who are not possessed of means to offer her maintenance and fighting litigation in succession against them in order to get negative orders justifying her last resort of moving against the state Waqf Board. She can plead and prove such relevant facts regarding the inability of her relatives to maintain her in one proceeding and direct her claim against the State Waqf Board in the first instance.


Anti Nuptial Agreement for Grant of Maintenance

In Muhammad Moinuddin V. Jamal Fatima [40] a case the parties had entered into a pre-nuptial agreement for grant of an allowance in case of disunion or dissension between the couple. On dissension the husband divorced her and the wife claimed the allowance. The Court held that contract valid and held the divorced wife to be entitled to receive the allowance as per the contract.

In Mydeen Beevi Ammal V. T.N. Mydeen Rowthe[41], the husband settled certain properties on his first wife for maintenance for her life (after he married for the second time without her consent). Subsequently, he divorced the first wife and filed a suit for the possession of the properties settled on her. The Court held the wife entitled to the income of the properties for her lifetime whether she was divorced or not.

In Nawab Khwaja Muhammad Khan V. Nawab Hussaini Begum[42] the father of the minor bridegroom had agreed to pay to his son’s wife Rs. 50/-PM in perpetuity for her ‘kharchi pandan’ or pocket money. Later, on account of disagreement between the spouses, the wife left the matrimonial home and filed a suit to recover the amount due to her. The father-in-law contended that the agreement was without consideration, against pubic policy and by ceasing to live with her husband, she had forfeited her rights under the agreement. The Court held that there is no condition in the agreement that it should be paid only when the wife is living in the husband’s house. Moreover, the Court held the wife to be entitled to recover the whole amount, notwithstanding the Act that she was not a party to the agreement.







Impotency of Husband

In Siraj Mohd. Khan Jan Mohd. Khan V. Hafizunnissa Yasin Khan[43] the Court held that impotency of husband amounts to both mental and legal cruelty, hence is a just ground for wife’s refusal to live with the husband and claim maintenance from him.

Cruelty
A wife can refuse to live with the husband on the ground of his cruelty and still claim maintenance from him. Attribution of un-chastity to a wife without justification or proof amounts to mental cruelty thereby amounting to legal cruelty for the purpose of deciding the claim of maintenance. In a case the husband leveled false and baseless allegations of un-chastity on the wife, disowned the paternity of his two children and in another case, the husband made allegations of adultery against the wife. In both the cases, the Court held that the behavior of the husband amounts to cruelty, and the wife is entitled to live separately and claim maintenance.






Inheritance Law and Right to Property

Introduction
In pre- Islamic Arab counties, women were totally excluded from inheritance. Prophet Muhammad emancipated the status of women and restored them their rightful position in the society.
"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."[44]
"Allah (thus) directs you as regards your children's (Inheritance): to the male, a portion equal to that of two females: if only daughters, two or more, their share is two-thirds of the inheritance; if only one, her share is a half. For parents, a sixth share of the inheritance to each, if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased left brothers (or sisters) the mother has a sixth. (The distribution in all cases ('s) after the payment of legacies and debts. Ye know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah; and Allah is all-knowing, al-wise.[45] "Sura 4: 11
Proponents of Shari’a argue that this is fair, given that a Muslim male is obligated to spend part of his inheritance on his wife, children and house, while the female may keep all of it for herself. Financial support for home and family is said to be solely the responsibility of the husband. In most Muslim nations, the law of the state concerning inheritance is in accordance with this law. In the Muslim law the principle, which has been zealously guarded and enforced by courts, is that a woman's property belongs only to her. Consequently, any property which a Muslim wife contributes towards the 'family's assets' (i.e. all the property accumulated during the marriage) remains heir’s alone and is not subject to division or sharing by the husband in the event of a marriage breakdown (unless otherwise agreed upon between the husband and wife). In other words, under the Muslim Law, her 'Net Family Property,' remains hers alone and with no corresponding obligation to share with her husband (unless both husband and wife have agreed to share the same). Muslim law fully recognizes the two facets of property known to the modern law –corpus and usufruct –which it calls ain and manafe respectively. While ain refers to the body or substance of a particular thing itself, and manafe signifies the benefits that may be derived from it.
Ain may comprise aqar (landed property) or other movables and immovable, manafe may include samarat (fruit), basit (produce), ghalla (proceeds), sakna(dwelling rights)etc. All these are forms of property in Muslim law.

Transfer of Property
The transfer of property Act 1882 contains the law relating to transfer of property – to sale, mortgage, and charge lease, exchange transfer of actionable claims and gifts of property. It, however, does not affect the Muslim law of Hiba (gifts).
Hiba
According the Muslim law the terms "hiba" and "gift" are often indiscriminately used but the terms "hiba" is only one of the kinds of transactions, which are covered by the general term "gift". A hiba is a transfer without consideration.
Section 122 of the Act, the Transfer of Property, 1882, states that a gift is a transfer of certain existing movable or immovable property made voluntarily and without consideration by one person called the donor, to another, called a donee and accepted by or on behalf of the donee. The essential elements of a gift are:
1.) The donor (ijab).
2.) The donee (qabul).
3.) The subject-matter
4.) The transfer, and the acceptance
The Allahabad High Court in the case of Mohd. Aslam v. Khalilur Rahman[46] held that a gift with a reservation of possession of property by the donor during his life is void. Islamic law on hiba requires, subject to certain exceptions, delivery of possession of the gifted by the donor to the donee for completion of the gift. The courts in India will recognize this general rule as also its exceptions. The said general rule was affirmed by the Privy Council; and one of the exceptions- the case of a gift by one of the co residents of the gifted property to the other co-resident by the Allahabad High Court.

Essentials Of Gift Under Mohammedan Law
Under Mohammedan law, to be a valid gift, three essentials are required to exist: (a) declaration of gift by the donor (b) an acceptance of the gift, express or implied, by or on behalf of the donee, and (c) delivery of possession of the subject of gift.
Courts have consistently held that when there is no compliance of any of the above three essential conditions, the gift renders itself as invalid. Another characteristic of Mohammedan law is that writing is not essential to the validity of a gift either of movable or immovable property.[47]

Capacity to make Hiba

The donor must be the owner of the property, which is the subject matter of the hiba. There must be a clear intention to transfer property with free consent. Soundness of mind, attainment of the age of puberty and free consent are basic requirements for making a hiba. A hiba, to be valid must ‘therefore’ be made by a person with his free consent and not under compulsion. The donor must not be insane but a mere weakness of the intellect would not be sufficient to invalidate the gift if the donor was able to apprehend the transaction. If a Muslim makes a hiba with a clear intention to defraud his or her creditors, the latter can seek its cancellation. However, the mere fact that the maker of the hiba owed some debt does not raise a presumption that the hiba was made with such an intention.

Capacity to receive Hiba
The donee is the person who accepts the hiba. A minor therefore may be a donee; but if the hiba is onerous, the obligation cannot be enforced against him while he is a minor. But when he attains the age of puberty he must either accept the burden or return the hiba. A hiba, being the absolute transfer of all rights in property, cannot be made to an unborn person, as there is no one to take possession of his interest. But limited interests and usufructs stand on a different footing; they can be created in favour of a person not in being at the time of the grant, provided he is in being when his interest opens out. Thus, if a life interest is granted to X, and thereafter to Y, it is sufficient if Y is in being at the death of X.[48]
Gifts may be made validly to mosques and charitable institutions like schools. Such gifts are treated as sadaqa. A hiba cannot be made in favour of a dead person. If a widow makes a hiba of her mahr to her deceased husband, it is in fact a unilateral foregoing of the right to mahr by the widow to which the principles of hiba do not apply.
Subject of Hiba
The subject matter of the hiba must be certain, existing movable or immovable property. Any property or right, which has some legal value, may be the subject of a hiba. It may be land, goods, or actionable claims. It must be transferable under Section 6 but it cannot be future property. A hiba of a right of management is valid. It is submitted that the release of a debt is not a hiba as it does not involve a transfer of property but is merely a renunciation of a right of action. In a deed of hiba the meaning of the word 'money' should not be restricted by any hard and fast rule but should be interpreted having regard to the context, properly construed in the light of all the relevant facts. Therefore, in order to constitute a valid hiba, there must be an existing property.
Possession of Hiba
The delivery of possession is an essential condition for the validity of the hiba. It is however not necessary that in every case there should be a physical delivery of possession. The delivery of which would complete a hiba, may be either actual or constructive. All that is necessary is that the donor should divest himself completely of all ownership and dominion over the subject of the hiba. The relinquishment of control is thus necessary to complete the action. Constructive possession of the subject of the hiba is therefore sufficient for the purpose of validity. The donor must divest himself of the ownership and dominion over the gifted property by doing all that he can do in order to complete the gift and to make the donee the owner of the gifted property.
Revocation of Gifts
According to Muslim law relating to revocability of gift is not uniform. As the donor and the donee in a particular case of gift may belong to different schools of law, the question of its revocability will be governed by that school of law to which the donor belong to.

Hanafi Law

Two of the close legal heirs of every dead person are invariably regarded as his or her Quranic heirs – the mother and the surviving spouse.
Seven other female relatives of the deceased may be regarded as Quranic heirs in some prescribed circumstances. These are the mother’s mother, the father’s mother, daughter, son’s daughter, and sister-full, half and uterine.
Three male relatives of the deceased may be regarded as Quranic heirs in some prescribed circumstances. These are the father, father’s father and uterine brother. Among the twelve Quranic heirs, notably, as many as nine are women.

Surviving spouse
Share of the husband

if no entitled descendants exist (ie; children/grandchildren)
then
husband = 1/2

if entitled descendants exist (i.e.; children/grandchildren)
then
husband = 1/4

*Note: entitled descendants = sons, daughters, son’s son, son’s daughter. Daughter’s children are not entitled.

Share of the wife

if no entitled descendants exist (i. e; children/grandchildren)
then
wife = 1/4
if entitled descendants exist (ie; children/grandchildren)
then
wife = 1/8


Parents

Share of the father

if entitled descendants exist
(sons, daughters, son’s sons, son’s daughters)
then
father = 1/6

if no male descendants exist (sons, son’s sons)
then
father = 1/6 plus residue
(residue = remainder after all legal shares are distributed)

if no entitled descendants exist
then
father =2/3 residue

Share of the mother

if entitled descendants or brothers/sisters exist
then
mother = 1/6

if no entitled descendants exist
then
if no brothers/sisters, no father, no spouse exist
then
mother = 1/3

if brothers/sisters, father, or spouse exist
then


mother= 1/3 of residue

Share of the daughter’s

if only one daughter (and no sons)
then
daughter = 1/2
if two or more daughters only (and no sons)
then
daughters = 2/3
(to be shared equally between all of them)
if both son’s & daughters exist,
then
son’s daughter = 1/2
=2/3(2or more daughter)
son’s son’s daughter =1/6


Uterine brother/sister
Uterine brother/sister (from same mother, different father)

if one uterine brother/sister exist
then
if no entitled descendants and no male ascendants
(father /father’s father etc)
then
uterine brother = 1/6 or uterine sister = 1/6

if two or more uterine brothers/sisters exist
then
if no entitled descendants .and. no male ascendants
(father /father’s father etc.)
then
all uterine brothers & sisters = 1/3 (each taking 1/6)

*Note: if there are uterine brothers/sisters in addition to full brothers/sisters (same father/mother), then they share in the residue.





Share of the son’s daughter

if one son’s daughter exist
then
if no daughters exist
then
if no son’s son exist
then
son’s daughter = 1/2
if son’s son exist
then
son’s daughter = half share of son’s son
( i.e. son’s son share: son’s daughter share = 2:1)

if two or more son’s daughters exist
then
if no daughters exist
then
if no son’s sons exist
then
2son’s daughters = 2/3 (equally between them)

if son’s son exists
then
son’s daughter = half share of son’s son
( i. e. son’s son share: son’s daughter share = 2:1)


Share of the full brother/sister
(full brother/sisters are brothers/sisters from the same father & mother)

brothers & sisters inherit only when there are no descendants (son/sons, son’s son
etc.) And no ascendants (father/grandfather etc.)

The Arabic word “al-khalala” is used in the Quran, chapter 4 - al-nisa, verses 12 & 176, which is translated by almost all the translators of the Quran to mean “ascendants & descendants” thus giving rise to the interpretation that they include “parents and children” However, many scholars have preferred to classify the word as meaning “father or son” thus excluding the female components of both ascendants and descendants (mother & daughters).

if no full brother and no female entitled descendant exist
(daughter, son’s daughter etc.)
then
if deceased was male,
then full sister = 1/2 (if only one)

if no full sister and no female entitled descendant exist
then
if deceased was female,
then
full brother = 1 (if only one)

if two or more brothers & sisters
then
full sisters = 2/3 (shared equally between them)
full brother’s & sister’s (combination) = 2:1

if no full brother exist but female entitled descendant exist (daughter, son’s daughter etc.)




then
full sister = 1/6 (if only one)

if no full sister exist but female entitled descendant exist
then
full brother = 1/6 (if only one)

if female entitled descendant exist
then
Full sisters & brothers = 1/3 (share equally)



Consanguine sister (sister from same father but different mother)

Consanguine sisters inherit only when there are no son’s or son’s son(s) and no father and no full brother.

if only one full sister and no consanguine brother
then
Consanguine sister (if only one) = 1/2
Consanguine sister(s) (if two or more) = 2/3


if one full sister and consanguine brother(s)
then
(Consanguine) brother: sister = 2:1

True grandmother

True grandmother is defined as the one whose line of connection with the deceased is not interrupted by a male between two females. They are entitled only if the father or mother do not exist.

e.g.; Mother’s mother, father’s mother
Father’s father’s mother, mother’s mother’s mother

True grandmother = 1/6


True grandfather

True grandfather is the one whose line of connection with the deceased is not interrupted by a female between two males. They are entitled only if the father or mother do not exist.

e.g.; father’s father
father’s father’s father
mother’s father
mother’s father’s father

True grandfather = 1/6 if male descendants exist (son, etc)
True grandfather = 1/6 + residue if female descendants exist
True grandfather = residue if no male/female descendants exist


Uncles & aunts (father’s/mother’s brothers & sisters)

Uncles and aunts are only entitled in the absence of grandparents. This means that they will receive shares only if there are no parents and grandparents because grandparents do not inherit when the parents are living. They will also not inherit if the children (or children’s children) of the deceased are living. Proportions here are also in the ratio of 2:1 for male: female.


Nephews & nieces (children of brothers/sisters)

Nephews and nieces are only entitled in the absence of brothers and sisters. This means that they take the shares of the brothers/sisters of the deceased in their absence. Hence a nephew/niece will receive what his/her parent (brother/sister of the deceased) would have received if he/she were alive. They will also not inherit if the children (or children’s children) of the deceased are living. Proportions here are also 2:1 for male: female.

Stepchildren

Step –children do not inherit from step- parents, nor do step- parents inherit from step- children. In the case of Allah Baksh v.Mohd Umar,[49]. Begum v. Jalal Din, [50]. A step-son or a step- mother is not heirs.

Bastard

An illegitimate child is considered to be the child of its mother only, and as such it inherits from its mother and its relations, and they inherit from such child. But it has been held that an illegitimate son cannot inherit from the legitimate son of the same mother. In the case Rehmat Ullah v. Budh Singh (1884) 7 all. 297: Mairaj v Abdul Wahid (1921)
43 [51].

Missing heir

According to the Sec.126 if a hair is missing, his share will be reserved and he is until for reappears and claims it or he is proved to be dead.


Children of women divorced by lian

Under the Sec, 68 a child whose mother has been divorced by lian he shall have mutual rights of inheritance with the same relations as an illegitimate person but not with the imprecator.


Quranic Heir, Sunnite (Hanafi) Law


Table of Quranic Heir, Sunnite (Hanafi) Law
Sharers
Share of

Entirely excluded by
Affected by
How affected
One
Two or more collectively
Husband
1/4

None
Where on child or child of son h.l.s.
Share increased to 1/2
Wife
1/8
1/8
None
Where no child or child of son h.l.s.
Share increased to 1/4
Father
1/6

None
Where no child or child of son h.l.s.
Made agnatic heir
True Grandfather
1/6

Father, nearer true grand father
Where no child or child of son h.l.s
Made agnatic heir
Mother
1/6

None
Where (1) no child (2) no child of son h.l.s (3) one brother or sister (4) husband or wife co-exist with father
Share increased to 1/3 of whole estate in case (1) to (3) and 1/3 of the residue after deducting husband or wife’s share in case (4)
Grandmother h.h.s.(maternal)
1/6
1/6
Mother, nearer maternal or paternal grandmother
None


(Paternal)


Mother, nearer maternal or paternal grandmother, father. Nearer true grandfather
None

Daughter
1/2
2/3
None…
Existence of son…
Made agnatic heir
Son’s Daughter
1/2
2/3
Son, more than one daughter, higher son’s son, more than one higher son’s daughter.
Existence of (1) only one daughter (2) only one higher son’s daughter,(3) equal son’s daughter (3) equal son’s son.
Share reduced to 1/6 in cases (1)and (2)made: residuary in case(3)
Full sister…
1/2
2/3
Son, son h.l.s. `Father, true grandfather.
Existence of full brother …
Made Agnatic heir.
Consanguine sister.
1/2
2/3
Son. Son h.l.s. Father, true grandfather, full brother more than one full sister.
(1) Existence of only one full sister.
(2) Existence of consanguine brother.
(1) Share reduce4to 1/6
(2) Made Agnatic Heir.
Uterine Brother & Sister
1/6
1/3
Child, child of a son h.l.s. Father, true grandfather
None.

(The table is not a complete statement of the law)[52]


Shia law

‘Shia law’ in India is very different form the doctrine of Hanafi law and requires separate consideration. The Shias divide heirs into two groups.
1. Blood relations (Nasab)
2. Heirs by marriage, that is husband and wife (Sabab )
1. Blood relations, fruther divided into two groups –
a. Quranic heir
b. blood relation agnate or cognate
2. Sabab is also subdivided into two groups
a. the status of a spouse
b. special legal relationship


Nasab

Heirs by consanguinity are divided into three classes and each class is divided into two groups.
i. Parents
ii Children and lineal descendants
i. Grandparents h.h.s.
ii. Brothers and sisters and their descendants
i. Paternal and
ii. Maternal uncles and aunts of the deceased and of his parents and grandparents h.h.s. and their descendants h.l. s.

Of these three classes of heirs the first excludes the second from inheritance and the second excludes the third. But the second group of each class succeeds together, the degree in each group excluding the more remote in the group.


Husband and Wife

The husband or wife is never disqualified from sequence but inherits together with nearest heirs by consanguinity the husband taking 1/2 if there are no children and 1/4if there are, and wife taking 1/4 there are no children and 1/8 if there are.

Father and Mother

The deceased leaves any descendent the father and mother or both the parents are treated as belonging to the class dhu fard, and each of them take 1/6.
The mother takes 1/3 where there are no descendants and 1/6
a. If there are descendants
b. If there are the father and two or more brothers, full or consanguine and in certain other case.
Share of husband, mother, and father
Husband =1/2
Mother = 1/3 as Quranic heirs
Father = 1/6 as blood relation
Share of wife, mother, and father.

Wife =1/4
Mother =1/3 as Quranic heir
Father =5/12 as blood relation

Share of father, mother, and son

Father =1/6
Mother =1/6
Son = 2/3 as Quranic heir

Share of father mother and two daughters

Father =1/6
Mother =1/6 as Quranic heir
Two daughter = 2/3 as Quranic heir



Eldest Son

The deceased being a male, on leaving more sons than one, the eldest son is entitled to take as his special perquisite the garments of the deceased, his signet ring, sword and Quran .

Daughter

If there is a son, he takes the residue after allotting portions to the Quranic heirs. If the daughter survives with him, she shares the residue with him in the proportion of one and two. When the daughter survives and there is no son, she take 1/2 alone, and 2/3 jointly with other daughters.

Grandparents without Brother and Sister or their Descendants

If there are no brothers or sister or descendants of brother and sister the estate and is to be divided it among grandparents according to the rules. If there are applicants only on the parental side they make it to the whole estate and divide it among themselves according to the rule of a double share to the male. If there are applicants only on the maternal side they make it to the whole estate and divide it among themselves equally. If there are applicants on both the sides, than assign a 2/3 share to the paternal side to be divided according to rule of a double share to the male and 1/3 to the maternal side to be divided equally.

a. Mother’s mother 1/2
Mother’s father 1/2

b. Father’s father 2/3
Father’s mother 1/3

c. Father’s father 2/3X23=4/9=8/18
2/3
Father’s mother 1/3X2/3=2/9=4/18
Mother’s father 1/2X1/3=1/6=3/1
1/3
Mother’s father 1/2X1/3=1/6=3/11
1
d. Father’s mother 2/3
Mother’s father 1/3


Grandparents with Brothers and Sisters

If grandparents exist together with brother and sister continue according to the rules-
A paternal grandfather counts as a full or consanguine brother, and a paternal grandmother counts as a full or consanguine sister.
A maternal grandfather counts as a uterine brother, and a maternal grandmother counts as a uterine sister.
Divide as a brother and sister.
a.
Mother’s father (uterine brother) 3/18 1/3 as
Mother’s mother (=uterine sister) 3/18 shares.

Con. Brother 4/18 2/3 as
2/18 reliquaries}
Father’s father (= con. Brother) 4/18

Father’s mother (= con. Sister) 2/18


b.
Wife (uterine sister) 1/4 = 3/12(Sh.)
(Uterine brother) 1/3 = 4/12 (Sh. Equally).


Mat. Grand fathers (= uterine brother)
5/12
Pat. Grant father (= full brother)


Distribution among Uncles and Aunts

In rule to distribute the property among the uncles and aunts of the deceased or of his ancestors continue.
1. A 2/3 share to the paternal side and 1/3 share to the maternal side, if both sides are represented, but if there are claimants only on one side, divide the whole among the claimants on the side.
2. Divide the portion assigned to the paternal side exactly as if the claimants were brothers and sisters of the deceased, that is to say ---
a. Assign their share to the uterine uncles and aunts and divide equally.
b. Divide the remainder among the other claimants according to the rule of a double share to the male.
3. Divide the portion assigned to the maternal side.
a. Assign their share to the uterine uncles and aunts and divide equally.
b. Divide the remainder among other claimants equally.


U=uncle, A= aunt, P=paternal, M= maternal, F= full, C=consanguine, Ut = uterine
Ut. P. U. 1/3 of 2/3=2/9 (Sh.) 1/2 of 2/9=2/18=6/54
Ut.P.A. 1/2of 2/9=2/18= 6/54
F. P.U. 2/3 of 2/3 =4/9 (R.) 2/3 2/3of 4/9= 8/27=16/54
F. P. A. 1/3of 4/9=4/27=8/54
Ut.M.U. 1/2 of 1/3 1/6=9/54
Tt.M.A. 1/2of1/8 1/3 1/6=9/54
1


Share in the Shia Law


Table of Share in the Shia Law
The possible sharers
Shares
Circumstance in which a share would succeed as a share to the shares specified in col. B
When a share is converted into a residuary
Of one
Collectively of tow or more
1
2
3
4
5
1. Father
1/6

When there is a lineal
When there is no lineal descendent
2. Mother
1/6

a) When there is a lineal descendant;
b) When there is father and also two or more brother (full or consanguine) or one such brother and two such sister or four such sisters.

3.Daughter
1/2
2/3
When there is no son
When there is a son
4.Full sister
1/2
2/3
When there is no parent, b) lineal descendant, c) full brother d) paternal grandfather
If there is no parent or lineal descendant, becomes a residuary in two cases
a) With a full brother,
With a paternal grandfather (h.h.s.)

5.Consanguine sister
1/2
2/3
When there is no parent b) lineal descendant, c) full brother d) full sister. e) Consanguine brother f) paternal grandfather (h.h.s.)
If there is no parent or lineal descendant, becomes residuary in two cases a) With a consanguine brother b)with a paternal grandfather (h.h.s.)
6. Uterine brother and uterine sister
1/6
1/3
When there is no parent or lineal descendant.

7. Husband
1/2


1/4

When there is a no lineal descendant
When there is a lineal descendant


8.Wife
1/4


1/8
1/4


1/8
When there is a no lineal descendant
When there is a lineal descendant

Note- the descendant’s h.l.s. of sharers are also sharers.(Sec. 164)[53]





Right to Inheritance
A pre-Islamic Arab woman did not have the right to inherit from anybody, neither her father nor even her husband. According to the Medinan customs, only male adults, capable of taking up arms in a war, had the right to inheritance. So even a minor son had no right to the property of his deceased father. Arabian society and privileges were denied to women, being exclusively a man’s domain. The Arabian society was not alone in keeping women deprived of share in inheritance. The social order of the world on the basis of these and other pretexts their kept her out of it, only the male offspring and the first born getting away with it in its entirety.
Islam raised its voice against this gross injustice to the weaker sex, proclaiming aloud that women had as much right to their share in the inheritance. The Quran declared: “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”. [54]
The social and legal reform introduced by Islam emphasized the extended family in contradistinction to the tribe and tribal loyalties. It abolished many unjust customs and usages and gave inheritance rights to the disadvantaged members of the family. According to Sunni law of inheritance, if both son and daughters survive the propositions each son will get double the share of the daughter. If there are only one daughter and no son, she will take half the property and two or more daughter and no son, she will take half the property and two or more daughters will take two –thirds of the property.


Inherited Property
There is no distinction in the Muslim law of inheritance between moveable and immoveable property, or between ancestral and self-acquired property. The Quranic directives legislation concerning the distribution of a deceased person’s estate is just equitable and a great advance upon the unjust customs of the pre-Islamic time.
Before the period of the Prophet women were substances of inheritance and they were considered part of the possession of a man. At such a critical juncture of history, Islam brought about a revolution in the domain of human thought and outlook towards women and established the right of women to inherit and own property that they have a determined share specified by the Quranic word cannot be denied by anyone. "To everyone, we have appointed shares and heirs to property left by parents and relatives…." [55] The amount of the share of inheritance is dependent on the closeness of the heirs' relationship to the deceased. "Blood-relations among each other have closer ties, in the Book of Allah than (the brotherhood of) believers and Muhajirs" [56]
In another verse-"From that is left by parents and those nearest related there is a share for men and a share of women, whether the property be small or large-a determined share.' [57]
Difference in Inheritance between Men and Women

The law of inheritance in Islam makes known the variation in the shares of inheritance for men and those for women. However, this variation is not due to gender difference, but rather due to divine wisdom and objectives that many fail to see. They even regard this difference between the shares of men and women in some cases of inheritance as something to prove the position of women in Islam. However, the Islamic law of inheritance is controlled by the following three criteria:
1. The degree of kinship between the receiver (man or woman) and the deceased. The closer the relation, the greater the share given, regardless of the heir’s gender. 2. The position of the inheriting generation in the chronological sequence of generations. The younger generations usually receive larger share than the older ones regardless of gender. For instance, the daughter of a deceased man receives a bigger share than his mother does, and the daughter of a deceased woman receives a bigger share than her father does even if the daughter is an infant.
3. The financial responsibility imposed by law upon the heir. This criterion is the one from which difference results between males and females. However, such difference does not lead to any injustice done to women; it could even prove to be quite the other way. Furthermore, the following four points should be known:
1. Women receive half of men’s share in four cases only.
2. In many cases, women receive the same share of inheritance as men. 3. In ten cases or more, women’s share is bigger than men’s.
4. In some cases, women receive shares of inheritance while corresponding men do not.

In other words, in more than thirty cases, women take the same or more than men take, or women take a share while men do not, while there are only four definite cases in which women receive half of men’s share.




Is Men’s Share of Inheritance Double than Women's?

In Islamic law, a son receives double as much as a daughter, a brother double as much as a sister and a husband double as much as a wife. The case of father and mother is the only exemption. If a deceased has children and his parents are also alive, each of his parents will get one-sixth of the property left by him. It is because of women's special position with regard to dower, maintenance, military service and some of the criminal laws, that their share has been fixed at half that of men.
Allah says in the Qur'an, “Allah charged you concerning (the provision for) your children: to the male the equivalent of the portion of two females.” [58](An-Nisa' 4: 11)
Men undoubtedly, have been given more responsibilities than women. As a father, husband, son, or brother, a man should provide for his children, wife, mother, sister; he should strive hard to make both ends meet. Islam, as a divine religion, does not ignore the above fact and sets down rules that strike a balance between men's responsibilities and women's rights.
Islam gives the girl half of her brother's share in inheritance because Islamic Law doesn't force her to spend any money on anybody other than herself. On the other hand, a Muslim male, who is usually the breadwinner of the family, is obliged to spend on his wife, his children, his brothers, his sisters, and his mother and father.

Women’s Inheritance Rights
According to Muslim law, female sex is no bar to inheriting property is to be excluded from inheritance in Muslim law only on the basis of sex. Women have, like men, an unconditional right to inherit property – not merely to receive maintenance or hold property in lieu of maintenance.
Hussain v. Rahim,[59] Mohitan v. Zubeda [60]. In these cases, the courts allowed transfer of the right to the lieu –one for the widow’s lifetime, and the other perpetually, along with transfer of the property itself.
The Muslim Personal Law (Shariat) Application Act 1937 specifically refers to “special property to females” including personal property inherited or obtained under contract or gift or any other provision of Personal law.
The law of inheritance is quite complicated, for the shares of different heirs vary according to individual circumstances: the daughter alone or in the presence of a son, the mother alone or in the presence of the father, with children or without them, the sister alone or in the presence of the brother, father or children of the deceased, inherit in different proportions according to individual cases. It is not our intention to describe it here in full detail. The shares of female heirs, may however, be mentioned briefly. The wife gets one-eighth if the deceased also leaves a child otherwise she gets a quarter. The daughter when alone gets a half, whereas several daughters get two-thirds which they divide between themselves in equal proportions; all this where there is no son. In the presence of a son, the daughter gets half of her brother. The mother, when alone, gets one-third; in the presence a father, child or brothers and sisters of the deceased, she gets one-sixth. The sister does not inherit if the deceased leaves a son; but when alone, she gets a half; two or more sisters get two-third, which they divide between themselves equally. In the presence of a daughter, the sister gets one-sixth; in the presence of a brother, she gets the half of what he gets. There are also differences between the shares of full sisters, consanguine and uterine sisters.


[1] Ameer Ali, Mohammedan law, 7th edn; p. 97.
[2] Abdur Rahim, The Principles of Mohammadan Jurisprudence, 1958, p. 327.
[3]Al-Bayhaqi:Kitab al- Sunan al Kubra, Vol VIII, p,78.
[4] Ibn Majah, Kitab-al-Nikah, 1/593.
[5] .Fyzee, AAA, Outlines of Mohammadan law ,1974, 4th edn; p.p 88-89.
[6] Supra note, p.279.
[7] HidayatullahM.,,& Hidayatullah Arshad, Mulla’s, Principals of Mohammadan Law, p.233.
[8] Al-Quran, Surah- An-Nisa IV:4.
[9] Charles Hamilton, The Hedaya or Guide, A Commentary on the Musalman Laws, 1979, p.44.
[10] Kapore Chand vs Kaderunnissa Begum, 1950, SCR, 747.
[11] Ameer, Ali, Mohammedan law, 1929, 5th edn. p.434.


[12] Holy Quran (11:233).
[13] Holy Qur'an (65:6-7).

[14] Abu Daud, Sunnan, Kitab al- Falaq, 2/255.
[15] Al Quran, Surah Nisa, IV: 35.
[16] Furzund Hussein v. Jami Bibee (1878) 4 Cal.588.
[17] Hidayatullah M., Hidayatullah Arshad , Mulla’s Principle of Mohammadan Law p.260.
[18] Al-Quran Surah Al-Baqara, 11:229.
[19] Mahmood, Tahir, The Muslim Law of India, pp.99-100.
[20] Supra Note 6 p. 159.
[21] Al-Quran, Surah Al- Baqara.11: 229.
[22] Al-Bayhaqi ,Al Suna, Al-Kubra , Vol. VII, p. 314.
[23] Fyzee A. A.A., Outline of Mohammadan Law, 1974, p.154.
[24] Al Kasani, Imam Ala A-Din.
[25] Charles Hamilton, The Hedaya, A Commentary on the Musalman Laws, 1979. p.25.
[26] Supra Note 6.
[27] Supra Note 6 at p.162.
[28] Al-Quran Surah An -Noor XXIV:6-9.
[29] Al-Qur’an,Surah, Al-Talaq, LXV:7
2 Al-Qur’an,Surah, Al-Talaq, LXV:6
[31] Al-Quran,Surah, Al Baqara,11:233
[32] Al Quran, Surah Al-Baqara, 11:241.
[33] Al Quran, Surah Al-Baqara, 11: 242.
[34] Supra note 2.
[35] AIR 1985, SC, 945.
[36] (1897) 24 IA, 196.
[37] AIR 2001, SC, 3958.
[38](2004) 9, SCC, 616.
[39] AIR, 1995, Mad, 88.
[40](1921) ILR 43 AII 650.
[41] AIR, 1951 MAD 992.
[42] (1930) 37 IA 152.
[43] AIR 1981, SC, 1972.
[44] Al- Quran Sura 4:7
[45] Al-Quran Sura 4:11
[46] AIR1947 PC, p.98.
[47]Hidayatullah M & A. Hidayatullah, Mulla’s Principles of Muhammadan, 9th Edn, p. 118.

[48] Fyzee, A A.A.,Outlines of Muhammadan law, 1974, 4th edn. P. 226.
[49] A.I.R.1992 Lah, 444at p. 444;Mst.
[50]52 P.R 182, No. 50 :41 I.C.263.
[51] All.673, 631.C.286, 21, A.A.175.

[52] Fyzee, A A.A. Outlines of Mohammedan law, p.404

[53] Verma, B.R.Mohammedan Law 8th edn, p.p..548-549.
[54] Al Quran 4:7
[55] Al-Quran, Surah Nisa-33
[56] Al-Quran, Surah Ahjab-6
[57] Al-Quran Surah Nisa-7
[58] Al-Quran, An-Nisa' 4: 11.
[59] AIR, 1954, Mys 24.
[60] AIR, 1954, Pat 17.



MUSLIM WOMEN’S RIGHTS
IN
MUSLIM PERSONAL LAW






TARANNUAM SIDDIQUI










SAROJINI NAIDU CENTRE FOR WOMEN’S STUDIES
JAMIA MILLIA ISLAMIA
NEW DELHI 110025
2006

Foreword

The status of Muslim women has been a subject of considerable debate in India. Muslims, being a minority community, have always had a sense of insecurity. Every voice of reform from other communities is termed as interference in the Personal laws of Muslims. In the communally vitiated political atmosphere in India, the demand for abolishing polygamy and ridiculing triple talaq created very strong polarization, and further increases the growing sense of insecurity among Muslims. The recent cases of Gudiya and Imrana have further provided a boost to those people who see Islam as anti -women.

The biggest irony of the subject is that a Muslim husband’s right to polygamy and triple talaq is known to every common man on the street. On the other hand, the fact that Islam emancipated the status of women by prohibiting female infanticide (so relevant in the contemporary times in India), introduced the concept of contractual marriage as a dissoluble union, provided female’s right of inheritance and the right of Mahr as a security for the wife and as a restraint upon the husband’s power of arbitrary divorce, introduced the concept of compulsory reconciliation before divorce and provided protection to female heirs by restraining the male power of testamentary succession are only known to people in the academic circles. Truly speaking, it is the basic ignorance and unawareness about the Islamic laws that lead to various misconceptions, misgivings and biases. For this pathetic situation, it is the Muslims themselves who are responsible. It must be borne in mind how intimately law and religion are interconnected in the Islamic system. Both cannot be dissevered from each other. The reason behind the problems faced by Muslim women are lack of awareness, illiteracy, lack of proper knowledge and understanding of Islamic laws, the insensitive attitude of agencies responsible for implementation of Islamic Laws and last, but not the least, the callous attitude of men. Hence the practices governing women’s personal status, their legal capacity and role in the family continue to deny women’s rights.

The study of rights of Muslim women focuses on the effects of Muslim Personal law. Like other systems of law, Muslim Personal Law also raises a number of issues for critical evaluation. To understand and make an intelligent opinion about the pending debate on the subject of Muslim Personal Law, one has to make a thorough study of the subject. This book is an excellent piece of work in this direction. The author has, while trying to do justice with the subject, also provided guidelines, which will help in removing all kinds of misgivings about Muslim Personal Law resulting in clarity on the subject. Muslim Personal Law is often misunderstood and this book is going to be a great help to the society at large in removing all kind of misunderstanding about Muslim Personal Law is often misunderstood and this book is going to be a great help to the society at large in removing all kinds of misunderstandings about Muslim Personal Law and the rights of Muslim women under Islam. It will further lead to formation of an intelligent opinion which will further lead to removal of all kinds of doubts prevalent in the society about Islam, which is of course a very noble deed.

Dr. KahkashaDanyal
Faculty of law
Jamia Millia Islamia


Preface

A woman in Islam is an independent entity and, thus, a fully responsible human being. Islam addresses her directly and does not approach her through the agency of Muslim men. On the basis of her own acts, a woman earns rewards or punishment. No man is allowed to plead or intercede for a woman, nor is he held responsible for her actions and their consequences. The doctrine of ultimate accountability does not take the family as a unit for collective responsibility, rather each individual, male or female, is an autonomous unit of reckoning in front of Allah, and is held directly responsible for his or her actions or his or her share in joint acts. “For on the day of judgment, every one of them will come singly” (Surah Maryam).

The individuality of a woman is the principle in Islam. The concept of gender equality in Islam is stressed by the non-superiority of either sex over the other. The equality of women in Islam is evident by the unprecedented legal rights given to them under a monotheistic religion as defined in the Holy Quran. As one of the many examples, if we take the rights of women in marriage and divorce, both men and women have the right to contract a marriage agreement as well as seek divorce. The precondition of marriage is merely a mutual agreement between both parties. Islam gives women the right to ownership, which entitles them to have personal possessions. The Holy Quran also explicitly outlines women’s inheritance rights. As for as social rights, Islam has always recognized the prominent role that women play in the society.

But women in general, and Muslim women in particular, are a downtrodden section of the Indian society. When we analyze the status of Muslim women statistically, we find that they are much more backward than the women of other communities. That is why urgent action is needed to upgrade and elevate their social status.

I congratulate the author of this book Ms. Tarannum Siddiqui, and Sarojini Naidu Centre for Women’s Studies, Jamia Millia Islamia for bringing it out. It consists of four sections: Marriage, Divorce, Maintenance and Inheritance. It is a useful contribution in the field of Muslim women’s studies. The conclusion attempts to shed light on some of the contentious issues of Muslim society. Many of the wrong notions and misinformation about the marriage, divorce, maintenance and inheritance have been cleared and doubts removed. The real and factual picture has been presented in the light of Holy Quran and Sunnah. It is hoped that this authentic work will be of immense help to the readers in general and Muslim society in particular.




Prof. Haseena Hashia
Dept. of Geography, Jamia Millia Islamia
Member, All India Muslim Personal Law Board,
New Delhi


Contents

Marriage

Introduction
Formation of a Valid Marriage
Type of Marriages
Puberty and the Age of Marriage
Iddat
Marital Rights


Divorce

Introduction
Classification of Divorce
Divorce by the death of husband or wife
Divorce by the act of the parties
Divorce by judicial process


Maintenance

Introduction
Maintenance Issues of Muslim Women in India
Section 125 Criminal Procedure Code of 1973
Muslim Women (Protection of Rights on Divorce) Act


Inheritance Law and Right to Property

Introduction
Transfer of Property
Hanafi Law
Shia Law
Right to Inheritance
Difference in Inheritance between Men and Women
Women’s Inheritance Rights



Marriage

Introduction

Marriage is an important social institution, which helps in creating a basic unit of human society called ‘family’. The institution is common to all communities, though there are some differences in the norms regulating them. Under Islamic law, marriage (nikah) is considered as a solemn pact between the spouses. According to Ameer Ali, “Marriage is an institution ordained for the protection of the society and in order that human beings may guard themselves from foulness and unchastity[1]”. Where as according to Abdur Rahim, “The Mohammedan jurists regard the institution of marriage, as partaking both of the nature of ibadat or devotional acts and muamlat or dealings amongst men”[2].

The Prophet has said in Hadith: “When a man has married, he has completed one half of his religion. Then let him fear for the remaining half”. [3]

The Islamic law prevents the human being from committing what is prohibited by the religion. Its objectives are to regulate physical, social, and psychological as well as the legal relations between the partners. Under Islamic law, marriage (nikah) is considered as a solemn pact between the spouses. There are three aspects of marriage in Islamic law:

1. Legal
2. Social
3. Religious

Legal aspect- A Muslim marriage is contractual in form because it makes free consent of the parties an essential element for its validity. This is to ensure that the bride is not getting married under any kind of compulsion.

Social aspect – Islamic law gives the woman an important role at home and in the society. The Prophet, both by example and precept, encouraged the institution of marriage and recognized it as the basis for society.

Religious aspect— The Prophet has said, "Marriage is my Sunnah (that is recommended action of the Prophet) and whoever does not follow my Sunnah is not my true follower” [4]

Marriage is a peculiar mechanism of regulating human relations with religious sanction and therefore, termed as a sacred covenant. The Prophet was determined to raise the status of women and accordingly attributed legal and religious importance to marriage.[5]


Freedom of Choice

According to the laws of Islam, a man and a woman have the right to choose their partner and they should not be forced into marriage. For example it is narrated that when Amir al Momenin Ali asked for Fatima’s hand in marriage the Prophet did not respond to Ali until he asked Fatima for her decision.

Nature of Obligations

Since a Muslim marriage is contractual in nature, all the rights and obligations it creates arise immediately, and are not dependent on any condition precedent. Such rights and obligations include the entitlement of wife to mahr and maintenance mutual rights of inheritance, prohibitions regarding marriage due to the rules of affinity etc.


Formation of a Valid Marriage

The following conditions are necessary for a valid marriage.

Offer from one party
Acceptance by the other party
Presence of two witnesses, where the parties are Hanafis, no witnesses are required if parties are Shiahs.
The words with which the marriage is contracted should be clear and unambiguous.
The proposal and acceptance must be expressed in one and the same meeting.


Capacity to Marry

a) A Sunni Muslim male can marry besides a Muslim woman, an Ahle-Kitab i.e. a female belonging to a religion with a revealed book e.g. a Christian or Jew, but not a Hindu, Sikh or Zoroastrian under any situation.
b) A Shia Muslim male or female cannot marry a non-Muslim female or male but a Shia male can marry a non-Muslim female by way of ‘Muta’ (temporary marriage).
c) Both the woman and the man should be mentally sound at the time of marriage.
d) Minors, who have not attained puberty, may be validly contracted in marriage by their respective guardians. The expected age of puberty is 15 years.
e) A male who is a major, of sound mind is entitled to and is capable of contracting his own marriage.
f) Regarding the capacity of a female virgin major of sound mind, there is a difference of opinion. Among the Hanafis, she has the capacity to contract her marriage without the intervention of a guardian, whereas according to Shafeis and Malikis a female virgin of sound mind cannot contract her own marriage.
g) A widow or a divorced woman (sayyiba-a woman who has experienced married life) has capacity of contracting her marriage.
h) In India, a marriage between a Muslim and a non-Muslim can be solemnized under the Special Marriage Act, 1954.


It is the girl's right to take the decision concerning her marriage and her father or guardian cannot over-ride her objections or ignore her wishes. The words of proposal and acceptance must be uttered by the contracting parties or their agents (vakils) in each other’s presence and hearing and in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Muslims and the whole contract must be completed at one meeting. The proposal and acceptance made at different meetings do not constitute a valid marriage. Writing of Nikahnama or performance of any religious ceremony is preferable but not essential.

Nikahnamas are admissible in evidence as written records of marriage. Qazis who perform the nikah can give satisfactory evidence of marriage. Where the person who performed the nikah is dead, the evidence of a witness can prove the nikah.


Prohibited Degree of Relationship

The woman, a man is getting married to must not be prohibited for him either perpetually or temporarily. There are 19 classes of woman who are prohibited to a man and with whom marriage is unlawful. They are:
(i) Mother (ii). Daughter (iii) Sisters (iv) Father’s sister (v) Mother’s sister (vi) Brother’s sister (vii) Sister’s daughter (viii) Foster mother (ix) Foster sister (x) Mother in- law (xi) Wife’s daughter (step daughter) (xii) Son’s wives (xiii) Father’s wife (step mother) (xiv) Two sisters in conjunction (xv) Married women (xvi) Idolatress (xvii) One’s thrice divorced wife (xviii) Woman in iddat (xix) marriage contracted with a fifth woman.

Proof of Marriage

Marriage may either by proved by direct evidence or may be presumed as a valid marriage by.
(1). Evidence of Marriage
(2). Acknowledgment
(3) Acknowledgment of marriage proof
(4.) Continued cohabitation


Type of Marriages

1. Valid (sahih)
2. Void (batil)
3. Irregular (fasid)

Valid (Sahih)— This marriage is in accordance with Shariah and without any legal impediments. A marriage is considered sahih when all the essentials as per the Islamic law have been fulfilled. A valid marriage confers upon the wife, the right to mahr, maintenance and residence in her husband’s home and imposes on the spouses the obligation to be faithful to each other and to admit each other to sexual intercourse. It creates mutual rights of inheritance, prohibition of affinity.

Void (Batil)—When the essential requirements of a marriage have not been fulfilled, it is batil (void as initio). A batil (void) marriage is no marriage at all. It creates no legal rights nor imposes obligations on the parties. The ground of marriage contract to be void is consanguinity, fosterage, affinity, and unlawful conjunction, pronouncing three divorces to one’s wife, contracting marriage with another’s wife. Effects of a void marriage are as follows; Marriage contract is null and void ab initio, no dower is due, iddat not be observed, issues are illegitimate, no rights of inheritance between husband and wife, no right of maintenance to the wife and no right of maintenance and inheritance to the issues.

Fasid—It is a marriage in which some conditions of a valid marriage are missing. A fasid marriage is one which is contracted without witnesses, marriage contracted with a female during her iddat, marriage contracted with a fifth woman in spite of four subsisting wives, marriage contracted by a man with his wife’s sister during period of probation of his wife, who stands divorced by him.

Effects of a Fasid Marriage

Dower – If there is no consummation of marriage and separation takes place, no dower would become due from the man, no iddat is required. If there is consummation, the man has to pay the specified dower or proper dower, whichever is less and iddat has to be observed.
Legitimacy of Children – Issues of an irregular marriage are legitimate, and are entitled to inherit and maintenance of children is incumbent upon the father.
Affinity- If consummation takes place, prohibition of affinity is established.
Maintenance –Women are entitled to get maintenance till irregularity is not discovered and not after that.
Inheritance – The couple cannot inherit from each other.



Mut’a

The Mut’a is a temporary marriage for a fixed period of time. This is approved only by the Ithna Ashari school of thought. A Shia can contract Mut’a with a Muslim woman, a kitabi and also a fire worshiper. A Shia woman may contract a Mut’a marriage with a Muslim male only.

In a mut’a marriage, the period of cohabitation should be fixed whether a day, a month, a year, or a term of years. Mahr (dower) should be specified. If no period is mentioned, whether inadvertently or intentionally, the contract would be treated as one of a permanent marriage. There is no difference in Mut’a for unspecified period and Mut’a for life.

Mut’a marriage creates no rights of inheritance between the spouses unless there is an agreement between the parties. The children conceived during Mut’a marriage are legitimate and can inherit from both parents[6]. There is no minimum limit for the duration of the marriage and no divorce is required. A woman married in Mut‘a is not entitled to any maintenance. The husband is not bound to provide a residence for the wife. Married women shall be bound to observe iddat, in case of termination by death for four months and ten days, and in case of pregnancy till delivery.


Puberty and the Age of Marriage

In Muslim law, a Muslim who has attained puberty and is of sound mind can marry. If a Muslim has not attained puberty, his or her guardian can give him or her in marriage. He or she can repudiate such a marriage on attaining puberty in certain circumstances. This concept is called option of puberty. The minor on attaining the age of puberty can repudiate when his lawful guardian, other than the father or paternal grandfather, marries a minor such a marriage.

In India under the Child Marriage Restraint Act, 1929, it is an offence to solemnize the marriage of a male below 21 years or of a female below 18 years. But violation of this prohibition does not affect the validity of the marriage.
Puberty

A minor suffers from a legal disability to enter into a binding contract and also enjoys a privilege from being always bound by a contract entered into by a guardian on his or her behalf. The minor can, on attaining puberty, ratify such a contract if he or she so chooses. Under the Islamic law, a minor’s marriage is governed by the same principle. When a guardian contracts a marriage for a minor, he or she, on attaining puberty has a right, subject to certain conditions, to either ratify or repudiate the marriage. This right of dissolution of marriage on attaining puberty is called khiyar-ul-bulugh (option of puberty). Since a Muslim adult husband can dissolve marriage by talaq also, the doctrine of khiyar-ul-bulugh gains more importance for women. Thus the doctrine is one of the safeguards against an undesirable marriage and a protection for minors (especially females) from any unscrupulous or undesirable exercise of authority by marriage guardians.

The doctrine of khiyar--ul-bulugh enjoys sanction under hadith as well. Hazrat Ibn Abbas narrates that a virgin girl came to the Prophet and said that her father had given her in a marriage, which was not to her liking. The Messenger of Allah then gave her option for and against the relationship. After that, this option became available to all. Capacity to exercise the option however occurs only when a minor attains puberty. The minimum age at which children attain puberty in the case of boys and girls is twelve and nine respectively. However, fifteen is the maximum age to attain puberty. Thus, a minor is deemed to have attained puberty when he or she has attained the age of fifteen years. After attaining that age, option may be exercised expressly or by conduct, that is, consummation with willingness.

Regarding waiving of marriage, a minor can waive the right of option of puberty only on attaining puberty. Cohabitation before attaining puberty with or without the girl’s consent does not destroy her right because a minor is not capable of giving her consent to any act as long as she is a minor. The right to exercise this option arises only when she has become a major and so is not lost by anything done or a happening before that time. The right shall be considered waived only by allowing the marriage to be consummated freely after attaining puberty. Abu Daud reported that the father of a girl name Khansa, gave her in marriage while she was a virgin, she did not like the match and so she came to the Prophet. He annulled her marriage. The repudiation of marriage if so chosen must be made within a reasonable period of time. Any unreasonable delay shall vitiate the right. The time period may, however, be extended if the wife was ignorant of her marriage or of her right to cancel the same. Under the precedent, a period of three years after puberty is deemed as sufficient and reasonable, within which the option must be exercised, otherwise the right is lost.

When separation takes place by exercise of the option and if the marriage has not been consummated, the wife has no right to mahr. But if the marriage had been consummated, she is entitled to her full mahr. This is irrespective of the fact whether separation has taken place by her own option or by the option of her husband. Some of the jurists are of the view that marriage contracted for a minor by her father or paternal grandfather is binding on the minor and can be repudiated only if the father or the grandfather has ignored the interests of the minor, or has acted fraudulently or negligently and the marriage is to the manifest disadvantage of the minor. There is no such requirement about the marriage contracted by a guardian other than father or grandfather. It may be noted here that the Dissolution of Muslim Marriage Act, 1939 does not provide for any such distinction.


Guardianship

According to the Hanafi law, for the purposes of marriage the wali (guardian) of every person primarily is her or his father, and in his absence, the paternal grandfather and then the great grandfather. The responsibility to act as the wali, passes on from one to another male relative. In the absence of any such male, the guardianship goes to the mother, the paternal or maternal grandmother, the maternal grandfather, a sister, a uterine brother or sister, a paternal aunt, or a maternal uncle or aunt.[7]



Iddat

Iddat is the period of probation incumbent upon a woman whose marriage is dissolved. She must wait for the end of this period before she re-marries. During the period of iddat the Muslim wife cannot contract another marriage. She is entitled to maintenance from her husband or from his property. The purpose of iddat is biological i.e. to decide the paternity of a possible child of the union and to avoid confusion of parentage. In case of dissolution of a marriage by divorce or death, iddat is required (whether the marriage is valid or irregular), if the marriage has been consummated. In case of dissolution of marriage by apostasy too iddat is necessary if the marriage was consummated. Iddat is not required to be observed in an unconsummated marriage.

Period of Iddat

Iddat period of a valid marriage on dissolution by death is four months and ten days and by divorce, if she is subject to menstruation, three menstrual courses, in other cases, three lunar months. In the case of pregnancy, iddat shall be extended up to the date of delivery or miscarriage, as the case may be.




Marital Rights

Mahr or Dower

The Holy Qur'an says: “And give women (on marriage) their dower as a free gift, but if they of their own good pleasure, remit any part of it to you, take it and enjoy it with right good cheer.”[8]

According to the Hedaya, “the payment of dower is enjoined by the law merely as a token of respect for its object (the women) therefore its mention, if it is not absolutely essential to the validity of a marriage and the marriage is valid although the man were to engage in the contract on the special condition that there would be no dower.”[9]

Mahr (dower) is a sum of money or other property, which the wife is entitled to receive from the husband by virtue of marriage. It may be specified in the nikahnama. The entire amount of the mahr shall be presumed to be payable on demand if no time for payment is fixed. Mahr is not a requisite for the validity of marriage but becomes compulsory on marriage. The amount of mahr ordinarily fixed by oral contract is valid.

Marriage is valid though no dower is mentioned. Because conjugal rights are far too precious to be equated with what is normally given as mahr. It is not a consideration of marriage but its effect is imposed by the law on the husband as a token of respect and honour for the woman.

Prompt Dower- mahr- i-mu’ajjal- it is derived from a root which means ‘to hasten’ ‘to proceed’. It means dower which is promptly paid at the time of marriage or is payable promptly on demand.

Deferred dower- mahr- i-nuwajjal. It is derived from a root, which means ‘to delay or postpone’. It means what is payable on the dissolution of marriage by death or divorce.

Minimum Mahr

1. Hanafi law-10 dirhams
2. Maliki law-3 dirhams
3. Shafi law and Shiite law-no fixed minimum

A dirham is silver coin 2.97 grammas in weight

Quantum of dower differs from place to place. It depends upon the social position of the parties and upon the economic condition of the society. It must be adjudged on different principles.

Classification of Mahr

The mahr is payable whether the sum has been fixed or not. Mahr may first of all, be either specified or not specified.

There are two of kinds of mahr in Islam.
a. Specified mahr (al-mahr al- musamma)
b. Proper dower or customary dower (mahr al mithl)

Specified mahr may again be divided into two types; a. Prompt (mu ‘ajjal), b. Deferred (mu’ajjal)

Specified Mahr—Specified Mahr is fixed at the time of marriage and the Quazi performing the ceremony enters the amount in the register. The wife is entitled to recover whole of such mahr. The sum may be fixed either at the time of marriage or later, and a father’s contract on behalf of a minor son is binding on the minor. Once the amount has been specified, the husband will be compelled to pay the whole of it, however excessive it may seem to the court, having regard to the husband’s means.

Proper Mahr

If the amount of mahr is not fixed, the wife is entitled to proper mahr even if contracted on the condition that she should not claim any mahr. In such cases, proper mahr of women is to be fixed with reference to the dower settled upon other female members of her fathers’ family and her own personal qualifications. The social position of the husband and his means are of little account.

Enforcement of Mahr

The claim of wife and widow for the unpaid portion of mahr is an unsecured debt due to her from her husband or his estate, respectively. If a husband refuses to pay prompt mahr, the guardian of a minor wife has the right to refuse to allow her to be sent to the husband’s house and similarly, the wife may refuse the husband his conjugal rights provided no consummation has taken place. Under Muslim law the wife is entitled to refuse herself to her husband until the prompt mahr is paid: and if in such circumstances she happens to reside apart from him, the husband is liable to provide maintenance to her.

If dower is not fixed in the contract of marriage according to Abu Hanifa, proper dower will become due merely on the ground of marriage itself. If she dies without consummation proper dower shall be recoverable from the husband. If the husband dies before consummation, the woman shall be entitled get her proper dower, which shall be realized from the estate of her deceased husband’s property. According to Imam Shafei proper dower does not become due merely on the basis of marriage. It becomes due in case of two events only.

First, when it is fixed dower and secondly, when consummation has taken place. If dower is not fixed and one of them dies before consummation, even proper dower shall not become due instead only a suit of deaths shall be due. Only, once there is consummation and dower is not fixed and the divorce is given before consummation of marriage –proper dower shall not become due, instead only a suit of clothes shall be due.
In certain cases, an inflated amount is fixed in public for the glorification of the bridegroom’s family or, where no dower is fixed, and then proper dower should be paid to the wife. But the exorbitant dower is valid and legal even if it is beyond the means of the husband.

Amount of Dower

No hard and fast rule is laid down in the Holy Quran. It may consist of a ring, a bucket of barley, dates, cash, immovable property, goods, merchandise etc. But dower must be certain, lawful, capable of being taken into possession. In case of specified dower, the wife is entitled to her whole dower upon consummation of marriage or the death of her husband. If she is divorced before consummation, then she is entitled to receive half the amount of her specified dower. A wife can refuse to live with the husband on account of non-payment of dower if there is no consummation of marriage. Whereas, if there has been consummation of marriage, the non- payment of dower is not a defense for an action of restitution of conjugal rights.


Effect of Death of either party on Dower

If marriage is dissolved by death of either party, dower is payable as:

Valid Marriage Full dower- If not specified, then proper
dower (whether marriage consummated or not)

Irregular Marriage Full Specified or proper dower, whatever is less (if
marriage is consummated)

Effect of Consummation on Dower

I. In case of a consummated marriage – dower is not lost in any case, (even in case of apostasy, adultery, concealing illicit pregnancy) dower is made binding by consummation or by its substantial valid retirement) just as by death.
II. In case of a valid marriage- full specified dower, proper dower if not specified.
III. In case of an irregular marriage- full-specified dower or proper dower whichever is less.
IV. In case of an unconsummated marriage- valid marriage- dower will only be due if marriage is dissolved by death- full specified or proper dower, if it has not been specified.

Objectives and the Effects of Dower

Main objectives:

(1) To protect the wife against arbitrary power of the husband in exercising the right of divorce.

(2). Fixing of high dower operates as a healthy check on the husband’s capricious exercise of such right.

(3) It is a mark of respect for the wife.

A contract of dower need not be reduced to writing. It may be fixed either before or at the time of marriage or after the marriage. Dower may also be increased at any time after it is fixed even during the continuance of the marriage. Dower cannot be decreased. Even the court has no power to decrease the contractual amount. The court is bound to allow the amount settled between the parties even if it is in excess, which the husband possessed at the time of marriage or was expected to acquire. If marriage is dissolved by apostasy or any other act of the husband, then half of the specified dower if it has been specified, otherwise a gift to be given.

Effect of Apostasy on Dower

Apostasy of either party after consummation does not affect the right of the wife to get her dower and the right of the husband to given her dower. But if before consummation the husband apostatizes (if dower is specified) then half of the dower, but if dower is not specified, then a present is due. If before consummation, the wife dies then nothing is due. Parties to a marriage make certain stipulation in the marriage contract, which they are binding. If the husband makes a breach of such conditions, the wife would be entitled to recover her proper dower even if it her specified dower.


Widow’s Right of Retention

A Muslim widow is entitled to retain possession of her husband’s estate, till her dower debt is not satisfied. But this is so when she gets possession of the estate lawfully and without the use of force or fraud. The legal heirs cannot disturb her possession until they satisfy the dower debt. The right of retention does not confer on the widow any title to the property. Her rights are twofold: one, as heir of the deceased, and two, as widow entitled to her mahr and, if necessary, to retain possession of the estate until her Mahr has been paid. The right to hold possession must, therefore, is sharply distinguished from her right as an heir. The right to retain property is a personal right, it cannot be transferred and it can be alienated or mortgaged. But the right is heritable.

In Muslim law, a widow has a lien over that property and such lien she continues to have till her dower debt is discharged. While that is so, it cannot be said that her liability to account for the income received by her from the properties of her husband does not exist. While she can exercise her right of lien, she is liable to account to the other sharers with regard to the income as a co-sharer. Dower is a debt, but not a secured debt.

The Supreme Court has laid down that a Muslim widow in possession of her husband’s estate in lieu of her claim for dower, whether with the consent of the other heirs or otherwise, is not entitled to priority as against her other unsecured creditors[10]. Her right is not greater than that of any unsecured creditor except that she has a widow’s lien. She is not entitled to any priority over other creditors[11]. Widow’s lien over her husband’s property remains only so long as she remains in possession. But if she wrongfully dispossessed, she is entitled to recover possession. As soon as the debt is satisfied, she must deliver possession to the legal heirs of the husband.


Maintenance for Women

In Muslim law, maintenance for women is of special significance. In the underdeveloped societies, an overwhelming majority of the female population is not able to earn their own living on account of social taboos, and consequently, they depend on the male members of the family for their bare subsistence. One good aspect of Muslim law is that it makes legal provision for maintenance for wives, dependent children and other relatives who are unable to maintain themselves. There is a special term for ‘maintenance’ called nafaqa.

The husband is bound to maintain his wife, so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to him or is otherwise disobedient unless the refusal or disobedience is justified by non-payment of prompt mahr or she leaves the husband’s house on account of his cruelty. If the husband neglects or refuses to maintain his wife without any lawful cause, the wife can sue him for maintenance.

The Holy Quran says “If divorce takes place the mothers shall give suck to their offspring for two whole years, if the father of the child desires to complete the term. But he shall bear the cost of their food and clothing on equitable term.”[12] The Quran says: "Lodge them where you dwell, according to your means, and harass them not so as to strain life for them. And if they are pregnant, then spend for them till they bring forth their burden. Then, if they give suckle for you, give them their due payment and enjoin one another among you to do well; but if you disagree, then let other (woman) suckle for him. Let him who has abundance spend of his abundance, and he whose provision is measured, let him spend of that which Allah has given him; Allah does not lay a burden an any soul, except that which He has given it. Allah will bring about ease after hardship."[13] In the Muslim law, the wife has the right of being properly maintained by her husband and he is responsible for providing his wife with food, clothes, residence, medical treatment, adornment (as per his means) and other expenditures needed by the wife and according to her social status, on one hand, and falling within the husband's financial means, on the other.

In India, under Sections125 to 128 of the Criminal Procedure Code 1973, if a husband has sufficient means to maintain his wife who is unable to maintain herself, but refuses or neglects to do so, he can be ordered by a magistrate to provide maintenance to her by way of a monthly allowance amounting to a maximum of Rs. 5000. Provided that she is not living in adultery and has not refused to live with him except for a legally sufficient reason, and is not living separate by mutual consent.

Under the new provision of Section 125, Criminal Procedure Code, a divorced wife can now claim maintenance even if the divorce had taken place before the new code came into force. Section 127 (3) (b) provides that where any order has been made under Sec.125 in favour of a woman who has been divorced or has obtained divorce from her husband, the magistrate shall, if he is satisfied that she has received, whether before or after the date of said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such an order. Section 125 has to be read with Sec. 127 and if there has been a divorce and the wife has received her dower and other dues then she cannot claim maintenance under Sec.125.







Divorce

Introduction

Islam regards marriage as a religious obligation but not an indissoluble union. If the situation demands, the marriage can be dissolved. Islam has permitted divorce, but it lays emphasis on the fact that divorce should be resorted to only in unavoidable circumstances when there is no other alternative. The Prophet has said:

“Of all things permitted, divorce is the most hateful in the sight of God”[14]

The literal meaning of talaq is “to snap off or to separate or freedom from bondage”. In Shariah, it means terminating with explicit or implied words the bond created by marriage contract. The relevant verses of the Holy Quran that deal with the procedure for divorce says:

“If ye fear a breach,
Between them twain,
Appoint two arbiters,
One from his family
And the other from hers;
If they wish for peace,
God will cause
Their reconciliation:
For God hath full knowledge,
And is acquainted
With all things”[15]


If the husband and wife are unable to live together or even after genuine efforts fail to adjust themselves with each other, the marriage could be properly dissolved. The husband and wife should be first persuaded to reconcile and overcome the conflict inter se through arbiters; one each from the husband’s and wife’s parental families. Even after that, if the parties are unable to resolve their differences, they should be separated instead of being allowed to perish in a failed marriage. Thus Islam accepts divorce as a necessary evil but does not see it as a desirable option.

Divorce can occur by the act of the parties i.e. can be pronounced by the husband, by the wife, by mutual consent or through judicial process. The marriage can also be dissolved due to the death of the husband or wife.

Talaq may be given Orally or in Writing

Oral- If the words are expressed and well understood as implying divorce, no proof of intention is required. If the words are ambiguous, the intention must be proved. It is not necessary that the talaq should be pronounced in the presence of the wife or even addressed to her. In a Calcutta case, the husband merely pronounced the word “talaq” before a family council and this was held to be invalid as the wife was not named. But, this case was approved by the Court where the talaq was considered valid though pronounced in the wife’s absence.[16]

Talaq in Writing

A talaqnama executed in writing, in the presence of witnesses and in the customary form, takes effect immediately even if not brought to the wife’s knowledge at the time of its execution. It can subsequently be communicated to her within a reasonable time. [17]


Classification of Divorce

1. By the death of husband or wife
2. By the act of the parties
3. By judicial process


By death of Husband or Wife

With the death of the husband or wife, the marriage comes to an end. If the wife dies, the husband can immediately marry, but if the husband dies, the wife has to wait till the end of the period of iddat (four months and 10 days), or if pregnant, till the delivery.

By act of the Parties

By the husband: The attributes of divorce, (masnun according to the traditions of the Prophet) are of two kinds (1) Talaq al Sunnat (2) Talaq al Bidaat (ghayr masnun ) not according to the rules known in the traditions of the Prophet.

Talaq al Sunnat: It is of two kinds: -

Talaq al Ahsan: It is a single pronouncement of divorce during tuhr (period when wife is free from menstruation i.e ritual purity) followed by abstinence from sexual intercourse for the period of iddat. The husband can revoke this talaq any time during iddat by words or by conduct. The talaq may be pronounced orally or in writing.

Talaq-al-hasan: This is by a husband who has consummated the marriage. It consists of three successive pronouncements, during three consecutive periods of ritual purity. One pronouncement is made during a period of ritual purity in which there has been no cohabitation. It may be revoked within the same period of ritual purity. Again the same process is repeated the second time. Now if the third pronouncement is made in the third consecutive period of purity, the divorce becomes irrevocable and then the same parties cannot ordinarily remarry unless there is an intervention through a third person, consummation of that marriage, divorce, observance of iddat. The Holy Quran says:

“Divorce may be pronounced twice, and then a woman must be retained in humour or allowed to go with kindness. The verse means that a man who has twice given notice of divorce over a period of two months should remember God before giving notice a third time. Then he should either keep the spouse in a spirit of good will or release her, giving her full rights without any injustice. The prescribed methods of divorce has ensured that it is a well considered planned arrangement and not just a rash step taken in a fit of emotion”[18]

Marriage Dissolution by the Wife
Talaq-e-tafweedh (Delegated Divorce)

Delegation of the right of divorce is an entrustment by the husband to the wife as a right to act as her husband’s delegate in effecting divorce to him. Delegation of authority can be either at the time of entering the marriage contract or at any time during married life. The divorce is as effective as pronounced by the husband himself. It is recognized by all school of thoughts.

Under Islamic law, a man and a woman entering into a contract of marriage may choose certain mutually agreed conditions upon which their marriage is to take place. The agreed conditions would define their future marital rights and obligations in addition to the ordinary one’s under a valid marriage contract. The spouses may, for example, agree that the wife under such an agreement shall have the power to divorce herself on behalf of the husband. Such an agreement amounts to a delegation (tafweedh) of his power by the husband to the wife. The pronouncement of divorce by the wife under such an agreement is tantamount to the husband’s pronouncement of divorce. Such delegation of power may be either conditional or unconditional. When it is conditional, the wife would be at liberty to declare divorce on behalf of the husband whenever he commits a breach of the conditions agreed upon, resulting into dissolution of her marriage tie with the husband. If it is unconditional, the wife has an absolute power, as per the terms of agreement, to dissolve the marriage. [19]

The doctrine of tafweedh is based on the Quranic verse, wherein it is provided:
“O Prophet! Say to thy consorts, if it be that ye desire the life of this world and its glitter- then come- I will provide for your enjoyment and set you free in a handsome manner”.

In obedience to this Quranic injunction, the Prophet had empowered his wives to choose either him or a separation, that is, they might either get the marriage dissolved or prefer its continuation. His wives, however, chose continuation of marriage. Thus, a husband can lawfully delegate to his wife power to dissolve the marriage, if she so wants. This doctrine enjoys judicial recognition also. [20]

In talaq-e-tafweedh, the husband retains his power of divorce as the same has not been transferred to the wife but she becomes an agent to effectuate divorce. This doctrine, therefore, brings the spouses at par with the husband about exercising the power of divorce though the right actually vests with the husband.

The doctrine has proved useful in restraining husbands from contracting second marriage and securing some other benefits to the wives depending upon the terms of the agreement under which the power of talaq has been delegated to the wife. The following are some of the conditions that are valid and on whose breach the wife can be made entitled to divorce her self by talaq- e-tafweedh.

(i) The husband shall not absent himself from their place of residence for a specified period of time.
(ii) The wife shall not be forced to reside in the same house with his other wife/wives.
(iii) The husband shall not stop the wife from going to her parents or other relatives once in a week.
(iv) The husband shall not indulge in gambling.
(v) The husband shall not mistreat the wife.
(vi) The husband shall pay to the wife maintenance every month by a specified date or give her a specified sum of money by a certain date.
(vii) The husband shall not be guilty of immorality.

Therefore, if the conduct of the husband is against any of the agreed conditions, the wife can talaq herself on behalf of the husband by virtue of the doctrine of talaq-e-tafweedh.

Khula

It may be reiterated that the contract of marriage is ordinarily supposed to last for the entire lifetime of the husband and wife. But when the relations between the spouses become strained and the continuation of their union becomes undesirable, the spouses are, thereupon, allowed to terminate it. It can be terminated either by the husband on his own initiative or at the instance of the wife or by mutual agreement. In the first two cases, there is a breach of implied agreement that the marriage will subsist during the lifetime of the parties. If it is the husband is guilty of this breach, he is penalized by becoming liable for the immediate payment of his wife’s deferred dower (mahr al muajjal) and mata’ (other thing/gifts). While, if it is the wife who wants the termination of the marriage, she has to compensate the husband. This termination of the marriage at the instance of wife is called khula. Under Shariah, it means that a husband after accepting compensation from his wife renounces his rights and authority over her under the marriage contract.

The word khula literally means, “to put off”. Thus, khula’ is a divorce with the consent and at the instance of the wife in which she gives or agrees to pay compensation to the husband for her release from the marriage. Therefore, assuming a situation in which the wife finds difficult to live a contended life with her husband and she is likely to deviate, the Quran says:

“Then if you fear that they (the spouses) would be unable to keep within the limits of Allah, there is no blame on either of them if she gives up something to become free thereby”[21].

Accordingly, the Prophet educated his followers about what had been revealed upon him and also put that to practice. One day, Jamila, the daughter of Abd Allah Bin Ubyyb Salul and the wife of Thabit Ibn Qays appeared before the Prophet and said, “O Messenger of Allah, I and Thabit can never live together. I saw him coming from the other side with some men. I found that he had the smallest stature, was the blackest and ugliest among them; I swear by Allah that I do not dislike him on account of any religious or moral turpitude of…….. O’ Messenger of Allah! You can see how beautiful I am while Thabit is an ugly person…. I fear that I may be guilty of transgression of the limits set by Islam”. The Prophet asked her if she would return the orchard given by Thabit to her as mahr. She replied, “Yes and if he demands more then, I am ready to give him more than that”. The messenger of Allah said “No, not more than what he had given you”. He then asked Thabit to take back the orchard and release her from the marriage tie by divorcing her, which he did. There is a tradition of the Prophet which says: “Only that property should be accepted back from the wife released under Khula which had been given by the husband to her and not more than that.”[22]

The object of khula is to enable the wife to get released from her husband when she finds that it is not possible for her to live with her husband in harmony and peace. It is to be noted that in the relevant Quranic provision cited above, there is nothing to indicate the husband’s power to refuse the dissolution of the marriage when the wife demands a release by khula. It is an irrevocable divorce.

It may thus be observed that khula is an important right of the Muslim wife enabling her to get rid of an unwanted marriage. The right is available to her under the general principles of Islamic Law, irrespective of the terms of the marriage contract. She also need not offer any explanation for her option to dissolve the marriage. It can be affected by the intervention of the court also, i.e. if the husband objects to her exercise of the option, the court can pass a decree in her favour. In either case, she has to pay the iwaz (recompense).

Mubaraat

It literally means ‘releasing from each other’. The proposal may be made by either of the two the husband or the wife and with its acceptance by the other, the marriage is completely dissolved. It is a mutual agreement between the husband and the wife that becomes effective by the consent of the parties. It is a mutual discharge, an irrevocable divorce.


By Judicial Process

Talaq al bidaat: It is an irregular divorce. It is of two kinds:

a. Divorce by three declarations b. Divorce by one irrevocable declaration.

In this form, three pronouncements are made in a single tuhr (period of ritual purity) in three sentences “I divorce thee, I divorce thee, I divorce thee”. Such a talaq is lawful, although sinful, only under Hanafi law. It is not permissible under Shia or Shafi’e law. Bidd’ ah means an innovation beyond the Quranic provisions and the Sunnah. People should desist from such a kind of talaq.[23]

Divorce by three declarations: In this form, three pronouncements are made at a time in one sentence during one period of purity.

Divorce by one declaration: Here the husband neither pays any attention to the period of purity or abstention from intercourse. He pronounces one bain talaq (irrevocable bain divorce), which is valid, but the person pronounces shall be a sinner.[24] Such a divorce is sinful but lawful under Hanafi law.

Talaq al bidaat is not recognized under Shiah Law.

According to Hamilton’s Hedaya, the divorcee is an offender against the law[25]. People should desist from such a kind of talaq.[26]

Divorce under intoxication, under compulsion, divorce pronounced in jest are all valid kinds of divorce under Hanafi school of thought.

Ila’

Literally ila means ‘vow’ and the maker of vow is called m’uli. In law, it implies ‘cessation of sexual relations between the husband and the wife’. In pre-Islamic days the husbands used to harass their wives by depriving them of their sexual intimacy without proper dissolution of marriage so that she could not contract another marriage. Islam has provided a check on the evil effects of such practices.

If a man makes a vow saying to his wife “by Allah! I will not have sexual intercourse with you” and the period exceeds four months, then two consequences follow: One, the man commits the breach of vow and has sexual intercourse with the wife. He does not lose the wife but shall be liable to penalty (kafara). Second, if the husband does not resume sexual contact with the wife within four months, the wife has a right to seek dissolution of marriage and get rid of the cruel situation. By exercising this right the wife can protect herself from harassment by the husband.

Zihar

The word ‘zihar’ is a derivative from word ‘zahr’ (back). Zihar means ‘to oppose back to back’. In the language of law, it signifies a man comparing his wife to any of his female relatives within such prohibited degrees of relationship, whether by blood, fosterage or by marriage as render marriage with her invariably unlawful. Zihar, therefore may be used by a husband to deprive the wife of his company and tie her to a miserable life. For instance, if husband says to his wife “you are to me like my mother’s back”, this amounts to both desertion as well as cruelty. In such a situation, Islam gives the wife a right to seek marriage dissolution.

The husband can re-establish the matrimonial relationship with her only on paying the prescribed penalty (making expiation). He must free a captive before they touch one another. But he, who has not the means, should fast for two months successively and he who is unable to do so should feed sixty needy ones. In Zihar unlike ila, no time limit is prescribed to make expiation or to go back to what has been said. The wife may seek dissolution of marriage immediately after husband’s making of such injurious comparison. [27]

Lian

Lian literally means to ‘drive away’. Here it means to drive away from the mercy of Allah on account of imprecations involving the curse and wrath of Allah. When a husband accuses his lawfully wedded wife of adultery, she has a right to apply to the Qazi to order the husband either to support his accusation by taking the specially prescribed oaths or to admit the falsity of his charge. Where the husband has made a false charge of adultery against the wife, it will be a valid ground for the dissolution of marriage by Qazi. The law will be clear by the following Quranic verse:

“And those who launch a charge against chaste women, and produce not four witnesses (to support their allegation), flog them with eighty stripes and reject their evidence even after for such men are wicked transgressors.

And those who launch a charge against their spouses and have (in support) no evidence but their own, their solitary evidence (can be received) if they bear witness four times (with an oath) by Allah that they are solemnly speaking the truth, and the fifth (oath) should be that they solemnly invoked the curse of Allah on themselves if they tell a lie. But it could avert the punishment from the wife, if she bears witness four times (with an oath). By Allah her husband is telling lie, and the fifth (oath) should be that she solemnly invokes the wrath of Allah on herself if (her accuser) is telling the truth”. [28]

One Hilal Bin Umayyah accused his wife of having committed adultery. This verse was revealed when the Prophet was deciding their case. Hilal and his wife then took the prescribed oaths and the Prophet allowed them to separate. Ibn Umar reported, “The Prophet allowed imprecation between a man and his wife. He first admonished the husband, told him that chastisement of this world is easier than the chastisement of the hereafter. Then he (Prophet) called her (the wife) and gave her similar admonition and warning. After the spouses had taken the prescribed oaths, he (Prophet) separated them”.

The attempt of the Qazi must be to discourage imprecations, which lead to the dissolution of marriage. The Qazi should first ask the husband either to take the prescribed oaths or to admit falsity of his charge against his wife. If the husband persists in his accusation, the Qazi shall first administer the oath to him four times by repeating each time. “I call Allah to witness to the truth of my testimony concerning the adultery with which I charge this woman” pointing to his wife. After that the husband will be required to pronounce the imprecation by saying “May the curse of Allah fall upon me if I have spoken falsely concerning the adultery with which I charge this woman”. After this, the Qazi admonishes the wife and advises her to give up her demand, but if she persists, he would ask her either to take the prescribed oaths or to admit her guilt. If she admits her guilt of adultery, the marriage shall not be dissolved. Should she persist that her husband’s accusation is false, the Qazi must administer to her the prescribed oaths. She must repeat four separate times saying “I call Allah to witness that my husband’s words respecting this adultery with which he charges me are altogether false” and then pronounce the imprecations saying a fifth time, “May the wrath of Allah light upon me if my husband is just in bringing a charge of adultery against me”.

When both the parties have taken the imprecations and invoked the curse and wrath of Allah, the judge is to order the husband to divorce his wife and on his refusal or failure to do so, the Qazi shall himself dissolve the marriage, if the wife so desires. It is to be noted that the accusation does not automatically lead to dissolution of marriage but only gives to the wife right to seek the dissolution of marriage.


Faskh

Muslim women are also allowed to seek marriage dissolution through court or Qazi on certain grounds dictated by reason and rationality. This aspect of the Islamic law has been statutorily granted recognition in India and shaped in the form of Dissolution of Muslim Marriage Act 1939. These grounds are given below:

a. Missing husband: Where the husband has disappeared and his whereabouts are not known for a period of four years or more, the wife can apply for faskh
b. Non-maintenance: Where the husband fails or neglects to provide maintenance to the wife for a period of two years or more, she can pray for faskh.
c. Imprisonment: If the husband has been sentenced to imprisonment for a period of seven years or more the wife can approach the court for faskh.
d. Non-performance of marital obligations: Wife can apply for faskh if the husband has failed to perform his marital obligations for a period of three years or more. The nature of marital obligations is to be ascertained with reference to Islamic law.
e. Impotency: The main purpose of marriage is lawful satisfaction of natural urges and a chaste and happy companionship of the parties to it. When the husband is incapable of consummating the marriage on account of some defect, physical or otherwise, the said object of marriage gets defeated. Islam lays great stress on the performance by the husband of the marital obligations to satisfy the natural desires of his wife, to be intimate with her at reasonable intervals and not to neglect this important obligation. Islamic law therefore gives the wife of an impotent person, who cannot perform these marital obligations, a right to get her marriage dissolved with the intervention of the court or the Qazi.
f. Mental or bodily disease: Mental as well as physical fitness of a person is necessary for continuation of a marriage. In the absence of such basic state of health, the relationship may grow tense and break. In view of this fact, it has been provided that if the husband is suffering from insanity for two years or more, the wife can sue for faskh. She can also claim dissolution of marriage with a husband suffering from leprosy or a virulent venereal disease, irrespective of the duration of the disease in either case. However dissolution of marriage may be refused where the wife has herself infected the husband with the disease. The same principle can apply in case of HIV/AIDS cases.
g. Option of puberty: Where her father or guardian has given a wife in marriage, before she attained the age of puberty, she can seek dissolution of such marriage on attaining puberty by repudiating the marriage.
h. Cruelty: Under Islamic law, a wife can claim dissolution of marriage anytime if the husband treats her with “cruelty”. No precise specific definition of ‘cruelty’ has been adopted in this respect and basic human standards of pain and suffering can be applied to determine the violence of cruelty. Ordinarily, the cruelty can include:

i) A habitual assault or making the wife’s life miserable by physical ill treatment or by mental torture.
ii) Association with women of evil repute or otherwise leading an infamous life.
iii) Attempt to force the wife to live an immoral life.
iv) Disposing of her property or preventing her from exercising her rights thereupon.
v) Obstructing her in the observance of religious profession or practice.
vi) Inequitable treatment by a polygamous husband contrary to the Quranic injunction in this behalf.
vii) Any other like treatment.
viii) The relationship of husband and wife is severed on the husband’s apostasy.


Maintenance

Introduction

The dictionary meaning of the word ‘maintenance’ is the money someone given to a person that they are legally responsible for, in order to pay for their food, clothes, and other necessary things. The implied meaning here is the money given by the husband to maintain his wife and children. The following versus of the Holy Quran gave rise to the rights and obligations of maintenance: “Let the man of means spend according to his means, and the man whose resources are limited, let him spend according to what God has given him”[29]. “Let the women live (in iddat) in the same style as ye live, according to your means”.[30] “But he shall bear the cost of their food and clothing on equitable terms”[31].

What is nafah (maintenance)? Generally, it includes food, clothing, dwelling and other necessary articles, which are necessary for the livelihood and comfort of a woman. The basis for the liability of maintenance is marriage. Under the Shariah, a wife cannot be compelled to cook and stitch her clothes; it is the husband who has to provide her with cooked food and stitched clothes or he has to provide her with a servant for that work. The husband is also bound to provide her with a separate house or a separate portion of a house with a separate entrance or exit. If the wife resides at her parent’s house for a valid reason, her right of maintenance is not affected. It is obligatory on the part of the husband to maintain his wife, behave with her on equitable terms and take proper care of the wife. If he has more than one wife, he should provide maintenance to all of them and treat them equitably, should not discriminate between them in providing maintenance and should not prefer one against the other.

In a valid marriage, it is the liability of the husband to maintain the wife. There is no liability of maintenance in case of an irregular marriage where irregularity is due to absence of witnesses at the time of Nikah ceremony. Where the wife refuses to live with the husband due to non payment of prompt dower, her refusal will be considered valid and her right of maintenance is not affected whether the marriage has been consummated or not. Where the wife refuses to live with the husband or return to his house due to some valid reason e.g. his cruelty, the right of maintenance is not affected.

Maintenance during the period of Iddat

Iddat can be of two kinds, one on the death of the husband and the other on divorce by the husband. In case of iddat on the death of the husband, the wife is not entitled to maintenance unless she is pregnant at the time of death of the husband and she is entitled to maintenance till her pregnancy is over. In case of iddat on divorce, the wife is entitled to maintenance only till the period of iddat.

Fixing the Amount of Maintenance

Under the Shariah, according to Hanafi School of thought, the status of the wife is taken into consideration while fixing the amount of maintenance. According to Shafei School, the status and capacity of the husband is the determining factor. According to other jurists, the status and capacity of both the husband wife should be taken into consideration while fixing the amount of maintenance.

Past Maintenance

According to Hanafi school of thought the wife cannot claim past maintenance from her husband unless there is an agreement between them or there is a decree of a Court entitling her to get maintenance from her husband, whereas according to Shafeis, the wife is entitled to past maintenance. This is so because according to Hanafis, maintenance is a gratuity while according to Shafeis maintenance is a debt.

If the husband neglects or defaults continuously in providing maintenance to his wife, the wife has a right to go to the Court. The Court on being satisfied of the wife’s claim shall pass an order against the husband for maintenance allowance. If the husband still neglects to pay the maintenance amount, the Court is empowered to pass an order for the husband’s imprisonment for a fixed period.

An agreement, whether anti nuptial or past nuptial between the husband and wife in which the husband agrees to pay maintenance to the wife is valid under Shariah and enforceable in law. Whereas an agreement between the husband and wife that no maintenance shall be due on the husband or an undertaking by the wife that she would not claim maintenance allowance from the husband is void. Under Shariah such a contract is against public policy.


Maintenance Issues of Muslim Women in India

On the continuance of marriage it was held in a case that a husband is bound to maintain his wife so long as she is faithful to him and obeys his reasonable orders. A husband is not bound to maintain a wife who disobeys him by refusing to live with him. But what degree of disobedience will disentitle the wife to claim maintenance is not laid down. For entitlement of maintenance, it is immaterial that she has the means to maintain herself while the husband has no means.

The wife loses her right to maintenance in the following circumstances:
1. She is a minor, incapable of consummation.
2. She refuses free access to him at all reasonable times.
3. She is disobedient.
4. She refuses to live with him in the conjugal home or abandons the conjugal home without any reasonable ground.
5. She deserts him.

But if the husband is guilty of cruelty or keeping a concubine at home, she retains the right of maintenance.


“For divorced women maintenance should be provided on a reasonable scale. This is a duty on the righteous”. [32] “Thus doth God make clear this signs to you, in order that ye may understand.”[33] “Let the women (live in iddat) in the same style as ye live, according to your means, annoy them not, so as to restrict them, and if they carry life (in their wombs) then spend (your substance) on them until they deliver their burden; and if they suckle your offspring’s give them their recompense and take mutual counsel together according to what is just and reasonable…”[34]

These verses (ayats) make it very clear that the Holy Qur’an imposes an obligation on Muslim husbands to provide maintenance to their divorced wives. If the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to Section 125 of the Criminal Procedure Code 1973. This was the position prior to the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986.



Section 125 Criminal Procedure Code of 1973 &
Muslim Women (Protection of Rights on Divorce) Act

Section 125 Criminal Procedure Code 1973 empowers the Magistrate to order maintenance in favour of women. A ‘wife’ includes, a divorced wife for the purpose of Section 125. Hence, any woman who has been divorced or has obtained divorce from her husband and has not remarried can seek a maintenance order against her former husband, if she is unable to maintain herself and her husband has failed to maintain her despite having sufficient means to do so. On such an application by the wife, the Magistrate can order the husband to pay a monthly allowance (maximum up to Rs. 5000). If he fails to comply with the order of the Magistrate, the Magistrate can issue a warrant for levying the amount fixed in the order. If he still continues to evade the order and the amount remains unpaid in full or part, the Magistrate can sentence him to imprisonment up to one month or till due payment is made, whichever is earlier. Under Section 127(2), the Magistrate shall have to cancel or vary his order if it appears to him that competent civil Court has passed an order of maintenance in a civil suit between the parties. Under Section 127(3) the Magistrate shall also cancel the order of maintenance (i) if the woman in whose favour the order has been passed gets remarried, (ii) where she was divorced by the husband and if she has received, whether before or after the date of the said order, the whole of the sum which under any customary or Personal Law applicable to the parties was payable on such divorce or (iii) where she had obtained divorce from the husband and if she had voluntarily surrendered her right of maintenance after her divorce.

The most important judgment, which changed the course of Muslim law regarding Muslim women in India, was Mohd. Ahmad Khan v. Shah Bano[35]. The Supreme Court held that a Muslim husband is liable to provide maintenance to a divorced wife who is unable to maintain herself. The Court also held that dower is not payable in consideration of marriage but is an obligation imposed by law on the husband as a mark of respect for the wife. The Court further held that the fact that deferred dower (mahr) is payable at the time of dissolution of marriage cannot justify the conclusion that it is payable on divorce. Divorce may be a convenient or identifiable point of time at which the deferred amount is to be paid by the husband to the wife. Hence mahr is not the amount, which is mentioned under Section 127(3) (b). This judgment led to a large scale protests by Muslims throughout the country and it was regarded as interference into the Personal Law of the Muslims. The intense controversy led to the passing of the Muslim Women (Protection of Rights on Divorce) Act 1986.

Let us now examine the provisions of the Muslim Women (Protection of Rights on Divorce) Act 1986. This is a declamatory law. The jurisdiction under the Act rests with the Criminal Courts to ensure speedy disposal of cases. Under Section 2(a) of the Act a ‘divorced woman’ means a Muslim woman who was married according to Muslim Law and has been divorced by or has obtained divorce from her husband in accordance with Muslim law. Section 2(b) defines ‘iddat period’ in the case of a divorced woman as (i) three menstrual courses after the date of divorce if she is subject to menstruation, (ii) three lunar months after her divorce, if she is not subject to menstruation and (iii) if she is enceinte at the time of divorce, the period between the divorce and delivery of her child or the termination of her pregnancy, whichever is earlier. Under section 2(c) a Magistrate means a Magistrate in the first class exercising jurisdiction under the Code of Criminal Procedure 1973 in the area where the divorced woman resides.

Section 3(i) lays down that notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband (b) where she herself maintains the children borne to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children, (c) an amount equal to the sum of mahr agreed to be paid to her at the time of her marriage or at anytime thereafter according to Muslim law; and (d) all the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends. Under Section 3(2) where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been paid, or the properties referred to in clause (d) of sub Section (i) have not been delivered to a divorced woman on her divorce, she or anyone duly authorized by her may, on her behalf, make an application to the Magistrate for an order for payment of such provision and maintenance, mahr or dower, or the delivery of properties, as the case may be.

Under Section 3(3) where an application has been made under sub Section (2) by a divorced woman, the Magistrate may, if he is satisfied that (a) her husband, having sufficient means has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children, or (b) the amount equal to the sum or dower has not been paid or that the properties referred to in clause (d) of sub Section (1) have not been delivered to her, make an order within one month of the date of filing of application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage, and the means of her former husband and as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub Section (I) to the divorced woman. Under Section 3(4), if any person against whom an order has been made under Section 3(3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973, and may sentence such person for the whole or any amount remaining unpaid after execution of the warrant, to imprisonment for a term which may extend to one year or until payment, is sooner made.

Under Section 4(1), if the Magistrate is satisfied that a divorced woman has not remarried and is not able to maintain herself after the ‘iddat period’, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine as fit and proper. While making such order, the Magistrate shall have regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such period as he may specify in the order. The provision says that if the divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in case the children are unable to pay such maintenance, the Magistrate shall order the parents of the divorced woman to pay maintenance to her. The second provision says that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on a proof of such inability furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to have the means of paying the same in such proportions as the Magistrate may think fit.

Under Section 4(2), if the divorced woman is unable to maintain herself and she has no relatives as mentioned in sub Section (1), or such relatives or any of them have not enough means to pay the maintenance ordered by the Magistrate, or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the provision to sub-Section (1), the Magistrate may, by order direct the State Waqf Board functioning in an area where the woman resides, to pay such maintenance as determined under sub-Section (1) or to pay the shares of such of the relatives who are unable to pay.

Under Section 5, if on the date of the first hearing of the application under sub-Section (2) of Section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing either jointly or separately that they would prefer to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973 and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly. Section 6(1) provides for power to the Central Government to make rules for carrying out the purpose of this Act. Under Section 6 (2) the rules may provide for the form of affidavit and deceleration to be filled under Section 5 and the procedure to be followed by the Magistrate while disposing of the application under the Act. Section 7 is a transitional provision. It provides that where an application by a divorced woman under Section 125-127, Code of Criminal Procedure, 1973 is pending before a Magistrate on the commencement of this Act, shall, notwithstanding anything contained in that Code and subject to the provisions of Section 5 of the Act, be disposed of by such Magistrate in accordance with the provisions of this Act.

It was held in Aga Mohamed Jaffar Bindaneen V. Koolsum Beebee[36] that a Muslim widow had no right of maintenance out of her deceased husband’s estate in addition to what she takes by inheritance or by will.

In Danial Latifi V.UOI[37], the Supreme Court held that reasonable and fair provision and maintenance under Section 3(i)(a) is not limited for the iddat period, it extends for the entire life of the divorced wife, until she marries. The Court further held that right to a reasonable and fair provision referred to in Section 3 is a right enforceable only against the divorced women’s former husband and is in addition to what he is obliged to pay as maintenance. Reasonable and fair provision would be worked out with reference to the needs of the divorced woman, the means of the husband and the standard of life enjoyed during subsistence of marriage.

Again in Sabra Shamim V. Maqsood Ansari[38] it was held by the Supreme Court held that under Section 3(I)(a) and Section 4 of the Muslim Women (Protection of Rights on Divorce) Act 1986,a divorced wife is entitled to maintenance not merely till iddat period but for her entire life until she remarries.




Maintenance under Section 4 of the Act

In Tamil Nadu Waqf Board V. Syed Fatima Nochi[39] the Court held that it is futile for a divorced woman seeking maintenance to run after relatives who are not possessed of means to offer her maintenance and fighting litigation in succession against them in order to get negative orders justifying her last resort of moving against the state Waqf Board. She can plead and prove such relevant facts regarding the inability of her relatives to maintain her in one proceeding and direct her claim against the State Waqf Board in the first instance.


Anti Nuptial Agreement for Grant of Maintenance

In Muhammad Moinuddin V. Jamal Fatima [40] a case the parties had entered into a pre-nuptial agreement for grant of an allowance in case of disunion or dissension between the couple. On dissension the husband divorced her and the wife claimed the allowance. The Court held that contract valid and held the divorced wife to be entitled to receive the allowance as per the contract.

In Mydeen Beevi Ammal V. T.N. Mydeen Rowthe[41], the husband settled certain properties on his first wife for maintenance for her life (after he married for the second time without her consent). Subsequently, he divorced the first wife and filed a suit for the possession of the properties settled on her. The Court held the wife entitled to the income of the properties for her lifetime whether she was divorced or not.

In Nawab Khwaja Muhammad Khan V. Nawab Hussaini Begum[42] the father of the minor bridegroom had agreed to pay to his son’s wife Rs. 50/-PM in perpetuity for her ‘kharchi pandan’ or pocket money. Later, on account of disagreement between the spouses, the wife left the matrimonial home and filed a suit to recover the amount due to her. The father-in-law contended that the agreement was without consideration, against pubic policy and by ceasing to live with her husband, she had forfeited her rights under the agreement. The Court held that there is no condition in the agreement that it should be paid only when the wife is living in the husband’s house. Moreover, the Court held the wife to be entitled to recover the whole amount, notwithstanding the Act that she was not a party to the agreement.







Impotency of Husband

In Siraj Mohd. Khan Jan Mohd. Khan V. Hafizunnissa Yasin Khan[43] the Court held that impotency of husband amounts to both mental and legal cruelty, hence is a just ground for wife’s refusal to live with the husband and claim maintenance from him.

Cruelty
A wife can refuse to live with the husband on the ground of his cruelty and still claim maintenance from him. Attribution of un-chastity to a wife without justification or proof amounts to mental cruelty thereby amounting to legal cruelty for the purpose of deciding the claim of maintenance. In a case the husband leveled false and baseless allegations of un-chastity on the wife, disowned the paternity of his two children and in another case, the husband made allegations of adultery against the wife. In both the cases, the Court held that the behavior of the husband amounts to cruelty, and the wife is entitled to live separately and claim maintenance.






Inheritance Law and Right to Property

Introduction
In pre- Islamic Arab counties, women were totally excluded from inheritance. Prophet Muhammad emancipated the status of women and restored them their rightful position in the society.
"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."[44]
"Allah (thus) directs you as regards your children's (Inheritance): to the male, a portion equal to that of two females: if only daughters, two or more, their share is two-thirds of the inheritance; if only one, her share is a half. For parents, a sixth share of the inheritance to each, if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased left brothers (or sisters) the mother has a sixth. (The distribution in all cases ('s) after the payment of legacies and debts. Ye know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah; and Allah is all-knowing, al-wise.[45] "Sura 4: 11
Proponents of Shari’a argue that this is fair, given that a Muslim male is obligated to spend part of his inheritance on his wife, children and house, while the female may keep all of it for herself. Financial support for home and family is said to be solely the responsibility of the husband. In most Muslim nations, the law of the state concerning inheritance is in accordance with this law. In the Muslim law the principle, which has been zealously guarded and enforced by courts, is that a woman's property belongs only to her. Consequently, any property which a Muslim wife contributes towards the 'family's assets' (i.e. all the property accumulated during the marriage) remains heir’s alone and is not subject to division or sharing by the husband in the event of a marriage breakdown (unless otherwise agreed upon between the husband and wife). In other words, under the Muslim Law, her 'Net Family Property,' remains hers alone and with no corresponding obligation to share with her husband (unless both husband and wife have agreed to share the same). Muslim law fully recognizes the two facets of property known to the modern law –corpus and usufruct –which it calls ain and manafe respectively. While ain refers to the body or substance of a particular thing itself, and manafe signifies the benefits that may be derived from it.
Ain may comprise aqar (landed property) or other movables and immovable, manafe may include samarat (fruit), basit (produce), ghalla (proceeds), sakna(dwelling rights)etc. All these are forms of property in Muslim law.

Transfer of Property
The transfer of property Act 1882 contains the law relating to transfer of property – to sale, mortgage, and charge lease, exchange transfer of actionable claims and gifts of property. It, however, does not affect the Muslim law of Hiba (gifts).
Hiba
According the Muslim law the terms "hiba" and "gift" are often indiscriminately used but the terms "hiba" is only one of the kinds of transactions, which are covered by the general term "gift". A hiba is a transfer without consideration.
Section 122 of the Act, the Transfer of Property, 1882, states that a gift is a transfer of certain existing movable or immovable property made voluntarily and without consideration by one person called the donor, to another, called a donee and accepted by or on behalf of the donee. The essential elements of a gift are:
1.) The donor (ijab).
2.) The donee (qabul).
3.) The subject-matter
4.) The transfer, and the acceptance
The Allahabad High Court in the case of Mohd. Aslam v. Khalilur Rahman[46] held that a gift with a reservation of possession of property by the donor during his life is void. Islamic law on hiba requires, subject to certain exceptions, delivery of possession of the gifted by the donor to the donee for completion of the gift. The courts in India will recognize this general rule as also its exceptions. The said general rule was affirmed by the Privy Council; and one of the exceptions- the case of a gift by one of the co residents of the gifted property to the other co-resident by the Allahabad High Court.

Essentials Of Gift Under Mohammedan Law
Under Mohammedan law, to be a valid gift, three essentials are required to exist: (a) declaration of gift by the donor (b) an acceptance of the gift, express or implied, by or on behalf of the donee, and (c) delivery of possession of the subject of gift.
Courts have consistently held that when there is no compliance of any of the above three essential conditions, the gift renders itself as invalid. Another characteristic of Mohammedan law is that writing is not essential to the validity of a gift either of movable or immovable property.[47]

Capacity to make Hiba

The donor must be the owner of the property, which is the subject matter of the hiba. There must be a clear intention to transfer property with free consent. Soundness of mind, attainment of the age of puberty and free consent are basic requirements for making a hiba. A hiba, to be valid must ‘therefore’ be made by a person with his free consent and not under compulsion. The donor must not be insane but a mere weakness of the intellect would not be sufficient to invalidate the gift if the donor was able to apprehend the transaction. If a Muslim makes a hiba with a clear intention to defraud his or her creditors, the latter can seek its cancellation. However, the mere fact that the maker of the hiba owed some debt does not raise a presumption that the hiba was made with such an intention.

Capacity to receive Hiba
The donee is the person who accepts the hiba. A minor therefore may be a donee; but if the hiba is onerous, the obligation cannot be enforced against him while he is a minor. But when he attains the age of puberty he must either accept the burden or return the hiba. A hiba, being the absolute transfer of all rights in property, cannot be made to an unborn person, as there is no one to take possession of his interest. But limited interests and usufructs stand on a different footing; they can be created in favour of a person not in being at the time of the grant, provided he is in being when his interest opens out. Thus, if a life interest is granted to X, and thereafter to Y, it is sufficient if Y is in being at the death of X.[48]
Gifts may be made validly to mosques and charitable institutions like schools. Such gifts are treated as sadaqa. A hiba cannot be made in favour of a dead person. If a widow makes a hiba of her mahr to her deceased husband, it is in fact a unilateral foregoing of the right to mahr by the widow to which the principles of hiba do not apply.
Subject of Hiba
The subject matter of the hiba must be certain, existing movable or immovable property. Any property or right, which has some legal value, may be the subject of a hiba. It may be land, goods, or actionable claims. It must be transferable under Section 6 but it cannot be future property. A hiba of a right of management is valid. It is submitted that the release of a debt is not a hiba as it does not involve a transfer of property but is merely a renunciation of a right of action. In a deed of hiba the meaning of the word 'money' should not be restricted by any hard and fast rule but should be interpreted having regard to the context, properly construed in the light of all the relevant facts. Therefore, in order to constitute a valid hiba, there must be an existing property.
Possession of Hiba
The delivery of possession is an essential condition for the validity of the hiba. It is however not necessary that in every case there should be a physical delivery of possession. The delivery of which would complete a hiba, may be either actual or constructive. All that is necessary is that the donor should divest himself completely of all ownership and dominion over the subject of the hiba. The relinquishment of control is thus necessary to complete the action. Constructive possession of the subject of the hiba is therefore sufficient for the purpose of validity. The donor must divest himself of the ownership and dominion over the gifted property by doing all that he can do in order to complete the gift and to make the donee the owner of the gifted property.
Revocation of Gifts
According to Muslim law relating to revocability of gift is not uniform. As the donor and the donee in a particular case of gift may belong to different schools of law, the question of its revocability will be governed by that school of law to which the donor belong to.

Hanafi Law

Two of the close legal heirs of every dead person are invariably regarded as his or her Quranic heirs – the mother and the surviving spouse.
Seven other female relatives of the deceased may be regarded as Quranic heirs in some prescribed circumstances. These are the mother’s mother, the father’s mother, daughter, son’s daughter, and sister-full, half and uterine.
Three male relatives of the deceased may be regarded as Quranic heirs in some prescribed circumstances. These are the father, father’s father and uterine brother. Among the twelve Quranic heirs, notably, as many as nine are women.

Surviving spouse
Share of the husband

if no entitled descendants exist (ie; children/grandchildren)
then
husband = 1/2

if entitled descendants exist (i.e.; children/grandchildren)
then
husband = 1/4

*Note: entitled descendants = sons, daughters, son’s son, son’s daughter. Daughter’s children are not entitled.

Share of the wife

if no entitled descendants exist (i. e; children/grandchildren)
then
wife = 1/4
if entitled descendants exist (ie; children/grandchildren)
then
wife = 1/8


Parents

Share of the father

if entitled descendants exist
(sons, daughters, son’s sons, son’s daughters)
then
father = 1/6

if no male descendants exist (sons, son’s sons)
then
father = 1/6 plus residue
(residue = remainder after all legal shares are distributed)

if no entitled descendants exist
then
father =2/3 residue

Share of the mother

if entitled descendants or brothers/sisters exist
then
mother = 1/6

if no entitled descendants exist
then
if no brothers/sisters, no father, no spouse exist
then
mother = 1/3

if brothers/sisters, father, or spouse exist
then


mother= 1/3 of residue

Share of the daughter’s

if only one daughter (and no sons)
then
daughter = 1/2
if two or more daughters only (and no sons)
then
daughters = 2/3
(to be shared equally between all of them)
if both son’s & daughters exist,
then
son’s daughter = 1/2
=2/3(2or more daughter)
son’s son’s daughter =1/6


Uterine brother/sister
Uterine brother/sister (from same mother, different father)

if one uterine brother/sister exist
then
if no entitled descendants and no male ascendants
(father /father’s father etc)
then
uterine brother = 1/6 or uterine sister = 1/6

if two or more uterine brothers/sisters exist
then
if no entitled descendants .and. no male ascendants
(father /father’s father etc.)
then
all uterine brothers & sisters = 1/3 (each taking 1/6)

*Note: if there are uterine brothers/sisters in addition to full brothers/sisters (same father/mother), then they share in the residue.





Share of the son’s daughter

if one son’s daughter exist
then
if no daughters exist
then
if no son’s son exist
then
son’s daughter = 1/2
if son’s son exist
then
son’s daughter = half share of son’s son
( i.e. son’s son share: son’s daughter share = 2:1)

if two or more son’s daughters exist
then
if no daughters exist
then
if no son’s sons exist
then
2son’s daughters = 2/3 (equally between them)

if son’s son exists
then
son’s daughter = half share of son’s son
( i. e. son’s son share: son’s daughter share = 2:1)


Share of the full brother/sister
(full brother/sisters are brothers/sisters from the same father & mother)

brothers & sisters inherit only when there are no descendants (son/sons, son’s son
etc.) And no ascendants (father/grandfather etc.)

The Arabic word “al-khalala” is used in the Quran, chapter 4 - al-nisa, verses 12 & 176, which is translated by almost all the translators of the Quran to mean “ascendants & descendants” thus giving rise to the interpretation that they include “parents and children” However, many scholars have preferred to classify the word as meaning “father or son” thus excluding the female components of both ascendants and descendants (mother & daughters).

if no full brother and no female entitled descendant exist
(daughter, son’s daughter etc.)
then
if deceased was male,
then full sister = 1/2 (if only one)

if no full sister and no female entitled descendant exist
then
if deceased was female,
then
full brother = 1 (if only one)

if two or more brothers & sisters
then
full sisters = 2/3 (shared equally between them)
full brother’s & sister’s (combination) = 2:1

if no full brother exist but female entitled descendant exist (daughter, son’s daughter etc.)




then
full sister = 1/6 (if only one)

if no full sister exist but female entitled descendant exist
then
full brother = 1/6 (if only one)

if female entitled descendant exist
then
Full sisters & brothers = 1/3 (share equally)



Consanguine sister (sister from same father but different mother)

Consanguine sisters inherit only when there are no son’s or son’s son(s) and no father and no full brother.

if only one full sister and no consanguine brother
then
Consanguine sister (if only one) = 1/2
Consanguine sister(s) (if two or more) = 2/3


if one full sister and consanguine brother(s)
then
(Consanguine) brother: sister = 2:1

True grandmother

True grandmother is defined as the one whose line of connection with the deceased is not interrupted by a male between two females. They are entitled only if the father or mother do not exist.

e.g.; Mother’s mother, father’s mother
Father’s father’s mother, mother’s mother’s mother

True grandmother = 1/6


True grandfather

True grandfather is the one whose line of connection with the deceased is not interrupted by a female between two males. They are entitled only if the father or mother do not exist.

e.g.; father’s father
father’s father’s father
mother’s father
mother’s father’s father

True grandfather = 1/6 if male descendants exist (son, etc)
True grandfather = 1/6 + residue if female descendants exist
True grandfather = residue if no male/female descendants exist


Uncles & aunts (father’s/mother’s brothers & sisters)

Uncles and aunts are only entitled in the absence of grandparents. This means that they will receive shares only if there are no parents and grandparents because grandparents do not inherit when the parents are living. They will also not inherit if the children (or children’s children) of the deceased are living. Proportions here are also in the ratio of 2:1 for male: female.


Nephews & nieces (children of brothers/sisters)

Nephews and nieces are only entitled in the absence of brothers and sisters. This means that they take the shares of the brothers/sisters of the deceased in their absence. Hence a nephew/niece will receive what his/her parent (brother/sister of the deceased) would have received if he/she were alive. They will also not inherit if the children (or children’s children) of the deceased are living. Proportions here are also 2:1 for male: female.

Stepchildren

Step –children do not inherit from step- parents, nor do step- parents inherit from step- children. In the case of Allah Baksh v.Mohd Umar,[49]. Begum v. Jalal Din, [50]. A step-son or a step- mother is not heirs.

Bastard

An illegitimate child is considered to be the child of its mother only, and as such it inherits from its mother and its relations, and they inherit from such child. But it has been held that an illegitimate son cannot inherit from the legitimate son of the same mother. In the case Rehmat Ullah v. Budh Singh (1884) 7 all. 297: Mairaj v Abdul Wahid (1921)
43 [51].

Missing heir

According to the Sec.126 if a hair is missing, his share will be reserved and he is until for reappears and claims it or he is proved to be dead.


Children of women divorced by lian

Under the Sec, 68 a child whose mother has been divorced by lian he shall have mutual rights of inheritance with the same relations as an illegitimate person but not with the imprecator.


Quranic Heir, Sunnite (Hanafi) Law


Table of Quranic Heir, Sunnite (Hanafi) Law
Sharers
Share of

Entirely excluded by
Affected by
How affected
One
Two or more collectively
Husband
1/4

None
Where on child or child of son h.l.s.
Share increased to 1/2
Wife
1/8
1/8
None
Where no child or child of son h.l.s.
Share increased to 1/4
Father
1/6

None
Where no child or child of son h.l.s.
Made agnatic heir
True Grandfather
1/6

Father, nearer true grand father
Where no child or child of son h.l.s
Made agnatic heir
Mother
1/6

None
Where (1) no child (2) no child of son h.l.s (3) one brother or sister (4) husband or wife co-exist with father
Share increased to 1/3 of whole estate in case (1) to (3) and 1/3 of the residue after deducting husband or wife’s share in case (4)
Grandmother h.h.s.(maternal)
1/6
1/6
Mother, nearer maternal or paternal grandmother
None


(Paternal)


Mother, nearer maternal or paternal grandmother, father. Nearer true grandfather
None

Daughter
1/2
2/3
None…
Existence of son…
Made agnatic heir
Son’s Daughter
1/2
2/3
Son, more than one daughter, higher son’s son, more than one higher son’s daughter.
Existence of (1) only one daughter (2) only one higher son’s daughter,(3) equal son’s daughter (3) equal son’s son.
Share reduced to 1/6 in cases (1)and (2)made: residuary in case(3)
Full sister…
1/2
2/3
Son, son h.l.s. `Father, true grandfather.
Existence of full brother …
Made Agnatic heir.
Consanguine sister.
1/2
2/3
Son. Son h.l.s. Father, true grandfather, full brother more than one full sister.
(1) Existence of only one full sister.
(2) Existence of consanguine brother.
(1) Share reduce4to 1/6
(2) Made Agnatic Heir.
Uterine Brother & Sister
1/6
1/3
Child, child of a son h.l.s. Father, true grandfather
None.

(The table is not a complete statement of the law)[52]


Shia law

‘Shia law’ in India is very different form the doctrine of Hanafi law and requires separate consideration. The Shias divide heirs into two groups.
1. Blood relations (Nasab)
2. Heirs by marriage, that is husband and wife (Sabab )
1. Blood relations, fruther divided into two groups –
a. Quranic heir
b. blood relation agnate or cognate
2. Sabab is also subdivided into two groups
a. the status of a spouse
b. special legal relationship


Nasab

Heirs by consanguinity are divided into three classes and each class is divided into two groups.
i. Parents
ii Children and lineal descendants
i. Grandparents h.h.s.
ii. Brothers and sisters and their descendants
i. Paternal and
ii. Maternal uncles and aunts of the deceased and of his parents and grandparents h.h.s. and their descendants h.l. s.

Of these three classes of heirs the first excludes the second from inheritance and the second excludes the third. But the second group of each class succeeds together, the degree in each group excluding the more remote in the group.


Husband and Wife

The husband or wife is never disqualified from sequence but inherits together with nearest heirs by consanguinity the husband taking 1/2 if there are no children and 1/4if there are, and wife taking 1/4 there are no children and 1/8 if there are.

Father and Mother

The deceased leaves any descendent the father and mother or both the parents are treated as belonging to the class dhu fard, and each of them take 1/6.
The mother takes 1/3 where there are no descendants and 1/6
a. If there are descendants
b. If there are the father and two or more brothers, full or consanguine and in certain other case.
Share of husband, mother, and father
Husband =1/2
Mother = 1/3 as Quranic heirs
Father = 1/6 as blood relation
Share of wife, mother, and father.

Wife =1/4
Mother =1/3 as Quranic heir
Father =5/12 as blood relation

Share of father, mother, and son

Father =1/6
Mother =1/6
Son = 2/3 as Quranic heir

Share of father mother and two daughters

Father =1/6
Mother =1/6 as Quranic heir
Two daughter = 2/3 as Quranic heir



Eldest Son

The deceased being a male, on leaving more sons than one, the eldest son is entitled to take as his special perquisite the garments of the deceased, his signet ring, sword and Quran .

Daughter

If there is a son, he takes the residue after allotting portions to the Quranic heirs. If the daughter survives with him, she shares the residue with him in the proportion of one and two. When the daughter survives and there is no son, she take 1/2 alone, and 2/3 jointly with other daughters.

Grandparents without Brother and Sister or their Descendants

If there are no brothers or sister or descendants of brother and sister the estate and is to be divided it among grandparents according to the rules. If there are applicants only on the parental side they make it to the whole estate and divide it among themselves according to the rule of a double share to the male. If there are applicants only on the maternal side they make it to the whole estate and divide it among themselves equally. If there are applicants on both the sides, than assign a 2/3 share to the paternal side to be divided according to rule of a double share to the male and 1/3 to the maternal side to be divided equally.

a. Mother’s mother 1/2
Mother’s father 1/2

b. Father’s father 2/3
Father’s mother 1/3

c. Father’s father 2/3X23=4/9=8/18
2/3
Father’s mother 1/3X2/3=2/9=4/18
Mother’s father 1/2X1/3=1/6=3/1
1/3
Mother’s father 1/2X1/3=1/6=3/11
1
d. Father’s mother 2/3
Mother’s father 1/3


Grandparents with Brothers and Sisters

If grandparents exist together with brother and sister continue according to the rules-
A paternal grandfather counts as a full or consanguine brother, and a paternal grandmother counts as a full or consanguine sister.
A maternal grandfather counts as a uterine brother, and a maternal grandmother counts as a uterine sister.
Divide as a brother and sister.
a.
Mother’s father (uterine brother) 3/18 1/3 as
Mother’s mother (=uterine sister) 3/18 shares.

Con. Brother 4/18 2/3 as
2/18 reliquaries}
Father’s father (= con. Brother) 4/18

Father’s mother (= con. Sister) 2/18


b.
Wife (uterine sister) 1/4 = 3/12(Sh.)
(Uterine brother) 1/3 = 4/12 (Sh. Equally).


Mat. Grand fathers (= uterine brother)
5/12
Pat. Grant father (= full brother)


Distribution among Uncles and Aunts

In rule to distribute the property among the uncles and aunts of the deceased or of his ancestors continue.
1. A 2/3 share to the paternal side and 1/3 share to the maternal side, if both sides are represented, but if there are claimants only on one side, divide the whole among the claimants on the side.
2. Divide the portion assigned to the paternal side exactly as if the claimants were brothers and sisters of the deceased, that is to say ---
a. Assign their share to the uterine uncles and aunts and divide equally.
b. Divide the remainder among the other claimants according to the rule of a double share to the male.
3. Divide the portion assigned to the maternal side.
a. Assign their share to the uterine uncles and aunts and divide equally.
b. Divide the remainder among other claimants equally.


U=uncle, A= aunt, P=paternal, M= maternal, F= full, C=consanguine, Ut = uterine
Ut. P. U. 1/3 of 2/3=2/9 (Sh.) 1/2 of 2/9=2/18=6/54
Ut.P.A. 1/2of 2/9=2/18= 6/54
F. P.U. 2/3 of 2/3 =4/9 (R.) 2/3 2/3of 4/9= 8/27=16/54
F. P. A. 1/3of 4/9=4/27=8/54
Ut.M.U. 1/2 of 1/3 1/6=9/54
Tt.M.A. 1/2of1/8 1/3 1/6=9/54
1


Share in the Shia Law


Table of Share in the Shia Law
The possible sharers
Shares
Circumstance in which a share would succeed as a share to the shares specified in col. B
When a share is converted into a residuary
Of one
Collectively of tow or more
1
2
3
4
5
1. Father
1/6

When there is a lineal
When there is no lineal descendent
2. Mother
1/6

a) When there is a lineal descendant;
b) When there is father and also two or more brother (full or consanguine) or one such brother and two such sister or four such sisters.

3.Daughter
1/2
2/3
When there is no son
When there is a son
4.Full sister
1/2
2/3
When there is no parent, b) lineal descendant, c) full brother d) paternal grandfather
If there is no parent or lineal descendant, becomes a residuary in two cases
a) With a full brother,
With a paternal grandfather (h.h.s.)

5.Consanguine sister
1/2
2/3
When there is no parent b) lineal descendant, c) full brother d) full sister. e) Consanguine brother f) paternal grandfather (h.h.s.)
If there is no parent or lineal descendant, becomes residuary in two cases a) With a consanguine brother b)with a paternal grandfather (h.h.s.)
6. Uterine brother and uterine sister
1/6
1/3
When there is no parent or lineal descendant.

7. Husband
1/2


1/4

When there is a no lineal descendant
When there is a lineal descendant


8.Wife
1/4


1/8
1/4


1/8
When there is a no lineal descendant
When there is a lineal descendant

Note- the descendant’s h.l.s. of sharers are also sharers.(Sec. 164)[53]





Right to Inheritance
A pre-Islamic Arab woman did not have the right to inherit from anybody, neither her father nor even her husband. According to the Medinan customs, only male adults, capable of taking up arms in a war, had the right to inheritance. So even a minor son had no right to the property of his deceased father. Arabian society and privileges were denied to women, being exclusively a man’s domain. The Arabian society was not alone in keeping women deprived of share in inheritance. The social order of the world on the basis of these and other pretexts their kept her out of it, only the male offspring and the first born getting away with it in its entirety.
Islam raised its voice against this gross injustice to the weaker sex, proclaiming aloud that women had as much right to their share in the inheritance. The Quran declared: “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”. [54]
The social and legal reform introduced by Islam emphasized the extended family in contradistinction to the tribe and tribal loyalties. It abolished many unjust customs and usages and gave inheritance rights to the disadvantaged members of the family. According to Sunni law of inheritance, if both son and daughters survive the propositions each son will get double the share of the daughter. If there are only one daughter and no son, she will take half the property and two or more daughter and no son, she will take half the property and two or more daughters will take two –thirds of the property.


Inherited Property
There is no distinction in the Muslim law of inheritance between moveable and immoveable property, or between ancestral and self-acquired property. The Quranic directives legislation concerning the distribution of a deceased person’s estate is just equitable and a great advance upon the unjust customs of the pre-Islamic time.
Before the period of the Prophet women were substances of inheritance and they were considered part of the possession of a man. At such a critical juncture of history, Islam brought about a revolution in the domain of human thought and outlook towards women and established the right of women to inherit and own property that they have a determined share specified by the Quranic word cannot be denied by anyone. "To everyone, we have appointed shares and heirs to property left by parents and relatives…." [55] The amount of the share of inheritance is dependent on the closeness of the heirs' relationship to the deceased. "Blood-relations among each other have closer ties, in the Book of Allah than (the brotherhood of) believers and Muhajirs" [56]
In another verse-"From that is left by parents and those nearest related there is a share for men and a share of women, whether the property be small or large-a determined share.' [57]
Difference in Inheritance between Men and Women

The law of inheritance in Islam makes known the variation in the shares of inheritance for men and those for women. However, this variation is not due to gender difference, but rather due to divine wisdom and objectives that many fail to see. They even regard this difference between the shares of men and women in some cases of inheritance as something to prove the position of women in Islam. However, the Islamic law of inheritance is controlled by the following three criteria:
1. The degree of kinship between the receiver (man or woman) and the deceased. The closer the relation, the greater the share given, regardless of the heir’s gender. 2. The position of the inheriting generation in the chronological sequence of generations. The younger generations usually receive larger share than the older ones regardless of gender. For instance, the daughter of a deceased man receives a bigger share than his mother does, and the daughter of a deceased woman receives a bigger share than her father does even if the daughter is an infant.
3. The financial responsibility imposed by law upon the heir. This criterion is the one from which difference results between males and females. However, such difference does not lead to any injustice done to women; it could even prove to be quite the other way. Furthermore, the following four points should be known:
1. Women receive half of men’s share in four cases only.
2. In many cases, women receive the same share of inheritance as men. 3. In ten cases or more, women’s share is bigger than men’s.
4. In some cases, women receive shares of inheritance while corresponding men do not.

In other words, in more than thirty cases, women take the same or more than men take, or women take a share while men do not, while there are only four definite cases in which women receive half of men’s share.




Is Men’s Share of Inheritance Double than Women's?

In Islamic law, a son receives double as much as a daughter, a brother double as much as a sister and a husband double as much as a wife. The case of father and mother is the only exemption. If a deceased has children and his parents are also alive, each of his parents will get one-sixth of the property left by him. It is because of women's special position with regard to dower, maintenance, military service and some of the criminal laws, that their share has been fixed at half that of men.
Allah says in the Qur'an, “Allah charged you concerning (the provision for) your children: to the male the equivalent of the portion of two females.” [58](An-Nisa' 4: 11)
Men undoubtedly, have been given more responsibilities than women. As a father, husband, son, or brother, a man should provide for his children, wife, mother, sister; he should strive hard to make both ends meet. Islam, as a divine religion, does not ignore the above fact and sets down rules that strike a balance between men's responsibilities and women's rights.
Islam gives the girl half of her brother's share in inheritance because Islamic Law doesn't force her to spend any money on anybody other than herself. On the other hand, a Muslim male, who is usually the breadwinner of the family, is obliged to spend on his wife, his children, his brothers, his sisters, and his mother and father.

Women’s Inheritance Rights
According to Muslim law, female sex is no bar to inheriting property is to be excluded from inheritance in Muslim law only on the basis of sex. Women have, like men, an unconditional right to inherit property – not merely to receive maintenance or hold property in lieu of maintenance.
Hussain v. Rahim,[59] Mohitan v. Zubeda [60]. In these cases, the courts allowed transfer of the right to the lieu –one for the widow’s lifetime, and the other perpetually, along with transfer of the property itself.
The Muslim Personal Law (Shariat) Application Act 1937 specifically refers to “special property to females” including personal property inherited or obtained under contract or gift or any other provision of Personal law.
The law of inheritance is quite complicated, for the shares of different heirs vary according to individual circumstances: the daughter alone or in the presence of a son, the mother alone or in the presence of the father, with children or without them, the sister alone or in the presence of the brother, father or children of the deceased, inherit in different proportions according to individual cases. It is not our intention to describe it here in full detail. The shares of female heirs, may however, be mentioned briefly. The wife gets one-eighth if the deceased also leaves a child otherwise she gets a quarter. The daughter when alone gets a half, whereas several daughters get two-thirds which they divide between themselves in equal proportions; all this where there is no son. In the presence of a son, the daughter gets half of her brother. The mother, when alone, gets one-third; in the presence a father, child or brothers and sisters of the deceased, she gets one-sixth. The sister does not inherit if the deceased leaves a son; but when alone, she gets a half; two or more sisters get two-third, which they divide between themselves equally. In the presence of a daughter, the sister gets one-sixth; in the presence of a brother, she gets the half of what he gets. There are also differences between the shares of full sisters, consanguine and uterine sisters.


[1] Ameer Ali, Mohammedan law, 7th edn; p. 97.
[2] Abdur Rahim, The Principles of Mohammadan Jurisprudence, 1958, p. 327.
[3]Al-Bayhaqi:Kitab al- Sunan al Kubra, Vol VIII, p,78.
[4] Ibn Majah, Kitab-al-Nikah, 1/593.
[5] .Fyzee, AAA, Outlines of Mohammadan law ,1974, 4th edn; p.p 88-89.
[6] Supra note, p.279.
[7] HidayatullahM.,,& Hidayatullah Arshad, Mulla’s, Principals of Mohammadan Law, p.233.
[8] Al-Quran, Surah- An-Nisa IV:4.
[9] Charles Hamilton, The Hedaya or Guide, A Commentary on the Musalman Laws, 1979, p.44.
[10] Kapore Chand vs Kaderunnissa Begum, 1950, SCR, 747.
[11] Ameer, Ali, Mohammedan law, 1929, 5th edn. p.434.


[12] Holy Quran (11:233).
[13] Holy Qur'an (65:6-7).

[14] Abu Daud, Sunnan, Kitab al- Falaq, 2/255.
[15] Al Quran, Surah Nisa, IV: 35.
[16] Furzund Hussein v. Jami Bibee (1878) 4 Cal.588.
[17] Hidayatullah M., Hidayatullah Arshad , Mulla’s Principle of Mohammadan Law p.260.
[18] Al-Quran Surah Al-Baqara, 11:229.
[19] Mahmood, Tahir, The Muslim Law of India, pp.99-100.
[20] Supra Note 6 p. 159.
[21] Al-Quran, Surah Al- Baqara.11: 229.
[22] Al-Bayhaqi ,Al Suna, Al-Kubra , Vol. VII, p. 314.
[23] Fyzee A. A.A., Outline of Mohammadan Law, 1974, p.154.
[24] Al Kasani, Imam Ala A-Din.
[25] Charles Hamilton, The Hedaya, A Commentary on the Musalman Laws, 1979. p.25.
[26] Supra Note 6.
[27] Supra Note 6 at p.162.
[28] Al-Quran Surah An -Noor XXIV:6-9.
[29] Al-Qur’an,Surah, Al-Talaq, LXV:7
2 Al-Qur’an,Surah, Al-Talaq, LXV:6
[31] Al-Quran,Surah, Al Baqara,11:233
[32] Al Quran, Surah Al-Baqara, 11:241.
[33] Al Quran, Surah Al-Baqara, 11: 242.
[34] Supra note 2.
[35] AIR 1985, SC, 945.
[36] (1897) 24 IA, 196.
[37] AIR 2001, SC, 3958.
[38](2004) 9, SCC, 616.
[39] AIR, 1995, Mad, 88.
[40](1921) ILR 43 AII 650.
[41] AIR, 1951 MAD 992.
[42] (1930) 37 IA 152.
[43] AIR 1981, SC, 1972.
[44] Al- Quran Sura 4:7
[45] Al-Quran Sura 4:11
[46] AIR1947 PC, p.98.
[47]Hidayatullah M & A. Hidayatullah, Mulla’s Principles of Muhammadan, 9th Edn, p. 118.

[48] Fyzee, A A.A.,Outlines of Muhammadan law, 1974, 4th edn. P. 226.
[49] A.I.R.1992 Lah, 444at p. 444;Mst.
[50]52 P.R 182, No. 50 :41 I.C.263.
[51] All.673, 631.C.286, 21, A.A.175.

[52] Fyzee, A A.A. Outlines of Mohammedan law, p.404

[53] Verma, B.R.Mohammedan Law 8th edn, p.p..548-549.
[54] Al Quran 4:7
[55] Al-Quran, Surah Nisa-33
[56] Al-Quran, Surah Ahjab-6
[57] Al-Quran Surah Nisa-7
[58] Al-Quran, An-Nisa' 4: 11.
[59] AIR, 1954, Mys 24.
[60] AIR, 1954, Pat 17.




MUSLIM WOMEN’S RIGHTS
IN
MUSLIM PERSONAL LAW






TARANNUAM SIDDIQUI










SAROJINI NAIDU CENTRE FOR WOMEN’S STUDIES
JAMIA MILLIA ISLAMIA
NEW DELHI 110025
2006

Foreword

The status of Muslim women has been a subject of considerable debate in India. Muslims, being a minority community, have always had a sense of insecurity. Every voice of reform from other communities is termed as interference in the Personal laws of Muslims. In the communally vitiated political atmosphere in India, the demand for abolishing polygamy and ridiculing triple talaq created very strong polarization, and further increases the growing sense of insecurity among Muslims. The recent cases of Gudiya and Imrana have further provided a boost to those people who see Islam as anti -women.

The biggest irony of the subject is that a Muslim husband’s right to polygamy and triple talaq is known to every common man on the street. On the other hand, the fact that Islam emancipated the status of women by prohibiting female infanticide (so relevant in the contemporary times in India), introduced the concept of contractual marriage as a dissoluble union, provided female’s right of inheritance and the right of Mahr as a security for the wife and as a restraint upon the husband’s power of arbitrary divorce, introduced the concept of compulsory reconciliation before divorce and provided protection to female heirs by restraining the male power of testamentary succession are only known to people in the academic circles. Truly speaking, it is the basic ignorance and unawareness about the Islamic laws that lead to various misconceptions, misgivings and biases. For this pathetic situation, it is the Muslims themselves who are responsible. It must be borne in mind how intimately law and religion are interconnected in the Islamic system. Both cannot be dissevered from each other. The reason behind the problems faced by Muslim women are lack of awareness, illiteracy, lack of proper knowledge and understanding of Islamic laws, the insensitive attitude of agencies responsible for implementation of Islamic Laws and last, but not the least, the callous attitude of men. Hence the practices governing women’s personal status, their legal capacity and role in the family continue to deny women’s rights.

The study of rights of Muslim women focuses on the effects of Muslim Personal law. Like other systems of law, Muslim Personal Law also raises a number of issues for critical evaluation. To understand and make an intelligent opinion about the pending debate on the subject of Muslim Personal Law, one has to make a thorough study of the subject. This book is an excellent piece of work in this direction. The author has, while trying to do justice with the subject, also provided guidelines, which will help in removing all kinds of misgivings about Muslim Personal Law resulting in clarity on the subject. Muslim Personal Law is often misunderstood and this book is going to be a great help to the society at large in removing all kind of misunderstanding about Muslim Personal Law is often misunderstood and this book is going to be a great help to the society at large in removing all kinds of misunderstandings about Muslim Personal Law and the rights of Muslim women under Islam. It will further lead to formation of an intelligent opinion which will further lead to removal of all kinds of doubts prevalent in the society about Islam, which is of course a very noble deed.

Dr. KahkashaDanyal
Faculty of law
Jamia Millia Islamia


Preface

A woman in Islam is an independent entity and, thus, a fully responsible human being. Islam addresses her directly and does not approach her through the agency of Muslim men. On the basis of her own acts, a woman earns rewards or punishment. No man is allowed to plead or intercede for a woman, nor is he held responsible for her actions and their consequences. The doctrine of ultimate accountability does not take the family as a unit for collective responsibility, rather each individual, male or female, is an autonomous unit of reckoning in front of Allah, and is held directly responsible for his or her actions or his or her share in joint acts. “For on the day of judgment, every one of them will come singly” (Surah Maryam).

The individuality of a woman is the principle in Islam. The concept of gender equality in Islam is stressed by the non-superiority of either sex over the other. The equality of women in Islam is evident by the unprecedented legal rights given to them under a monotheistic religion as defined in the Holy Quran. As one of the many examples, if we take the rights of women in marriage and divorce, both men and women have the right to contract a marriage agreement as well as seek divorce. The precondition of marriage is merely a mutual agreement between both parties. Islam gives women the right to ownership, which entitles them to have personal possessions. The Holy Quran also explicitly outlines women’s inheritance rights. As for as social rights, Islam has always recognized the prominent role that women play in the society.

But women in general, and Muslim women in particular, are a downtrodden section of the Indian society. When we analyze the status of Muslim women statistically, we find that they are much more backward than the women of other communities. That is why urgent action is needed to upgrade and elevate their social status.

I congratulate the author of this book Ms. Tarannum Siddiqui, and Sarojini Naidu Centre for Women’s Studies, Jamia Millia Islamia for bringing it out. It consists of four sections: Marriage, Divorce, Maintenance and Inheritance. It is a useful contribution in the field of Muslim women’s studies. The conclusion attempts to shed light on some of the contentious issues of Muslim society. Many of the wrong notions and misinformation about the marriage, divorce, maintenance and inheritance have been cleared and doubts removed. The real and factual picture has been presented in the light of Holy Quran and Sunnah. It is hoped that this authentic work will be of immense help to the readers in general and Muslim society in particular.




Prof. Haseena Hashia
Dept. of Geography, Jamia Millia Islamia
Member, All India Muslim Personal Law Board,
New Delhi


Contents

Marriage

Introduction
Formation of a Valid Marriage
Type of Marriages
Puberty and the Age of Marriage
Iddat
Marital Rights


Divorce

Introduction
Classification of Divorce
Divorce by the death of husband or wife
Divorce by the act of the parties
Divorce by judicial process


Maintenance

Introduction
Maintenance Issues of Muslim Women in India
Section 125 Criminal Procedure Code of 1973
Muslim Women (Protection of Rights on Divorce) Act


Inheritance Law and Right to Property

Introduction
Transfer of Property
Hanafi Law
Shia Law
Right to Inheritance
Difference in Inheritance between Men and Women
Women’s Inheritance Rights



Marriage

Introduction

Marriage is an important social institution, which helps in creating a basic unit of human society called ‘family’. The institution is common to all communities, though there are some differences in the norms regulating them. Under Islamic law, marriage (nikah) is considered as a solemn pact between the spouses. According to Ameer Ali, “Marriage is an institution ordained for the protection of the society and in order that human beings may guard themselves from foulness and unchastity[1]”. Where as according to Abdur Rahim, “The Mohammedan jurists regard the institution of marriage, as partaking both of the nature of ibadat or devotional acts and muamlat or dealings amongst men”[2].

The Prophet has said in Hadith: “When a man has married, he has completed one half of his religion. Then let him fear for the remaining half”. [3]

The Islamic law prevents the human being from committing what is prohibited by the religion. Its objectives are to regulate physical, social, and psychological as well as the legal relations between the partners. Under Islamic law, marriage (nikah) is considered as a solemn pact between the spouses. There are three aspects of marriage in Islamic law:

1. Legal
2. Social
3. Religious

Legal aspect- A Muslim marriage is contractual in form because it makes free consent of the parties an essential element for its validity. This is to ensure that the bride is not getting married under any kind of compulsion.

Social aspect – Islamic law gives the woman an important role at home and in the society. The Prophet, both by example and precept, encouraged the institution of marriage and recognized it as the basis for society.

Religious aspect— The Prophet has said, "Marriage is my Sunnah (that is recommended action of the Prophet) and whoever does not follow my Sunnah is not my true follower” [4]

Marriage is a peculiar mechanism of regulating human relations with religious sanction and therefore, termed as a sacred covenant. The Prophet was determined to raise the status of women and accordingly attributed legal and religious importance to marriage.[5]


Freedom of Choice

According to the laws of Islam, a man and a woman have the right to choose their partner and they should not be forced into marriage. For example it is narrated that when Amir al Momenin Ali asked for Fatima’s hand in marriage the Prophet did not respond to Ali until he asked Fatima for her decision.

Nature of Obligations

Since a Muslim marriage is contractual in nature, all the rights and obligations it creates arise immediately, and are not dependent on any condition precedent. Such rights and obligations include the entitlement of wife to mahr and maintenance mutual rights of inheritance, prohibitions regarding marriage due to the rules of affinity etc.


Formation of a Valid Marriage

The following conditions are necessary for a valid marriage.

Offer from one party
Acceptance by the other party
Presence of two witnesses, where the parties are Hanafis, no witnesses are required if parties are Shiahs.
The words with which the marriage is contracted should be clear and unambiguous.
The proposal and acceptance must be expressed in one and the same meeting.


Capacity to Marry

a) A Sunni Muslim male can marry besides a Muslim woman, an Ahle-Kitab i.e. a female belonging to a religion with a revealed book e.g. a Christian or Jew, but not a Hindu, Sikh or Zoroastrian under any situation.
b) A Shia Muslim male or female cannot marry a non-Muslim female or male but a Shia male can marry a non-Muslim female by way of ‘Muta’ (temporary marriage).
c) Both the woman and the man should be mentally sound at the time of marriage.
d) Minors, who have not attained puberty, may be validly contracted in marriage by their respective guardians. The expected age of puberty is 15 years.
e) A male who is a major, of sound mind is entitled to and is capable of contracting his own marriage.
f) Regarding the capacity of a female virgin major of sound mind, there is a difference of opinion. Among the Hanafis, she has the capacity to contract her marriage without the intervention of a guardian, whereas according to Shafeis and Malikis a female virgin of sound mind cannot contract her own marriage.
g) A widow or a divorced woman (sayyiba-a woman who has experienced married life) has capacity of contracting her marriage.
h) In India, a marriage between a Muslim and a non-Muslim can be solemnized under the Special Marriage Act, 1954.


It is the girl's right to take the decision concerning her marriage and her father or guardian cannot over-ride her objections or ignore her wishes. The words of proposal and acceptance must be uttered by the contracting parties or their agents (vakils) in each other’s presence and hearing and in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Muslims and the whole contract must be completed at one meeting. The proposal and acceptance made at different meetings do not constitute a valid marriage. Writing of Nikahnama or performance of any religious ceremony is preferable but not essential.

Nikahnamas are admissible in evidence as written records of marriage. Qazis who perform the nikah can give satisfactory evidence of marriage. Where the person who performed the nikah is dead, the evidence of a witness can prove the nikah.


Prohibited Degree of Relationship

The woman, a man is getting married to must not be prohibited for him either perpetually or temporarily. There are 19 classes of woman who are prohibited to a man and with whom marriage is unlawful. They are:
(i) Mother (ii). Daughter (iii) Sisters (iv) Father’s sister (v) Mother’s sister (vi) Brother’s sister (vii) Sister’s daughter (viii) Foster mother (ix) Foster sister (x) Mother in- law (xi) Wife’s daughter (step daughter) (xii) Son’s wives (xiii) Father’s wife (step mother) (xiv) Two sisters in conjunction (xv) Married women (xvi) Idolatress (xvii) One’s thrice divorced wife (xviii) Woman in iddat (xix) marriage contracted with a fifth woman.

Proof of Marriage

Marriage may either by proved by direct evidence or may be presumed as a valid marriage by.
(1). Evidence of Marriage
(2). Acknowledgment
(3) Acknowledgment of marriage proof
(4.) Continued cohabitation


Type of Marriages

1. Valid (sahih)
2. Void (batil)
3. Irregular (fasid)

Valid (Sahih)— This marriage is in accordance with Shariah and without any legal impediments. A marriage is considered sahih when all the essentials as per the Islamic law have been fulfilled. A valid marriage confers upon the wife, the right to mahr, maintenance and residence in her husband’s home and imposes on the spouses the obligation to be faithful to each other and to admit each other to sexual intercourse. It creates mutual rights of inheritance, prohibition of affinity.

Void (Batil)—When the essential requirements of a marriage have not been fulfilled, it is batil (void as initio). A batil (void) marriage is no marriage at all. It creates no legal rights nor imposes obligations on the parties. The ground of marriage contract to be void is consanguinity, fosterage, affinity, and unlawful conjunction, pronouncing three divorces to one’s wife, contracting marriage with another’s wife. Effects of a void marriage are as follows; Marriage contract is null and void ab initio, no dower is due, iddat not be observed, issues are illegitimate, no rights of inheritance between husband and wife, no right of maintenance to the wife and no right of maintenance and inheritance to the issues.

Fasid—It is a marriage in which some conditions of a valid marriage are missing. A fasid marriage is one which is contracted without witnesses, marriage contracted with a female during her iddat, marriage contracted with a fifth woman in spite of four subsisting wives, marriage contracted by a man with his wife’s sister during period of probation of his wife, who stands divorced by him.

Effects of a Fasid Marriage

Dower – If there is no consummation of marriage and separation takes place, no dower would become due from the man, no iddat is required. If there is consummation, the man has to pay the specified dower or proper dower, whichever is less and iddat has to be observed.
Legitimacy of Children – Issues of an irregular marriage are legitimate, and are entitled to inherit and maintenance of children is incumbent upon the father.
Affinity- If consummation takes place, prohibition of affinity is established.
Maintenance –Women are entitled to get maintenance till irregularity is not discovered and not after that.
Inheritance – The couple cannot inherit from each other.



Mut’a

The Mut’a is a temporary marriage for a fixed period of time. This is approved only by the Ithna Ashari school of thought. A Shia can contract Mut’a with a Muslim woman, a kitabi and also a fire worshiper. A Shia woman may contract a Mut’a marriage with a Muslim male only.

In a mut’a marriage, the period of cohabitation should be fixed whether a day, a month, a year, or a term of years. Mahr (dower) should be specified. If no period is mentioned, whether inadvertently or intentionally, the contract would be treated as one of a permanent marriage. There is no difference in Mut’a for unspecified period and Mut’a for life.

Mut’a marriage creates no rights of inheritance between the spouses unless there is an agreement between the parties. The children conceived during Mut’a marriage are legitimate and can inherit from both parents[6]. There is no minimum limit for the duration of the marriage and no divorce is required. A woman married in Mut‘a is not entitled to any maintenance. The husband is not bound to provide a residence for the wife. Married women shall be bound to observe iddat, in case of termination by death for four months and ten days, and in case of pregnancy till delivery.


Puberty and the Age of Marriage

In Muslim law, a Muslim who has attained puberty and is of sound mind can marry. If a Muslim has not attained puberty, his or her guardian can give him or her in marriage. He or she can repudiate such a marriage on attaining puberty in certain circumstances. This concept is called option of puberty. The minor on attaining the age of puberty can repudiate when his lawful guardian, other than the father or paternal grandfather, marries a minor such a marriage.

In India under the Child Marriage Restraint Act, 1929, it is an offence to solemnize the marriage of a male below 21 years or of a female below 18 years. But violation of this prohibition does not affect the validity of the marriage.
Puberty

A minor suffers from a legal disability to enter into a binding contract and also enjoys a privilege from being always bound by a contract entered into by a guardian on his or her behalf. The minor can, on attaining puberty, ratify such a contract if he or she so chooses. Under the Islamic law, a minor’s marriage is governed by the same principle. When a guardian contracts a marriage for a minor, he or she, on attaining puberty has a right, subject to certain conditions, to either ratify or repudiate the marriage. This right of dissolution of marriage on attaining puberty is called khiyar-ul-bulugh (option of puberty). Since a Muslim adult husband can dissolve marriage by talaq also, the doctrine of khiyar-ul-bulugh gains more importance for women. Thus the doctrine is one of the safeguards against an undesirable marriage and a protection for minors (especially females) from any unscrupulous or undesirable exercise of authority by marriage guardians.

The doctrine of khiyar--ul-bulugh enjoys sanction under hadith as well. Hazrat Ibn Abbas narrates that a virgin girl came to the Prophet and said that her father had given her in a marriage, which was not to her liking. The Messenger of Allah then gave her option for and against the relationship. After that, this option became available to all. Capacity to exercise the option however occurs only when a minor attains puberty. The minimum age at which children attain puberty in the case of boys and girls is twelve and nine respectively. However, fifteen is the maximum age to attain puberty. Thus, a minor is deemed to have attained puberty when he or she has attained the age of fifteen years. After attaining that age, option may be exercised expressly or by conduct, that is, consummation with willingness.

Regarding waiving of marriage, a minor can waive the right of option of puberty only on attaining puberty. Cohabitation before attaining puberty with or without the girl’s consent does not destroy her right because a minor is not capable of giving her consent to any act as long as she is a minor. The right to exercise this option arises only when she has become a major and so is not lost by anything done or a happening before that time. The right shall be considered waived only by allowing the marriage to be consummated freely after attaining puberty. Abu Daud reported that the father of a girl name Khansa, gave her in marriage while she was a virgin, she did not like the match and so she came to the Prophet. He annulled her marriage. The repudiation of marriage if so chosen must be made within a reasonable period of time. Any unreasonable delay shall vitiate the right. The time period may, however, be extended if the wife was ignorant of her marriage or of her right to cancel the same. Under the precedent, a period of three years after puberty is deemed as sufficient and reasonable, within which the option must be exercised, otherwise the right is lost.

When separation takes place by exercise of the option and if the marriage has not been consummated, the wife has no right to mahr. But if the marriage had been consummated, she is entitled to her full mahr. This is irrespective of the fact whether separation has taken place by her own option or by the option of her husband. Some of the jurists are of the view that marriage contracted for a minor by her father or paternal grandfather is binding on the minor and can be repudiated only if the father or the grandfather has ignored the interests of the minor, or has acted fraudulently or negligently and the marriage is to the manifest disadvantage of the minor. There is no such requirement about the marriage contracted by a guardian other than father or grandfather. It may be noted here that the Dissolution of Muslim Marriage Act, 1939 does not provide for any such distinction.


Guardianship

According to the Hanafi law, for the purposes of marriage the wali (guardian) of every person primarily is her or his father, and in his absence, the paternal grandfather and then the great grandfather. The responsibility to act as the wali, passes on from one to another male relative. In the absence of any such male, the guardianship goes to the mother, the paternal or maternal grandmother, the maternal grandfather, a sister, a uterine brother or sister, a paternal aunt, or a maternal uncle or aunt.[7]



Iddat

Iddat is the period of probation incumbent upon a woman whose marriage is dissolved. She must wait for the end of this period before she re-marries. During the period of iddat the Muslim wife cannot contract another marriage. She is entitled to maintenance from her husband or from his property. The purpose of iddat is biological i.e. to decide the paternity of a possible child of the union and to avoid confusion of parentage. In case of dissolution of a marriage by divorce or death, iddat is required (whether the marriage is valid or irregular), if the marriage has been consummated. In case of dissolution of marriage by apostasy too iddat is necessary if the marriage was consummated. Iddat is not required to be observed in an unconsummated marriage.

Period of Iddat

Iddat period of a valid marriage on dissolution by death is four months and ten days and by divorce, if she is subject to menstruation, three menstrual courses, in other cases, three lunar months. In the case of pregnancy, iddat shall be extended up to the date of delivery or miscarriage, as the case may be.




Marital Rights

Mahr or Dower

The Holy Qur'an says: “And give women (on marriage) their dower as a free gift, but if they of their own good pleasure, remit any part of it to you, take it and enjoy it with right good cheer.”[8]

According to the Hedaya, “the payment of dower is enjoined by the law merely as a token of respect for its object (the women) therefore its mention, if it is not absolutely essential to the validity of a marriage and the marriage is valid although the man were to engage in the contract on the special condition that there would be no dower.”[9]

Mahr (dower) is a sum of money or other property, which the wife is entitled to receive from the husband by virtue of marriage. It may be specified in the nikahnama. The entire amount of the mahr shall be presumed to be payable on demand if no time for payment is fixed. Mahr is not a requisite for the validity of marriage but becomes compulsory on marriage. The amount of mahr ordinarily fixed by oral contract is valid.

Marriage is valid though no dower is mentioned. Because conjugal rights are far too precious to be equated with what is normally given as mahr. It is not a consideration of marriage but its effect is imposed by the law on the husband as a token of respect and honour for the woman.

Prompt Dower- mahr- i-mu’ajjal- it is derived from a root which means ‘to hasten’ ‘to proceed’. It means dower which is promptly paid at the time of marriage or is payable promptly on demand.

Deferred dower- mahr- i-nuwajjal. It is derived from a root, which means ‘to delay or postpone’. It means what is payable on the dissolution of marriage by death or divorce.

Minimum Mahr

1. Hanafi law-10 dirhams
2. Maliki law-3 dirhams
3. Shafi law and Shiite law-no fixed minimum

A dirham is silver coin 2.97 grammas in weight

Quantum of dower differs from place to place. It depends upon the social position of the parties and upon the economic condition of the society. It must be adjudged on different principles.

Classification of Mahr

The mahr is payable whether the sum has been fixed or not. Mahr may first of all, be either specified or not specified.

There are two of kinds of mahr in Islam.
a. Specified mahr (al-mahr al- musamma)
b. Proper dower or customary dower (mahr al mithl)

Specified mahr may again be divided into two types; a. Prompt (mu ‘ajjal), b. Deferred (mu’ajjal)

Specified Mahr—Specified Mahr is fixed at the time of marriage and the Quazi performing the ceremony enters the amount in the register. The wife is entitled to recover whole of such mahr. The sum may be fixed either at the time of marriage or later, and a father’s contract on behalf of a minor son is binding on the minor. Once the amount has been specified, the husband will be compelled to pay the whole of it, however excessive it may seem to the court, having regard to the husband’s means.

Proper Mahr

If the amount of mahr is not fixed, the wife is entitled to proper mahr even if contracted on the condition that she should not claim any mahr. In such cases, proper mahr of women is to be fixed with reference to the dower settled upon other female members of her fathers’ family and her own personal qualifications. The social position of the husband and his means are of little account.

Enforcement of Mahr

The claim of wife and widow for the unpaid portion of mahr is an unsecured debt due to her from her husband or his estate, respectively. If a husband refuses to pay prompt mahr, the guardian of a minor wife has the right to refuse to allow her to be sent to the husband’s house and similarly, the wife may refuse the husband his conjugal rights provided no consummation has taken place. Under Muslim law the wife is entitled to refuse herself to her husband until the prompt mahr is paid: and if in such circumstances she happens to reside apart from him, the husband is liable to provide maintenance to her.

If dower is not fixed in the contract of marriage according to Abu Hanifa, proper dower will become due merely on the ground of marriage itself. If she dies without consummation proper dower shall be recoverable from the husband. If the husband dies before consummation, the woman shall be entitled get her proper dower, which shall be realized from the estate of her deceased husband’s property. According to Imam Shafei proper dower does not become due merely on the basis of marriage. It becomes due in case of two events only.

First, when it is fixed dower and secondly, when consummation has taken place. If dower is not fixed and one of them dies before consummation, even proper dower shall not become due instead only a suit of deaths shall be due. Only, once there is consummation and dower is not fixed and the divorce is given before consummation of marriage –proper dower shall not become due, instead only a suit of clothes shall be due.
In certain cases, an inflated amount is fixed in public for the glorification of the bridegroom’s family or, where no dower is fixed, and then proper dower should be paid to the wife. But the exorbitant dower is valid and legal even if it is beyond the means of the husband.

Amount of Dower

No hard and fast rule is laid down in the Holy Quran. It may consist of a ring, a bucket of barley, dates, cash, immovable property, goods, merchandise etc. But dower must be certain, lawful, capable of being taken into possession. In case of specified dower, the wife is entitled to her whole dower upon consummation of marriage or the death of her husband. If she is divorced before consummation, then she is entitled to receive half the amount of her specified dower. A wife can refuse to live with the husband on account of non-payment of dower if there is no consummation of marriage. Whereas, if there has been consummation of marriage, the non- payment of dower is not a defense for an action of restitution of conjugal rights.


Effect of Death of either party on Dower

If marriage is dissolved by death of either party, dower is payable as:

Valid Marriage Full dower- If not specified, then proper
dower (whether marriage consummated or not)

Irregular Marriage Full Specified or proper dower, whatever is less (if
marriage is consummated)

Effect of Consummation on Dower

I. In case of a consummated marriage – dower is not lost in any case, (even in case of apostasy, adultery, concealing illicit pregnancy) dower is made binding by consummation or by its substantial valid retirement) just as by death.
II. In case of a valid marriage- full specified dower, proper dower if not specified.
III. In case of an irregular marriage- full-specified dower or proper dower whichever is less.
IV. In case of an unconsummated marriage- valid marriage- dower will only be due if marriage is dissolved by death- full specified or proper dower, if it has not been specified.

Objectives and the Effects of Dower

Main objectives:

(1) To protect the wife against arbitrary power of the husband in exercising the right of divorce.

(2). Fixing of high dower operates as a healthy check on the husband’s capricious exercise of such right.

(3) It is a mark of respect for the wife.

A contract of dower need not be reduced to writing. It may be fixed either before or at the time of marriage or after the marriage. Dower may also be increased at any time after it is fixed even during the continuance of the marriage. Dower cannot be decreased. Even the court has no power to decrease the contractual amount. The court is bound to allow the amount settled between the parties even if it is in excess, which the husband possessed at the time of marriage or was expected to acquire. If marriage is dissolved by apostasy or any other act of the husband, then half of the specified dower if it has been specified, otherwise a gift to be given.

Effect of Apostasy on Dower

Apostasy of either party after consummation does not affect the right of the wife to get her dower and the right of the husband to given her dower. But if before consummation the husband apostatizes (if dower is specified) then half of the dower, but if dower is not specified, then a present is due. If before consummation, the wife dies then nothing is due. Parties to a marriage make certain stipulation in the marriage contract, which they are binding. If the husband makes a breach of such conditions, the wife would be entitled to recover her proper dower even if it her specified dower.


Widow’s Right of Retention

A Muslim widow is entitled to retain possession of her husband’s estate, till her dower debt is not satisfied. But this is so when she gets possession of the estate lawfully and without the use of force or fraud. The legal heirs cannot disturb her possession until they satisfy the dower debt. The right of retention does not confer on the widow any title to the property. Her rights are twofold: one, as heir of the deceased, and two, as widow entitled to her mahr and, if necessary, to retain possession of the estate until her Mahr has been paid. The right to hold possession must, therefore, is sharply distinguished from her right as an heir. The right to retain property is a personal right, it cannot be transferred and it can be alienated or mortgaged. But the right is heritable.

In Muslim law, a widow has a lien over that property and such lien she continues to have till her dower debt is discharged. While that is so, it cannot be said that her liability to account for the income received by her from the properties of her husband does not exist. While she can exercise her right of lien, she is liable to account to the other sharers with regard to the income as a co-sharer. Dower is a debt, but not a secured debt.

The Supreme Court has laid down that a Muslim widow in possession of her husband’s estate in lieu of her claim for dower, whether with the consent of the other heirs or otherwise, is not entitled to priority as against her other unsecured creditors[10]. Her right is not greater than that of any unsecured creditor except that she has a widow’s lien. She is not entitled to any priority over other creditors[11]. Widow’s lien over her husband’s property remains only so long as she remains in possession. But if she wrongfully dispossessed, she is entitled to recover possession. As soon as the debt is satisfied, she must deliver possession to the legal heirs of the husband.


Maintenance for Women

In Muslim law, maintenance for women is of special significance. In the underdeveloped societies, an overwhelming majority of the female population is not able to earn their own living on account of social taboos, and consequently, they depend on the male members of the family for their bare subsistence. One good aspect of Muslim law is that it makes legal provision for maintenance for wives, dependent children and other relatives who are unable to maintain themselves. There is a special term for ‘maintenance’ called nafaqa.

The husband is bound to maintain his wife, so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to him or is otherwise disobedient unless the refusal or disobedience is justified by non-payment of prompt mahr or she leaves the husband’s house on account of his cruelty. If the husband neglects or refuses to maintain his wife without any lawful cause, the wife can sue him for maintenance.

The Holy Quran says “If divorce takes place the mothers shall give suck to their offspring for two whole years, if the father of the child desires to complete the term. But he shall bear the cost of their food and clothing on equitable term.”[12] The Quran says: "Lodge them where you dwell, according to your means, and harass them not so as to strain life for them. And if they are pregnant, then spend for them till they bring forth their burden. Then, if they give suckle for you, give them their due payment and enjoin one another among you to do well; but if you disagree, then let other (woman) suckle for him. Let him who has abundance spend of his abundance, and he whose provision is measured, let him spend of that which Allah has given him; Allah does not lay a burden an any soul, except that which He has given it. Allah will bring about ease after hardship."[13] In the Muslim law, the wife has the right of being properly maintained by her husband and he is responsible for providing his wife with food, clothes, residence, medical treatment, adornment (as per his means) and other expenditures needed by the wife and according to her social status, on one hand, and falling within the husband's financial means, on the other.

In India, under Sections125 to 128 of the Criminal Procedure Code 1973, if a husband has sufficient means to maintain his wife who is unable to maintain herself, but refuses or neglects to do so, he can be ordered by a magistrate to provide maintenance to her by way of a monthly allowance amounting to a maximum of Rs. 5000. Provided that she is not living in adultery and has not refused to live with him except for a legally sufficient reason, and is not living separate by mutual consent.

Under the new provision of Section 125, Criminal Procedure Code, a divorced wife can now claim maintenance even if the divorce had taken place before the new code came into force. Section 127 (3) (b) provides that where any order has been made under Sec.125 in favour of a woman who has been divorced or has obtained divorce from her husband, the magistrate shall, if he is satisfied that she has received, whether before or after the date of said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such an order. Section 125 has to be read with Sec. 127 and if there has been a divorce and the wife has received her dower and other dues then she cannot claim maintenance under Sec.125.







Divorce

Introduction

Islam regards marriage as a religious obligation but not an indissoluble union. If the situation demands, the marriage can be dissolved. Islam has permitted divorce, but it lays emphasis on the fact that divorce should be resorted to only in unavoidable circumstances when there is no other alternative. The Prophet has said:

“Of all things permitted, divorce is the most hateful in the sight of God”[14]

The literal meaning of talaq is “to snap off or to separate or freedom from bondage”. In Shariah, it means terminating with explicit or implied words the bond created by marriage contract. The relevant verses of the Holy Quran that deal with the procedure for divorce says:

“If ye fear a breach,
Between them twain,
Appoint two arbiters,
One from his family
And the other from hers;
If they wish for peace,
God will cause
Their reconciliation:
For God hath full knowledge,
And is acquainted
With all things”[15]


If the husband and wife are unable to live together or even after genuine efforts fail to adjust themselves with each other, the marriage could be properly dissolved. The husband and wife should be first persuaded to reconcile and overcome the conflict inter se through arbiters; one each from the husband’s and wife’s parental families. Even after that, if the parties are unable to resolve their differences, they should be separated instead of being allowed to perish in a failed marriage. Thus Islam accepts divorce as a necessary evil but does not see it as a desirable option.

Divorce can occur by the act of the parties i.e. can be pronounced by the husband, by the wife, by mutual consent or through judicial process. The marriage can also be dissolved due to the death of the husband or wife.

Talaq may be given Orally or in Writing

Oral- If the words are expressed and well understood as implying divorce, no proof of intention is required. If the words are ambiguous, the intention must be proved. It is not necessary that the talaq should be pronounced in the presence of the wife or even addressed to her. In a Calcutta case, the husband merely pronounced the word “talaq” before a family council and this was held to be invalid as the wife was not named. But, this case was approved by the Court where the talaq was considered valid though pronounced in the wife’s absence.[16]

Talaq in Writing

A talaqnama executed in writing, in the presence of witnesses and in the customary form, takes effect immediately even if not brought to the wife’s knowledge at the time of its execution. It can subsequently be communicated to her within a reasonable time. [17]


Classification of Divorce

1. By the death of husband or wife
2. By the act of the parties
3. By judicial process


By death of Husband or Wife

With the death of the husband or wife, the marriage comes to an end. If the wife dies, the husband can immediately marry, but if the husband dies, the wife has to wait till the end of the period of iddat (four months and 10 days), or if pregnant, till the delivery.

By act of the Parties

By the husband: The attributes of divorce, (masnun according to the traditions of the Prophet) are of two kinds (1) Talaq al Sunnat (2) Talaq al Bidaat (ghayr masnun ) not according to the rules known in the traditions of the Prophet.

Talaq al Sunnat: It is of two kinds: -

Talaq al Ahsan: It is a single pronouncement of divorce during tuhr (period when wife is free from menstruation i.e ritual purity) followed by abstinence from sexual intercourse for the period of iddat. The husband can revoke this talaq any time during iddat by words or by conduct. The talaq may be pronounced orally or in writing.

Talaq-al-hasan: This is by a husband who has consummated the marriage. It consists of three successive pronouncements, during three consecutive periods of ritual purity. One pronouncement is made during a period of ritual purity in which there has been no cohabitation. It may be revoked within the same period of ritual purity. Again the same process is repeated the second time. Now if the third pronouncement is made in the third consecutive period of purity, the divorce becomes irrevocable and then the same parties cannot ordinarily remarry unless there is an intervention through a third person, consummation of that marriage, divorce, observance of iddat. The Holy Quran says:

“Divorce may be pronounced twice, and then a woman must be retained in humour or allowed to go with kindness. The verse means that a man who has twice given notice of divorce over a period of two months should remember God before giving notice a third time. Then he should either keep the spouse in a spirit of good will or release her, giving her full rights without any injustice. The prescribed methods of divorce has ensured that it is a well considered planned arrangement and not just a rash step taken in a fit of emotion”[18]

Marriage Dissolution by the Wife
Talaq-e-tafweedh (Delegated Divorce)

Delegation of the right of divorce is an entrustment by the husband to the wife as a right to act as her husband’s delegate in effecting divorce to him. Delegation of authority can be either at the time of entering the marriage contract or at any time during married life. The divorce is as effective as pronounced by the husband himself. It is recognized by all school of thoughts.

Under Islamic law, a man and a woman entering into a contract of marriage may choose certain mutually agreed conditions upon which their marriage is to take place. The agreed conditions would define their future marital rights and obligations in addition to the ordinary one’s under a valid marriage contract. The spouses may, for example, agree that the wife under such an agreement shall have the power to divorce herself on behalf of the husband. Such an agreement amounts to a delegation (tafweedh) of his power by the husband to the wife. The pronouncement of divorce by the wife under such an agreement is tantamount to the husband’s pronouncement of divorce. Such delegation of power may be either conditional or unconditional. When it is conditional, the wife would be at liberty to declare divorce on behalf of the husband whenever he commits a breach of the conditions agreed upon, resulting into dissolution of her marriage tie with the husband. If it is unconditional, the wife has an absolute power, as per the terms of agreement, to dissolve the marriage. [19]

The doctrine of tafweedh is based on the Quranic verse, wherein it is provided:
“O Prophet! Say to thy consorts, if it be that ye desire the life of this world and its glitter- then come- I will provide for your enjoyment and set you free in a handsome manner”.

In obedience to this Quranic injunction, the Prophet had empowered his wives to choose either him or a separation, that is, they might either get the marriage dissolved or prefer its continuation. His wives, however, chose continuation of marriage. Thus, a husband can lawfully delegate to his wife power to dissolve the marriage, if she so wants. This doctrine enjoys judicial recognition also. [20]

In talaq-e-tafweedh, the husband retains his power of divorce as the same has not been transferred to the wife but she becomes an agent to effectuate divorce. This doctrine, therefore, brings the spouses at par with the husband about exercising the power of divorce though the right actually vests with the husband.

The doctrine has proved useful in restraining husbands from contracting second marriage and securing some other benefits to the wives depending upon the terms of the agreement under which the power of talaq has been delegated to the wife. The following are some of the conditions that are valid and on whose breach the wife can be made entitled to divorce her self by talaq- e-tafweedh.

(i) The husband shall not absent himself from their place of residence for a specified period of time.
(ii) The wife shall not be forced to reside in the same house with his other wife/wives.
(iii) The husband shall not stop the wife from going to her parents or other relatives once in a week.
(iv) The husband shall not indulge in gambling.
(v) The husband shall not mistreat the wife.
(vi) The husband shall pay to the wife maintenance every month by a specified date or give her a specified sum of money by a certain date.
(vii) The husband shall not be guilty of immorality.

Therefore, if the conduct of the husband is against any of the agreed conditions, the wife can talaq herself on behalf of the husband by virtue of the doctrine of talaq-e-tafweedh.

Khula

It may be reiterated that the contract of marriage is ordinarily supposed to last for the entire lifetime of the husband and wife. But when the relations between the spouses become strained and the continuation of their union becomes undesirable, the spouses are, thereupon, allowed to terminate it. It can be terminated either by the husband on his own initiative or at the instance of the wife or by mutual agreement. In the first two cases, there is a breach of implied agreement that the marriage will subsist during the lifetime of the parties. If it is the husband is guilty of this breach, he is penalized by becoming liable for the immediate payment of his wife’s deferred dower (mahr al muajjal) and mata’ (other thing/gifts). While, if it is the wife who wants the termination of the marriage, she has to compensate the husband. This termination of the marriage at the instance of wife is called khula. Under Shariah, it means that a husband after accepting compensation from his wife renounces his rights and authority over her under the marriage contract.

The word khula literally means, “to put off”. Thus, khula’ is a divorce with the consent and at the instance of the wife in which she gives or agrees to pay compensation to the husband for her release from the marriage. Therefore, assuming a situation in which the wife finds difficult to live a contended life with her husband and she is likely to deviate, the Quran says:

“Then if you fear that they (the spouses) would be unable to keep within the limits of Allah, there is no blame on either of them if she gives up something to become free thereby”[21].

Accordingly, the Prophet educated his followers about what had been revealed upon him and also put that to practice. One day, Jamila, the daughter of Abd Allah Bin Ubyyb Salul and the wife of Thabit Ibn Qays appeared before the Prophet and said, “O Messenger of Allah, I and Thabit can never live together. I saw him coming from the other side with some men. I found that he had the smallest stature, was the blackest and ugliest among them; I swear by Allah that I do not dislike him on account of any religious or moral turpitude of…….. O’ Messenger of Allah! You can see how beautiful I am while Thabit is an ugly person…. I fear that I may be guilty of transgression of the limits set by Islam”. The Prophet asked her if she would return the orchard given by Thabit to her as mahr. She replied, “Yes and if he demands more then, I am ready to give him more than that”. The messenger of Allah said “No, not more than what he had given you”. He then asked Thabit to take back the orchard and release her from the marriage tie by divorcing her, which he did. There is a tradition of the Prophet which says: “Only that property should be accepted back from the wife released under Khula which had been given by the husband to her and not more than that.”[22]

The object of khula is to enable the wife to get released from her husband when she finds that it is not possible for her to live with her husband in harmony and peace. It is to be noted that in the relevant Quranic provision cited above, there is nothing to indicate the husband’s power to refuse the dissolution of the marriage when the wife demands a release by khula. It is an irrevocable divorce.

It may thus be observed that khula is an important right of the Muslim wife enabling her to get rid of an unwanted marriage. The right is available to her under the general principles of Islamic Law, irrespective of the terms of the marriage contract. She also need not offer any explanation for her option to dissolve the marriage. It can be affected by the intervention of the court also, i.e. if the husband objects to her exercise of the option, the court can pass a decree in her favour. In either case, she has to pay the iwaz (recompense).

Mubaraat

It literally means ‘releasing from each other’. The proposal may be made by either of the two the husband or the wife and with its acceptance by the other, the marriage is completely dissolved. It is a mutual agreement between the husband and the wife that becomes effective by the consent of the parties. It is a mutual discharge, an irrevocable divorce.


By Judicial Process

Talaq al bidaat: It is an irregular divorce. It is of two kinds:

a. Divorce by three declarations b. Divorce by one irrevocable declaration.

In this form, three pronouncements are made in a single tuhr (period of ritual purity) in three sentences “I divorce thee, I divorce thee, I divorce thee”. Such a talaq is lawful, although sinful, only under Hanafi law. It is not permissible under Shia or Shafi’e law. Bidd’ ah means an innovation beyond the Quranic provisions and the Sunnah. People should desist from such a kind of talaq.[23]

Divorce by three declarations: In this form, three pronouncements are made at a time in one sentence during one period of purity.

Divorce by one declaration: Here the husband neither pays any attention to the period of purity or abstention from intercourse. He pronounces one bain talaq (irrevocable bain divorce), which is valid, but the person pronounces shall be a sinner.[24] Such a divorce is sinful but lawful under Hanafi law.

Talaq al bidaat is not recognized under Shiah Law.

According to Hamilton’s Hedaya, the divorcee is an offender against the law[25]. People should desist from such a kind of talaq.[26]

Divorce under intoxication, under compulsion, divorce pronounced in jest are all valid kinds of divorce under Hanafi school of thought.

Ila’

Literally ila means ‘vow’ and the maker of vow is called m’uli. In law, it implies ‘cessation of sexual relations between the husband and the wife’. In pre-Islamic days the husbands used to harass their wives by depriving them of their sexual intimacy without proper dissolution of marriage so that she could not contract another marriage. Islam has provided a check on the evil effects of such practices.

If a man makes a vow saying to his wife “by Allah! I will not have sexual intercourse with you” and the period exceeds four months, then two consequences follow: One, the man commits the breach of vow and has sexual intercourse with the wife. He does not lose the wife but shall be liable to penalty (kafara). Second, if the husband does not resume sexual contact with the wife within four months, the wife has a right to seek dissolution of marriage and get rid of the cruel situation. By exercising this right the wife can protect herself from harassment by the husband.

Zihar

The word ‘zihar’ is a derivative from word ‘zahr’ (back). Zihar means ‘to oppose back to back’. In the language of law, it signifies a man comparing his wife to any of his female relatives within such prohibited degrees of relationship, whether by blood, fosterage or by marriage as render marriage with her invariably unlawful. Zihar, therefore may be used by a husband to deprive the wife of his company and tie her to a miserable life. For instance, if husband says to his wife “you are to me like my mother’s back”, this amounts to both desertion as well as cruelty. In such a situation, Islam gives the wife a right to seek marriage dissolution.

The husband can re-establish the matrimonial relationship with her only on paying the prescribed penalty (making expiation). He must free a captive before they touch one another. But he, who has not the means, should fast for two months successively and he who is unable to do so should feed sixty needy ones. In Zihar unlike ila, no time limit is prescribed to make expiation or to go back to what has been said. The wife may seek dissolution of marriage immediately after husband’s making of such injurious comparison. [27]

Lian

Lian literally means to ‘drive away’. Here it means to drive away from the mercy of Allah on account of imprecations involving the curse and wrath of Allah. When a husband accuses his lawfully wedded wife of adultery, she has a right to apply to the Qazi to order the husband either to support his accusation by taking the specially prescribed oaths or to admit the falsity of his charge. Where the husband has made a false charge of adultery against the wife, it will be a valid ground for the dissolution of marriage by Qazi. The law will be clear by the following Quranic verse:

“And those who launch a charge against chaste women, and produce not four witnesses (to support their allegation), flog them with eighty stripes and reject their evidence even after for such men are wicked transgressors.

And those who launch a charge against their spouses and have (in support) no evidence but their own, their solitary evidence (can be received) if they bear witness four times (with an oath) by Allah that they are solemnly speaking the truth, and the fifth (oath) should be that they solemnly invoked the curse of Allah on themselves if they tell a lie. But it could avert the punishment from the wife, if she bears witness four times (with an oath). By Allah her husband is telling lie, and the fifth (oath) should be that she solemnly invokes the wrath of Allah on herself if (her accuser) is telling the truth”. [28]

One Hilal Bin Umayyah accused his wife of having committed adultery. This verse was revealed when the Prophet was deciding their case. Hilal and his wife then took the prescribed oaths and the Prophet allowed them to separate. Ibn Umar reported, “The Prophet allowed imprecation between a man and his wife. He first admonished the husband, told him that chastisement of this world is easier than the chastisement of the hereafter. Then he (Prophet) called her (the wife) and gave her similar admonition and warning. After the spouses had taken the prescribed oaths, he (Prophet) separated them”.

The attempt of the Qazi must be to discourage imprecations, which lead to the dissolution of marriage. The Qazi should first ask the husband either to take the prescribed oaths or to admit falsity of his charge against his wife. If the husband persists in his accusation, the Qazi shall first administer the oath to him four times by repeating each time. “I call Allah to witness to the truth of my testimony concerning the adultery with which I charge this woman” pointing to his wife. After that the husband will be required to pronounce the imprecation by saying “May the curse of Allah fall upon me if I have spoken falsely concerning the adultery with which I charge this woman”. After this, the Qazi admonishes the wife and advises her to give up her demand, but if she persists, he would ask her either to take the prescribed oaths or to admit her guilt. If she admits her guilt of adultery, the marriage shall not be dissolved. Should she persist that her husband’s accusation is false, the Qazi must administer to her the prescribed oaths. She must repeat four separate times saying “I call Allah to witness that my husband’s words respecting this adultery with which he charges me are altogether false” and then pronounce the imprecations saying a fifth time, “May the wrath of Allah light upon me if my husband is just in bringing a charge of adultery against me”.

When both the parties have taken the imprecations and invoked the curse and wrath of Allah, the judge is to order the husband to divorce his wife and on his refusal or failure to do so, the Qazi shall himself dissolve the marriage, if the wife so desires. It is to be noted that the accusation does not automatically lead to dissolution of marriage but only gives to the wife right to seek the dissolution of marriage.


Faskh

Muslim women are also allowed to seek marriage dissolution through court or Qazi on certain grounds dictated by reason and rationality. This aspect of the Islamic law has been statutorily granted recognition in India and shaped in the form of Dissolution of Muslim Marriage Act 1939. These grounds are given below:

a. Missing husband: Where the husband has disappeared and his whereabouts are not known for a period of four years or more, the wife can apply for faskh
b. Non-maintenance: Where the husband fails or neglects to provide maintenance to the wife for a period of two years or more, she can pray for faskh.
c. Imprisonment: If the husband has been sentenced to imprisonment for a period of seven years or more the wife can approach the court for faskh.
d. Non-performance of marital obligations: Wife can apply for faskh if the husband has failed to perform his marital obligations for a period of three years or more. The nature of marital obligations is to be ascertained with reference to Islamic law.
e. Impotency: The main purpose of marriage is lawful satisfaction of natural urges and a chaste and happy companionship of the parties to it. When the husband is incapable of consummating the marriage on account of some defect, physical or otherwise, the said object of marriage gets defeated. Islam lays great stress on the performance by the husband of the marital obligations to satisfy the natural desires of his wife, to be intimate with her at reasonable intervals and not to neglect this important obligation. Islamic law therefore gives the wife of an impotent person, who cannot perform these marital obligations, a right to get her marriage dissolved with the intervention of the court or the Qazi.
f. Mental or bodily disease: Mental as well as physical fitness of a person is necessary for continuation of a marriage. In the absence of such basic state of health, the relationship may grow tense and break. In view of this fact, it has been provided that if the husband is suffering from insanity for two years or more, the wife can sue for faskh. She can also claim dissolution of marriage with a husband suffering from leprosy or a virulent venereal disease, irrespective of the duration of the disease in either case. However dissolution of marriage may be refused where the wife has herself infected the husband with the disease. The same principle can apply in case of HIV/AIDS cases.
g. Option of puberty: Where her father or guardian has given a wife in marriage, before she attained the age of puberty, she can seek dissolution of such marriage on attaining puberty by repudiating the marriage.
h. Cruelty: Under Islamic law, a wife can claim dissolution of marriage anytime if the husband treats her with “cruelty”. No precise specific definition of ‘cruelty’ has been adopted in this respect and basic human standards of pain and suffering can be applied to determine the violence of cruelty. Ordinarily, the cruelty can include:

i) A habitual assault or making the wife’s life miserable by physical ill treatment or by mental torture.
ii) Association with women of evil repute or otherwise leading an infamous life.
iii) Attempt to force the wife to live an immoral life.
iv) Disposing of her property or preventing her from exercising her rights thereupon.
v) Obstructing her in the observance of religious profession or practice.
vi) Inequitable treatment by a polygamous husband contrary to the Quranic injunction in this behalf.
vii) Any other like treatment.
viii) The relationship of husband and wife is severed on the husband’s apostasy.


Maintenance

Introduction

The dictionary meaning of the word ‘maintenance’ is the money someone given to a person that they are legally responsible for, in order to pay for their food, clothes, and other necessary things. The implied meaning here is the money given by the husband to maintain his wife and children. The following versus of the Holy Quran gave rise to the rights and obligations of maintenance: “Let the man of means spend according to his means, and the man whose resources are limited, let him spend according to what God has given him”[29]. “Let the women live (in iddat) in the same style as ye live, according to your means”.[30] “But he shall bear the cost of their food and clothing on equitable terms”[31].

What is nafah (maintenance)? Generally, it includes food, clothing, dwelling and other necessary articles, which are necessary for the livelihood and comfort of a woman. The basis for the liability of maintenance is marriage. Under the Shariah, a wife cannot be compelled to cook and stitch her clothes; it is the husband who has to provide her with cooked food and stitched clothes or he has to provide her with a servant for that work. The husband is also bound to provide her with a separate house or a separate portion of a house with a separate entrance or exit. If the wife resides at her parent’s house for a valid reason, her right of maintenance is not affected. It is obligatory on the part of the husband to maintain his wife, behave with her on equitable terms and take proper care of the wife. If he has more than one wife, he should provide maintenance to all of them and treat them equitably, should not discriminate between them in providing maintenance and should not prefer one against the other.

In a valid marriage, it is the liability of the husband to maintain the wife. There is no liability of maintenance in case of an irregular marriage where irregularity is due to absence of witnesses at the time of Nikah ceremony. Where the wife refuses to live with the husband due to non payment of prompt dower, her refusal will be considered valid and her right of maintenance is not affected whether the marriage has been consummated or not. Where the wife refuses to live with the husband or return to his house due to some valid reason e.g. his cruelty, the right of maintenance is not affected.

Maintenance during the period of Iddat

Iddat can be of two kinds, one on the death of the husband and the other on divorce by the husband. In case of iddat on the death of the husband, the wife is not entitled to maintenance unless she is pregnant at the time of death of the husband and she is entitled to maintenance till her pregnancy is over. In case of iddat on divorce, the wife is entitled to maintenance only till the period of iddat.

Fixing the Amount of Maintenance

Under the Shariah, according to Hanafi School of thought, the status of the wife is taken into consideration while fixing the amount of maintenance. According to Shafei School, the status and capacity of the husband is the determining factor. According to other jurists, the status and capacity of both the husband wife should be taken into consideration while fixing the amount of maintenance.

Past Maintenance

According to Hanafi school of thought the wife cannot claim past maintenance from her husband unless there is an agreement between them or there is a decree of a Court entitling her to get maintenance from her husband, whereas according to Shafeis, the wife is entitled to past maintenance. This is so because according to Hanafis, maintenance is a gratuity while according to Shafeis maintenance is a debt.

If the husband neglects or defaults continuously in providing maintenance to his wife, the wife has a right to go to the Court. The Court on being satisfied of the wife’s claim shall pass an order against the husband for maintenance allowance. If the husband still neglects to pay the maintenance amount, the Court is empowered to pass an order for the husband’s imprisonment for a fixed period.

An agreement, whether anti nuptial or past nuptial between the husband and wife in which the husband agrees to pay maintenance to the wife is valid under Shariah and enforceable in law. Whereas an agreement between the husband and wife that no maintenance shall be due on the husband or an undertaking by the wife that she would not claim maintenance allowance from the husband is void. Under Shariah such a contract is against public policy.


Maintenance Issues of Muslim Women in India

On the continuance of marriage it was held in a case that a husband is bound to maintain his wife so long as she is faithful to him and obeys his reasonable orders. A husband is not bound to maintain a wife who disobeys him by refusing to live with him. But what degree of disobedience will disentitle the wife to claim maintenance is not laid down. For entitlement of maintenance, it is immaterial that she has the means to maintain herself while the husband has no means.

The wife loses her right to maintenance in the following circumstances:
1. She is a minor, incapable of consummation.
2. She refuses free access to him at all reasonable times.
3. She is disobedient.
4. She refuses to live with him in the conjugal home or abandons the conjugal home without any reasonable ground.
5. She deserts him.

But if the husband is guilty of cruelty or keeping a concubine at home, she retains the right of maintenance.


“For divorced women maintenance should be provided on a reasonable scale. This is a duty on the righteous”. [32] “Thus doth God make clear this signs to you, in order that ye may understand.”[33] “Let the women (live in iddat) in the same style as ye live, according to your means, annoy them not, so as to restrict them, and if they carry life (in their wombs) then spend (your substance) on them until they deliver their burden; and if they suckle your offspring’s give them their recompense and take mutual counsel together according to what is just and reasonable…”[34]

These verses (ayats) make it very clear that the Holy Qur’an imposes an obligation on Muslim husbands to provide maintenance to their divorced wives. If the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to Section 125 of the Criminal Procedure Code 1973. This was the position prior to the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986.



Section 125 Criminal Procedure Code of 1973 &
Muslim Women (Protection of Rights on Divorce) Act

Section 125 Criminal Procedure Code 1973 empowers the Magistrate to order maintenance in favour of women. A ‘wife’ includes, a divorced wife for the purpose of Section 125. Hence, any woman who has been divorced or has obtained divorce from her husband and has not remarried can seek a maintenance order against her former husband, if she is unable to maintain herself and her husband has failed to maintain her despite having sufficient means to do so. On such an application by the wife, the Magistrate can order the husband to pay a monthly allowance (maximum up to Rs. 5000). If he fails to comply with the order of the Magistrate, the Magistrate can issue a warrant for levying the amount fixed in the order. If he still continues to evade the order and the amount remains unpaid in full or part, the Magistrate can sentence him to imprisonment up to one month or till due payment is made, whichever is earlier. Under Section 127(2), the Magistrate shall have to cancel or vary his order if it appears to him that competent civil Court has passed an order of maintenance in a civil suit between the parties. Under Section 127(3) the Magistrate shall also cancel the order of maintenance (i) if the woman in whose favour the order has been passed gets remarried, (ii) where she was divorced by the husband and if she has received, whether before or after the date of the said order, the whole of the sum which under any customary or Personal Law applicable to the parties was payable on such divorce or (iii) where she had obtained divorce from the husband and if she had voluntarily surrendered her right of maintenance after her divorce.

The most important judgment, which changed the course of Muslim law regarding Muslim women in India, was Mohd. Ahmad Khan v. Shah Bano[35]. The Supreme Court held that a Muslim husband is liable to provide maintenance to a divorced wife who is unable to maintain herself. The Court also held that dower is not payable in consideration of marriage but is an obligation imposed by law on the husband as a mark of respect for the wife. The Court further held that the fact that deferred dower (mahr) is payable at the time of dissolution of marriage cannot justify the conclusion that it is payable on divorce. Divorce may be a convenient or identifiable point of time at which the deferred amount is to be paid by the husband to the wife. Hence mahr is not the amount, which is mentioned under Section 127(3) (b). This judgment led to a large scale protests by Muslims throughout the country and it was regarded as interference into the Personal Law of the Muslims. The intense controversy led to the passing of the Muslim Women (Protection of Rights on Divorce) Act 1986.

Let us now examine the provisions of the Muslim Women (Protection of Rights on Divorce) Act 1986. This is a declamatory law. The jurisdiction under the Act rests with the Criminal Courts to ensure speedy disposal of cases. Under Section 2(a) of the Act a ‘divorced woman’ means a Muslim woman who was married according to Muslim Law and has been divorced by or has obtained divorce from her husband in accordance with Muslim law. Section 2(b) defines ‘iddat period’ in the case of a divorced woman as (i) three menstrual courses after the date of divorce if she is subject to menstruation, (ii) three lunar months after her divorce, if she is not subject to menstruation and (iii) if she is enceinte at the time of divorce, the period between the divorce and delivery of her child or the termination of her pregnancy, whichever is earlier. Under section 2(c) a Magistrate means a Magistrate in the first class exercising jurisdiction under the Code of Criminal Procedure 1973 in the area where the divorced woman resides.

Section 3(i) lays down that notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to (a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband (b) where she herself maintains the children borne to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children, (c) an amount equal to the sum of mahr agreed to be paid to her at the time of her marriage or at anytime thereafter according to Muslim law; and (d) all the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends. Under Section 3(2) where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been paid, or the properties referred to in clause (d) of sub Section (i) have not been delivered to a divorced woman on her divorce, she or anyone duly authorized by her may, on her behalf, make an application to the Magistrate for an order for payment of such provision and maintenance, mahr or dower, or the delivery of properties, as the case may be.

Under Section 3(3) where an application has been made under sub Section (2) by a divorced woman, the Magistrate may, if he is satisfied that (a) her husband, having sufficient means has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children, or (b) the amount equal to the sum or dower has not been paid or that the properties referred to in clause (d) of sub Section (1) have not been delivered to her, make an order within one month of the date of filing of application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage, and the means of her former husband and as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub Section (I) to the divorced woman. Under Section 3(4), if any person against whom an order has been made under Section 3(3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973, and may sentence such person for the whole or any amount remaining unpaid after execution of the warrant, to imprisonment for a term which may extend to one year or until payment, is sooner made.

Under Section 4(1), if the Magistrate is satisfied that a divorced woman has not remarried and is not able to maintain herself after the ‘iddat period’, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine as fit and proper. While making such order, the Magistrate shall have regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such period as he may specify in the order. The provision says that if the divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in case the children are unable to pay such maintenance, the Magistrate shall order the parents of the divorced woman to pay maintenance to her. The second provision says that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on a proof of such inability furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to have the means of paying the same in such proportions as the Magistrate may think fit.

Under Section 4(2), if the divorced woman is unable to maintain herself and she has no relatives as mentioned in sub Section (1), or such relatives or any of them have not enough means to pay the maintenance ordered by the Magistrate, or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the provision to sub-Section (1), the Magistrate may, by order direct the State Waqf Board functioning in an area where the woman resides, to pay such maintenance as determined under sub-Section (1) or to pay the shares of such of the relatives who are unable to pay.

Under Section 5, if on the date of the first hearing of the application under sub-Section (2) of Section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing either jointly or separately that they would prefer to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973 and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly. Section 6(1) provides for power to the Central Government to make rules for carrying out the purpose of this Act. Under Section 6 (2) the rules may provide for the form of affidavit and deceleration to be filled under Section 5 and the procedure to be followed by the Magistrate while disposing of the application under the Act. Section 7 is a transitional provision. It provides that where an application by a divorced woman under Section 125-127, Code of Criminal Procedure, 1973 is pending before a Magistrate on the commencement of this Act, shall, notwithstanding anything contained in that Code and subject to the provisions of Section 5 of the Act, be disposed of by such Magistrate in accordance with the provisions of this Act.

It was held in Aga Mohamed Jaffar Bindaneen V. Koolsum Beebee[36] that a Muslim widow had no right of maintenance out of her deceased husband’s estate in addition to what she takes by inheritance or by will.

In Danial Latifi V.UOI[37], the Supreme Court held that reasonable and fair provision and maintenance under Section 3(i)(a) is not limited for the iddat period, it extends for the entire life of the divorced wife, until she marries. The Court further held that right to a reasonable and fair provision referred to in Section 3 is a right enforceable only against the divorced women’s former husband and is in addition to what he is obliged to pay as maintenance. Reasonable and fair provision would be worked out with reference to the needs of the divorced woman, the means of the husband and the standard of life enjoyed during subsistence of marriage.

Again in Sabra Shamim V. Maqsood Ansari[38] it was held by the Supreme Court held that under Section 3(I)(a) and Section 4 of the Muslim Women (Protection of Rights on Divorce) Act 1986,a divorced wife is entitled to maintenance not merely till iddat period but for her entire life until she remarries.




Maintenance under Section 4 of the Act

In Tamil Nadu Waqf Board V. Syed Fatima Nochi[39] the Court held that it is futile for a divorced woman seeking maintenance to run after relatives who are not possessed of means to offer her maintenance and fighting litigation in succession against them in order to get negative orders justifying her last resort of moving against the state Waqf Board. She can plead and prove such relevant facts regarding the inability of her relatives to maintain her in one proceeding and direct her claim against the State Waqf Board in the first instance.


Anti Nuptial Agreement for Grant of Maintenance

In Muhammad Moinuddin V. Jamal Fatima [40] a case the parties had entered into a pre-nuptial agreement for grant of an allowance in case of disunion or dissension between the couple. On dissension the husband divorced her and the wife claimed the allowance. The Court held that contract valid and held the divorced wife to be entitled to receive the allowance as per the contract.

In Mydeen Beevi Ammal V. T.N. Mydeen Rowthe[41], the husband settled certain properties on his first wife for maintenance for her life (after he married for the second time without her consent). Subsequently, he divorced the first wife and filed a suit for the possession of the properties settled on her. The Court held the wife entitled to the income of the properties for her lifetime whether she was divorced or not.

In Nawab Khwaja Muhammad Khan V. Nawab Hussaini Begum[42] the father of the minor bridegroom had agreed to pay to his son’s wife Rs. 50/-PM in perpetuity for her ‘kharchi pandan’ or pocket money. Later, on account of disagreement between the spouses, the wife left the matrimonial home and filed a suit to recover the amount due to her. The father-in-law contended that the agreement was without consideration, against pubic policy and by ceasing to live with her husband, she had forfeited her rights under the agreement. The Court held that there is no condition in the agreement that it should be paid only when the wife is living in the husband’s house. Moreover, the Court held the wife to be entitled to recover the whole amount, notwithstanding the Act that she was not a party to the agreement.







Impotency of Husband

In Siraj Mohd. Khan Jan Mohd. Khan V. Hafizunnissa Yasin Khan[43] the Court held that impotency of husband amounts to both mental and legal cruelty, hence is a just ground for wife’s refusal to live with the husband and claim maintenance from him.

Cruelty
A wife can refuse to live with the husband on the ground of his cruelty and still claim maintenance from him. Attribution of un-chastity to a wife without justification or proof amounts to mental cruelty thereby amounting to legal cruelty for the purpose of deciding the claim of maintenance. In a case the husband leveled false and baseless allegations of un-chastity on the wife, disowned the paternity of his two children and in another case, the husband made allegations of adultery against the wife. In both the cases, the Court held that the behavior of the husband amounts to cruelty, and the wife is entitled to live separately and claim maintenance.






Inheritance Law and Right to Property

Introduction
In pre- Islamic Arab counties, women were totally excluded from inheritance. Prophet Muhammad emancipated the status of women and restored them their rightful position in the society.
"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."[44]
"Allah (thus) directs you as regards your children's (Inheritance): to the male, a portion equal to that of two females: if only daughters, two or more, their share is two-thirds of the inheritance; if only one, her share is a half. For parents, a sixth share of the inheritance to each, if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased left brothers (or sisters) the mother has a sixth. (The distribution in all cases ('s) after the payment of legacies and debts. Ye know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah; and Allah is all-knowing, al-wise.[45] "Sura 4: 11
Proponents of Shari’a argue that this is fair, given that a Muslim male is obligated to spend part of his inheritance on his wife, children and house, while the female may keep all of it for herself. Financial support for home and family is said to be solely the responsibility of the husband. In most Muslim nations, the law of the state concerning inheritance is in accordance with this law. In the Muslim law the principle, which has been zealously guarded and enforced by courts, is that a woman's property belongs only to her. Consequently, any property which a Muslim wife contributes towards the 'family's assets' (i.e. all the property accumulated during the marriage) remains heir’s alone and is not subject to division or sharing by the husband in the event of a marriage breakdown (unless otherwise agreed upon between the husband and wife). In other words, under the Muslim Law, her 'Net Family Property,' remains hers alone and with no corresponding obligation to share with her husband (unless both husband and wife have agreed to share the same). Muslim law fully recognizes the two facets of property known to the modern law –corpus and usufruct –which it calls ain and manafe respectively. While ain refers to the body or substance of a particular thing itself, and manafe signifies the benefits that may be derived from it.
Ain may comprise aqar (landed property) or other movables and immovable, manafe may include samarat (fruit), basit (produce), ghalla (proceeds), sakna(dwelling rights)etc. All these are forms of property in Muslim law.

Transfer of Property
The transfer of property Act 1882 contains the law relating to transfer of property – to sale, mortgage, and charge lease, exchange transfer of actionable claims and gifts of property. It, however, does not affect the Muslim law of Hiba (gifts).
Hiba
According the Muslim law the terms "hiba" and "gift" are often indiscriminately used but the terms "hiba" is only one of the kinds of transactions, which are covered by the general term "gift". A hiba is a transfer without consideration.
Section 122 of the Act, the Transfer of Property, 1882, states that a gift is a transfer of certain existing movable or immovable property made voluntarily and without consideration by one person called the donor, to another, called a donee and accepted by or on behalf of the donee. The essential elements of a gift are:
1.) The donor (ijab).
2.) The donee (qabul).
3.) The subject-matter
4.) The transfer, and the acceptance
The Allahabad High Court in the case of Mohd. Aslam v. Khalilur Rahman[46] held that a gift with a reservation of possession of property by the donor during his life is void. Islamic law on hiba requires, subject to certain exceptions, delivery of possession of the gifted by the donor to the donee for completion of the gift. The courts in India will recognize this general rule as also its exceptions. The said general rule was affirmed by the Privy Council; and one of the exceptions- the case of a gift by one of the co residents of the gifted property to the other co-resident by the Allahabad High Court.

Essentials Of Gift Under Mohammedan Law
Under Mohammedan law, to be a valid gift, three essentials are required to exist: (a) declaration of gift by the donor (b) an acceptance of the gift, express or implied, by or on behalf of the donee, and (c) delivery of possession of the subject of gift.
Courts have consistently held that when there is no compliance of any of the above three essential conditions, the gift renders itself as invalid. Another characteristic of Mohammedan law is that writing is not essential to the validity of a gift either of movable or immovable property.[47]

Capacity to make Hiba

The donor must be the owner of the property, which is the subject matter of the hiba. There must be a clear intention to transfer property with free consent. Soundness of mind, attainment of the age of puberty and free consent are basic requirements for making a hiba. A hiba, to be valid must ‘therefore’ be made by a person with his free consent and not under compulsion. The donor must not be insane but a mere weakness of the intellect would not be sufficient to invalidate the gift if the donor was able to apprehend the transaction. If a Muslim makes a hiba with a clear intention to defraud his or her creditors, the latter can seek its cancellation. However, the mere fact that the maker of the hiba owed some debt does not raise a presumption that the hiba was made with such an intention.

Capacity to receive Hiba
The donee is the person who accepts the hiba. A minor therefore may be a donee; but if the hiba is onerous, the obligation cannot be enforced against him while he is a minor. But when he attains the age of puberty he must either accept the burden or return the hiba. A hiba, being the absolute transfer of all rights in property, cannot be made to an unborn person, as there is no one to take possession of his interest. But limited interests and usufructs stand on a different footing; they can be created in favour of a person not in being at the time of the grant, provided he is in being when his interest opens out. Thus, if a life interest is granted to X, and thereafter to Y, it is sufficient if Y is in being at the death of X.[48]
Gifts may be made validly to mosques and charitable institutions like schools. Such gifts are treated as sadaqa. A hiba cannot be made in favour of a dead person. If a widow makes a hiba of her mahr to her deceased husband, it is in fact a unilateral foregoing of the right to mahr by the widow to which the principles of hiba do not apply.
Subject of Hiba
The subject matter of the hiba must be certain, existing movable or immovable property. Any property or right, which has some legal value, may be the subject of a hiba. It may be land, goods, or actionable claims. It must be transferable under Section 6 but it cannot be future property. A hiba of a right of management is valid. It is submitted that the release of a debt is not a hiba as it does not involve a transfer of property but is merely a renunciation of a right of action. In a deed of hiba the meaning of the word 'money' should not be restricted by any hard and fast rule but should be interpreted having regard to the context, properly construed in the light of all the relevant facts. Therefore, in order to constitute a valid hiba, there must be an existing property.
Possession of Hiba
The delivery of possession is an essential condition for the validity of the hiba. It is however not necessary that in every case there should be a physical delivery of possession. The delivery of which would complete a hiba, may be either actual or constructive. All that is necessary is that the donor should divest himself completely of all ownership and dominion over the subject of the hiba. The relinquishment of control is thus necessary to complete the action. Constructive possession of the subject of the hiba is therefore sufficient for the purpose of validity. The donor must divest himself of the ownership and dominion over the gifted property by doing all that he can do in order to complete the gift and to make the donee the owner of the gifted property.
Revocation of Gifts
According to Muslim law relating to revocability of gift is not uniform. As the donor and the donee in a particular case of gift may belong to different schools of law, the question of its revocability will be governed by that school of law to which the donor belong to.

Hanafi Law

Two of the close legal heirs of every dead person are invariably regarded as his or her Quranic heirs – the mother and the surviving spouse.
Seven other female relatives of the deceased may be regarded as Quranic heirs in some prescribed circumstances. These are the mother’s mother, the father’s mother, daughter, son’s daughter, and sister-full, half and uterine.
Three male relatives of the deceased may be regarded as Quranic heirs in some prescribed circumstances. These are the father, father’s father and uterine brother. Among the twelve Quranic heirs, notably, as many as nine are women.

Surviving spouse
Share of the husband

if no entitled descendants exist (ie; children/grandchildren)
then
husband = 1/2

if entitled descendants exist (i.e.; children/grandchildren)
then
husband = 1/4

*Note: entitled descendants = sons, daughters, son’s son, son’s daughter. Daughter’s children are not entitled.

Share of the wife

if no entitled descendants exist (i. e; children/grandchildren)
then
wife = 1/4
if entitled descendants exist (ie; children/grandchildren)
then
wife = 1/8


Parents

Share of the father

if entitled descendants exist
(sons, daughters, son’s sons, son’s daughters)
then
father = 1/6

if no male descendants exist (sons, son’s sons)
then
father = 1/6 plus residue
(residue = remainder after all legal shares are distributed)

if no entitled descendants exist
then
father =2/3 residue

Share of the mother

if entitled descendants or brothers/sisters exist
then
mother = 1/6

if no entitled descendants exist
then
if no brothers/sisters, no father, no spouse exist
then
mother = 1/3

if brothers/sisters, father, or spouse exist
then


mother= 1/3 of residue

Share of the daughter’s

if only one daughter (and no sons)
then
daughter = 1/2
if two or more daughters only (and no sons)
then
daughters = 2/3
(to be shared equally between all of them)
if both son’s & daughters exist,
then
son’s daughter = 1/2
=2/3(2or more daughter)
son’s son’s daughter =1/6


Uterine brother/sister
Uterine brother/sister (from same mother, different father)

if one uterine brother/sister exist
then
if no entitled descendants and no male ascendants
(father /father’s father etc)
then
uterine brother = 1/6 or uterine sister = 1/6

if two or more uterine brothers/sisters exist
then
if no entitled descendants .and. no male ascendants
(father /father’s father etc.)
then
all uterine brothers & sisters = 1/3 (each taking 1/6)

*Note: if there are uterine brothers/sisters in addition to full brothers/sisters (same father/mother), then they share in the residue.





Share of the son’s daughter

if one son’s daughter exist
then
if no daughters exist
then
if no son’s son exist
then
son’s daughter = 1/2
if son’s son exist
then
son’s daughter = half share of son’s son
( i.e. son’s son share: son’s daughter share = 2:1)

if two or more son’s daughters exist
then
if no daughters exist
then
if no son’s sons exist
then
2son’s daughters = 2/3 (equally between them)

if son’s son exists
then
son’s daughter = half share of son’s son
( i. e. son’s son share: son’s daughter share = 2:1)


Share of the full brother/sister
(full brother/sisters are brothers/sisters from the same father & mother)

brothers & sisters inherit only when there are no descendants (son/sons, son’s son
etc.) And no ascendants (father/grandfather etc.)

The Arabic word “al-khalala” is used in the Quran, chapter 4 - al-nisa, verses 12 & 176, which is translated by almost all the translators of the Quran to mean “ascendants & descendants” thus giving rise to the interpretation that they include “parents and children” However, many scholars have preferred to classify the word as meaning “father or son” thus excluding the female components of both ascendants and descendants (mother & daughters).

if no full brother and no female entitled descendant exist
(daughter, son’s daughter etc.)
then
if deceased was male,
then full sister = 1/2 (if only one)

if no full sister and no female entitled descendant exist
then
if deceased was female,
then
full brother = 1 (if only one)

if two or more brothers & sisters
then
full sisters = 2/3 (shared equally between them)
full brother’s & sister’s (combination) = 2:1

if no full brother exist but female entitled descendant exist (daughter, son’s daughter etc.)




then
full sister = 1/6 (if only one)

if no full sister exist but female entitled descendant exist
then
full brother = 1/6 (if only one)

if female entitled descendant exist
then
Full sisters & brothers = 1/3 (share equally)



Consanguine sister (sister from same father but different mother)

Consanguine sisters inherit only when there are no son’s or son’s son(s) and no father and no full brother.

if only one full sister and no consanguine brother
then
Consanguine sister (if only one) = 1/2
Consanguine sister(s) (if two or more) = 2/3


if one full sister and consanguine brother(s)
then
(Consanguine) brother: sister = 2:1

True grandmother

True grandmother is defined as the one whose line of connection with the deceased is not interrupted by a male between two females. They are entitled only if the father or mother do not exist.

e.g.; Mother’s mother, father’s mother
Father’s father’s mother, mother’s mother’s mother

True grandmother = 1/6


True grandfather

True grandfather is the one whose line of connection with the deceased is not interrupted by a female between two males. They are entitled only if the father or mother do not exist.

e.g.; father’s father
father’s father’s father
mother’s father
mother’s father’s father

True grandfather = 1/6 if male descendants exist (son, etc)
True grandfather = 1/6 + residue if female descendants exist
True grandfather = residue if no male/female descendants exist


Uncles & aunts (father’s/mother’s brothers & sisters)

Uncles and aunts are only entitled in the absence of grandparents. This means that they will receive shares only if there are no parents and grandparents because grandparents do not inherit when the parents are living. They will also not inherit if the children (or children’s children) of the deceased are living. Proportions here are also in the ratio of 2:1 for male: female.


Nephews & nieces (children of brothers/sisters)

Nephews and nieces are only entitled in the absence of brothers and sisters. This means that they take the shares of the brothers/sisters of the deceased in their absence. Hence a nephew/niece will receive what his/her parent (brother/sister of the deceased) would have received if he/she were alive. They will also not inherit if the children (or children’s children) of the deceased are living. Proportions here are also 2:1 for male: female.

Stepchildren

Step –children do not inherit from step- parents, nor do step- parents inherit from step- children. In the case of Allah Baksh v.Mohd Umar,[49]. Begum v. Jalal Din, [50]. A step-son or a step- mother is not heirs.

Bastard

An illegitimate child is considered to be the child of its mother only, and as such it inherits from its mother and its relations, and they inherit from such child. But it has been held that an illegitimate son cannot inherit from the legitimate son of the same mother. In the case Rehmat Ullah v. Budh Singh (1884) 7 all. 297: Mairaj v Abdul Wahid (1921)
43 [51].

Missing heir

According to the Sec.126 if a hair is missing, his share will be reserved and he is until for reappears and claims it or he is proved to be dead.


Children of women divorced by lian

Under the Sec, 68 a child whose mother has been divorced by lian he shall have mutual rights of inheritance with the same relations as an illegitimate person but not with the imprecator.


Quranic Heir, Sunnite (Hanafi) Law


Table of Quranic Heir, Sunnite (Hanafi) Law
Sharers
Share of

Entirely excluded by
Affected by
How affected
One
Two or more collectively
Husband
1/4

None
Where on child or child of son h.l.s.
Share increased to 1/2
Wife
1/8
1/8
None
Where no child or child of son h.l.s.
Share increased to 1/4
Father
1/6

None
Where no child or child of son h.l.s.
Made agnatic heir
True Grandfather
1/6

Father, nearer true grand father
Where no child or child of son h.l.s
Made agnatic heir
Mother
1/6

None
Where (1) no child (2) no child of son h.l.s (3) one brother or sister (4) husband or wife co-exist with father
Share increased to 1/3 of whole estate in case (1) to (3) and 1/3 of the residue after deducting husband or wife’s share in case (4)
Grandmother h.h.s.(maternal)
1/6
1/6
Mother, nearer maternal or paternal grandmother
None


(Paternal)


Mother, nearer maternal or paternal grandmother, father. Nearer true grandfather
None

Daughter
1/2
2/3
None…
Existence of son…
Made agnatic heir
Son’s Daughter
1/2
2/3
Son, more than one daughter, higher son’s son, more than one higher son’s daughter.
Existence of (1) only one daughter (2) only one higher son’s daughter,(3) equal son’s daughter (3) equal son’s son.
Share reduced to 1/6 in cases (1)and (2)made: residuary in case(3)
Full sister…
1/2
2/3
Son, son h.l.s. `Father, true grandfather.
Existence of full brother …
Made Agnatic heir.
Consanguine sister.
1/2
2/3
Son. Son h.l.s. Father, true grandfather, full brother more than one full sister.
(1) Existence of only one full sister.
(2) Existence of consanguine brother.
(1) Share reduce4to 1/6
(2) Made Agnatic Heir.
Uterine Brother & Sister
1/6
1/3
Child, child of a son h.l.s. Father, true grandfather
None.

(The table is not a complete statement of the law)[52]


Shia law

‘Shia law’ in India is very different form the doctrine of Hanafi law and requires separate consideration. The Shias divide heirs into two groups.
1. Blood relations (Nasab)
2. Heirs by marriage, that is husband and wife (Sabab )
1. Blood relations, fruther divided into two groups –
a. Quranic heir
b. blood relation agnate or cognate
2. Sabab is also subdivided into two groups
a. the status of a spouse
b. special legal relationship


Nasab

Heirs by consanguinity are divided into three classes and each class is divided into two groups.
i. Parents
ii Children and lineal descendants
i. Grandparents h.h.s.
ii. Brothers and sisters and their descendants
i. Paternal and
ii. Maternal uncles and aunts of the deceased and of his parents and grandparents h.h.s. and their descendants h.l. s.

Of these three classes of heirs the first excludes the second from inheritance and the second excludes the third. But the second group of each class succeeds together, the degree in each group excluding the more remote in the group.


Husband and Wife

The husband or wife is never disqualified from sequence but inherits together with nearest heirs by consanguinity the husband taking 1/2 if there are no children and 1/4if there are, and wife taking 1/4 there are no children and 1/8 if there are.

Father and Mother

The deceased leaves any descendent the father and mother or both the parents are treated as belonging to the class dhu fard, and each of them take 1/6.
The mother takes 1/3 where there are no descendants and 1/6
a. If there are descendants
b. If there are the father and two or more brothers, full or consanguine and in certain other case.
Share of husband, mother, and father
Husband =1/2
Mother = 1/3 as Quranic heirs
Father = 1/6 as blood relation
Share of wife, mother, and father.

Wife =1/4
Mother =1/3 as Quranic heir
Father =5/12 as blood relation

Share of father, mother, and son

Father =1/6
Mother =1/6
Son = 2/3 as Quranic heir

Share of father mother and two daughters

Father =1/6
Mother =1/6 as Quranic heir
Two daughter = 2/3 as Quranic heir



Eldest Son

The deceased being a male, on leaving more sons than one, the eldest son is entitled to take as his special perquisite the garments of the deceased, his signet ring, sword and Quran .

Daughter

If there is a son, he takes the residue after allotting portions to the Quranic heirs. If the daughter survives with him, she shares the residue with him in the proportion of one and two. When the daughter survives and there is no son, she take 1/2 alone, and 2/3 jointly with other daughters.

Grandparents without Brother and Sister or their Descendants

If there are no brothers or sister or descendants of brother and sister the estate and is to be divided it among grandparents according to the rules. If there are applicants only on the parental side they make it to the whole estate and divide it among themselves according to the rule of a double share to the male. If there are applicants only on the maternal side they make it to the whole estate and divide it among themselves equally. If there are applicants on both the sides, than assign a 2/3 share to the paternal side to be divided according to rule of a double share to the male and 1/3 to the maternal side to be divided equally.

a. Mother’s mother 1/2
Mother’s father 1/2

b. Father’s father 2/3
Father’s mother 1/3

c. Father’s father 2/3X23=4/9=8/18
2/3
Father’s mother 1/3X2/3=2/9=4/18
Mother’s father 1/2X1/3=1/6=3/1
1/3
Mother’s father 1/2X1/3=1/6=3/11
1
d. Father’s mother 2/3
Mother’s father 1/3


Grandparents with Brothers and Sisters

If grandparents exist together with brother and sister continue according to the rules-
A paternal grandfather counts as a full or consanguine brother, and a paternal grandmother counts as a full or consanguine sister.
A maternal grandfather counts as a uterine brother, and a maternal grandmother counts as a uterine sister.
Divide as a brother and sister.
a.
Mother’s father (uterine brother) 3/18 1/3 as
Mother’s mother (=uterine sister) 3/18 shares.

Con. Brother 4/18 2/3 as
2/18 reliquaries}
Father’s father (= con. Brother) 4/18

Father’s mother (= con. Sister) 2/18


b.
Wife (uterine sister) 1/4 = 3/12(Sh.)
(Uterine brother) 1/3 = 4/12 (Sh. Equally).


Mat. Grand fathers (= uterine brother)
5/12
Pat. Grant father (= full brother)


Distribution among Uncles and Aunts

In rule to distribute the property among the uncles and aunts of the deceased or of his ancestors continue.
1. A 2/3 share to the paternal side and 1/3 share to the maternal side, if both sides are represented, but if there are claimants only on one side, divide the whole among the claimants on the side.
2. Divide the portion assigned to the paternal side exactly as if the claimants were brothers and sisters of the deceased, that is to say ---
a. Assign their share to the uterine uncles and aunts and divide equally.
b. Divide the remainder among the other claimants according to the rule of a double share to the male.
3. Divide the portion assigned to the maternal side.
a. Assign their share to the uterine uncles and aunts and divide equally.
b. Divide the remainder among other claimants equally.


U=uncle, A= aunt, P=paternal, M= maternal, F= full, C=consanguine, Ut = uterine
Ut. P. U. 1/3 of 2/3=2/9 (Sh.) 1/2 of 2/9=2/18=6/54
Ut.P.A. 1/2of 2/9=2/18= 6/54
F. P.U. 2/3 of 2/3 =4/9 (R.) 2/3 2/3of 4/9= 8/27=16/54
F. P. A. 1/3of 4/9=4/27=8/54
Ut.M.U. 1/2 of 1/3 1/6=9/54
Tt.M.A. 1/2of1/8 1/3 1/6=9/54
1


Share in the Shia Law


Table of Share in the Shia Law
The possible sharers
Shares
Circumstance in which a share would succeed as a share to the shares specified in col. B
When a share is converted into a residuary
Of one
Collectively of tow or more
1
2
3
4
5
1. Father
1/6

When there is a lineal
When there is no lineal descendent
2. Mother
1/6

a) When there is a lineal descendant;
b) When there is father and also two or more brother (full or consanguine) or one such brother and two such sister or four such sisters.

3.Daughter
1/2
2/3
When there is no son
When there is a son
4.Full sister
1/2
2/3
When there is no parent, b) lineal descendant, c) full brother d) paternal grandfather
If there is no parent or lineal descendant, becomes a residuary in two cases
a) With a full brother,
With a paternal grandfather (h.h.s.)

5.Consanguine sister
1/2
2/3
When there is no parent b) lineal descendant, c) full brother d) full sister. e) Consanguine brother f) paternal grandfather (h.h.s.)
If there is no parent or lineal descendant, becomes residuary in two cases a) With a consanguine brother b)with a paternal grandfather (h.h.s.)
6. Uterine brother and uterine sister
1/6
1/3
When there is no parent or lineal descendant.

7. Husband
1/2


1/4

When there is a no lineal descendant
When there is a lineal descendant


8.Wife
1/4


1/8
1/4


1/8
When there is a no lineal descendant
When there is a lineal descendant

Note- the descendant’s h.l.s. of sharers are also sharers.(Sec. 164)[53]





Right to Inheritance
A pre-Islamic Arab woman did not have the right to inherit from anybody, neither her father nor even her husband. According to the Medinan customs, only male adults, capable of taking up arms in a war, had the right to inheritance. So even a minor son had no right to the property of his deceased father. Arabian society and privileges were denied to women, being exclusively a man’s domain. The Arabian society was not alone in keeping women deprived of share in inheritance. The social order of the world on the basis of these and other pretexts their kept her out of it, only the male offspring and the first born getting away with it in its entirety.
Islam raised its voice against this gross injustice to the weaker sex, proclaiming aloud that women had as much right to their share in the inheritance. The Quran declared: “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”. [54]
The social and legal reform introduced by Islam emphasized the extended family in contradistinction to the tribe and tribal loyalties. It abolished many unjust customs and usages and gave inheritance rights to the disadvantaged members of the family. According to Sunni law of inheritance, if both son and daughters survive the propositions each son will get double the share of the daughter. If there are only one daughter and no son, she will take half the property and two or more daughter and no son, she will take half the property and two or more daughters will take two –thirds of the property.


Inherited Property
There is no distinction in the Muslim law of inheritance between moveable and immoveable property, or between ancestral and self-acquired property. The Quranic directives legislation concerning the distribution of a deceased person’s estate is just equitable and a great advance upon the unjust customs of the pre-Islamic time.
Before the period of the Prophet women were substances of inheritance and they were considered part of the possession of a man. At such a critical juncture of history, Islam brought about a revolution in the domain of human thought and outlook towards women and established the right of women to inherit and own property that they have a determined share specified by the Quranic word cannot be denied by anyone. "To everyone, we have appointed shares and heirs to property left by parents and relatives…." [55] The amount of the share of inheritance is dependent on the closeness of the heirs' relationship to the deceased. "Blood-relations among each other have closer ties, in the Book of Allah than (the brotherhood of) believers and Muhajirs" [56]
In another verse-"From that is left by parents and those nearest related there is a share for men and a share of women, whether the property be small or large-a determined share.' [57]
Difference in Inheritance between Men and Women

The law of inheritance in Islam makes known the variation in the shares of inheritance for men and those for women. However, this variation is not due to gender difference, but rather due to divine wisdom and objectives that many fail to see. They even regard this difference between the shares of men and women in some cases of inheritance as something to prove the position of women in Islam. However, the Islamic law of inheritance is controlled by the following three criteria:
1. The degree of kinship between the receiver (man or woman) and the deceased. The closer the relation, the greater the share given, regardless of the heir’s gender. 2. The position of the inheriting generation in the chronological sequence of generations. The younger generations usually receive larger share than the older ones regardless of gender. For instance, the daughter of a deceased man receives a bigger share than his mother does, and the daughter of a deceased woman receives a bigger share than her father does even if the daughter is an infant.
3. The financial responsibility imposed by law upon the heir. This criterion is the one from which difference results between males and females. However, such difference does not lead to any injustice done to women; it could even prove to be quite the other way. Furthermore, the following four points should be known:
1. Women receive half of men’s share in four cases only.
2. In many cases, women receive the same share of inheritance as men. 3. In ten cases or more, women’s share is bigger than men’s.
4. In some cases, women receive shares of inheritance while corresponding men do not.

In other words, in more than thirty cases, women take the same or more than men take, or women take a share while men do not, while there are only four definite cases in which women receive half of men’s share.




Is Men’s Share of Inheritance Double than Women's?

In Islamic law, a son receives double as much as a daughter, a brother double as much as a sister and a husband double as much as a wife. The case of father and mother is the only exemption. If a deceased has children and his parents are also alive, each of his parents will get one-sixth of the property left by him. It is because of women's special position with regard to dower, maintenance, military service and some of the criminal laws, that their share has been fixed at half that of men.
Allah says in the Qur'an, “Allah charged you concerning (the provision for) your children: to the male the equivalent of the portion of two females.” [58](An-Nisa' 4: 11)
Men undoubtedly, have been given more responsibilities than women. As a father, husband, son, or brother, a man should provide for his children, wife, mother, sister; he should strive hard to make both ends meet. Islam, as a divine religion, does not ignore the above fact and sets down rules that strike a balance between men's responsibilities and women's rights.
Islam gives the girl half of her brother's share in inheritance because Islamic Law doesn't force her to spend any money on anybody other than herself. On the other hand, a Muslim male, who is usually the breadwinner of the family, is obliged to spend on his wife, his children, his brothers, his sisters, and his mother and father.

Women’s Inheritance Rights
According to Muslim law, female sex is no bar to inheriting property is to be excluded from inheritance in Muslim law only on the basis of sex. Women have, like men, an unconditional right to inherit property – not merely to receive maintenance or hold property in lieu of maintenance.
Hussain v. Rahim,[59] Mohitan v. Zubeda [60]. In these cases, the courts allowed transfer of the right to the lieu –one for the widow’s lifetime, and the other perpetually, along with transfer of the property itself.
The Muslim Personal Law (Shariat) Application Act 1937 specifically refers to “special property to females” including personal property inherited or obtained under contract or gift or any other provision of Personal law.
The law of inheritance is quite complicated, for the shares of different heirs vary according to individual circumstances: the daughter alone or in the presence of a son, the mother alone or in the presence of the father, with children or without them, the sister alone or in the presence of the brother, father or children of the deceased, inherit in different proportions according to individual cases. It is not our intention to describe it here in full detail. The shares of female heirs, may however, be mentioned briefly. The wife gets one-eighth if the deceased also leaves a child otherwise she gets a quarter. The daughter when alone gets a half, whereas several daughters get two-thirds which they divide between themselves in equal proportions; all this where there is no son. In the presence of a son, the daughter gets half of her brother. The mother, when alone, gets one-third; in the presence a father, child or brothers and sisters of the deceased, she gets one-sixth. The sister does not inherit if the deceased leaves a son; but when alone, she gets a half; two or more sisters get two-third, which they divide between themselves equally. In the presence of a daughter, the sister gets one-sixth; in the presence of a brother, she gets the half of what he gets. There are also differences between the shares of full sisters, consanguine and uterine sisters.


[1] Ameer Ali, Mohammedan law, 7th edn; p. 97.
[2] Abdur Rahim, The Principles of Mohammadan Jurisprudence, 1958, p. 327.
[3]Al-Bayhaqi:Kitab al- Sunan al Kubra, Vol VIII, p,78.
[4] Ibn Majah, Kitab-al-Nikah, 1/593.
[5] .Fyzee, AAA, Outlines of Mohammadan law ,1974, 4th edn; p.p 88-89.
[6] Supra note, p.279.
[7] HidayatullahM.,,& Hidayatullah Arshad, Mulla’s, Principals of Mohammadan Law, p.233.
[8] Al-Quran, Surah- An-Nisa IV:4.
[9] Charles Hamilton, The Hedaya or Guide, A Commentary on the Musalman Laws, 1979, p.44.
[10] Kapore Chand vs Kaderunnissa Begum, 1950, SCR, 747.
[11] Ameer, Ali, Mohammedan law, 1929, 5th edn. p.434.


[12] Holy Quran (11:233).
[13] Holy Qur'an (65:6-7).

[14] Abu Daud, Sunnan, Kitab al- Falaq, 2/255.
[15] Al Quran, Surah Nisa, IV: 35.
[16] Furzund Hussein v. Jami Bibee (1878) 4 Cal.588.
[17] Hidayatullah M., Hidayatullah Arshad , Mulla’s Principle of Mohammadan Law p.260.
[18] Al-Quran Surah Al-Baqara, 11:229.
[19] Mahmood, Tahir, The Muslim Law of India, pp.99-100.
[20] Supra Note 6 p. 159.
[21] Al-Quran, Surah Al- Baqara.11: 229.
[22] Al-Bayhaqi ,Al Suna, Al-Kubra , Vol. VII, p. 314.
[23] Fyzee A. A.A., Outline of Mohammadan Law, 1974, p.154.
[24] Al Kasani, Imam Ala A-Din.
[25] Charles Hamilton, The Hedaya, A Commentary on the Musalman Laws, 1979. p.25.
[26] Supra Note 6.
[27] Supra Note 6 at p.162.
[28] Al-Quran Surah An -Noor XXIV:6-9.
[29] Al-Qur’an,Surah, Al-Talaq, LXV:7
2 Al-Qur’an,Surah, Al-Talaq, LXV:6
[31] Al-Quran,Surah, Al Baqara,11:233
[32] Al Quran, Surah Al-Baqara, 11:241.
[33] Al Quran, Surah Al-Baqara, 11: 242.
[34] Supra note 2.
[35] AIR 1985, SC, 945.
[36] (1897) 24 IA, 196.
[37] AIR 2001, SC, 3958.
[38](2004) 9, SCC, 616.
[39] AIR, 1995, Mad, 88.
[40](1921) ILR 43 AII 650.
[41] AIR, 1951 MAD 992.
[42] (1930) 37 IA 152.
[43] AIR 1981, SC, 1972.
[44] Al- Quran Sura 4:7
[45] Al-Quran Sura 4:11
[46] AIR1947 PC, p.98.
[47]Hidayatullah M & A. Hidayatullah, Mulla’s Principles of Muhammadan, 9th Edn, p. 118.

[48] Fyzee, A A.A.,Outlines of Muhammadan law, 1974, 4th edn. P. 226.
[49] A.I.R.1992 Lah, 444at p. 444;Mst.
[50]52 P.R 182, No. 50 :41 I.C.263.
[51] All.673, 631.C.286, 21, A.A.175.

[52] Fyzee, A A.A. Outlines of Mohammedan law, p.404

[53] Verma, B.R.Mohammedan Law 8th edn, p.p..548-549.
[54] Al Quran 4:7
[55] Al-Quran, Surah Nisa-33
[56] Al-Quran, Surah Ahjab-6
[57] Al-Quran Surah Nisa-7
[58] Al-Quran, An-Nisa' 4: 11.
[59] AIR, 1954, Mys 24.
[60] AIR, 1954, Pat 17.