Some of the important sources of
Islamic law are as follows-
Quran, Ijma (consensus), Qiyas
(Analogy), Urf (Custom), Precedent, Equity, and Legislations etc
Hanafi
Hanbali
Maliki
And Shafai
The four schools have interacted
and debated with each other for centuries and recognize each other’s validity.
The Hanafi school is dominant in India.
Essentials of a Nikah
Parties must have the capacity to
contract
There should be a proposal (Ijab)
and its acceptance (Qubool)
Both parties must consent freely
There must be a consideration
(‘Mahr’) offered by the groom to the bride
There should not be any legal
impediment to the proposed marriage
The required number of witnesses
must be present at the time of marriage (Shia and Sunni laws have different
requirements)
A Muslim marriage is said to be Sahih (valid) if all legal conditions to render it valid are met.
Sometimes, if some legal pre-conditions remain unfulfilled, a marriage is burdened with certain prohibitions.
If the prohibitions are of a
permanent nature, then the marriage is considered to be void. However, if the
prohibitions are temporary then the marriage is deemed to be ‘irregular’.
Legal Effects of a Valid
Marriage
Following a legally valid
marriage, the husband and wife may cohabit.
All children born out of a valid
marriage are considered legitimate and get the right to inherit their parents’
property.
The husband and wife acquire the
mutual right to inherit each other’s property, i.e. if the husband dies, his
wife may inherit his property, and if she dies, he may inherit her property.
A Muslim marriage imposes certain
prohibitions on both the husband and wife. Both are prohibited from marrying certain
prohibited relations from each other’s families.
The wife’s right to claim a dower
is fully established following the completion of her marriage.
The marriage establishes the wife’s
right to claim maintenance from her husband with immediate effect.
In case of the dissolution of the
marriage, the widow or the divorced wife is obligated to observe Iddat- a stipulated
time frame for the duration of which she may not remarry.
Batil (Void) Marriages
Marriages that are void ab initio
are referred to as Batil. Such marriages create no rights or obligations for either
party and any children born out of such wedlock are deemed to be illegitimate.
Marriages forbidden by the rules
of affinity or fosterage are considered to be void.
A marriage with a woman who is
already married is void.
Marriage with a divorced or
widowed woman during the period of Iddat is void.
Fasid (Irregular) marriages
Sometimes due to the
nonfulfillment of formalities or due to legal impediments, a marriage acquires
the status of being irregular. However, if such irregularities are removed the
marriage becomes valid again. Such ‘irregular' marriages are referred to as
Fasid.
The following kinds of irregularities
render a marriage Fasid-
1. If
the marriage ceremony is completed without the required number of witnesses.
2. If
a woman marries during the period of Iddat.
3. When
a woman marries without the consent of her guardian in cases wherein such consent has been considered mandatory.
4. A
marriage that is prohibited on account of the difference in religion.
5. A
marriage with a pregnant woman, provided that the pregnancy was not a result of adultery or fornication.
6. If
the man already has four wives, and the wife-to-be is to be his fifth wife.
Muta or Nikah mut'ah (literally
pleasure marriage)
This type of marriage is
considered legal only under Shia law, whereas Sunni law considers it
impermissible.
A Muta marriage subsists for a
limited period. There is no prescribed time limit for its duration. It could be
for a day, a month, or a few years. The marriage dissolves itself at the
expiration of the period specified in the marriage contract. However, if no
such time limit is mentioned in it, then the marriage is deemed to be
permanent.
No witnesses are required for
Muta marriage. Just like a usual marriage, Muta marriage allows a woman to lay
down her terms, including an agreement that she should be paid regular
maintenance, and the temporary husband is obligated to respect such terms.
Regardless of the duration of a Muta marriage, at its termination, a woman must
practice abstinence for the duration of two menstrual cycles. Such marriages
have been practised in India in the past and are still practised sometimes in
Iran. However, at present there is no legal sanction for them in India nor are they
are not enforceable in a court of law.
Registration of Marriage under
Muslim Law
The registration of a Muslim
marriage is compulsory as, legally speaking, it is a civil contract. As per
section 3 of the Muslim Marriages Registration Act, 1981, “Every marriage
contracted between Muslims after the commencement of this Act, shall be
registered as hereinafter provided, within thirty days from the conclusion of
the Nikah ceremony.”
A Nikahnama is a legal document
which contains the details of the marriage contract-
According to this act, a
Nikahnama shall contain the following details:
1. The
place of marriage
2. Full
name of the bridegroom
3. Age
4. Address
5. Full
name of the bridegroom’s father
6. Whether
the bridegroom’s father is alive or dead
7. Legal
marital status of the bridegroom at the time of the marriage- whether
unmarried, a widower, a divorcee, or married. And if he is married, the number
of his existing wives.
8. Signature
or thumb impression of the bridegroom/Vakil/Guardian depending on whether the
Nikah was performed in person by the bridegroom, or it was accomplished in his
absence through his Vakil/Guardian.
9. Full
name of the Nikah-Khan (the person officiating the Nikah ceremony)
10. Amount
of dower fixed
11. How
the dower would be paid
12. Name
of all witnesses present, along with their parentage, residence, and address
Dissolution of a Muslim
Marriage
Divorce by a husband-
There are four ways a husband can
divorce his wife
Talaq-ul-sunnat
This category of divorce is based
on Muslim Personal Law:
Ahsan
In this kind of divorce, a
husband must pronounce the act of divorce in a single sentence, and at a time
when the wife is not going through a menstrual cycle.
After the divorce, the wife must
observe a compulsory period of Iddat, during which she cannot remarry. The husband
too is forbidden from indulging in sexual intercourse during the period of
Iddat, and if he does indulge in it the divorce becomes revokable.
In case a marriage has not been
consummated, this type of divorce may be given by a husband even while the wife
is going through her menstrual cycle.
Once the period of Iddat is
complete the Talaq becomes irrevocable.
This is the most common and widely
approved form of Talaq in practice.
Hasan
Talaq-i-Hasan is an extra-judicial
form of divorce that only men are allowed to take recourse to.
According to Muslim personal law,
this form of Talaq is irrevocable.
In this form of divorce, ‘Talaq’
must be pronounced by a man three times in three months; each utterance
separated from the preceding one by a duration of one month.
It is an essential condition that
at the time of pronouncing Talaq the wife must not be menstruating.
The three months duration of the pronouncement
of Talaq is referred to as the period of Iddat.
During Iddat both the husband and
wife are obligated to observe sexual abstinence.
If the couple restarts cohabitation
or intimacy during the period of Iddat then the divorce is considered to have
been revoked.
The objective behind stretching
the duration of the three pronouncements of Talaq over three months is to give
the couple some time to reconsider their decision to part ways.
After the completion of the period
of Iddat, the divorce becomes irrevocable.
Talaq-i-Biddat
This form of Talaq was declared
unconstitutional following Shayara Bano v Union of India, 2017. It was a form
of divorce wherein a man pronounced divorce three times in one sitting and the
marriage was dissolved. This practice was declared unconstitutional by a five-judge
bench of the Supreme Court by a ratio of 3:2. It was deemed to be not just
arbitrary but also against the spirit of the Quran. The majority of the bench
held that since this practice had no explicit sanction of the Quran, it could
not claim protection under article 25 of the constitution.
Ila
In this form of divorce, the
husband pronounces his intention to stop indulging in sexual intercourse with
his wife.
Following such pronouncement, the
wife becomes obligated to observe Iddat.
If the husband cohabits with his
wife during the period of Iddat, Ila is revoked.
The divorce becomes irrevocable following
the completion of the period of Iddat.
This type of divorce is rarely
practiced in India.
Talaq-i-Tafweez
This is the only way in Muslim
personal law for a wife to divorce her husband. However, she cannot initiate it
of her own will. For this form of divorce to become operational, the husband
and wife must sign an agreement either before or after the marriage stating the
terms of the marriage. If the husband fails to fulfil any of the terms stated therein,
the wife is entitled to divorce him.
As per Muslim personal law, the
right to initiate a divorce rest with the husband. Talaq-i-Tafweez is the only
form that gives the wife the right to divorce on her own initiative. Therefore,
it is also referred to as a delegated divorce.
Khula
This is another way available for
a Muslim wife to initiate a divorce. It is done through a mutual agreement
between the husband and wife. Khula literally means ‘laying down’. Through
taking recourse to Khula, the husband hands over the authority to divorce to
his wife, in exchange for release from ‘Mehr’ and other rights to receive benefits
from him following the divorce. The husband must be over eighteen years of age
and of a sound state of mind for him to accept the offer of Khula. For want of
a better word, one could say that Khula is a way for a wife to purchase divorce
from her husband. Following the divorce, the wife is still obligated to observe
a compulsory period of Iddat.
Mubarat
Mubarat literally means ‘release’.
It entails a formal release/discharge of both parties from marital obligations.
Mubarat is a way for the two
parties to part ways through mutual consent.
The formalities of ‘Mubarat’ are
the same as Khula; it entails an offer from the wife, which must be accepted by
the husband for the divorce to gain legally recognized.
Following the divorce, the wife
is obligated to observe a compulsory period of Iddat.
Divorce by judicial decree
under the Dissolution of Muslim Marriages Act, 1939
Lian
If a wife is charged with a false
case of adultery, she is at liberty to move the court to file a regular suit
for the dissolution of marriage under the Dissolution of Muslim Marriages Act,
1939.
Lian becomes applicable only if a
husband makes a false accusation of adultery on his wife.
The husband who accuses his wife
of adultery must be of a sound mind and above eighteen years of age.
The marriage is dissolved once the
court passes a decree under the Dissolution of Muslim Marriages Act.
The husband may prevent the divorce
by withdrawing the accusation of adultery against his wife before the court
passes a decree of the dissolution of the marriage.
Faskh
When a suit for divorce is filed
as per the provisions of section 2 of the Dissolution of Marriage Act, 1939.
Section 2 of the Dissolution of
Muslim Marriages Act allows the following grounds on the basis of which a wife
may file a divorce suit:
When the whereabouts of the
husband have been unknown for at least four years preceding the filing of the
divorce suit.
If the husband fails to or
refuses to maintain his wife for two consecutive years
If the husband is sentenced to a
prison sentence for a period of seven years or more.
If the husband has refused to
fulfil his marital obligations for more than three years without reasonable cause.
If the husband is declared to be
impotent.
If the husband is suffering from
insanity (for at least two years) or has contracted leprosy or some other venereal
disease.
If the wife was married before
she attained the age of fifteen, and after reaching the age of eighteen refuses
to accept the validity of the marriage. However, this provision may be evoked
only if the marriage has not already been consummated.
If the husband treats her with cruelty
or acts in a manner damaging to her dignity and reputation.
Rights conferred by personal laws
are not absolute. If they are found to be in contravention of the fundamental
rights conferred by the Constitution, which is the supreme law of the land,
they are liable to be struck down as unconstitutional.
In Mohammand Ahmad Khan v Shah
Bano, plaintiff Shah Bano was divorced by her husband at the age of sixty-two
and cast aside from her marital home along with her five children. When she
approached the Madhya Pradesh High Court with a petition for the restoration of
her maintenance of two hundred rupees a month, halted by her husband, and to
secure its increase to five hundred rupees a month, he immediately divorced her
through the institution of Tripal Talaq, or Talaq-i-Biddat by pronouncing the
word ‘Talaq’ three times. Since Shah Bano was no longer his legally married
wife, she was deprived of the right to claim maintenance from Mohammad Ahmad Khan.
However, the court came to her rescue by granting her the right to claim
maintenance from her husband under section 125 of the CrPC. In doing so, the
court overrode the provisions of Muslim personal law, on the ground that personal
laws are superseded by article 14 of the Constitution of India which affords
equal protection of the law to all citizens.
In Shayara Bano v Union of India,
plaintiff Shayara Bano, who was a victim of domestic violence, was visiting her
parent’s house when she received a divorce from her husband Rizwan Ahmed. She
had been divorced through the institution of Talaq-i-Biddat (also referred to
as Instant Talaq) which allowed a husband to divorce his wife by simply pronouncing
the word ‘Talaq’ three times. In response to this, Shayara Bano filed a
petition before the Supreme Court demanding Triple Talaq be declared unconstitutional.
Following a hearing, the Supreme Court declared Talaq-i-Biddat unconstitutional
and placed an injunction on its practice until the government formulated a law
regarding it.
Triple Talaq was deemed to be unconstitutional
on two grounds. Firstly, the Supreme Court found it to be in violation of article
14 of the constitution which confers equal protection of the law on all
citizens. Talaq-i-Biddat was found to be discriminatory towards Muslim women on
two grounds- firstly, it is discriminatory on the ground of gender as only
Muslim men have the right to pronounce a Triple Talaq. Secondly, it was found
to be discriminatory on the ground of religion as only Muslim women were
subjected to its unjust and cruel terms.
Triple Talaq was also found to be
in violation of article 21 of the Constitution as it strips Muslim women of
their right to live with dignity by reducing them to the status of virtual
chattels who may be taken on or removed according to the whims and fancies of
her husband.
Talaq-i-Biddat failed to gain
protection from article 25 of the Constitution as it is not a mandatory provision
for a Muslim, nor is it sanctioned by the Quran.
Muslim Women (Protection of
Rights on Marriage) Act, 2019
Some of the important provisions
of this law are as follows:
Section 3- Divorcing a Muslim
wife through Talaq-i-Biddat is now both void and illegal.
Section 4- Any Muslim man who
pronounces a divorce on his wife in the manner referred to in section 3 shall
be punished with imprisonment for a term which may extend to three years and shall
also be liable to a fine.
Section 5- A divorced Muslim
woman shall be entitled to receive from her husband such amount of subsistence
allowance, for her and her dependent children, as may be determined by the
Magistrate.
Section 6- A Muslim woman divorced
by her husband is entitled to seek custody of her children.
Section 7- An offence punishable
under this act shall be cognizable and compoundable at the instance of the married
Muslim woman upon whom talaq is pronounced with the permission of the Magistrate,
on such terms and conditions as he may determine.
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