Muslim Marriage and Dissolution of Marriage

** Meaning of Muslims

In Muslim Law; the term ‘Muslim’ has always been defined in terms of Muslim religion
though the orthodoxy or heterodoxy of the beliefs not material. Muslims for the purpose of
the application of Muslim Law; fall into the following categories:

I. Muslim by religion
- No person can be a Muslim unless he subscribes to the basic tenets of Islam
and anyone who subscribes to the basic tenets of Islam is a Muslim.
- Basic tenets of Muslim are the principles of the Unity of God i.e. God is one
and Mohammed is Prophet of God.
- Person born of Muslim parents is a Muslim and it is not necessary to establish
that he observes any Islamic rites or ceremonies like performance of 5 prayers
or observance of Ramzan fast. Such a person will continue to be Muslim till
he renounces Islam.
- Mere observance of some form of Hinduism or any other religion will not
make a Muslim; conversely a person will not become a Muslim just because
he calls himself Muslim or is considered by some as Muslim.
- A child whose both parents were Muslims at time of his birth is a Muslim
unless on becoming adult he converts to another religion.
- As per Shariat; even if one of the parents is a Muslim then the child will be
Muslim.

II. Muslim by conversion

- A Non-Muslim may become Muslim by professing Islam or by undergoing the
conversion.
- Under Muslim Law; a person can become a convert by professing Islam. Mere
profession is enough and motive is immaterial. A person may renounce his old
faith for love or avarice; what matters are the factum and not the latent spring
of action which results there from.
- A person’s religious belief is not a tangible thing which can be seen or
touched. It is the mental condition of one believes in certain articles of faith
that constitutes one’s religion.
- One can convert to Islam by undergoing the ceremonies of conversion
prescribed for it. The genuineness or otherwise of the belief in new faith is
immaterial and even if the convert does not practice Islam then be will be
Muslim.
 - After the Shariat Act 1937; position of converts of Islam is as under:
 All converts to Islam are governed by Muslim Law in matters relating
to marriage, dissolution of marriage i.e. divorce, guardianship,
property, etc.
 In respect of adoptions, wills and legacies; a convert will continue to
be governed by custom unless he files a declaration on a prescribed
form that in these matters; he desires to be governed by Muslim Law.
On filing such declaration; he and his descendants will be governed by
Muslim Law.
 Shariat Act does not apply to agricultural land.
- A Muslim is free to convert to another religion or renounce Islam.

a. Nikah (Muslim Marriage)

- The fundamental concept of individual liberty and responsibility, which is a corner-stone

of Muslim jurisprudence, is incorporated even in the institution of marriage.

- In Muslim law, marriage depends upon the free volition of the parties concerned, so does its
dissolution, though the wife’s volition in this regard is subordinate to that of the husband,
since the Muslim Jurists believe that of the two partners the husband on account of his
physical and intellectual superiority, has to play a dominant role, and the wife is therefore, so
much so that she practically enjoys no marital freedom.

- Wilson defines a Muslim marriage as a “contract for the purpose of legalizing sexual
intercourse and procreation of children”.

- Marriage is recognized in Islam as the basis of society. It is a contract, but it is also a sacred
covenant. Marriage as an institution leads to uplift of man and is a means for the continuance
of the human race. Spouses are strictly enjoined to honour and love each other. Prophet asked
people to see their brides before marrying them, and taught that nobility of character is the
best reason for marrying a woman.

- So Marriage (nikah) is a solemn and sacred social contract between bride and groom. This
contract is a strong covenant (mithaqun ghalithun) as expressed in Quran 4:21. The marriage
contract in Islam is not a sacrament. It is revocable.

- Both parties mutually agree and enter into this contract. Both bride and groom have the
liberty to define various terms and conditions of their liking and make them a part of this
contract.

** Muta Marriage: The word Muta literary means 'enjoyment' or 'Use'. It may be rendered as
marriage for pleasure. This marriage is for a fixed period with a certain reward paid to
woman and recognised by only Shia law. Muta marriage is an ancient Arabian custom.
A Shia male can contract any number of muta marriages along with a Kitabia woman
(professing Muslim, Christian or Jewish religion) or even with a fire worshipper, but not with
the follower of any other religion. But a Shia woman may not with a Non-Muslim. All the
requisite formalities of a marriage have to be observed in the muta marriage.

Essentials:

- The period of cohabitation should be fixed (a day, month year or years) and that

- Some dower should be specified (otherwise the marriage will be void). If the period is not
specified, though dower is specified, it should be considered as a permanent union.

** Shohrat Singh V Jafri Bibi:

- No mutual rights of inheritance created between the spouses, but children considered
legitimate and capable of inheriting from both parents.

- Wife is not entitled to maintenance (unless specified). However, she is entitled to

maintenance as a wife under the Cr.P.C.

- If the marriage is not consummated, the wife is entitled to only half of the dower. If
consummated then full dower.

- On the expiry of the term of marriage, if the marriage has been consummated, the wife is
required to undergo iddat of three courses.

- Husband is entitled to refuse procreation.

- Marriage comes to an end ifso-facts on the expiry of the term (unless extended) or by
mutual consent or by death of the either party.

- Divorce is not recognised, but marriage can be terminated earlier, if terminate by husband,
can be terminate by making a gift of the unexpired term called hiba-imuddat, in such case the
wife is entitled to full dower, if wife leaves the husband, the husband has a right to deduct the
proportionate part of the dower for the unexpired period.

i. Definition, Object and Nature

Definition and Nature of Nikah

- Nikah is defined to be a contract which has for its object the procreation and legalizing
of children. Marriage according to the Mohamed law is not a sacrament but a civil contract.
All the rights and obligations it creates arise immediately and are not dependent on any
condition precedent such as the payment of dower by a husband to a wife.
- Ameer Ali cites an ancient text defining the object of nikah as follows: “Marriage is an
institution ordained for the protection of society and in order that human beings may guard
themselves from foulness and unchastely

- Mahmud J. in the leading case of Abdul Kadir v. Salima observes: “Marriage among
Muhammadans is not a sacrament but purely a civil contract and though solemnized
generally with recitation of certain verses from the Quran, yet the Muhammadan law does not
positively prescribe any service peculiar to the occasion‟. The objects are therefore are the
promotion of a normal family life and legalization of children. It is to be distinguished from
the modern notion of marriage by the toleration of a modified form of polygamy.

- On the other hand, Abdul Rahim says that a Muslim marriage is both in nature of ibadat, a
devotional act, and muamalat, dealing among men.

- Krishna Iyer J. concurs with the view, “The impression that a Muslim marriage is a mere
contract and not, therefore, sufficiently solemn or sacred is another fallacy”.

- The most remarkable feature of Muslim Jurisprudence is, that even at the beginning of the
development of their juristic thought, they squarely the marriage essentially as a civil
contract- a concept that developed fully only after the industrial revolution. Thus it is
submitted that in its formation the Muslim marriage is essentially a contract, though in its
dissolution the dominant position of the husband is recognized.

- The original meaning of the word nikah is the physical relationship between man
and woman. It is also used secondarily to refer to the contract of marriage which makes that
relationship lawful.

- As for the definition of marriage in fiqh, the simple definition would go something like this:
"A contract that results in the two parties physically enjoying each other in the manner
allowed by the Sharia."

- Muhammad Abu Zahrah (a modern scholar) defines it like this:"A contract that results in
the man and woman living with each other and supporting each other within the limits of
what has been laid down for them in terms of rights and obligations.

Object and Aim of Nikah

- Like anything a Muslim does; marriage should only be undertaken after gaining an
understanding of all that Allah has prescribed in terms of rights and obligations as
well as gaining an understanding of the wisdom behind this institution.
- One of the principles of Islamic Jurisprudence says that: "The default state of all
things is lawfulness until some evidence shows otherwise." Based on this, if
new foods are discovered, they are considered lawful, unless there is some specific
reason or attribute which would make it forbidden for example if it is
causes intoxication. Relations between men and women do not follow
this general principle and in fact are opposite to it. The principle is that: "Relations
between men and women are forbidden until some evidence shows otherwise."
I. Procreation (Children)
- One of the most important purposes of marriage is to continue and increase the population of the
Muslims.
- Clearly, this goal could be achieved without marriage, but when actions are undertaken in
disobedience to Allah, they do not receive the blessing of Allah and the whole society
is corrupted.
- It should be stressed that the goal is not simply to produce any child that will live in the next
generation. It is to produce righteous children who will be obedient to Allah and who will be a
source of reward for their parents after they die. Also The Prophet will not be boasting before the
other nations on the day of Qiyama with children of Muslim parents who left the path of Islam.
- Thus it is the responsibility of Muslim parents to seek the means of giving their children the
training and education they need not just to grow, but to succeed as Muslims worshipping and
obeying Allah.
- This obligation may include migration (hijrah), establishing of Muslim communities and schools
and other obligations. As the scholars have said in another principle of fiq that without which
an obligation cannot be fulfilled is itself obligatory."

II. Pleasure
- Islam is the religion of the fitrah, the religion which is consistent with the natural instincts and
needs of mankind.
- It is not like the man-made (of modified) religions which set unnatural constraints on people
whether self-inflicted prohibition of marriage (nuns and monks, etc.), prohibition of divorce
or monogamy.
- Men are inclined toward women and women are inclined toward men. Marriage is the
institution which fulfils this desire and channels it in ways pleasing to Allah Most High.
- Allah mentions this attraction: The love of the desires for women, sons, has been made
attractive to people.
- The Messenger of Allah himself made clear that the attraction between the sexes is something
natural and not something to be denied or suppressed - only channelled in the ways pleasing to
Allah Most High, saying:" "Women and perfume have been made beloved to me of this
world of yours and my peace of mind is in the prayer."
- The desire of men and women for each other is an urge which needs to be fulfilled. If it is left
unfulfilled, it will be a source of discord and disruption in society. For this reason, the Prophet
ordered all men who are capable of meeting the responsibilities of marriage to do it: "Whichever
of you is capable should marry for it will aid him in lowering his gaze and guarding
his body (from sin). As for the one who is not capable, fasting is his protection."
- Thus it can be concluded that nikah holds a very integral place in the Islamic world and it is
obligatory on the part of every follower of Islam to perform a lawful nikah.
ii. Essentials for Validity i.e. Essential Requirements for a Valid Muslim Marriage
under Muslim Law

A marriage is valid (Sahih) if it is recognised by the Courts as lawful. Following conditions

must be fulfilled in a valid Muslim marriage:

- The parties to the marriage i.e. husband and wife must be competent.

- The consent of the parties or of their guardians must be a free consent.

- The required formalities are duly completed

- There must not be any prohibition or impediment in contracting the marriage.

Competence of the Parties:

- At the time of marriage, both the parties i.e. the boy and the girl, must be competent to enter
into the contract of marriage.

- The parties are competent if they are:

 Of the age of puberty

o For purposes of marriage, dower and divorce, the age of majority under Muslim law
is not eighteen years. In respect of these matters the age of majority is considered to
be equal to the age of puberty.
o Age of puberty is an age at which a person is supposed to acquire the sexual
competency. This competency may be ascertained on the basis of the physical
features of the boy and the girl.
o According to Heclayu, the earliest possible age of puberty with respect to a boy, is
twelve years, and with respect to a girl, nine years. But, this cannot be treated as
absolute rule regarding the age of marriage because sexual competency, as evidenced
by physical features, depends upon several factors and may vary from person to
person. It is therefore difficult to ascertain this age by the physical appearance.
o Keeping in view the practical difficulty of ascertaining the age of puberty by physical
features, the Courts have presumed that the age of puberty is acquired on the
completion of fifteen years.
o In Mst. Atika Begum v. Mohd. Ibrahim, the Privy Council has laid down a clear law
about the age of puberty in following words:
“According to Mohammedan law a girl becomes major on the happening of either of
the two events: the completion of her 15th year or on her attainment of a state of
puberty at an earlier period.”The same rule may be applicable in respect of the age of
a boy. Thus, it may be said that in the absence of any evidence to the contrary, a
Muslim, is presumed to have attained puberty at the age of fifteen years.
 The requirement of the age of puberty is essential not only because of competency for
consummation, but also because it is considered to be the age at which the parties can
give their own consent for the marriage. After attaining fifteen years, a person
becomes mature enough to give consent for his or her marriage no consent of the
guardian is necessary to validate the marriage.
o Minor’s Marriage:
 Under Muslim law a person who has not attained the age of puberty (fifteen
years) is a minor. As such, he (or she) has no capacity to give consent for
marriage. A minor’s marriage without the consent of guardian is void. If, on
behalf of the minor, his or her guardian gives the consent, the marriage is
lawful.
 A minor’s marriage is, therefore, valid only with the consent of the guardian.
Under Muslim law, following persons are recognised as guardians for
contracting the marriage of minors:
 Father
 Paternal grandfather, how high so ever
 Brother or other male members of the father’s family
 Mother
 Maternal uncle, aunt or other maternal relations.
 It is to be noted that first of all the right of guardianship in marriage is given
to the father. In the absence of father this right passes on to the next guardian
in the order of priority. In absence of any of the above-mentioned guardians, a
minor’s marriage may be contracted by Kazi or an authority of the
Government.
 The ‘guardians for marriage’ must be distinguished from the ‘guardians
appointed by Court’. A guardian appointed by Court for the protection of the
person or the property of the minor has no right to contract the minor’s
marriage without prior permission of the Court.
 On the other hand, a ‘guardian for marriage’ need not take such permission;
he can contract the marriage without permission of the Court. Another
important point in respect of the guardianship in marriage is that in presence
of a nearer guardian, the remoter guardian has no right to contract the minor’s
marriage.
 Marriage by a remoter guardian without consent of the nearer available
guardian (unless such nearer guardian is insane or missing) is void.
 Under Shia law, the only guardians for marriage are the father and the
paternal grand-father, how highs ever. A marriage contracted by any other
guardian must be expressly confirmed by the minor on attaining puberty.
 The Child Marriage Restraint Act, 1929 (as Amended in 1978):
 Minor’s marriage as discussed in the preceding lines, is however,
subject to the provisions of the Child Marriage Restraint Act, 1929 (as
Amended in 1978). The object of this enactment is to prevent
marriages in which either of the parties is under a certain age limit.
  The Act is applicable to every person in India, including Muslims.
Section 2 of the Amended Act provides that the minimum age for
marriage is 21 years for males and 18 years for the females.
 A marriage, in which any of the parties is below the prescribed age, is
a “child marriage”. A guardian or any person who performs or
conducts any “child marriage” commits an offence.
 The Amending Act, 1978, includes provisions for strict
implementation of the Act. Section 7 of this Act now provides that
offences under the Act are cognizable offence and a police officer may
investigate them in the same manner as he does in respect of
cognizable offences under the Criminal Procedure Code.
 However, no arrest can be made under this Act without a warrant or an
order of a Magistrate.
 Effects of this enactment on minor’s marriage (including a Muslim
marriage) may be summarised as under:
 If a marriage is a ‘child-marriage’ within the meaning of this Act, the
marriage is not void. The marriage exists and is perfectly valid.
 But, a person who contracts, directs, conducts or performs a minor’s
marriage, commits a cognizable offence and is to be punished under the Act.
 Under Section 12 of the Act, a ‘child-marriage’ may be prevented by means
of an injunction from the Court before such a marriage takes place. Violation
of such an injunction is also punishable.
o Option of Puberty (Khyar-ul-Bulugh):
 Under Muslim law, a minor on attaining the age of puberty, has a right to
approve or disapprove the marriage contracted by a guardian who was neither
father nor paternal grandfather. This is called the ‘option of puberty’. In other
words, marriage of a minor contracted by any person other than minor’s father
or grand-father is voidable at the option of such minor.
 If a person, on attaining puberty, chooses to repudiate the marriage by
exercising his right of ’option of puberty’ the marriage is dissolved with
immediate effect. On the other hand, if the minor, on attaining puberty, opts to
approve the marriage, it is considered to be a valid marriage since its very
beginning.
 However, the exercise of this right is not compulsory; the minor, on attaining
puberty, may or may not exercise this right. Where a person has not exercised
the right of option of puberty after becoming adult, it is presumed that he or
she has approved the marriage contracted during minority.
 But, under Shia law a minor’s marriage must be approved by the minor on
attaining puberty. According to Shia law, therefore, unless the minor on
attaining majority, expressly ratifies the marriage, it is no marriage at all in
the eyes of law.
 -Rules relating to the ’option of puberty’ under Muslim law, may be stated as
under:
 The ‘option of puberty’ cannot be exercised by husband if his marriage
was contracted by father or grandfather. Father and the grandfather are
supposed to be the best persons to safeguard the minor’s interests.
Therefore, their choice in the marriage is normally binding on a minor.
However, in exceptional cases, where it is proved that father or the
grandfather had contracted the marriage either fraudulently or
negligently, the minor has a right to repudiate the marriage on attaining
puberty.
 A wife can exercise option of puberty even if her marriage was
contracted by her father or grandfather. Before 1939, a Muslim wife
was not entitled to exercise option of puberty if the marriage was
contracted by father or grandfather. But the Dissolution of Muslim
Marriage Act, 1939, has now modified the law in regard to the ‘option
of puberty’ by a wife.

Section 2(vii) of this Act provides that a Muslim wife is entitled to

obtain a decree for the dissolution of her marriage on the ground that
her marriage was contracted by her father or any other guardian during
her minority (i.e. when she was under the age of 15 years).
At present, a Muslim wife has an absolute right of the option of
puberty and she can repudiate her marriage even if it was contracted by
her father or grandfather.

 The option must be exercised by a wife immediately after the

attainment of puberty. If there is an unreasonable delay in the exercise
of the option, her right is lost. However, under Section 2(vii) of the
Dissolution of Muslim Marriage Act, 1939 a Muslim wife has a right
to exercise this option till she attains the age of eighteen years.
If she fails to exercise the right after attaining the age of eighteen
years, it may be considered as unreasonable delay and her right may be
lost. But in the case of a husband, the option continues till he approves
the marriage either expressly or impliedly. Payment of dower to the
wife or cohabitation with her is regarded as implied approval of the
marriage by a husband.
 When consummation takes place, the husband’s right of option is lost
because consummation is regarded as implied consent. The ‘option of
puberty’ of a wife is also lost after the consummation provided it was
not before attainment of her age of puberty, or against her consent.
 The marriage does not dissolve merely by the exercise of option of
puberty. Confirmation by Court is necessary for dissolution of
marriage. However, only a formal approval by the Court is sufficient;
decree is not necessary.
 It may be noted that as the marriage does not dissolve without
confirmation therefore, where any spouse dies after the exercise of the
option but before Court’s confirmation, the surviving spouse is entitled
to inherit the properties of the deceased.

 Of sound mind
o At the time of the marriage, both the parties must be of sound mind. Persons of
unsound mind have no capacity to enter into the contract of marriage because their
own consent for the marriage is no consent in the eyes of law.
o Unsoundness of mind is of two kinds, idiocy and lunacy. Idiocy refers to an abnormal
state of mind in which a person is completely incapable of knowing the legal
consequences of his activities. Such persons are called idiots and cannot marry.
o Lunacy is a mental disease which may be cured. Such persons are called lunatics and
they also have no understanding but sometimes they may behave like sane persons.
The period during which a lunatic behaves like a sane person with normal
understanding, is called ‘lucid interval’. Marriage by a lunatic during ‘lucid interval’
is a valid marriage.
o Marriage of Insane Persons: Marriage by an idiot is void. Except during ‘lucid
interval’ the marriage by a lunatic is also void. But a person of unsound mind may be
contracted in lawful marriage by a ‘marriage guardian’.
o In the marriage of an insane person by a guardian, same rules of ‘option of puberty’
are applicable as are applied in the case of minor’s marriage. An insane person, whose
marriage was contracted by a guardian other than father or grandfather, has an option
to repudiate the marriage on recovering his or her reason.

 Muslims
o As the marriage is to be governed by the rules of Muslim law, both the parties have a
right to marry a Muslim, irrespective of sect or the sub-sect.
o Where both the parties are Muslims but they belong to different sects (e.g. one is Shia
and the other is Sunni), the marriage is inter-sect marriage. Inter-sect marriages are
perfectly valid.
o Thus marriage of a Shia boy with a Sunni girl is valid. Similarly, the marriage of
Hanafi boy with a girl belonging to Shafie or the Ithna Asharia sect is also lawful.
o Under Muslim law so long as the religion of both the parties is Islam, the validity of
their marriage is not affected by any difference in the sector sub-sect. If the religion of
the parties is different i.e. where one party is a Muslim but the other is a non-Muslim,
their marriage becomes an interreligious marriage. In respect of an inter-religious
marriage, Sunni and Shai laws are different.
 Sunni law:
 Under Sunni law, a boy is allowed to marry a Muslim girl of any sect and
is also allowed to marry a Kitabia girl. A girl is Kitabia if she belongs to a
community the origin of which is believed from a heavenly revealed kitab
(book).
  Under the law, Christians and the Jews are regarded as the Kitabia
communities. Thus, a Sunni male has a right to contract a lawful marriage
with a Christian or a Jew woman; their marriage is perfectly valid.
 If a Sunni male marries a female who is neither a Muslim nor Kitabia, the
marriage is not void; it is merely irregular (Fasid). An irregular marriage is
neither valid nor void.
 As soon as the irregularity is removed, the irregular marriage becomes
valid.
 For example, the marriage of a Sunni boy with a Fire- worshipper (Parsi)
or a Hindu girl is merely irregular and may be regularised and treated as
valid when the girl converts to Islam. That is to say, the marriage of a
Sunni male with any non-Muslim or non-Kitabia female is not void; it is
merely irregular.
 Shia law:
 Shia male has no right to contract a marriage with any non-Muslim
female. A Shia male cannot marry even Kitabia female. The marriage
of a Shia man with a Hindu, Jew, Christian or a Fire Worshipping
woman is void.
 However, a Shia male may contract a Muta-marriage with a Kitabia or
a Fire worshipping (Parsi) female.
o Marriage of a Muslim female with a Non-Muslim male: A Muslim female, whether
Shia or Sunni, has no right to enter into the contract of marriage with any Non-
Muslim male. If a Muslim female marries a Hindu, Jew or a Christian male, the
marriage, under both the schools of Muslim law, is void.
o The Special Marriage Act, 1954: A Muslim, whether male or female, can lawfully
marry a Non-Muslim under the Special Marriage Act, 1954. Marriage contracted
under this Act is called ‘Court Marriage’. When a person (whether Hindu or Muslim
etc.) contracts marriage under this Act, the marriage is not governed by the personal
law applicable to him.
Thus, if any Muslim contracts a marriage under this Act the marriage and its other
incidents (i.e., rights and duties of the parties) are regulated by the provisions of this
Act and Muslim personal law is not applicable.
Succession of the properties of the couples married under the Special Marriage Act,
1954, is governed by the provisions of the Indian Succession Act, 1925, and not by
the Muslim Law of inheritance.

Free Consent of the Parties

- Consent is an essential element in a Muslim-marriage. Where the parties to the

marriage are sane and adult, it is their own consent which is required. But if any one
of them is minor or an insane, then the consent on his or her behalf must be given by
the guardian.
 - For a valid marriage consent somehow obtained, is not sufficient. The consent of the
parties or of their guardians must be a free consent. If the consent has not been given
voluntarily and is not free, it is no consent at all. Consent is not free if it is given
under compulsion, fraud or mistake of fact.
- Compulsion: When the consent for a marriage is obtained by application of force,
under threats, coercion or any other compulsion, it is not free and it cannot be said
that such a person has intended to what he or she has consented. Under all schools of
Muslim law except Hanafi if the consent of the parties or of their guardians has been
obtained under any compulsion, the marriage is void.
- Hanafi Law: Under Hanafi law, even if the consent has been given under compulsion,
the marriage is valid. This peculiar Hanafi rule may not appeal to a reasonable
prudent man but its authority is not doubtful. It is based on the following tradition:
“Apostle of God said, ‘there are three things which whether done in joke or earnest,
shall be considered as serious and effectual; one, marriages, the second, divorce and
the third taking back.”
- Shia Law: It must be noted that the legality of a marriage under compulsion, is an
exceptional rule peculiar only to Hanafis; under other schools of Sunni sect and also
under the Shia law such a marriage is void.
- Fraud: Fraud is committed where there has been a dishonest concealment of certain
relevant facts or a false statement in obtaining the consent for a marriage. If the
consent has been obtained by playing fraud, the marriage is voidable at the option of
the party defrauded.
That is to say, when such a defrauded person comes to know that fraud was
committed in the marriage, he or she may either accept the marriage as lawful or
reject it altogether. Where the marriage is invalidated by rejection, it becomes void.
On the other hand, if such a person thinks that there is no harm in being deceived, he
or she may approve the marriage expressly or impliedly; the marriage then continues
to be lawful.
- Mistake of Fact: Two persons are said to consent when they agree upon the same
thing in the same sense. If at the time of marriage both the parties, and their
guardians, are under a mistake of fact relevant to their marriage, there is no consent
and the marriage is void. For example, if there is a mistake as to the identity of the girl
to whom the offer has been intended, the marriage is void because there is no
formation of a lawful contract.

Formalities in the Marriage

- Under Muslim law, religious ceremonies or rites are not necessary to validate the
marriage. According to Ameer Ali, a Mahommedan marriage requires no particular or
formal rites (sacrament) to constitute it valid in law.
- Under Muslim law the only essential formalities are that the offer and the acceptance
are made at the same sitting. These legal formalities must necessarily be fulfilled to
constitute a valid marriage.
- Offer and Acceptance: Offer (Ijab) signifies willingness of a person to contract a
marriage with the other. The offer is in the form of declaration and is generally made
from the side of the boy or his guardian. The offer for the marriage must also be
accepted by the girl or her guardian. Acceptance (Qabool) is made by girl or her
guardian. No specific words are prescribed for an offer and acceptance, but they must
indicate expressly a clear intention of the parties (or of their guardians) to marry. The
offer and the acceptance should not be of uncertain or doubtful nature.
- Oral or Written: The offer and the acceptance may either be oral or in writing. That is
to say, the offer or the acceptance may be through words of mouth or may be reduced
to writing. Where it is in writing, it is called Kabinnamah which is an important
documentary evidence of the marriage.
- At the same sitting:
 In a valid marriage the offer and the acceptance must have been made at the same
sitting. This means that the proposal for the marriage and its subsequent acceptance
are at one place of meeting. “Same sitting” or ‘one place of meeting’ is not to be
interpreted literally.
 The idea behind this legal requirement is that the offer and the acceptance must be
simultaneous to each other so that they may form part of the same transaction. Where
it appears that offer and the acceptance are isolated, there is no formation of marriage
contract.
 For example, if both the parties are present at one place but after the offer has been
made the other party leaves the place for sometime before accepting it, and then
comes back again at that place and accepts the offer, the offer and acceptance are not
simultaneous and there is no marriage.
 On the other hand, if both the parties are not at one place but there is proximity or
continuity in the offer and the acceptance so that there is one transaction, the marriage
is valid.
 For example, “H sends a messenger, or writes a letter to W, offering her marriage. W
receives the messenger or reads the letter, in presence of two witnesses, and declares
her acceptance of the offer in their presence. This constitutes a lawful marriage.” It is
submitted that, in the same manner, the validity of a marriage contracted on
telephone, may also be examined.
- Reciprocity: Offer and the acceptance must be reciprocal to each other. That is to say
the acceptance must be exactly for the proposal and nothing else. If the acceptance is
conditional or with modifications, it is no acceptance of the proposal. Where a man
says, “I offer to marry you on Rs. 1,000 as dower” and the acceptance is given by the
woman as, “yes, I accept the marriage on Rs.2, 000 as dower”, there is no reciprocity
in the offer and acceptance and the marriage is void.
- Conditional or Contingent Marriage: The offer and the acceptance must he with an
intention to marry presently, i.e., with immediate effect. If the offer or the acceptance
is conditional, or depends upon an uncertain future event, there is no marriage.
 Like where A offers to marry В in the next month, there is no marriage even after that
month has passed away. Similarly, if A offers to marry В provided she gets through
her examination in the first division, there is no marriage even if В gets a first
division. Again, where an offer to marry В provided there is no rain in the next
month, there is no valid marriage even if there has been no rain in the next month. A
conditional marriage is simply a promise to marry in future.
- Presence of Witnesses: The offer and the acceptance must he made in presence of two
competent witnesses. Any male Muslim, who is of sound mind and has attained
puberty, can act as a witness. But, if two male Muslims are not available, one male
together with two adult female Muslims of sound mind, may fulfil this legal
requirement. However, on this logic, four females are not regarded as competent
witnesses in the marriage.
It is not necessary that two persons are specifically asked to act as witnesses, it is
sufficient if they were present in the marriage and have heard and understood the offer
and acceptance. A marriage without witness or with incompetent witnesses is
irregular (fasid).
Shia Law: According to Shia law, the presence of witnesses is not legally required. A
marriage without witnesses is valid under Shia law.
- Registration of Muslim-Marriage:
 Under Muslim personal law, registration of marriage is not necessary. The
validity of marriages or divorce is not affected if they have not been
registered. Besides enactments, the provision for optional registration of a
Muslim-marriage may be found also in customary laws of certain localities in
India.
 In M. Jainoon v. Ammanullah Khan:
o Madras High Court held that although under Muslim law registration
of marriage is not compulsory but it cannot also be said that Muslim
Personal Law prohibits registration. In order to ascertain a proper
mode of proof, the Muslims of any particular locality may develop the
process of registration by which the proof of marriage may be made
easier. In a course of time, this process may develop into a custom, a
valid custom, which is not violation of personal law.
o The Court observed that if Muslims in a particular area have
established and developed the practice of registration of marriage, it
would certainly become a nut marry right.
o In the above mentioned case, the registration of marriage was
recognised under the customary law of the locality of the plaintiff. He
had informed the Secretary of the Jamath (who was in charge of the
marriage-register) about the date and time of the solemnisation of his
marriage so that his marriage could be registered as required under the
customary law.
 o But the Secretary of Jamath intentionally did not come to register the
marriage nor did he send the said register on the date of marriage.
Since the marriage could not be solemnised on the specified date, the
plaintiff suffered great mental agony for the compensation of which he
filed a suit for damages against the Secretary of Jamath.
o The Madras High Court held that since the registration of marriage
was recognised as a customary law of the locality, the plaintiff has a
legal right under his customary law to get his marriage registered.
o The Court observed that intentional absence of the Secretary and his
failure to send the register amounted to denial of plaintiff’s legal right
which resulted in untoward and unpleasant events at his marriage
function causing him mental agony.
o Therefore, the Court held the suit for ‘recovery of violation of
customary right and causing mental agony, and medical expenses
would be maintainable.
o The Court held Secretary of Jamath liable and ordered him to pay Rs.
5000 (as claimed by the plaintiff) to compensate the plaintiff.

**Dower (Mahr) as formality:

- Mahr or dower is a sum, which is payable by the husband to the wife on marriage, either by
agreement between the parties or by operation of law.

- Justice Mahmud : In Abdul Kadir V Salima: 'Dower under the Mohammedan Law, is a sum
of money or other property promised by the husband to be paid or delivered to the wife in
consideration of the marriage and even where no dower is expressly fixed, the law confers the
right of dower upon the wife as necessary effect of marriage.

- Ameer Ali: Dower is a consideration which belongs absolutely to the wife.

- Object:

 To impose an obligation on the husband to give something as a mark of respect of the

wife.
 To place a check on the capricious use (unrestricted right) of divorce on the part of
husband;
 To provide a wife help or subsistence after the dissolution of her marriage, so that she
may not become helpless after the death of the husband or termination of marriage by
divorce.

- Classification of Dower: The basis of classification of dower is– Whether it has been fixed
by parties or is fixed by operation of law, and whether the dower may be claimed by wife any
time or only upon the dissolution of marriage.
- Dower as per whether the dower may be claimed by wife any time or only upon the
dissolution of marriage:

 Specified Dower (Mahr-i-Musamma) which can be Mahr-i-Muajjal (Prompt Dower)

or Mahr-i-Muwajjal (Deferred Dower)
 Unspecified Dower (Mahr-i-Misl) or Proper Dower or Customary Dower

- Specified Dower (Mahr-i-Musamma):

 The sum of money or any property which is fixed at the time of the marriage is called
the specified dower.
 It may be fixed by the parties either before the marriage or at the time of marriage or
even after the completion of the marriage. A dower may be settled either orally or
may be specified in a written agreement called (Mahr-nama).
 If any marriage of a minor or lunatic is contracted by a guardian, such guardian can
fix the amount of dower and it is binding on the minor and on attaining the age of
puberty he cannot take plea that he was not a party to it.
 Dower may be fixed even after the marriage of such minor or lunatic, provided that at
the time of settlement, the boy is still minor or lunatic. Any kind of property, movable
or immovable, tangible or intangible, and of any value may be settled, but that money
or property should be in existence.
 The minimum amount of the specified dower under Sunni Law is 10 Dirhams
(between 3 and 4 Rupees) while in Shia Law no minimum amount of specified. Those
Muslims who are not in position to pay even 10 Dirhams, the Prophet has directed
them to teach Quran to the wife in lieu of dower. Now no limit to the maximum,
minimum has become obsolete.
 The amount of the dower may be increased subsequently by the husband and the wife
is entitled to claim this additional amount, but the husband cannot reduce the amount.
 However, the wife can herself reduce or remit her claim to the whole or a part of the
specified dower. This is called remission of dower.
 Specified dower is again subdivided into- Prompt dower and deferred dower.
 Prompt Dower (Muajjal Mahr): Prompt dower is payable immediately after marriage
on demand, unless delay is stipulated for or agreed. The wife may refuse to cohabit
with her husband. If the wife is minor, her guardian has a right to not to send her to
her husband's house till the payment of prompt dower. In such conditions, the
husband is bound to maintain the wife, although she is living apart from him. A
husband becomes entitled to enforce the conjugal rights only after the payment of
prompt dower unless the marriage is already consummated.
If any delay is caused in the payment, the wife is entitled to get a simple interest on
that amount.
The period of limitation for the suit is three years. If during the continuance of
marriage, the wife does not make any demand, the limitation begins to run only from
the date of the dissolution of marriage by death or divorce.
  Deferred Dower (Muwajjal Mahr): It is to be paid on dissolution of marriage either by
death or divorce or upon the happening of a specified event, if so agreed. If the
specified dower has been fixed as deferred, the wife cannot claim it before the
termination of marriage. If the marriage is dissolved by the death of wife, her legal
heirs are entitled to claim the deferred dower. The widow may relinquish her dower at
the time of her husband's funeral by the recital of a formula.
If the amount of dower does not show, what portion is prompt and what is deferred,
under Shia law the whole of the dower is regarded as prompt while in Sunni law half
of the total is regarded as prompt and half as deferred.

- Unspecified Dower or Proper Dower (Mahr-i-Misl):

 If the amount of dower is not fixed by the parties at the time of marriage contract or
even if the marriage has been contracted that she would not demand any dower, the
wife is entitled to proper dower, fixed by the Courts of law.
 There is no definite amount but following principles of law are taken into
consideration:
o The personal qualifications of the wife i.e. her age, beauty, fortune,
understanding and virtue.
o The social position of wife's father.
o Dower given to her female paternal relations.
o Economic conditions of her husband
o Circumstances of times.

 Under Sunni law there is no limit to the maximum amount of proper dower while in
Shia law the amount should not exceed 500 Dirhams, which was fixed by Prophet in
the marriage of Fatima (daughter).

- Wife's Rights and Remedies on Non-payment of Dower: Muslim law confers upon a
wife (or widow) some rights to compel payment of her dower i.e.:

 Refusal to Cohabit :
o If the marriage has not been consummated and the dower is prompt, the wife
has a right to refuse to give her company to the husband till the prompt dower
is paid. If the wife is minor or an insane, her guardian also has right not to
send her to her husband’s house till payment of prompt dower and during such
period if she is living apart the husband is bound to maintain her.
o If the minor wife is already in the custody of her husband, such guardian can
take her back. Where the consummation has taken place even once, the wife's
right to refuse consummation is lost but the husband's suit for restitution of
conjugal rights will not fail.
 o However, the Court has discretion, even in such a case, to pass a decree for
restitution of conjugal rights subject to the condition of payment of prompt
dower.
 Right to Dower as a Debt: If the marriage has been consummated, the wife has no
right to claim the dower by refusing conjugal rights but she can recover her unpaid
dower by refusing conjugal rights but she can recover her unpaid dower by
maintaining an action in a Court of law. Unpaid dower is an actionable claim and she
may realise it in the same manner as a creditor recovers his loan.
So, if the husband is alive and dower remains unpaid, she may recover it by
maintaining suit against him. If the husband dies, she is entitled to recover it from the
legal heirs of the husband but the legal heirs are not personally liable. Their liability is
to extent to which they get the property of the deceased.
Example If the unpaid dower is Rs.6000/- and a legal heir's share in the property is
1/6 then he is liable to pay only Rs. 1000/- to the widow.
 Widow's Right of Retention to the Husband's Property: After the death of the husband
the most effective method of recovering the dower is the exercise of right of retention
the husband property till her dower debt is paid. No greater than that of any other
unsecured creditor. If she lawfully obtains possession of the whole or part of his
estate, she is entitled to retain that possession as against others heirs and as against
other creditors of her husband.
This right of retention does not give her any title to the property i.e. she cannot
alienate the property in any manner (either by sale or by gift). This right is for a
special purpose, to get her unpaid dower speedy. If she is not in possession or has lost
possession, she cannot claim to obtain it
.
Some special features of this Right are–
o No Right during Marriage: This Right is available only on the dissolution of
the marriage either by after the death of her husband or by divorce, but not
before.
o Actual Possession: This Right means the right to continue in the possession.
To get this right, the property must be in the possession of the husband at the
time of the termination of the property and continued to be on. If she has no
actual possession at that time, she cannot afterwards acquire possession in lieu
of this right. This Right can be acquired by her during the subsistence of
marriage. It is not a Right to obtain possession. The wife should have obtained
possession lawfully and without force or fraud.
o Only Possessory Right: This Right is simply a possessory right and does not
give any title or right of ownership to the widow. Her Right is to retain
possession against the legal heirs of the husband and ownership vests in the
husband's legal heirs including her.
o Property is Non-transferable: The property in possession of the widow in lieu
of unpaid dower cannot be transferred by her. Not being the owner she has no
right to transfer the property (either by sale or gift). Any such transfer will be
void and the transferee will not get any title or interest in the property.
Maina Bibi v Chaudhri Vakil Ahmand;
 Muinuddin and Maina Bibi were lawfully married husband and wife.
After the death of Muinuddin in 1890, Maina Bibi retained certain
immovable properties of her deceased husband in lieu of her unpaid
dower. No payment of her dower was made by the legal heirs of the
husband including Vakil Ahmad and she continued in her possession.
 In 1907, Maina Bibi made a gift of those properties to others and also
gave possession to the donees. After this Vakil Ahmad and others heirs
filed the suit for getting possession over the properties on the ground
that the gift was void because during retention widow had no right to
transfer the properties.
 It was held by Privy Council that a widow who is in possession of her
husband's estate in lieu of unpaid dower is not owner of the properties.
The only right is to continue to hold the possession till the dower is not
paid by the heirs.
 The Court further observed that failure of the payment of dower by the
heirs would not make her an absolute owner of the immovable
property of which she had been in possession. Any kind of transfer of
the retained property, whether it is sale, gift or exchange etc is void
and cannot take effect.
o Widow in Possession Liable to Account: A widow who is in possession of her
husband's estate is liable and bound to give account to the other heirs of her
husband for the rents and profits received by her out of the state, on the other
hand she is legally entitled to charge interest on the dower due to her and to set
it off against the net profits.
o Transferability of the Right of Retention: It is an exclusive Right, available to
a widow only because her dower remains unpaid. According to Patna High
Court this Right is not transferable and the Allahabad, Mysore and Andhra
Pradesh High Courts held that, it can be transferred. This Supreme Court took
a view by Patna High Court i.e. the right of retention is not transferable.
o Heritability of the Right of Retention: This Right can be inherited by the legal
heirs of the widow provided her own retention was lawful and she died during
such retention.
Absence of Prohibitions

- In a valid marriage, there must not exist any of the prohibitions laid down under
Muslim personal law. Prohibitions in the marriage are impediments or restrictions
upon the right of a person to contract a marriage. Since marriage is also a social
institution in Islam, the Muslim law requires that contract of marriage must not be
against the interests of the society.
- Law therefore, prohibits the marriage between certain persons or being contracted
under certain circumstances. Prohibitions in Muslim-marriage are of two kinds: the
absolute prohibitions and the relative prohibitions.
- Absolute Prohibitions: Absolute prohibitions in the marriage are mandatory in nature.
A marriage contracted in violation of any of the absolute prohibitions is null and void
under all the schools of Muslim law. For a valid marriage, therefore, there must be
absence of prohibited relationship between the parties. There is an absolute
prohibition for a Muslim to marry a person who is within his or her ‘prohibited
relationship’. Two persons are said to be within ‘prohibited relationship’ if they are
related to each other by consanguinity, affinity, or fosterage. The prohibitions on the
ground of consanguinity, affinity and fosterage are of absolute nature and a marriage
in violation of these rules is void ab initio under all the schools of Muslim law.

Consanguinity (Relation by blood): Under consanguinity or blood-relationship, a

Muslim cannot marry with any of his (or her) following relations:
 One’s own ascendant or descendant, how highsoever.
o Father and mother of a person are his (her) ascendants. Ascendants of higher degree
from the side of father are father’s father, father’s father’s father, etc., how
highsoever.
o Similarly, ascendants of higher degree from the side of mother are mother’s mother
and mother’s mother’s mother etc., how highsoever.
o A Muslim is prohibited to marry with any of his (her) ascendants how highsoever.
That is to say, a man is prohibited to marry his mother, mother’s mother etc. of any
higher degree. A woman is prohibited to marry father’s father etc. of any higher
degree.
o Sons and daughters of a person are his (her) descendants. Descendants of lower
degree are son’s son or daughter’s son etc. how lowsoever. A Muslim is prohibited to
marry also with any of his (her) descendants how lowsoever.
o Thus, a man cannot marry his daughter, daughter’s daughter (or son’s daughters etc.),
in any lower degree. Similarly, a woman cannot marry her son, son’s son (or
daughter’s son) etc. in any lower degree.

 Descendants of one’s father and (or) mother how lowsoever.

o A person is a descendant of one’s father and mother. The other descendants of one’s
father and mother arc one’s real brothers and sisters. Descendant in the lower degree
of one’s parents are his own sons and daughters and also the sons and daughters of his
real brother or sister.
o A man is therefore prohibited to marry his real (full) sister or a woman is prohibited to
marry her real (full) brother. A man is prohibited to marry not only his real (full)
sister but also his uterine and consanguine sisters. Similarly, a woman cannot marry
her uterine and the consanguine brother.
o A man is also prohibited to marry the daughters or granddaughters of his brothers and
sisters. That is to say, he cannot marry his Bhatiji (or Bhanji) and the daughters of
such Bhatiji and Bhanji or Bhanja and Bhatija.
o A man is prohibited to marry also the descendants (i.e. daughter’s daughter or son’s
daughter) of his uterine or consanguine brother or sister, just as he is prohibited to
marry the descendants of his real brother or sister.
o There is, however, no prohibition in the marriage of cousin-brother and sister. That is
to say, Chachere, Mamere, Phuphere or Mausere brother and sister can lawfully marry
each other.

 Brothers or sisters of one’s ascendants how highsoever.

o A man is prohibited to marry the sisters of his father or mother. Thus a man cannot
marry his Bua (Phuphi) or his Mausi (Khala). A woman cannot marry her paternal or
maternal uncle (Chacha or Mama).
o A man is also prohibited to marry the Bua or Mausi of either of his parents. A woman
is prohibited to marry Chacha or Mama of her parents.
o It is to be noted that there is no prohibition in marrying the wife of one’s parent’s
brother. Thus, a man can lawfully many his divorced or widowed Mami or Chachi.

Affinity (Relation by marriage): Affinity means nearness. It is created through marriage.

On the basis of at Unity one cannot marry with any of the following relations:

 Ascendant or descendant of one’s wife (or husband).

o The ascendant or the descendant of one’s wife (or husband); ascendants how
highsoever and descendants how lowsoever.
o A man is prohibited to marry his wife’s mother or wife’s mother’s mother of any
higher degree. A woman is prohibited to marry her husband’s father or husband’s
father’s father of any higher degree.
o A man is also prohibited to marry his wife’s daughter or wife’s granddaughter how
lowsoever. Similarly, a woman cannot marry her husband’s son or husband’s great
grandson, how lowsoever.
o A man can marry the descendant of his wife if his own marriage with the wife has not
been consummated.

 Wife (or husband) of one’s ascendant or descendant.

o A man is prohibited to marry the wife of his father or grandfather of any higher
degree. Similarly a woman cannot marry the husband of her mother or husband of her
grand-mother etc.
 o Here, the prohibition includes restriction in the marriage of a man with his step-
mother (i.e. the other wives of his father, if any, other than his real mother).
o A man is also prohibited to marry the wife of his son, or wife of the grandson of any
lower degree. Similarly, a woman is prohibited to marry the husband of her daughter
or the husband of her granddaughter of any lower degree.

Fosterage (Relation by Milk):

 Where a child, under the age of two years, has sucked the milk of any woman (other
than its own mother) such a woman is called the foster-mother of that child.
 Although there is no blood-relationship between that woman and the child yet she is
treated as the real mother of that child for purposes of prohibitions in the marriage.
The reason behind this rule is that breast-feeding to any child, necessary for child’s
life and development, is regarded as the act of giving birth to that child.
 Anyone who is prohibited on the ground of consanguinity and affinity is also
prohibited by reason of fosterage. For example, a man is prohibited to marry his
foster- mother, foster-mother’s daughter etc.
 But there are certain exceptional foster-relations with whom a marriage is not
prohibited under Sunni law. For example, under Sunni law there is no prohibition in
marrying sister’s foster-mother, foster-sister’s mother, foster- brother’s sister etc.
 The prohibition on the ground of fosterage has almost become outdated because in
most of the families of Indian Muslims, this relationship is now not in practice.

- Relative Prohibitions:
 Relative prohibitions are those prohibitions the compliance of which is not
mandatory (must) but their presence is deemed to be unjust. Under Shariat the
rules which are not mandatory are called directory (Mustahab) and are without
any legal effect.
 Therefore, a marriage contracted in violation of these prohibitions is merely
irregular, not void. As a matter of fact, the violation of any relative prohibition
in marriage is because of some small irregularity. As soon as that irregularity
is removed, the marriage becomes perfectly valid.
 Under Shia law, which does not recognise an irregular marriage, a marriage
against any of these prohibitions is either void or perfectly valid. The relative
prohibitions are given below.
o Unlawful Conjunctions:
 A Muslim is prohibited to have two wives at a time if these two wives are
related to each other (by .consanguinity, affinity or fosterage) in such a
manner that if they had been of different sexes, they could not have inter-
married.
 Marriage with two such wives is an unlawful conjunction.
  For example, a man is prohibited to marry the sister of his wife because, if one
of them is presumed to be a male, they would become brother and sister and
could not inter-marry. Similarly, a Muslim cannot marry the aunt (Bua or
Mausi i.e. khala) or the niece of his wife. However, a man can lawfully marry
his wife’s sister after the death or divorce of the wife.
 A marriage against the rule of unlawful conjunctions is irregular.
 Under Shia law, marriage with wife’s aunt (Bua or Mausi i.e. Khala) is not
unlawful conjunction. Therefore one can marry with his wife’s aunt. But he
cannot marry with wife’s niece without consent of the wife; with wife’s
consent, marriage with wife’s niece is permitted. A marriage against the rule
of unlawful conjunctions (except marriage with wife’s aunt) is void under Shia
law.
o Marriage with the Fifth Wife:
Muslim law permits a limited polygamy of four wives. That is to say, a Muslim can
marry lawfully with four wives at a time. But he is prohibited to marry with a fifth
wife. However, marriage with the fifth wife is only irregular. After the death or the
divorce of any of the four wives, this irregularity does not exist, and he can lawfully
marry because at a time he will have four wives, which is permissible. Shia law:
Marriage with the fifth wife is void.
o Marriage with non-Muslim: a Sunni male can lawfully contract the marriage with a
Kitabia female, but he is prohibited to marry a non-Muslim or non-Kitabia woman.
For example, he is prohibited to marry a Hindu woman. But a marriage against the
prohibition is simply irregular, not void ab initio. Shia law: Marriage with any non-
Muslim is void.
o Marriage without Witnesses: Sunni law prohibits a marriage being contracted without
two competent witnesses. A marriage without witnesses or with incompetent
witnesses is, however merely irregular. Under Shia law, the presence of witnesses is
not necessary. A marriage contracted without witnesses is, therefore, valid under the
Shia law.
o Marriage during Iddat: Iddat is that period which a woman has to undergo after
divorce or death of her husband. Marriage with a woman undergoing Iddat is
prohibited under Muslim law. According to Sunni law, a marriage with a woman
observing Iddat is merely irregular; but according to Shia law the marriage is void.
However, the prohibition of marrying a woman during Iddat is a temporary
prohibition which comes to an end after the expiry of the specified period.

iii. Obligations Arising out of Marriage – under Classical and Statutory Law

A valid marriage creates certain rights and duties between the wife and the husband.

- Mutual Rights and Obligations: Marriage is a union for life having mutually inclusive
benefits and fulfilment for the contracting parties. It legalizes sexual intercourse and the
children born out up it are legitimate. Husband and wife get a right of mutual inheritance and
prohibited degree of relationship are created so that they cannot marry within such degree.
Mutual Rights:

 Preservation of chastity and security of gaze

 Companionship inside and outside home
 Emotional and sexual gratification
 Procreation and raising of any children by mutual consultation
 Agreement to live together in a mutually agreed country and establish their
matrimonial home therein
 Working collectively towards the socio-economic welfare and stability of the family
 Maintaining their individual property rights but contributing to the welfare of the
family according to their capacity
 Maintaining social contacts with family and friends mutually beneficial for the family
 Managing their individual activities/roles inside and outside the home by mutual
consultation

Mutual Obligations

The husband undertakes not to:

 abuse his wife/child(ren) verbally, emotionally, physically, or sexually

 desert/be absent from the marital home for more than 60 days unless by mutual
agreement
 withhold economic contribution towards his wife/family
 sexually transmit disease or other transmissible diseases
 misuse /interfere with the wife’s property

The wife undertakes not to:

 abuse her husband/child(ren) verbally, emotionally, physically, or sexually

 desert/be absent from the marital home for more than 60 days unless by mutual
agreement
 sexually transmit disease or other transmissible diseases
 misuse/interfere with the husband’s property

- Right of Wife and Duties of Husband:

 Maintenance from her husband.

 She is legally entitled to get her dower and to refuse cohabitation if prompt dower is
not paid.
 Equal treatment and separate sleeping apartment, if there are more than one wife.
 She is entitled to visit and be visited by her blood relations within the prohibited
degrees at least once a year.
 She has a right to use an apartment and to exclude all other persons except her
husband.
- Rights of a Husband and Duties of Wife:

 She is bound to observe strict conjugal fidelity.

 She is bound to allow her husband conjugal union with her, with due regard to her
own health, decency and place.
 She has to obey his legal commands.
 She has to reside in his house and to observe purdah if necessary.
 She has to observe iddat on her husband death or divorce.

b. Dissolution of Marriage / the Concept of Divorce under Muslim Law

- Firm union of the husband and wife is a necessary condition for a happy family life. Islam
therefore insists upon the subsistence of marriage and prescribes that breach of marriage
contract should be avoided.

- Initially no marriage is contracted to be dissolved but in unfortunate circumstances; the

matrimonial contract is broken. One of the ways of such dissolution of marriage is divorce.

- Under Muslim law; the divorce may take place by act of the parties themselves or by decree
of Court of law. However in whatever manner the divorce is affected; it has not been
regarded as rule of life. In Islam; divorce is considered as an exception to status of marriage.

- Basis of divorce in Islamic law is the inability of the spouses to live together rather that any
specific cause or guilt of party on account of which the parties cannot live together.

- Divorce maybe either by the act of the husband or by the act of the wife though there are
various modes of divorce under the Muslim Law.

i. Talaq: Concept and Modes

- The word Talaq originally meant "repudiation" or "rejection". In Muslim law, it means
release from a marriage tie, immediately or eventually. In a restricted sense it means
separation effected by the use of certain appropriate words by the husband and in a wide
sense it means all separations for causes originating from the husband. It is also generic name
for all kinds of divorce but it is particularly applied to the repudiation by or on behalf of
husband.

- In Moonshee Buzloor Rahim vs. Lateefutoon Nissa, it was said that Talaq is a mere
arbitrary act of a Muslim husband, by which he may repudiate his wife at his own pleasure
with or without cause.

- As per Islamic law, only the husband has a right to pronounce Talaq. Under Talaq-e-
tafweez, a husband may delegate the authority to the wife to pronounce talk on his behalf.
The husband must possess the following qualifications to be able to pronounce a valid Talaq
- Shia Law states that husband must be of sound mind and attained the age of puberty. It must
be pronounced orally in the presence of two witnesses unless he is unable to speak. Further,
Talaq must not be pronounced under duress or compulsion otherwise Talaq is void. It must be
spoken in Arabic terms and strictly in accordance to sunnat.

- Sunni law has only two requirements - Sound mind and attained majority. A Talaq
pronounced under compulsion or intoxication is effective. It is not necessary that Talaq must
be pronounced in the presence of wife.

- In Fulchand vs. Navab Ali Chaudhary 1909, it was laid that Talaq should be deemed to have
come into effect on the date on which the wife came to know of it. Intention is not necessary
for a Talaq to take effect. If unambiguous words denoting irrevocable Talaq are pronounced
even by mistake or in anger, it is a valid Talaq. Talaq can be affected orally or in writing
(Talaqnama).

- If the words are express and well understood as implying divorce no proof of the intention
is required. If the words are ambiguous then intention of the user must be proved. After the
passing of Muslim Marriage Dissolution Act 1949, a Muslim wife can also get a divorce on
certain grounds.

- Types of Talaq:

Talaq ul sunnat - It is a Talaq which is affected in accordance with the traditions of Prophet.
It is further divided in two types: Ahasan and hasan.
Ahasan –

 It is the most approved and considered to be the best kind of Talaq. The word ahasan
means best or very proper.
 To be of Ahasan form, it must satisfy the following conditions : the husband must
pronounce the formula of divorce in a single sentence and the pronouncement of
divorce must in done when the wife is in state of tuhr (purity), which means when she
is free from her menses and husband must abstain from intercourse for the period of
iddat.
 If the marriage has not been consummated, if the spouses are away from each other,
or the wife is beyond the age of menstruation, Talaq may even be pronounced while
the wife is in menses.
 Pronouncement in this form is revocable during the period of iddat. Such revocation
may be either express or implied. It becomes irrevocable at the expiry of iddat.
 In Shia; Written Talaq is not acceptable unless the husband is unable to speak. · Two
male witnesses are required. · Intention to divorce is required on the part of husband.
In Sunni; Written Talaq is acceptable. · No witnesses are required. · Talaq
pronounced even by mistake is binding

Hasan –

 Hasan in Arabic means "good" and so this form of Talaq is considered to be a good
form of Talaq but not as good as Ahasan.
 To be in this form, it must satisfy the following conditions - there must be three
successive pronouncements of the formula of divorce and in case of a menstruating
wife, the three pronouncements must be made in three consecutive tuhrs and in case
of a non-menstruating wife, the three pronouncements must be made during the
successive intervals of 30 days and no sexual intercourse must take place during these
three periods of tuhr. It can be revoked any time before the third pronouncement. It
becomes irrevocable on the third pronouncement.

Talaq ul biddat –

 It is a disapproved and sinful form of Talaq. It was introduced by Ommeyyads in

order to escape the strictness of law. To be of this form, it must satisfy the following
conditions - three pronouncements may be made during a single tuhr either in one
sentence (e.g. "I divorce thee thrice.”) or in three sentences (e.g. I divorce thee, I
divorce thee, I divorce thee) and a single pronouncement made during a tuhr clearly
indicating an intention to dissolve marriage irrevocably (e.g. "I divorce thee
irrevocably").
  It becomes irrevocable immediately when it is pronounced irrespective of iddat. Thus,
once pronounced, it cannot be revoked. One a definite complete separation has taken
place; they cannot remarry without the formality of the woman marrying another man
and being divorced from him.
 In Saiyyad Rashid Ahmad vs. Anisa Khatoon 1932, one Ghayas Uddin pronounced
triple Talaq in the presence of witnesses though in the absence of the wife. Four days
later a Talaqnama was executed which stated that three divorces were given.
However, husband and wife still lived together and had children. While the husband
treated her like a wife, it was held that since there was no proof of remarriage, the
relationship was illicit and the children were illegitimate. It has been said that this
type of Talaq is theologically improper.
 Thus, it is legally valid for Sunnis but not for Shia. Shias and Malikis do not
recognize this form. Shia law does not recognize any form of irrevocable Talaq. In
Sunni; it is Recognized but considered sinful.

Ila (Vow of continence) –

 Where the husband is of sound mind and of the age of majority, swears by God that
he will not have sexual intercourse with his wife and leaves the wife to observe iddat,
he is said to make ila.
 If the husband after having pronounced ila abstains from having sexual intercourse
with wife for four months, the marriage is dissolved with the same result as if there
had been an irrevocable divorce pronounced by the husband.
 This requires following conditions - Husband must be of sound mind and above the
age of majority and must swear by God or must take a vow and vow must be that he
will not have sexual intercourse with his wife and must abstain from sexual
intercourse with his wife for four months or more after taking the vow.
 It can be cancelled by - resuming sexual intercourse within the period of four months
or by a verbal retraction. It is not in practice in India.

Zihar - Injurious Assimilation –

 If a husband compares the wife with his mother or any other female relative within
prohibited degree, the wife has a right to refuse herself to him until he has performed
a penance such as freeing a slave or fasting for a month.
 In default of expiation by penance, the wife has the right to apply for judicial divorce.
Ingredients husband must be sane and adult and husband compares wife to his mother
or any other female relative within prohibited degrees and then the wife has a right to
refuse to have sexual intercourse with him till he has expiated himself by penance or
to apply in Court for an order directing him for a penance or to decree her a regular
divorce.
  Zihar by itself does not terminate the marriage nor does it cause the wife to lose her
right to maintenance even in case of default of penance. It causes the following:
sexual intercourse becomes unlawful and husband is liable for penance and wife can
claim judicial separation if the husband persists in wrong doing.
 The comparison must be done intentionally and with disrespect. If the husband makes
a comparison to show respect to his wife, expiation is not necessary. This form has
become obsolete.
 In Shias; Comparison must have been done in presence of two witnesses. Muta
marriage may be dissolved by Zihar.

Talaq e tafweez –

 A husband may delegate his power to give Talaq to any third party or even to his
wife. This delegation is called tafweez.
 An agreement made either before or after the marriage providing that the wife is at
liberty to divorce herself from her husband under certain specified conditions (e.g.
husband taking a second wife), is valid, provided that such power is not absolute and
unconditional and that the conditions are reasonable and are not opposed to public
policy.
 In Mohd Khan vs. Mst Shahmali AIR 1972, there was a pre-nuptial agreement in
which the defendant agreed to live in plaintiff's parental house after marriage and if he
left the house, he would pay a certain sum to the plaintiff, the default of which the
condition would act as divorce. It was held that the condition was not unconscionable
or opposed to public policy. here a wife does not divorce her husband but gets herself
divorced from the husband.
 Ameer Ali gives three kinds of tafweez - Ikhtiar - giving her authority to Talaq
herself. Amr-bayed - leaving the matter in her own hands, Mashiat - giving her the
option to do what she likes. This does not deprive the husband from his right to give
Talaq, Talaq e taliq - It means contingent divorce.
 Under the Hanafi law, pronouncement of divorce may take effect immediately or at
some future time or event

Khula - Divorce at the request of wife –

 A wife has a right to buy her release from marriage from her husband. It must satisfy
the following conditions - there must be an offer from the wife and the offer must be
accepted with consideration (evaz) for the release and the offer must be accepted by
the husband.
 It becomes effective as well as irrevocable (Talaq ul bain) as soon as it is accepted by
the husband and the wife is bound to observe iddat. As a consideration for release by
the husband, everything that can be given in dower can be given.
  If the wife fails to give the consideration that was agreed upon at the time of Khula,
divorce does not become invalid but the husband has the right to claim the
consideration.
 In Moonshee Buzloor Rahim vs. Lateefutoon Nissa, Khula was defined as a divorce
by consent in which the wife gives or agrees to give a consideration to the husband for
her release from the marriage tie. Khula is thus the right of divorce purchased by the
wife from her husband.
 In Shias; Husband must be adult, sane, free agent (mukhtar), and must have intention
to divorce her. Husband has no power of revocation but wife can reclaim the
consideration during iddat. In this case, the husband can revoke Khula.
 In Sunnis; only two conditions - Husband must be adult and sane. It is irrevocable and
partners cannot resume sexual intercourse until a fresh marriage is arranged.

Mubarat- Divorce by mutual agreement - It is a form of dissolution of marriage contract,

where husband and wife both are averse to the marriage and want to separate. It requires
following conditions - Either of husband or wife can make the offer and The other one must
accept it and As soon as it is accepted, it become irrevocable and iddat is necessary. Since it
is a mutual agreement, there is no question of consideration.

Lian - False charge of adultery –

 When the husband charges the wife with adultery and the charge is false, the wife is
entitled to sue for and obtain divorce.
 In Zafar Hussain vs. Ummat ur Rahman 1919, the Allahabad HC accepted the
doctrine of Lian. The following conditions must be satisfied - Husband, who is adult
and sane, charges his wife with adultery or denies the paternity of her child and Such
charge, is false and The marriage is a Sahih marriage.
 Such false charge does not dissolve the marriage automatically but only gives a right
to the wife to sue for divorce. The marriage continues till the decree is passed
 Here Wife must file a regular suit and just an application will not suffice.
 Judicial separation due to Lian is irrevocable.
 Lian is applicable only to Sahih marriage and not to Fasid ones.
 A husband may retract the charge. However, the retraction must be bona fide and
unconditional. It must be made before the closing of evidence.

Fask - Cancellation - Muslim law allows a lady to approach a qazi for dissolving the marriage
under the following conditions - if the marriage is irregular and if the person having an option
to avoid a marriage has exercised his options and if the marriage was within prohibited
degrees or fosterage and if the marriage has been contracted by non-Muslims and the parties
have adopted Islam. Before the enactment of Muslim Marriage Dissolution Act, this was the
only way for a Muslim woman to repudiate a marriage
**Irretrievable Breakdown: Divorce on the basis of irretrievable breakdown of marriage has
come into existence in Muslim Law through the judicial interpretation of certain provisions
of Muslim law. In 1945 in Umar Bibi v. Md. Din, it was argued that the wife hated her
husband so much that she could not possibly live with him and there was total incompatibility
of temperaments. On these grounds the court refused to grant a decree of divorce. But twenty
five years later in Neorbibi v. Pir Bux, again an attempt was made to grant divorce on the
ground of irretrievable breakdown of marriage. This time the Court granted the divorce. Thus
in Muslim law of modern India, there are two breakdown grounds for divorce: non-payment
of maintenance by the husband even if the failure has resulted due to the conduct of the wife,
and where there is total irreconcilability between the spouses.

- Consequences arising from Talaq

 Marriage - Parties are entitled to contract another marriage. If the marriage
was consummated the wife has to wait until the period of iddat is over,
otherwise, she may remarry immediately. If the marriage was consummated
and if the husband had four wives at the time of divorce, he can take another
wife after the period of iddat.
 Dower- Dower becomes payable immediately if the marriage was
consummated, otherwise, the wife is entitled to half of the amount specified in
dower. If no amount is specified, she is entitled to 3 articles of dress. Where
the marriage is dissolved due to apostasy of the wife, she is entitled to whole
of the dower if the marriage has been consummated.
 Inheritance - Mutual rights of inheritance cease after the divorce becomes
irrevocable.
 Cohabitation - Cohabitation becomes unlawful after the divorce has become
irrevocable and children from such intercourse are illegitimate and cannot be
legitimated by acknowledgment as held in Saiyyad Rashid Ahmad vs. Anisa
Khatoon 1932.
 Remarriage - Remarriage between the divorced couple is not possible until
the wife observes iddat and after iddat she lawfully marries another man and
this intervening marriage is consummated and the new husband pronounces
divorce or dies and the wife again observes iddat A marriage done without the
fulfilment of the above is irregular, not void. But mere cohabitation after an
irrevocable divorce is void.
 Maintenance - The wife becomes entitled to maintenance during the period of
iddat but not during the iddat of death
ii. Grounds:

I. Under Classical Law

- Among almost all the nations of antiquity; divorce was regarded as a natural corollary
of marital rights. Romans, Hebrews, etc all had concept of divorce in one form or
other.
- Even though the provision of divorce was recognised in all religions; Islam perhaps
was the first religion in the word which expressly recognised the termination of
marriage by way of divorce.
- Divorce in Islam is considered one of the most detestable actions in the sight of Allah.
- Unlike some religions, divorce in Islam is permissible, but its procedure is strictly
observed. Finalizing a divorce in Islam is not as simple as some people may perceive.
It is a long and extensive process.
- The husband may have been automatically willed as the final executor of the divorce
decree, but the process for divorce is difficult and conditional. The reason for this is
that divorce has consequences and repercussions, not only upon the married couple,
but also upon the children, and, unavoidably, the immediate relatives and society.
- Scholars have a variety of justifications as to why divorce has been determined as the
man’s right. Their reasons are not as some people may believe, such as that men are
somehow superior to women or that men are the caretakers of women.
- Most scholars conclude that the main reasons are the result of a woman’s
psychological structure and of the man’s obligation to provide her with financial
sustenance.
- Initially there were four categories of divorce to consider.
 The right of divorce is inherently given to the husband; unless it is proven that the
husband has become psychologically incompetent. In this case, the Islamic judge
(al-hakim al-shar’i) would determine the divorce.
 The husband relinquishes his inherited divorce right and grants his wife the right
of divorce.
 Couples relinquish divorce procedures to the Islamic Courts or an Islamic
scholar/leader (imam).
 Right of divorce is equally given to both —the husband and wife.

The third clause: To be absolutely and entirely dependent upon an Islamic Judge, who has no
prior knowledge or is unfamiliar with the individuality of each couple, their lives, or affairs,
and the fact that this individual is charged with the authority of issuing a decision that will
ultimately alter one’s life, is somewhat unthinkable. Divorce is a personal matter in which
only the parties involved can make the rightful decision that best suits their lives.

The fourth clause: the right of divorce to be equally controlled by both parties can be difficult
to settle. Presuming one partner is set on divorce, and the other is set against it, then the
marriage or divorce is at a standstill because both are equal in the decision-making.
Contracting this type of divorce is not advisable.
So This leaves the two remaining clauses as options: either the inherited right remains with
the husband, or the husband grants his divorce right to the wife., Islamic law (shar’i) would
not advocate that the divorce right is given solely to the wife. This leaves us with the last
option, the right for divorce to remain with the husband (with mutual counselling and
consultation with the wife)

- Regardless of which partner has the entitlement of divorce, when a divorce is initiated
there are procedures that must be followed by both partners in order for the divorce to
be religiously binding.
- There are two classes of divorce, revocable (rejie) and irrevocable (ba’aen).
Revocable (rejie) divorces can be likened to a three-month counselling period (iddah)
in which the couple may reconcile within that time without renewing their marriage
contract.
- On the other hand, irrevocable divorces dissolve the marriage instantly. However,
there still remains a three-month recuperation period (iddah) for the woman. If the
couple decides to reconcile then they must contract a new marriage.

II. Under Statutory Law: Dissolution of the Muslim Marriage Act, 1939

Qazi Mohammad Ahmad Kazmi had introduced a Bill in the Legislature regarding the issue
on 17th April 1936. It however became law on 17th March 1939 and thus stood the
Dissolution of Muslim Marriages Act 1939.

The next step was the Muslim Women (Protection on Divorce) Act which was enacted only
in 1986 after the Shah Bano case. This law prescribed the right to maintenance for a Muslim
woman after her divorce. Different Courts interpreted the law differently and some women
even continued to take resort to the Cr.PC Sec.125 to demand maintenance.

The laws passed in 1939 and 1986 were not the result of a concerted effort towards reforms.
They were more a result of reactions by the conservatives who saw reforms in personal laws
as an infringement on the right to religion and a threat to the male identity.

Dissolution of Muslim Marriages Act 1939 is An Act to consolidate and clarify the
provisions of Muslim law relating to suits for dissolution of marriage by women married
under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a
married Muslim woman on her marriage tie.

Grounds for decree for dissolution of marriage – Section 2 of the Act runs there under: A
woman married under Muslim law shall be entitled to obtain a decree for the dissolution of
her marriage on any one or more of the following grounds, namely:-

(i) That the whereabouts of the husband have not been known for a period of four
years: if the husband is missing for a period of four years the wife may file a
petition for the dissolution of her marriage. The husband is deemed to be missing
if the wife or any such person, who is expected to have knowledge of the husband,
is unable to locate the husband.
 Section 3 provides that where a wife files petition for divorce under this ground,
she is required to give the names and addresses of all such persons who would
have been the legal heirs of the husband upon his death. The Court issues notices
to all such persons appear before it and to state if they have any knowledge about
the missing husband. If nobody knows then the Court passes a decree to this effect
which becomes effective only after the expiry of six months. If before the expiry,
the husband reappears, the Court shall set aside the decree and the marriage is not
dissolved.
(ii) That the husband has neglected or has failed to provide for her maintenance for a
period of two years: it is a legal obligation of every husband to maintain his wife,
and if he fails to do so, the wife may seek divorce on this ground. A husband may
not maintain his wife either because he neglects her or because he has no means to
provide her maintenance. In both the cases the result would be the same. The
husband's obligation to maintain his wife is subject to wife's own performance of
matrimonial obligations. Therefore, if the wife lives separately without any
reasonable excuse, she is not entitled to get a judicial divorce on the ground of
husband's failure to maintain her because her own conduct disentitles her from
maintenance under Muslim law.
(iii) That the husband has been sentenced to imprisonment for a period of seven years
or upwards: the wife's right of judicial divorce on this ground begins from the date
on which the sentence becomes final. Therefore, the decree can be passed in her
favour only after the expiry of the date for appeal by the husband or after the
appeal by the husband has been dismissed by the final Court.
(iv) That the husband has failed to perform, without reasonable cause, his marital
obligations for a period of three years: the Act does define 'marital obligations of
the husband'. There are several marital obligations of the husband under Muslim
law.
But for the purpose of this clause husband's failure to perform only those conjugal
obligations may be taken into account which is not included in any of the clauses
of Section 2 of this Act.
(v) That the husband was impotent at the time of the marriage and continues to be so:
for getting a decree of divorce on this ground, the wife has to prove that the
husband was impotent at the time of the marriage and continues to be impotent till
the filing of the suit. Before passing a decree of divorce of divorce on this ground,
the court is bound to give to the husband one year to improve his potency
provided he makes an application for it. If the husband does not give such
application, the court shall pass the decree without delay. In Gul Mohd. Khan v.
Hasina the wife filed a suit for dissolution of marriage on the ground of
impotency. The husband made an application before the Court seeking an order
for proving his potency. The Court allowed him to prove his potency.
(vi) If the husband has been insane for a period of two years or is suffering from
leprosy or a virulent venereal disease: the husband's insanity must be for two or
more years immediately preceding the presentation of the suit. But this act does
not specify that the unsoundness of mind must be curable or incurable.
 Leprosy may be white or black or cause the skin to wither away. It may be curable
or incurable. Venereal disease is a disease of the sex organs. The Act provides that
this disease must be of incurable nature. It may be of any duration. Moreover even
if this disease has been infected to the husband by the wife herself, she is entitled
to get divorce on this ground.
That she, having been given in marriage by her father or other guardian before she
attained the age of fifteen years, repudiated the marriage before attaining the age
of eighteen years, provided that the marriage has not been consummated;
(vii) That the husband treats her with cruelty (viii) that is to say:
 Habitually assaults her or makes her life miserable by cruelty of conduct even
if such conduct does not amount to physical ill-treatment, or
 Associates with women of ill-repute or leads an infamous life, or
 Attempts to force her to lead an immoral life, or
 Disposes of her property or prevents her exercising her legal rights over it, or
 Obstructs her in the observance of her religious profession or practice, or
 If he has more than one wife, does not treat her equitably in accordance with
the injunctions of the Holy Quran.

In Syed Ziauddin v. Parvez Sultana, Parvez Sultana was a science graduate and she wanted to
take admission in a college for medical studies. She needed money for her studies. Syed
Ziaudddin promised to give her money provided she married him. She did. Later she filed for
divorce for non-fulfilment of promise on the part of the husband. The Court granted her
divorce on the ground of cruelty. Thus we see the Court's attitude of attributing a wider
meaning to the expression cruelty.

In Zubaida Begum v. Sardar Shah, a case from Lahore High Court, the husband sold the
ornaments of the wife without her consent. It was submitted that the husband's conduct does
not amount to cruelty.

(ix) on any other ground which is recognised as valid for the dissolution of marriages
under Muslim law; Provide that:
 no decree shall be passed on the ground (iii) until the sentence has become final
 a decree passed on ground (i) shall not take effect for a period of six months from the
date of such decree, and if the husband appears either in person or through an
authorised agent within that period and satisfied the Court that he is prepared to
perform his conjugal duties, the Court shall set aside the said decree; and
 before passing a decree on ground (v) the Court shall, on application by the husband,
make an order requiring the husband to satisfy the Court within a period of one year
from the date of such order that he has ceased to be impotent, and if the husband so
satisfies the Court within such period, no decree shall be passed on the said ground.
** As per Section 3; Notice to be served on heirs of the husband, when the husband's
whereabouts are not known - In a suit to which clause (i) of Section 2 applies: the names and
addresses of the persons who would have been the heirs of the husband under Muslim law if
he had died on the date of the filing of the plaint shall be stated in the plaint.

- Notice of the suit shall be served on such persons, and

- Such persons shall have the right to be heard in the suit;

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

** Effect of conversion to another faith as per Section 4 -

The renunciation of Islam by a married Muslim woman or her conversion to a faith other than
Islam shall not by itself operate to dissolve her marriage: Provide that after such renunciation,
or conversion, the woman shall be entitled to obtain a decree for the dissolution of her
marriage on any of the grounds mentioned in Section 2 and Provided further that the
provisions of this Section shall not apply to a woman converted to Islam from some other
faith who re-embraces her former faith.

** Right to dower not to be affected as per Section 5 - Nothing contained in this Act shall
affect any right which a married woman may have under Muslim law to her dower or any
part thereof on the dissolution of her marriage.