Prophet Mohammed Born in 571 A.0., Was raised by grandfather Abdul Muttalib after death of mother and father First wife was Kadija , Third wife was Aisha (Daughter of Abu Bakr) Prophets daughter Fatima married Ali (Prophets cousin) ‘At age 40 when he was meditating in a cave called ‘Hira’ he received his first revelation from god (wahi) which was communicated to him by Gabriel (Angel of revelation) His first followers were Kadija, Waraqa (a blind scholar), Abu Bakr, Umar and Usman. He faced opposition and was persecuted, humiliated, abused and dragged by his hair from the temple of mecca. Asa result the prophet with his followers fled to Medina in 622 AD. This is consid start of a new era for Arabia and is termed ‘Hijrah’ i.e. Migration because at Medina he foi political group called ‘Umma’ and later there was a war between the supporters and opposers of Mohammed in which Mohammed emerged triumphant and became the supreme religious and political ruler of Arabia and later many tribes joined his kingdom.8 sources — 4 formal (primary) — 4 informal (Secondary) 1. The Quran (Koran) 2 * Derived from the arabic word ‘Quarra’ which means ‘to read’ * Collected and arranged by Abu Bakar (1** Khalifa) and revised by Usman (3 Khalifa). ~ * Communicated to prophet by Gabriel (Angel of revelation) in form of messages (wahi) over 23 years. — * Around 6000 verses out of which 200 deal with legal principles such as marriage, matrimonial remedies, maintenance, acknowledgement of paternity, transfer of property, gifs, wills, inheritance etc. * Abolished objectionable customs like female infanticide, gambling, usury (practise of lending money at unreasonably high interest) and unlimited polygamyo<8 sources — 4 formal (primary) — 4 informal (Secondary) 1. The Quran (Koran) (2 * Derived from the arabic word ‘Quarra’ which means ‘to read’ * Collected and arranged by Abu Bakar (1** Khalifa) and revised by Usman (3 Khalifa). ~ + Communicated to prophet by Gabriel (Angel of revelation) in form of messages (wahi) over 23 years. = * Around 6000 verses out of which 200 deal with legal principles such as marriage, matrimonial remedies, maintenance, acknowledgement of paternity, transfer of property, gifs, wills, inheritance etc. * Abolished objectionable customs like female infanticide, gambling, usury (practise of lending money at unreasonably high interest) and unlimited polygamy>< + Provisions for safeguarding interest of minors and di i and for overall increasing the status of women were also there.2. The Sunnah (Sunnat) - the path * Second source of Muslim law * whatever the prophet said, did or allowed tacitly is called ‘hadis’ (traditions) _~ ——— * whatever the prophet said in words — ‘Sunnat-ul-qaul’ * whatever he did - ‘Sunnat-ul-fail’” + whatever he allowed to be done without actually saying it (tacitly) - ‘Sunnat-ul- tuqrir’ These Sunnats could be manipulated as they were not certain as the ‘quran’ and used as a political w in which happened during the rule of Umayyad dynasty so these sunni ere collected and compiled by various people and these collection were called ‘Musnads’3. Ijmaa Consensus of the most learned members of the community This source has been validated by both the Quran and the prophet (via sunnat) 4. Qiyas (Shias ‘gy recognise it) Collection of rules and principles deductible by the methods of analogy and interpretation from the Quran | Sunnat and |jmaa. Shias believe that if the scope of law has t to be widened it should be only done by imam and no one else.5. Legislation Though most of Muslim law is not codified but some of it is codified like Shariat Act, 1937 —~ Dissolution of Muslim marriage act, 1939 —~ The Muslim Women (Protection of Rights on Divorce) Act, 1985 —— The Muslim Women ( Protection of Rights on Marriage) Act, 2019 —~ 6. Customs and usages having force of law. .-~ 7. Judicial Decision 2»5. Legislation Though most of Muslim law is not codified but some of it is codified like Shariat Act, 1937 —~ Dissolution of Muslim marriage act, 1939 —~ The Muslim Women (Protection of Rights on Divorce) Act, 1985 —— The Muslim Women ( Protection of Rights on Marriage) Act, 2019 —~ 6. Customs and usages having force of law. .~ 7. Judicial Decision .~ 8. Justice Equity and good conscience.)Marriage (Nikah) Muslim Marriage is a contract and there are no ceremonies required for marriage in Muslim law, only the conditions for a valid contract of marriage must be fulfilled which are: | ~ * The parties must have capacity to contract marriage we * There should be a proposal |“ * There should acceptance of proposal 4 * There should be no impediments to the marriage. oOoCapacity to Contract marriage Any Muslim with sound mind who has attained the age of puberty has a capacity to marry. Persons who are not of sound mind or who have not attained puberty can be married by their guardians. Marrying a person of different religion + Awoman cannot marry any man who is not a Muslim under Muslim law + A Sunni mohammedan can marry a non Muslim women if she is Kitabia (If the religion is revealed through a divine book then it is called Kitabia, Hinduism is not kitabia) * AShia mohammedan can not marry a non Muslim women even if she is a Kitabia. If the other person converts to ‘slempefore marriage then there is no barProposal and Acceptance * The proposal (ijab) and Acceptance (qubul) should be there for a valid muslim nikah.—— * There should be two male witnesses oRGne male)and two female , we Miele Mitnesses Le. wotemale witnesses . Proposal and acceptance should be without ambiguities and should be made by the parties themselves or by other on their behalf. * Proposal and acceptance should be expressed in one meeting * Aassurance to marry in future does not constituteVoid and Voidable (Irregular) marriage In muslim law: * A valid marriage is ‘sahih’, @ * A Void marriage is ‘batil’ —~ * An Irregular marriage is ‘Fasid’Batil Marriage - A void marriage —~ A married woman cannot contract another marriage while her husband is alive and the marriage is subsisting. Such marriage is void. ——* The bar of consanguinity renders a marriage void. The following are the prohibited relationships of consanguinity, viz., aghansannot marry his: {a) ascendants, e.g., mother or grandmother, how highsoever; {(b) descendants, e.g., daughter or grand-daughter, how lowsoever; {c) his sister, whether full, consanguine or ut (4) his niece or great niece, how lowsoever; {e) his aunt or great aunt, how highsoever, whether paternal or maternal. Marriage is also prohibited on ground of affinit lus, a Man cannot marry: {a) his wife’s mother, or grandmother, how highsoever; (b) his wife's daughter or grand-daughter, how lowsoever, if his marriage with his wife is consummated; {(c) his father’s wife or any other ascendant’s wife; and, = (d) his sons, or any other lineal descendant’s wife.Batil Marriage - A void marriage —~ Iv. A married woman cannot contract another marriage while her husband is alive and the marriage is subsisting. Such marriage is void. = The bar of consanguinity renders a marriage void. The following are the prohibited relationships of consanguinity, viz., agnaneannot marry his: {a) ascendants, e.g., mother or grandmother, how highsoever; {b) descendants, e.g., daughter or grand-daughter, how lowsoever; {c) his sister, whether full, consanguine or uter (4) his niece or great niece, how lowsoever; {e) his aunt or great aunt, how highsoever, whether paternal or maternal. a Marriage is also prohibited on ground of affinity. Thus, a man cannot marry: {a) his wife’s mother, or grandmother, how highsoever; (b) his wife's daughter or grand-daughter, how lowsoever, if his marriage with his wife is consummat {his father’s wife or any other ascendant nd. 7 (4) his sons, or any other lineal descendar Fosterage is another impediment to a valid Muslim marriage.Fasid Marriage — Irregular Marriage - Voidable A fasid marriage is a marriage i.e. with the process of removing irregularity * Without witnesses (by acknowledgement before witnesses) .~ | * With is fifth wife (by divorcing one of the 4 wives) }<— *Witha woman undergoing iddat (by expiration of iddat period) —~ * Prohibited by reason of difference of religion (conversion of religion, women can adopt Islam, Christianity or Jewish religion but man has to adopt Islam) | * With a woman so related to the previous wife, that if one of them had been a | male, they could not have lawfully intermarried. (by divorcing the wife who is Sh the obstaals) . ((PHEDTermination of a Fasid Marriage — * An irregular marriage may be terminated by either party, if the termination is before consummation it has no legal effect. * But if the termination is after consummation, then: |. Wife is entitled to dower, prompt or specified, whichever is lower ll. She is bound to observe iddat for three courses. Ill, Children born out of such marriage are legitimate, —~ * In both the cases of irregular marriage (consummated or not consummated) no legal rights of inheritance are created between the partes 2»Effects of a Legal Muslim Marriage i). Sexual intercourse becomes lawful and the children born of the union are legitimate. S (i). The wife becomes entitled to her dower (mahr). u (ili). The wife becomes entitled to maintenance. AS (iv). Mutual rights of inheritance are established. X (v). The prohibitions regarding marriage due to the rules of affinity come into operation. (vi). The wife is not entitled to remarry after the death of her husband, or after the dissolution of marriage, without observing iddat. . A woman does not change her status on marriage. She remains subject to her ‘own pre-marital school of law. er the husband nor the wife acquires any interest in the property of the other by reason of maiMuta Marriage * The word ‘muta’ means ‘enjoyment’ * Muta marriage is a ‘marriage for pleasure’ for a fixed period of time. A temporary Marriage. ~ * This type of marriage is almost obsolete in India and only certain schools acknowledge it is a valid marriage like Ithna Ashari Shia... ~Muta Marriage (4) * There should be a contract containing declaration and acceptance. + Aman may contract Muta marriage with any number of women... + Aman may contract a muta with a woman professing the Mahomedan, Christian or Jewish religion or even with a fire-worshipper (ex. Zoroastrians), but not with a woman following any other religion. oo A Shia woman, cannot contract a muta with a non-Muslim. The Term (time period) of Muta Marriage should be mentioned on nikah nama. ‘A muta marriage is dissolved ipso facto by the expiry of the term. Before the end of term, the husband may, at his will, put an end to the contract by ‘making a gift of the term’ to the wife which is called ‘hiba-i-muddat’ The wife's consent is not z ie required for such termination. ®* When the term and the dower are fixed, the contract is vai. If, however, the term is fixed but the dower is not specified, the contract is void. Further, if the dower is specified and the term is not fixed, the contract, though void as muta uta may operate as a ‘permanent’ marriage. Right of Inheritance, does not create any rights of inheritance between man and woman but children born out of this marriage are legitimate and can inherit from both parents. If the Muta marriage is consummated, the wife is entitled for full dower amount, but if the marriage is not consummated the wife is entitled to half of the dower amount. If the women leaves before the end of the ‘term’ husband can deduct a proportionate part of the dower. ——— Awife can not claim maintenance for Muta marriage under Shia law but she can claim under Section 125 of Cr.P.C e* When the term and the dower are fixed, the contract is van. If, however, the term is fixed but the dower is not specified, the contract is void. Further, if the dower is specified and the term is not fixed, the contract, though void as muta may operate as a ‘permanent’ marriage. Right of Inheritance, does not create any rights of inheritance between man and woman but children born out of this marriage are legitimate and can inherit from both parents. If the Muta marriage is consummated, the wife is entitled for full dower amount, but if the marriage is not consummated the wife is entitled to half of the dower amount. If the women leaves before the end of the ‘term’ husband can deduct a proportionate part of the dower. — Awife can not claim maintenance for Muta marriage under Shia law but she can claim under Section 125 of Cr.P.C16 December 2020 Iddat og ‘eIddat Death: If the woman is pregnant, the period of iddat is until delivery or 4 months and 10 days whichever is longer. a Divorce: (i) If a woman is subject to menstruation, the period of iddat upon divorce is three courses. ~~ (ii) If the woman is not subject to menstruation, it is three lunar months. v (iii) If the woman is pregnant at the time of divorce, the iddat lasts until delivery whether it is less or more than three months. ( The Muslim Women (protection of Rights on Divorce) Act, 1986, also adds termination of pregnancy as end of IddagiBpriod )When does Iddat Period Start? #! — (G4) * If the marriage is dissolved by death, the period commences from the date of death; + in case of divorce, it commences from the date of divorce. * If the information of husband’s death or divorce does not reach the wife until after the expiration of the period of iddat, then she is not bound to observe iddat. * If the marriage is dissolved by death, observance of iddat by the wife is compulsory whether there has been consummation or not. However, in case of divorce, iddat is compulsory only when the marriage is consummatedRights and Duties during Iddat H a ‘Xx (i) The husband is bound to maintain the wife during the period of iddat. (ii) The wife cannot marry another person until completion of her iddat, husband cannot marry a fifth wife until the completion of the divorced wife’s iddat. (iii) In the event of death of either party before the expiration of the iddat period, the other is entitled to inherit from him or her in the capacity of wife or husband, as the case may be, if the divorce has not become irrevocable before the death of the deceased. (iv) If the divorce is pronounced in death-illness, and the husband dies before the completion of wife’s iddat, the wife is entitled to inherit from him, even if the divorce has become irrevocable prior to his death.Dower (Mahr) “ Dower is an obligation imposed upon the husband as a mark of respect to the wife. It is of two types: 1. Specified Dower y (Ss * Prompt Dower * Deferred Dower (Q—-Y 2. Unspecified Dower (Proper Dower)Dower (Mahr) “ Dower is an obligation imposed upon the husband as a mark of respect to the wife. It is of two types: 1. Specified Dower y (oS * Prompt Dower * Deferred Dower Q—-W) 2. Unspecified Dower (Proper Dower)Specified Dower The amount is decided usually at the time of marriage, in case of minor husband, his father has the power to make the contract of dower on behalf of him. It is of two types: u@ Prompt Dower — Payable immediately after the marriage if demanded by the wife. Deferred Dower —Payable on the dissolution of marriage by death or divorce or on the happenings of a specified event is known as deferred dower. _ Dissolution by Death - Dower is given from property of husband Dissolution by Divorce — Consummated marriage — whole unpaid dower “~ Non Consummated marriage — half of the specified dower ,~~ If dower is not paid to the wife and she dies then her has could file a suit for the payment of the dower within 3 years. aUnspecified Dower (Proper Dower) When the amount of the dower has not been settled or even when there is an express stipulation at the time of the marriage that the wife will not claim any dower, the wife is still entitled to proper or customary dower. The amount is fixed at the discretion of the court. : The court is, however, guided by the following considerations: (i) the social position of the bride’s father’s family; (ii) her own personal qualifications like ‘age, beauty, fortune, understanding and virtue’ must be taken into consideration; (iii) the amount fixed upon her female paternal relations, e.g. sisters or paternal aunts, who are considered to be her equals; (iv) the social position of the husband and his means.Amount of Dower * If it is fixed then cannot be lower than the minimum laid down by law * 10 dirhams for Hanafi law —> + 3dirhams for MalikiLlaw 5 * Under Shia law the Proper Dower (Unspecified) cannot be more than 500 dirhai * The Amount of Dower can be increased but cannot be decreased by husband ams Remission of Dower * The Wife may remit the dower wholly or partially, For remitting the dower the following conditions should be fulfilled 1. There should be free consent of wife (no distress, force or pressure) 2. The wife should have attained no may or may not be Over 18 years old)Talaq Pewbt. _ * Talaq-i-rajaee — Revocable Divorce * Talaq-e-Bain — Irrevocable Divorces) Any Mahomedan who Is of sound mind and has attained puberty may divorce his wife without any cause. In Sunni Law a talaq under compulsion or intoxication or fraud is also valid but it is void in Shia Law. Talaq could be oral (spoken words) or in writing (talagnamgby the husband at his will, i.e., talaq-ul-sunnat, ~ talaq-ul-biddat, — ila, Zihar by the wife under a power delegated to her, i.e., talaq-e-tafwid; a0 @O * Parliament for its vote bank politics gave up to the protest we enacted this law diluting the shah bano Judgement of Supreme Court. x This act limited the liability of husband to pay the maintenance till the iddat period only (which is what is mentioned in Muslim personal law) + After the iddat period if the woman is unable to support herself her relatives which would have inherited her property would maintain her pe and if she has no such relatives the waqf board will pay for the maintenance. yA aii byDaniel Latifi v. union of India (2001) ——— a Grab) J * Court said that Muslim husband’s liability under this act is not limited to iddat period. He has to make arrangement within the period of iddat for her wife’s maintenance. _— * So the maintenance would also account fter the iddat period but the husband must arrange it before the of iddat. * But the court also held the Muslim women (protection of Rights on Divorce) Act, 1986 as constitutional. .~Maintenance of Children * Father is bound to maintain his son till he attains majority and daughter till she gets married. (father is also liable to maintain major son if he is a lunatic or mentally or physically disabled and not in condition to maintain himself) * Father not bound to maintain children if they refuse to live with him without any reasonable cause. * Father has no obligation to maintain his illegitimate child under Muslim law. (but he is liable under 125 Cr.P.C) * Mother has very little obligations to maintain a child, only in Hanafi law if her husband is poor and she is rich she has liability to maintain the child she can still recover the money from her husband when he is in condition to pay later.