FAMILY LAW WEEKLY ASSIGNMENT

- PRAKRITI
1901071
SECTION B
Under the Muslim Law, Mehr (dower) means money or property which the wife is entitled to obtain
from the husband in respect of the marriage but this consideration is not the same as that of the civil
contract. Dower is a duty levied upon the husband as a mark of affection for the bride. The main aim
of the door is to provide wife for her survival after her marriage has been broken, so that she can not
become defective after the married couple's death or marriage termination by divorce. Mehr was
also deemed to be a part of maintenance in compliance with Article 125 of the 1973 Criminal
Procedure Code, when setting the maintenance number.

As there is no specific definition of the dower  number in compliance with Muslim Personal Laws,
various High Courts of Indian and the Supreme Court in various cases made different views of Mahr.

In Abdul Kadir v. Salima that dower/Mehr the exchange or consideration given by the man to the
women, but an effect of the contract imposed by the law on the husband as a token of respect for
the wife. The term consideration is explained by Mahmood J, Mehr has been compared to the price
in a contract of sale because marriage is a civil contract and sale is a typical contract to which Muslim
Jurists are accustomed to referring by way of analogy.

In the case Sayed Sabir Hussain v. Farsand Hussain the court concluded that the dower paid by the
husband to wife is the legal responsibility of the husband. Further, it was observed in the case of
Anis Begam v. Mohd. Istafa it was held that under Muslim law it could not be treated purely as the
sale of the person by the wife in consideration for the payment of dower.

Classification of Dower
It is clear now that dower is payable whether the entirety has been attached or not. A substantial
Marriage isn't conceivable without the dower. Along these lines as a matter of first importance, the
dower might be determined or unspecified. Accordingly, there are basically two types of dower
under Muslim Law. One is called as Specified and second one is called as Unspecified or proper
dower. Specified dower further divided into two categories, prompt and deferred.

In these two-classification specified and unspecified dower, the court only deals with the issue of the
amount payable during the marriage. On the other hand, in prompt and deferred dower court has to
deals with the issue of time with respect to when the payment of dower has to be made.

Specified dower (mahrul-musamma)

Across the Islamic world, the dower is fixed during the time of marriage and well before the
marriage. It is fixed by the mutual consent of the parties. It is the nature of the dower that at
whatever point the case of dower under the agreement is made by the spouse, the Court should,
unless it is generally given by any authoritative authorization, grant the whole sum given in the
contract.
In the case of Sayed Sabir Husain v. S. Farzand Hasan the father made himself the security for the
amount of dower and in this way he dies. The court held that the home of the deceased subject to
pay the child's unpaid dower.

Prompt (muajjal) dower & Deferred (muvajjal) dower

The amount of dower which is paid under the specified dower is further divided into two heads that
is prompt dower, which is payable on demand of wife at the time of marriage or any point of time.
On the other side, deferred dower, this is paid in case of dissolution of marriage by divorce or death.
The prompt portion of the dower may be realized by the wife at any time before or after
consummation.

In general, which part of dower is prompt and deferred is decided by the contract, which is known as
mahr-nama. Usually, one half of the amount is fixed as prompt, and the other half is deferred dower.
But, in this regard, there is no hard and fast rule. It is the custom under Islamic law to pay the
prompt dower between the marriages or in case after the marriage when the wife demands it.

In the case of Mirza Bedar v Mirza Khurrum it was held that when parties have not stipulated as to
which part of the dower is prompt and which part is deferred, according to Shias” the whole
amount is considered as prompt. On the side of Sunnis” it is considered that one half is prompt
and another one is deferred dower.

In Sheik Mohammad v Ayesha the Madras High Court concluded that in the absence of any specific
contract, the entire amount should be considered as prompt dower, irrespective of the fact whether
parties are Shias or Sunnis. The question for the determination of prompt and deferred dower is
again examined by the High Court of Lahore, in the case of Nasiruddin v Amatul it was held that issue
would be determined on the basis usages and customs. But in the absence of these custom and
usages, one half is presumed to be prompt and the other half is deferred. Proportion of deferred and
prompt dower is varying from case to case.

Unspecified dower (mahrul misal)

In case the amount of dower is not fixed at the time or before the marriage then the dower of the
wife is decided by the court relying on the various factors that are according to local customs,
position of husbands, position of wife’s father, reference to dower of female paternal relations,
personal qualifications that dower is known as unspecified dower.

The proper dower of women is regulated by a regard to the nobility of her birth, the beauty of her
person and the custom of her female relations.

In the case of Najmoodeen v Beebee Husseinnie, it was held that on deciding unspecified dower the
Muslim authorities do not favour taking into consideration the husband social status and position.

Status of Unpaid Dower

The legal obligation of the husband under the Muslim Law is to pay dower to the wife. An unpaid
dower resembles like a simple debt in which the husband is like a debtor, and the wife is like a
creditor. In the case of Hamira Bibi v Zubaida Bibi, it was held that the widow has a special right to
demand the unpaid dower to his husband. Further it in this regard it was coated that dower is an
essential incident under the Muslim Law to the status of marriage.... the dower ranks as a debt and
the wife are entitled, along with other creditors, to have it satisfied on the death of the husband out
of his estate.
Now matters come into consideration that whether widow can exercise right to retain possession of
her husband property in lieu of unpaid dower is debatable and still into consideration. In the case
Babee Bachum v Hamid Hussain, it was held that the possession of the husband property could be
acquired by the wife in lieu of the unpaid dower without force or fraud. The same principle lay down
in the case of Mania Bibi v Chaudhri Vakil Ahmad where it was held that property should be
peaceably and lawfully acquired. Further, the court contended that when the possession of the
husband property is peacefully and lawfully obtained, the right of the widow to retain it till her
dower debt is paid is confirmed on her by the Muslim Law.

Now again matter come into the consideration that whether the widow right of retention in lieu of
unpaid dower is transferable and heritable. There is a plethora of conflicting judicial opinion on this
point. Some of the cases in which the court held that right of retention of the property are not
heritable right.

On the other hand, contrary to this rule in the case of Mir Vaheed Ali v Rashid Beg, it was held that
the right of retention of the property is heritable. Further Mysore High court in the case of Hussain v
Rahim Khan held that the right is both heritable and transferable. On contrary Patna High court
deciding the same issue in the case of Zobair Ahmad v Jainandon Parasad held that it is not
transferable.

According to the Supreme Court in Kapore Chand v Kedar Unnissa the right to possession of the
property is not a transferable right.

In Ghouse Yar khan v Fatim Begham, it was held by Andhra Pradesh High court that possession of the
property by widow my retained for unpaid dower under Muslim law this right can be alienated and
inherited.

DIVORCE
There can be two broad categories under which the divorce/talaq under Muslim Law can be dIvided.
They are:

Extra Judicial Divorce or Talaq under Muslim Personal Law.

Judicial Divorce or Talaq under Statutory Law.

EXTRA JUDICIAL DIVORCE

The Extra-judicial divorce is when it depends upon the will of husband or wife or when it is by
mutual agreement. There are different rights provided to wife and husband. Generally, rights to give
divorce are given to husband only, the wife is at very lower pedestal regarding the right to divorce.
Extra-judicial divorce is divided into several parts:

By Husband- Talaq-Ul-Sunnat, Talaq-Ul-Biddat, Ila and Zihar

By Wife- Talaq-i-Tafweez, Lian and Khula

My Mutual Agreement- Mubarat

1. By Husband
a) Talaq-Ul-Sunnat
Talaq-ul-Sunnat is also called as Talaq-ul-raje. It is a revocable form of talaq because in this form, the
consequences of Talaq do not become final at once. There is possibility of compromise and
reconciliation between husband and wife. Talaq-ul-Sunnat is regarded to be the approved form of
Talaq. This mode of Talaq is recognised both by Sunnis as well as by the Shias. Talaq-ul-Sunnat may
be pronounced either in Ahasan or in the Hasan form.

i) Ahasan

This is the most proper form of repudiation of marriage. The reason is twofold: First, there is
possibility of revoking the pronouncement before expiry of the Iddat period. Secondly, the evil
words of Talaq are to be uttered only once. Being an evil, it is preferred that these words are not
repeated.

Procedure to be followed in Ahasan Talaq

1. The husband has to make a single pronouncement of Talaq during the Tuhr of the wife. Tuhr is the
period of wife’s parity i.e. a period between two menstruations. As such, the period of Tuhr is the
period during which cohabitation is possible. But if a woman is not subjected to menstruation, either
because of old age or due to pregnancy, a Talaq against her may be pronounced any time.

2. After this single pronouncement, the wife is to observe an Iddat of three monthly courses. If she is
pregnant at the time of pronouncement then the Iddat is till the delivery of the child. During the
period of Iddat there should be no revocation of Talaq by the husband to make the talaq final.

When the period of Iddat expires and the husband does not revoke the Talaq either expressly or
through consummation, the Talaq becomes Irrevocable and final.

However, during the period of iddat the husband can revoke the talaq. Revocation may be express
or implied. Cohabitation with the wife is an implied revocation of Talaq. If the cohabitation takes
place even once during this period, the Talaq is revoked and it is presumed that the husband has
reconciled with the wife.

ii) Hasan

This Talaq is also regarded to be the proper and approved form of Talaq. In this form too, there is a
provision for revocation. But it is not the best mode because evil words of Talaq are to be
pronounced three times in the successive Tuhrs

Procedure to be followed in Hasan Talaq

1. The husband has to make a single declaration of Talaq in a period of ‘Tuhr.

2. In the next Tuhr, there is another single pronouncement for the second time.

3. If no revocation is made after the first or second declaration then lastly the husband is to make
the third pronouncement in the third period of purity (Tuhr). As soon as this third declaration is
made, the Talaq becomes irrevocable and the marriage dissolves and the wife has to observe the
required Iddat.

It is only after the third pronouncement that the wife observes the iddat period and no revocation
can be made post 3rd pronouncement. Revocation in Hasan Talaq can be made only made during
tuhr firstly between 1st and 2nd pronouncement and secondly between 2nd and 3rd
pronouncement.
b) Talaq-ul-Biddat

Talaq-ul-Biddat is also known as Talaq-ul-Bain. It is a disapproved mode of divorce. A peculiar

feature of this Talaq is that it becomes effective as soon as the words are pronounced and there
remains no possibility of reconciliation between the parties thereby making it irrevocable. This form
of talaq is mainly recognized and practiced by the Sunni Muslims and is not recogised by the Shia
Muslims. Talaq-ul-Biddat maybe pronounced in single declaration or by triple declaration.

i) Single Declaration

Procedure:

The husband may make only one declaration in a period of purity expressing his intention to divorce
the wife irrevocably saying: “I divorce thee irrevocably” or “I divorce thee in Bain”. After the
pronouncement is made the talaq becomes irrevocable and permanent. It is after this period the
wife observes the iddat period.

ii) Triple Declaration

Procedure:

The husband may make three pronouncements in a period of purity (Tuhr) saying: “I divorce thee, I
divorce thee, and I divorce thee”. He may declare his triple Talaq even in one sentence saying: “I
divorce thee thrice”, or “I pronounce my first, second and third Talaq.” It becomes irrevocable
immediately when it is pronounced and subsequently the wife observes the iddat period

However it is to be noted that talaq-ul-biddat has been declared unconstitutional by the Hon’ble
Supreme Court in Shayara Bau vs unio of India (2017) 9 SCC 1 in which the court held that “that this
form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and
whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of
Talaq must, therefore, be held to be violative of the 393 fundamental right contained under Article
14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to
recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article
13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple
Talaq”

Subsequently the Government of India has passed a law banning triple talaq and punishing any
husband who pronounces triple talaq with imprisonment upto 3 years.

c) Ila

In Ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath,
there is no consummation for a period of four months. After the expiry of the fourth month, the
marriage dissolves irrevocably. But if the husband resumes cohabitation within four months, Ila is
cancelled and the marriage does not dissolve.

In case of sunnis such a conduct of the husband will amount to single irrevocable divorce ad the
marriage will dissolve automatically at the expiry of 4 months.
In case of Shias the amrraige do not dissolve automatically rather it gives the wife the right of judicial
divorce u/s 2(ix) of the Dissolution of Muslim Marriages Act 1939.

d) Zihar

In this mode, the husband compares his wife to a woman within his prohibited relationship e.g,
mother or sister etc. The husband would say that from today the wife is like his mother or sister.
After such a comparison the husband does not cohabit with his wife for a period of four months.
Upon the expiry of the said period, Zihar is complete. After the expiry of the fourth month the wife
has following rights:

She may go to the court to get a decree of judicial divorce.

She may ask the court to grant the decree of restitution of conjugal rights.

Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife
cannot seek a judicial divorce. It can be revoked if:

The husband observes fast for a period of two months, or,

He provides food at least sixty people, or,

He frees a slave.

In Masroor Ahmed Vs. State (Nct of Delhi) and anr (legalcrystal.com/716062), The high Court of Delhi
observed that “Ila and Zihar as modes of divorce are virtually non-existent in India. However, lian is
sometimes resorted to. If a man accuses his wife of adultery (zina), but is unable to prove the
allegation, the wife has the right to approach the qazi for dissolution of marriage. In India, a regular
suit has to be filed. Once such a suit is filed by the wife, the husband has the option of retracting his
charge of adultery, whereupon the suit shall fail. However, if he persists then he is required to make
four oaths in support of the charge. The wife makes four oaths of her innocence, after which the
court declares the marriage dissolved. This is the process of dissolution of marriage by lian”

2. By Wife

a) Talaq-i-Tafweez

It is known as delegated form of divorce and is recognized among both, the Shias and the Sunnis.
The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other
person. He may delegate the power absolutely or conditionally, temporarily or permanently. A
permanent delegation of power is revocable but a temporary delegation of power is not. This
delegation must be made distinctly in favour of the person to whom the power is delegated, and the
purpose of delegation must be clearly stated. Any agreement made either before or after the
marriage providing that the wife would be at the liberty to divorce herself under certain specified
conditions is vald provided the conditions are reasonable and not opposed to public policy.

It should be noted that even in the event of a contingency, whether or not the power is to be
exercised, depend upon the wife she may choose to exercise it or she may not. The happening of the
event of contingency does not result in automatic divorce.

b) Khula
Khula is a form of divorce with the consent of wife and at her own instance in which she gives or
agrees to give certain consideration to the husband for her release/redeption from the marital tie.
Following conditions are necessary for a valid Khula:

1. There must be an offer from the wife.

2.She gives or agrees to give consideration to the husband for her release
3. Acceptance of the offer by the husband.
Such proposal may be retracted by the wife at any time before the acceptance is made by the
husband. According to Muslim personal law 3 days time has been given by various jurists to both
husband and wife. The moment offer is accepted by the husband it stands as single irrevocable
divorce i.e there marital relationship ends the moment the husband accepts the offer.

4. By Mutual Agreement
It is also known as Mubarat. Mubarat is also a form of dissolution of a marriage contract. It signifies a
mutual discharge from the marriage claims. In mubarat the aversion is mutual and both the sides
desire separation. Thus, it involves an element of mutual consent. In this mode of divorce, the offer
may be either from the side of wife or from the side of the husband. When an offer mubarat is
accepted, it becomes an irrevocable divorce and iddat is necessary.

JUDICIAL DIVORCE
Judicial divorce is a formal separation between husband and wife where there is no direct role of
husband or wife but court separates them according to established custom or law. In such cases,
divorce does not depend on the will and pleasure of the husband. Under Dissolution of Muslim
Marriage Act, 1939 the legislature has made provisions for the divorce on the application of wife.
There are several grounds in which judicial divorce can be pronounced. Grounds on which a female
can claim divorce under this act are:

 Whereabouts of the husband are not known,

 Failure to maintain for a period of two years.
 When husband sentenced to imprisonment.
 Failure to perform marital obligations.
 Impotency
 Insanity, leprosy or virulent venereal diseases.
 Repudiation of marriage.
 Cruelty.
 False accusation of adultery
 Conversion of the spouse to another religion.