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UNIT 2
1. Acknowledgement of Paternity & it conditions
The acknowledgement of paternity under Muslim law is in the nature of a declaration by the
father that a child is his legitimate offspring. It is not a process of legitimation of an illegitimate
child. As has been seen earlier, Muslim law does not recognize legitimate or legitimation.
Acknowledgement means to accept or admit the existence of a thing or a fact and paternity
mean the state of being someone father. So put together acknowledgement of paternity means
accepting the fact of being someone's father. Acknowledge of paternity is required so as to
prove the legitimacy of a child. The acknowledgement is just in nature of a declaration by
father that the child is his offspring. This doctrine of acknowledgement draws its genesis from
the Quranic provision:- "call them after their fathers"
Under the Muslim law a child to be legitimate:-

 must be born during lawful wedlock and

 must be conceived during the lawful wedlock

A child born after six months of marriage is legitimate, unless declaimed by his father and a
child born within six months marriage is illegitimate unless the father acknowledges it. So
acknowledgement is a tool for keeping the family intact and not allowing the child to live
without the love, care and protection of the father. So for an acknowledge being made
doubtfulness of paternity of the child is a prima facie requisite. When the paternity of the child
cannot be established by marriage between the parents at the time of conception or birth, such
void of marriage and legitimate descent is filled through acknowledgement.
So a child to be legitimate must be begotten out of lawful wedlock. The law with regard to the
Mohammedans requires or necessitates the existence of a valid marriage between the male
person (begetter) and the carrier (mother) at the time of conception.

Conditions requisite for a valid acknowledgement are envisaged below:-

1. Intention to confer legitimacy

The acknowledge must not be of sonship alone but must be of legitimate sonship. Such
acknowledgement must be well-intended and not have been casually made with no intention to
confer legitimacy.

2. Acknowledger's Age
The parties thereto must be of such age, so as to be considered as father and son, i.e. the
acknowledger must be twelve and a half years older than the child acknowledged.

3. The legitimacy of the child must be in question (the child must not be known to be the
child of someone else) The acknowledged by the acknowledger should not be known to be the
child of another.

4. Confirmation must be made by the person so acknowledged.

The acknowledger i.e. the must verify the acknowledgement or at least not repudiate it and
believe himself/ herself to be the child of the acknowledger.

5. Legal Marriage must be possible between the parents of the acknowledged child
There must not be any kind of prohibited relationship between the parents of the child
acknowledged, i.e. either by consanguinity, affinity etc.. The marriage should be possible when
the child was begotten.

6. The acknowledger must be competent

The acknowledger must bear capacity for entering into a valid contract, that is he should be
adult and sane.

7. Should not be Zina's ( incest) Offspring

The child acknowledged should be an outcome of lawful wedlock, should not be born without
marriage or born out of a void marriage, born out of adultery etc.
Now coming to the statutory law in the Indian regime with regard to the presumption of
legitimacy, which has been inscribed under section 112 of the Indian Evidence Act,1872
(IEA for brevity). This section raises a legal presumption for the legitimacy of a child, under two
circumstances:-

 When the child is born during the continuance of valid marriage;

 With 280 days of the dissolution of marriage, provided the mother remains unmarried.
The fact that the child is born between these two periods as contemplated above, is considered
to be conclusive proof of legitimacy in letters of section 112 of the Indian Evidence Act,
1872. But the conclusiveness of such legitimacy can be rebutted if the parties show no access.
Both under the Muslim law and Indian Evidence Act there is a window whereby the
presumption of legitimacy of a child can be denied. In the former case, it is through
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lian(disclaim) and in the latter by proof of non-access. Whether the presumption under IEA
supersedes the presumption under Muslim law. To this dilemma, the opinions of High courts
have differed, but in the majority of opinion it has been contended that presumption under IEA
eclipses the presumption under the Muslim Law and applies to Muslim as well

2. Different modes of Talaq

BY HUSBAND
1) Talaq: Talaq is an Arabic word that means taking off any tie or restraint. In law, it means
the dissolution of marriage. There are further two types of law that look at the aspect of
divorce differently. In Hanafi law, there is no special pronunciation or phrase that is
necessary to be spoken to get talaq, whereas in Ithna Ashari law, there is strict adherence
to the form in which talaq must be pronounced. The requirements are that the talaq must
be uttered orally in the Arabic language in front of two male witnesses who should be
honest and virtuous Muslims. The presence of a wife is not necessary at the time of talaq. It
would be deemed that the talaq will take effect on the date when the wife knows it. It is
essential to inform the wife about talaq in cases where she has to observe iddat and the
dower becomes payable during iddat.
There are four modes available before a husband for dissolving the tie of marriage:
a) Talaq-ul-Sunnat: This form of talaq is effective in accordance with the traditions
established by the Prophet. It is further divided into two parts:-
 Ahsan: It is branded as the most laudable divorce. In this case, the husband
repudiates his wife during the period of tuhr, i.e., the period of purity, when
the wife is free from the menstrual cycle. In this period, the husband does
not have intercourse with his wife and leaves her to the observance of iddat.
The parties obtain the right of inheritance as the divorce remains revocable
during the iddat. As per Hedaya, this is the most relevant and approved
method of divorce because the companions of the Prophet approved of it.
Also, the husband has the power to revoke the divorce during the period of
iddat, i.e., three months or until the delivery of the child. In Ahsan, if the
marriage is not yet consummated, talaq can take place during the menstrual
cycle as well. The condition of tuhr is not applicable in cases where the
husband and wife are living separately or the wife is beyond the age of
menstruation or old age. It does not apply to the written form of talaq. This
form of talaq can only be done either through the implied period of
cohabitation within the period of iddat or through express words. Once the
iddat period lapses without revocation, talaq becomes final and irrevocable.
 Hasan: In this method of talaq, the husband pronounces the word talaq
successively three times during the period of tuhr, i.e., purity. In simple
terms, it can be said that it is a form of divorce upon divorce. In this case,
the first and second pronouncements are revocable, but if they’re followed by
the third pronouncement, they become irrevocable. One essential element of
Hasan is that the pronouncement should take place during the period of
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tuhr, and there shall be no intercourse between the couple during that
period. In layman’s language, it can be put forth as follows-

 When the wife is serving the period of tuhr and has not yet had intercourse, the
husband pronounces talaq. Now, he revokes it by saying words or having
intercourse. The wife observes menstruation.
 Again the wife is observing the period of tuhr and before intercourse, the husband
pronounces talaq. Followed by intercourse (repudiation). Again the wife observes
menstruation.
 Now, during this third period of tuhr if the husband pronounces talaq then it
becomes irrevocable and final.

2) Ila (Vow of Continence): The situation wherein a husband who is of sound mind and has
attained the age of majority swears in the name of God that he will not have sexual
intercourse with his wife and leaves her to observe iddat, he is said to make Ila.
If the husband resumes sexual intercourse within the iddat period being observed by wife, it
will lead to cancellation of Ila It is pertinent to note that Ila is not practised in India.
3) Zihar(Injurious Assimilation): A husband must be of sound mind and above the age of 18
years to be eligible to use this mode dissolution of marriage. If he compares his wife to his
mother or any of the female within prohibited degrees, the wife has a right to refuse to have
sexual intercourse with him. Such refusal can be accepted until he has expiated himself
from penance prescribed by law. Muta marriage(practised among Shias) which admits no
other sort of divorce may be dissolved by zihar.
Such form of divorce is no longer in use anymore

BY WIFE
A) Talaq-e-tafweez: This is the only way through which a woman can give divorce to his
husband, however, such power to give divorce needs to be delegated by the husband only. It is
a form of an agreement made either before or after marriage providing that wife will be
privileged to get separated from her husband via divorce under the specified condition as:-
1. In case the husband marries a second wife
2. The husband is unable to maintain her for a specified period of time any other
condition that must not be opposed to public policy.
If the conditions agreed in the agreement by the husband are well practised by him then, the
wife without any prejudice to Law can dissolve her marital ties.
The fact that husband delegates the power to the wife does not dispossess him of his right
pronounce talaq.

DIVORCE BY MUTUAL CONSENT:

1. Khula: The literal meaning of khula is “to lay down” before the law. The husband lays
down his right over his wife. It signifies an arrangement entered into to dissolve a connubial
connection in lieu of compensation paid by the wife to her husband out of her property,
everything that can be given as dower.
Khula is a divorce with mutual consent and at the instance of a wife in which she agrees to
give some consideration to her husband. It is basically a “redemption” of the contract of
marriage.
Essentials
 There must be an offer from the wife’s side
 Offer must be accepted by the husband with the consideration for it.
 Observance of the iddat period is necessary.
Under Shia law, husband can’t revoke divorce once accepted whereas the wife has been given
the power to reclaim the consideration during the iddat period.

2. Mubarat
It signifies mutual discharge from the marital tie. The most essential element is that the
mutual consent of both the partners is required in regards to the dissolution of marriage.
In this mode of divorce-
 Offer can be made from either of the sides.
 Acceptance of offer makes divorce irrevocable.
 Iddat is necessary
Under Shia law, parties can dissolve their marriage, if it is not possible for them to continue
their marriage by way of mubarat.

By the death of the husband or wife

The death of a person is a natural thing, and it is the most unexpected circumstance. If the
husband or wife dies, then naturally the marriage comes to an end. In the event of the death of
a wife, the husband can remarry immediately. There’s no restriction on the man as regards
marriage. In the case of the husband’s death, the period of iddat is to be followed by the widow.
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The period of iddat is 4 months and 10 days, and in the case of pregnancy, she has to wait
until the delivery of the child to remarry.
Dissolution of Muslim Marriage Act, 1939.
1. Lian: Lian can simply be described as the wrong charge of adultery on wife by her
husband. Whenever a husband imposes false adultery charges on his wife, then a wife can
sue him and can also obtain a divorce on the same ground under the Act, by filing a regular
suit for dissolution of marriage.

Essentials

 A husband must be adult and sane.

 He charges his wife of adultery.
 Such a charge must be false.
 False charges do not ipso facto (by that fact itself) dissolve the marriage, it just
provides a ground to the wife to move to the court to dissolve the marriage.
 Marriage will continue until the decree for dissolution of marriage is passed by the
court.
 Judicial seperation via mode of lian is irrevocable.
2. Faskh: Quran says that husband and wife are duty bound to respect each other and treat
each other respectfully and obey all lawful orders of each other. If both of them find that
they can’t live as husband and wife further, they can approach qazi who after careful
examination may terminate their marriage
Section 2 of Dissolution of Muslim Marriage Act, 1939 states nine grounds on which a Muslim
wife can obtain a decree of divorce:-
Absence of Husband– whereabouts of the husband are not known from the past four years.
Dissolution of marriage decree on this ground will take effect after six months from the date of
such decree is passed, and during that period if the husband appears in person or through an
authorizes agent. Court if satisfied from same may set aside the said decree.

 Failure to maintain- If a husband fails to provide maintenance to his wife for two
years. There is no defence available before husband on the ground of poverty, failing
health or unemployment.
 Imprisonment of a husband- If the husband is imprisoned for seven years or more.
 Failure to perform marital duties- If, without any reasonable cause, the husband
is unable to perform his marital obligations for three years.
 Impotency of husband- husband was impotent at the time of marriage and
continues to be so. If the husband within one year from the date of the order
obtained by wife for dissolution of marriage on the grounds of impotency on
application satisfies the Court that he ceased to be impotent. If the husband satisfies
the court, then no decree shall be passed on this ground.
 Insanity, leprosy or venereal disease- If the husband is insane or suffering from
leprosy, or any venereal disease from a period of two years, judicial divorce by wife
can be claimed on the same ground.
 Repudiation of marriage by wife- If a girl is married before the age of 15 years by
her father or guardian, then under Muslim law she has been provided with a right to
repudiate such marriage after attaining the age of 18 years provided that marriage is
not consummated. She is entitled to a decree of divorce for same.
 Grounds of dissolution recognised by Mohammedan Law- Wife is also entitled to
obtain a divorce on the ground recognised valid under the law.
 Cruelty by husband- if the husband treats his wife with cruelty, then she can
approach the Court and claim for a decree of judicial separation on the same ground.
Some of the ways through which grounds for cruelty could be claimed as follows.

 Physical assault.
 Making defamatory statements affecting her reputation.
 Forces her to lead an immoral life.
 Obstructing her from practising her religion.
 Husband having more than one wife and does not treat them equally.
Talaqnama
Talaqnama is talaq given in the written form. Talaq via talaqnama can be provided in the
absence of wife and also there is no necessity to be signed in the presence of Qazi or wife’s
father.

 Husband has to execute a proper deed.

 A deed must contain the name of the women whom he has divorced and his name.

3. Maintenance under Muslim Law

Maintenance for wife
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The notion of maintenance in Muslim personal law is different and stands in stark contrast to
the conceptions expressed in other groups’ personal laws in India. Maintenance is referred to
as ‘nafqah’ in Muslim law. Food, clothing, and housing are all included. A woman is entitled to
maintenance if her marriage is completed according to Muslim law and she has reached the
age when she may give conjugal rights to her husband. The Muslim husband is not obligated to
pay any amount of maintenance to his wife if the marriage is invalid or irregular unless there
were insufficient witnesses. Because of the status of their marriage’s legitimacy and pre-nuptial
arrangements, traditional Muslim law provides for maintenance to the woman from the
husband. This commitment to maintaining the wife is based on the woman’s income, but it is
the husband’s responsibility to do so. However, such a duty is contingent on the woman
remaining faithful to her husband and following his reasonable demands. This right of the
woman is also subject to the condition that the wife is not obstinate or refuses to live with her
husband without justification. Pre-nuptial agreements can be entered into by the separate
parties to a marriage in addition to the husband’s responsibility.
The Muslim Women (Protection of Rights on Divorce) Act of 1986 is statutory legislation of
Islamic divorce law. It codifies a number of critical maintenance rules. It specifies the amount
of support that the wife is entitled to during her iddat period. It also allows a Muslim wife to get
her unpaid Mehr or dower, as well as other special possessions, enforced. This statute clearly
says that a husband’s obligation to provide for his wife continues until the end of the iddat
period. If the woman is unable to support herself after the iddat period has expired, she can
seek reasonable and equitable maintenance from her relatives, who will be entitled to receive
her property after her death.

Maintenance for a divorced Muslim woman till she remarries

A Muslim husband is obligated to provide adequate and equitable provision for the future of his
divorced wife under Section (3)(a) of the Muslim Women (Protection of Rights on Divorce) Act,
1986. This also encompasses her maintenance. As a result, under Section 3 (1) (a) of the Act,
the husband must provide a fair and reasonable provision for the wife’s support beyond the
iddat period.
A divorced Muslim woman who has not remarried and is unable to support oneself after the
iddat period can seek maintenance from her relatives who are entitled to her property following
her death under Section 4 of this act.

When a Muslim woman does not have the right to maintenance under Muslim law
The instances in which a Muslim woman is not entitled to maintenance are as follows:
1. If she hasn’t attained puberty
2. When she has sufficiently abandoned her spouse and marital commitments and
duties.
3. When she married another man
4. When she disobeys her husband’s fair demands.

4.GUARDIANSHIP OF MINOR’S PROPERTY

A minor is supposed to have no capacity to protect his or her own interests. Law therefore,
requires that some adult person must safeguard the minor’s person or property and do
everything on his or her behalf because such a minor is legally incompetent. A person who is
authorised under the law to protect the person or property of a minor, is called a guardian.
Under Muslim law guardians are required for the purpose of marriage, for the protecting the
minor’s person and for protecting the minor’s property.
Guardianship of a minor person means an overall supervision of the minor’s personality. It
means care and welfare of the child including the liability to maintain it. It is more than simply
custody of the child upon a certain age. Under Muslim law, is called HIZANAT. They are
sometime taken to mean the same thing .But under Muslim law, these two aspects of the
guardianship are different and are governed by the different laws. The guardianship of a child
means overall supervision of the child during its minority. Father or his executer or in his
absence, the paternal grandfather, being the natural guardian, are in charge of the minor’s
person. On the other hand ‘custody of the child’ simply means a physical possession (custody)
of the child upon a certain age. Although mother is not the natural guardian of the child under
Muslim law, but she has a right to the custody of the child, till the child attains a specific age.
But the father or the paternal grandfather has a control over the minor during the whole period
of the minority.
It may be said therefore, that mother has a right to the custody of her child for some time,
because except her, no one can handle and nurse a child during its infancy. But her custody of
the child is subject to the supervision of the father who, as a legal guardian, is under an
obligation to provide means for the upbringing of child.

Types of Guardianship
Muslim law recognise following kind of guardianship:
1. Natural or legal guardian.
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2. Testamentary guardian.
3. Guardian appointed by courts or statutory guardian, and
4. De-facto guardian

Natural or legal guardian: Natural guardian is a person who has a legal right to control and
supervise the activities of a child. Father is recognized as the natural guardian of his child
under all the Schools of Muslim law. The father’s right to act as guardian of a minor is an
independent right, and is given to him under the substantive law of Islam. Natural guardian is
also called dejure or legal guardian. As stated above, only father is the legal guardian of his
child. But in the absence of father, the father’s executor may also act as a legal guardian.
Executor is a person who is appointed by the father or grandfather to act as a guardian of his
minor child on his behalf. In the absence of the father or his executor, paternal grandfather or
paternal grandfather’s executor acts as a legal guardian. Thus, the nature guardian of a minor,
in order of priority, are as under:
1. Father
2. Executor of father
3. Paternal grandfather
4. Executor of Paternal grandfather
Under Muslim law in the absence of any of the above mentioned persons, nobody else is
recognized as the natural guardian of a minor

Testamentary Guardians: Testamentary guardian is a person who is appointed as guardian of

a minor under a will. Only father or, in his absence, paternal grandfather has right to appoint a
testamentary guardian. No special formality is required for the appointment of a testamentary
guardian, but, as obvious, such a person should be competent to act as a guardian. A non-
Muslim and a female may also be appointed as a testamentary guardian.
Shia Law: A non- Muslim cannot be appointed as testamentary guardian.

Guardians appointed by Court: In the absence of a natural and testamentary guardian, the
court is empowered to appoint a guardian for the purpose of the minor’s person or property or
for both. The appointment of guardian by court is governed by the Guardianship and Wards
Act, 1890 which is applicable to all the Indians irrespective of their religion. Such guardians
are also called Statutory Guardian. It may be noted that no provision has been made under
this act for the guardianship for the marriage. The result is that except the guardian for
marriage, the guardian for a Muslim minor’s person or property may be appointed by the court
of law. In case of conflict between Muslim personal law & Guardianship & wards act,
provisions of acts prevail over the provisions of Muslim personal laws.

The courts are empowered to appoint the guardians for a minor upon an application. Such
application may made by any of the following persons:
1. any person desirous of being or claiming to be the guardian of the minor, or
2. any relative or friend of the minor, or
3. The collector of the district in which the minor generally resides

De-facto guardians: A de-facto guardian is a person who is neither a legal guardian nor a
testamentary guardian or statutory guardian, but has himself assumed the custody and care of
a child. According to Tyabji a de-facto guardian means an unauthorised person who, as a
matter of fact, has custody of the person of a minor or his property.[6] De facto guardian is a
person having no authority for the guardianship but under the circumstances has taken the
responsibility to act as the guardian of a minor.