F.Y L.L.

B SEM II CLASS TEST

SUB: FAMILY LAW

1. Ancient Sources of Muslim Law

 Muslim law is a personal law that exclusively applies to Muslims. Courts in
India apply it to mohamedans only in limited circumstances. In India,
muslin law refers to the element of Islamic civil law that is applied to
Muslims as personal law. Muslim law is the body of legislation drawn from
the Quran and other documented sayings of the Prophet Muhammad of
Islam. However, Islamic law focused on man's responsibilities rather than
his rights. In the religious sense, Islam implies submitting to God's will; in
the secular sense, Islam means establishing peace.

The origins of Muslim law can be traced back to Arabia, where Mohammad
proclaimed Islam. The goal of Islam is to instill a sense of surrender and
allegiance to Allah. His commands, and therefore to stay on the correct
track. Muslims are those who follow this route. According to Amir Ali, a
Muslim is someone who practises Islam and believes in the unity of God and
the prophetic nature of Mohammad. Thus, to be a Muslim, only two things
are required: the oneness of Allah and the prophethood of Mohammad.
Islamic law is a component of Muslim theology that gives practical form to
the faith by defining how Muslims should conduct themselves in their
religion, both towards God and towards others.

The commandment of the Quran, the traditions brought by the prophet's

practise (sunna), the common opinion of the jurists (ijma), and the
analogical deductions of these three (qiyas) comprise Muslim law.
Furthermore, juristic preference (Istihsan), public policy (Istislah),
precedent (Taqlid), and autonomous interpretation (Iltihad) have been
added.

Sources:
Sources of Muslim law is classify into two categories that is primary sources
and secondary sources.

Primary Sources Secondary Sources

1. Quran 1. Urf or Custom
2. Sunnat 2. Judicial Decision
3. Ijma 3. Legislation
4. Qiyas 4. Equity, Justice &
Good Conscience
Primary Sources
1. Quran:
Muslim law is based on the Quran, which Muslims believe has existed from
eternity, subsisting in the very essence of God. The term Quran comes from
the Arabic word Quarra, which means "to read." The Quran is Al-furqan, which
means it distinguishes between truth and untruth and right and bad. The first
source of Muslim law is the word Quran, which is the 'divine communication'
and revelation to the prophet of Islam.

In both time and relevance, the Quran is the major source of Muslim law. The
word of the Quran gave rise to the Islamic faith and society. It is the most
important source of Muslim law since it includes the direct word of God and is
the basis upon which the entire edifice of Islam is built. The Quran governs
Muslims' personal, social, secular, and spiritual lives.

It contains God's exact words as delivered to Prophet Mohammad by the angel

Gabriel. It was presented to the world in incomplete forms throughout a 23-
year span. Its initial goals were to eliminate unpleasant habits such as usury,
limitless polygamy, and gambling, among others, and to achieve social reforms
such as increasing the legal status of women and equal division of inheritance
and succession.

Because the Quran has an earthly origin, it cannot be amended or changed in

any way. As a result, even courts of law have no ability to change the apparent
interpretation of the verses. Aga Mohammad Jaffer v. Koolsom Beebee (1895)
upheld this point of view. When the Quran was silent on a particular issue,
the'sunnat' was used to provide guidance.

2. Sunnat:
The word sunna means "trodden path," and as such, it suggests some form of
practise and precedent. Muslims believe that revelations come in two varieties:
manifest (zahir) and internal (batin). Manifest revelation is communication
made by angel Gabriel to Mohammad in the exact language of God under the
guidance of God. The Quran is made up of evident revelations.

Internal revelation is the prophet's opinion offered on occasion on questions

that have been put before him. Sunna refers to the prophet's exemplary
behaviour. Hadis or traditions are accounts of what the prophet said, did, or
impliedly permitted. During Mohammad's lifetime, however, the traditions were
not converted to writing. They have been passed down from generation to
generation as authorised persons' traditions. The relevance of hadith as a
source of Muslim law is explicitly stated in the Quran.

3. Ijma:
It was equally binding on the people to behave on a principle (which did not
contradict the Quran or hadis) established by agreement among highly trained
legal scholars of all generations.

Sir Abdul Rahim defines Ijma as the agreement of jurists among the followers
of Prophet Mohammad on a certain legal issue. The validity of ijma as a
 binding precedent is predicated on a prophetic hadis that states that God will
not allow His people to agree on an error. As a result, Ijma has become a
source of legislation. According to traditional doctrine, the Quran, traditions,
and consensus of opinion among the prophet's companions are the finest legal
guides. Thus, in terms of both duration and importance, it is the third source
of law.

Ijma's authority as a source of Muslim law is likewise predicated on the Quran

and Hadith. The law is dynamic and ever-changing. The goal of legislation is to
meet the demands of society. The ijma principle is based on the scripture,
which states that God will not allow His people to agree on an error, and
whatever Muslims believe to be good is good before God. The idea of ijma is the
only authority for legislation in the current Muslim system, as Muslims do not
accept the possibility of further revelation after the death of the prophet.

4. Qiyas:
This is the final primary source of Islamic law. Qiyas refers to reasoning by
analogy from the three sources mentioned above, namely the Quran, Sunna,
and Ijma. In Qiyas, rules are deduced by reasoning.
Qiyas is a process of deduction in which the law of the text is applied to
instances that, while not covered by the languages, are ruled by text. As a
result, it should be highlighted that Qiyas does not seek to create new law, but
rather to apply existing established concepts to new situations.

Secondary Sources
1. Urf or Custom:
Prior to the arrival of Islam in Arabia, customs were the foundation of all social
life, religion, morality, trade, and business. In Muslim law, custom is not
recognised as a source of law. However, it cannot be denied that tradition, if it
is in accordance with Muslim law, has always been granted a place. For
example, the prophet Mohammad never repealed all of Arabia's pre-Islamic
customary law. Custom plays an important role in many areas of Muslim law,
particularly when it comes to their:

(a) agricultural land;

(b) testamentary succession among certain communities; and
(c.)charities other than wakf, because these matters have not been included in
the section 2 of Shariat Act,1937. Custom influenced the growth and formation of
shariah in several ways:

(i) A number of texts, particularly traditions are based upon usages.

(ii) A part of the shariah based upon tacit or silent approval of the prophet
comprises many of Arab customs
(iii) Imam malik says that the customary conduct of the citizen of medina
was a sufficient ijma to be relied upon in the absence of other texts.

Pre-Condition of Valid Custom

 Custome must be territorial
 It must be existing from memorable time i.e ancient
 It must be continuous and certain and invariable
 Custome should not oppose the public policies
 Custom must not in contravention of Quran and Ijma.

2. Judicial Decision
These include judgements of the Privy Council, the Supreme Court of India,
and the High Court of India. Judges explain what law is. These rulings serve as
precedents for future cases. One distinguishing feature of English law is
judicial decision. In India, Warren Hastings' 1772 scheme stipulated that only
the judiciary could impose new defined rules in Hindu and Muslim personal
laws.

There are number of judicial decisions which have given new dimension
to Muslim law:

In Maini Bibi v. Choudhry Vakil Ahmad, the privy council held that a widow
possesses the right to retain the property of her husband till her dower money
was paid

In Bai Tahira v. Ali Hussain, the Supreme Court gave a new line of approach
to the law of maintenance. The Supreme Court held that a woman will be
entitled for maintenance under section 125 of criminal procedure code even
though she has received a lump-sum amount under her customary law. A
similar view also taken in Shah Bano's case.

It may be concluded therefore, that to some extent, the courts in India have
tried to modify the rules of Muslim personal law as applied in India. Unless
overruled or negative by some legislative enactment, these rules through the
decisions, continue to be a source of Muslim law.

3. Legislation
In India, Muslims are also governed by the various legislation passed either by
the parliament or by state legislature. The following are the examples of
legislation in India.

1. The usurious loans act, 1918

2. Religious toleration act
3. Freedom of religion act, 1850
4. The mussalman wakf validating act, 1930
5. The shariat act, 1937
6. Dissolution of Muslim marriage act, 1939

These acts have considerably affected, supplemented and modified the Muslim
law. In 1986 an act i.e. Muslim Woman (Protection of Rights on Divorce) Act,
1986 to provide separate law in respect of divorced Muslim women was
enacted by Indian parliament. According to the need of time and
circumstances Indian legislature enacted the law to fulfill the need.

4. Equity, Justice and Good Conscience

One of the sources of Muslim law is the notion of equity, justice, and good
conscience. Abu Hanifa, the founder of the Sunni hanafi sect, established the
notion that the rule of law based on analogy could be thrown aside at the
judge's discretion based on a liberal interpretation or juristic choice to satisfy
the circumstances of a specific case. These Islamic legal concepts are known as
Istihsan, or juristic equity. Istihsan literally means "approval," and it can also
be rendered as "liberal construction" or "juridical preference."

This word was used by famous jurist Abu Hanifa to convey the liberty he
assumed in establishing the law that, in his opinion, the unique circumstances
demanded, rather than the rule that analogies indicated. Several aspects of
Muslim were altered to accommodate changing realities in India.

2. Parsi Chief and District Matrimonial Court

 A Special Court shall be established in each of the Presidency towns of
Calcutta, Madras, and Bombay, as well as in specified other sites within the
territory of the various State government agencies, for the purpose of
hearing proceedings brought under this Act.

The Parsi Chief Matrimonial Court of Calcutta, Madras, or Bombay, as the

case may be, is so founded in each Presidency-town.

Chief Matrimonial Courts-The local limits of the Parsi Matrimonial Court

competence shall correspond with the local limits of the High Court’s
ordinary original civil competence, alimony and maintenance, both
continuous and pendiente lite, shall be supported by a Chief Justice of the
High Court or by any other judges of the Supreme Justice from time to time
appointed by the Judge of that Matrimonial Court, and, when dealing with
cases under this Act, by one [five delegates, except in relation to —

(a) interlocutory applications and cases of proceedings;

(b) care, protection and education of children and
(c) matters and prosecutions other than routine trials of cases; and
(d) other cases and other prosecutions.

District Matrimonial Courts- The Parsi District Matrimonial Court of this

place is the name of a court formed in a location other than the President
Itself. Subject to the provisions of section 21, the geographical limits of the
Tribunal's jurisdiction shall correspond with the limits of the district in
which it is located.
(a) The Judge of the main Court of original civil jurisdiction shall preside
over that Marriage Court and procedures against cases brought under this
jurisdiction.
(b) alimony and care, both pendente lite and permanent;
(c) child custody, care, and education; and
(d) all things and procedures other than the regular hearing of cases.

Any district that the State government deems inappropriate to include in the
jurisdiction of any District Matrimonial Court due to a lack of Parsi
residents shall be included within the jurisdiction of the Parsi Chief
Matrimonial Court for those Territories in which that Court applies. Unless
and until the delegate dies, is over, refuses to give up, or is unable or
 unwilling to work, or ceases to be a Parsi, or is convicted of a violation
under the Indian Penal Code (45 of 1860) or other law for a period 1
(including a moral tort), the State Government can be considered insolvent.

The delegates chosen by the State Government pursuant to Sections 19 and

20 for assistance with the administration of the suits under this Act are
selected from delegates designated by the State Government in accordance
with Section 24, under proper rotation, by orders of the President Judge of
the Court.

Any suit brought in pursuant to this Act shall be tried within its jurisdiction
at the moment of start of proceedings [or when a wedding has been
solemnised in accordance with this Act]. When the accused has left (the
jurisdictions protected by this rule), the case is brought before the Court
where the complainant and the accused last lived together.

3. Different kinds of Will

 The Act mentions only two kinds of wills— a privileged will and an
unprivileged will. These are dealt with in Ss. 65 and 66. to be discussed
later.

However, wills can also be classified under other categories, and it can be
said that there are nine kinds of wills, as under

(i) Privileged Will. —

Under S. 65, privileged wills are those made by (a) a soldier employed in an
expedition or engaged in actual warfare; or (b) an airman employed in an
expedition or engaged in actual warfare; or (c) any mariner being at sea, —
provided he has completed eighteen years of age. All other wills are called
unprivileged wills, and require the prescribed formalities to be compiled
with. However, S 65 (above) does not apply to a Hindu, Buddhist, Sikh
or Jain

(ii) Unprivileged Will.—

An unprivileged will under succession act is one that can be created by any
individual other than those who are allowed to make a privileged will. The
person creating the will must be of sound mind (should have “testamentary
capacity”) and should have attained the age of maturity. Otherwise, the will
cannot be enforced. As a will is nothing but a legal declaration, certain
conditions must be met with making a valid unprivileged will in india.

 The first condition for an unprivileged will in india to be valid is that it must be
in written form. The law also requires the words in the will to be clear and
intelligible
 As per section 63 of the Indian Succession Act, 1925, the creator (testator) of
the unprivileged will must sign/affix his or her mark on the will.
 As per unprivileged will section 63, the signature /mark of the creator ( or the
signee on his behalf) must be placed in such a way so that it discloses clear
intention of the creator to give effect to what is written in the will
 Unprivileged will section 63 also specifies that two or more witnesses should
attest to the will. They must have seen the testator (or his authorised signatory)
sign/ affix his or her mark on the will. But, a beneficiary of the will should not
be included among the witnesses.

(iii) Nuncupative or oral will— An oral (or nuncupative) will is one which has
been declared by the person making it in the presence of witnesses. The Act
does not provide for the making of such wills, except in the case of soldiers,
sailors and airmen (privileged wills), in which case, the number of such
witnesses has been specified and the other conditions (discussed later) have
been laid down

The burden of proof of establishing an oral will is naturally quite

heavy, and such a person would have to prove the exact words of the
testator

(iv) Holograph Will: This is a will written in the testator’s own hand. Such a will
is included in the definition of an unprivileged will under the Act. The fact
that the testator has written the will in his own hand–writing would also go
to show that he was fully aware and conscious of making such a will

(v) Inofficious will.— An inofficious will is a will which is not in keeping with
the testator’s natural affection and moral duty, as where a testator
bequeaths all his property to a stranger, to the complete exclusion of his
wife (or her husband), his children and other relatives. Such a will is a
perfectly legal will, provided all the other requirements of a will are fulfilled
In other words, a will is not invalid only on the ground that the testator has
showered his bounty on strangers. to the total exclusion of members of his
own family.

(vi) Mutual (or reciprocal) wills.— Two persons are said to make mutual wills
when they confer reciprocal benefits upon each other under their will In
other words, a mutual will is one of two wills made by two persons, giving
each other similar rights in each other’s property, as when A bequeaths all
this property to B, and B makes a will giving all his property to A

Normally, a will is revoked by the marriage of its maker, but in case of

mutual wills, the marriage of one of them does not revoke the will of the
other.

The peculiarity of mutual wills is that they become irrevocable after the
death of one of them, if the following conditions are satisfied :

(a) the survivor has received benefits from the deceased under the mutual
wills, and

(b) there was an agreement between the two testators that they shall not
revoke their respective wills. Mutual wills, sometimes also called reciprocal
 wills are different from joint wills (-see below-). In describing a will, the
adjective ”mutual” (or “reciprocal”) is used to emphasise and denote the
contractual element which distinguishes such a will from a joint will.
(Kuppuswami v. Perumal, A.I.R. 1964 Mad. 291)

(vii) Joint will.– In Halbury’s Laws of England, a joint will is defined as a will
made by two (or more) testators, contained in a single document, duly
executed by each testator and disposing of either their separate properties
or their joint property. The most common example of such a will is one
made by a husband and his wife, disposing of their properly under one joint
will.

In law, a will made by two persons is not considered to be a single will. In

effect, it constitutes two wills, and on the death of each testator, it operates
as a will of such a testator, disposing of his own separate property.
Therefore, on the death of one testator, such a will can be admitted to
probate as the will of such testator, and on the death of the survivor, it will
be admitted to probate as the disposition of the property of the survivor.
However, a joint will relating to joint property only can be proved only on the
death of the survivor.

When two persons make a joint will, and one of them dies, the survivor can
revoke his will, unless he has taken some benefit under the will of the
deceased co-testator. (Minakshi v. Vishwanatha, 44 Mad. 406)

In Theobald on Wills, a joint will is described as follows

”Persons may make joint wills which are however revocable at any time by
either of them or by the survivor. A joint will may be made to take effect
after the death of both the testators; such a will remains revocable during
the joint lives by either, with notice to the other, but becomes irrevocable
after the death of one of them, if the survivor takes advantage of the
provisions made by the other.”

(viii) Contingent or conditional will.- A will may be made contingent upon the
happening of an event, so that if the event does not happen, the will has no
effect. Thus, when a will contained the following clause, ”Should anything
happen to me during my passage to Wales or during my stay....”, it was held
to be a conditional will Such a will takes effect only if the contingency
happens; if the contingency does not happen, the will is not entitled to
probate. Similarly, a will may be made conditional on the assent of a third
person, and such a will would be entitled to a probate only if such assent
has been given.

(ix) Duplicate will.- A duplicate will is one of which two or more copies are
made. If such a copy is signed by the testator, it can operate as the original
will. Where a will is executed in duplicate, one of which the testator retains,
while the other is deposited in the custody of another, the destruction by
the testator of the will which was in the testator’s possession, revokes the
will.
4. Section-4,5,6,7 & 10 of The Indian Christian Marriage Act, 1872

 Section-4 Marriages to be solemnized according to Act.—Every marriage

between persons, one or both of whom is [or are] a Christian or Christians,
shall be solemnized in accordance with the provisions of the next following
section; and any such marriage solemnized otherwise than in accordance
with such provisions shall be void.

Section-5 Persons by whom marriages may be solemnized.—Marriages

may be solemnized in [India]—

1) by any person who has received episcopal ordination, provided that the
marriage be solemnized according to the rules, rites, ceremonies and
customs of the Church of which he is a Minister;

(2) by any Clergyman of the Church of Scotland, provided that such

marriage be solemnized according to the rules, rites, ceremonies and
customs of the Church of Scotland;

(3) by any Minister of Religion licensed under this Act to solemnize

marriages;

(4) by, or in the presence of, a Marriage Registrar appointed under this Act;

(5)by any person licensed under this Act to grant certificates of marriage
between [Indian Christians].

Section- 6 .Grant and revocation of licenses to solemnize marriages.—

The State Government, so far as regards the territories under its
administration, may, by notification in the Official Gazette, grant licenses to
Ministers of Religion to solemnize marriages within such territories and
may, by a like notification revoke such licenses.

Section -7 Marriage Registrars.—The State Government may appoint one

or more Christians, either by name or as holding any office for the time
being, to be the Marriage Registrar or Marriage Registrars for any district
subject to its administration.

Senior Marriage Registrar.—Where there are more Marriage Registrars

than one in any district, the State Government shall appoint one of them to
be the Senior Marriage Registrar.

Magistrate when to be Marriage Registrar.—When there is only one

Marriage Registrar in a district, and such Registrar is absent from such
district, or ill, or when his office is temporarily vacant, the Magistrate of the
district shall act as, and be, Marriage Registrar thereof during such
absence, illness, or temporary vacancy.
 Section-10 Time for solemnizing marriage.—Every marriage under this
Act shall be solemnized between the hours of six in the morning and seven
in the evening.

Exceptions.—Provided that nothing in this section shall apply to—

(1) a Clergyman of the Church of England solemnizing a marriage under a

special license permitting him to do so at any hour other than between six
in the morning and seven in the evening, under the hand and seal of the
Anglican Bishop of the Diocese or his Commissary, or

(2) a Clergyman of the Church of Rome solemnizing a marriage between the

hours of seven in the evening and six in the morning, when he has received
a general or special license in that behalf from the Roman Catholic Bishop
of the Diocese or Vicariate in which such marriage is so solemnized, or from
such person as the same Bishop has authorized to grant such license, or

(3) a Clergyman of the Church of Scotland solemnizing a marriage according

to the rules, rites, ceremonies and customs of the Church of Scotland.

5. Adultery, Cruelty, Impotency, and Conversion as grounds of divorce

under The Indian Divorce (Amendment) Act, 2001.

 Section 10 Grounds for dissolution of marriage.-

Any marriage solemnized, whether before or after the commencement of the

Indian Divorce (Amendment) Act, 2001 (51 of 2001), may, on a petition presented
to the District Court either by the husband or the wife, be dissolved on the
ground that since the solemnization of the marriage, the respondent---

(i) has committed adultery; or

(ii) has ceased to be Christian by conversion to another religion; or

(iii) has been incurably of unsound mind for a continuous period of not less than
two years immediately preceding the presentation of the petition; or

(v) has, for a period of not less than two years immediately preceding the
presentation of the petition, been suffering from venereal disease in a
communicable form; or

(vi) has not been heard of as being alive for a period of seven years or more by
those persons who would naturally have heard of the respondent if the
respondent had been alive; or

(vii) has wilfully refused to consummate the marriage and the marriage has not
therefore been consummated; or

(viii) has failed to comply with a decree for restitution of conjugal rights for a
period of two years or upwards after the passing of the decree against the
respondent; or
 (ix) has deserted the petitioner for at least two years immediately preceding the
presentation of the petition; or

(x) has treated the petitioner with such cruelty as to cause a reasonable
apprehension in the mind of the petitioner that it would be harmful or injurious
for the petitioner to live with the respondent.

A wife may also present a petition for the dissolution of her marriage on the
ground that the husband has, since the solemnization of the marriage, been
guilty of rape, sodomy or bestiality.]