Islamic-Law-Law-of-the-Muslim-World-eJournal.-June-14

This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. The article explains the laws related to Muslim marriage in India along with their important provisions and case laws. 

It has been published by Rachit Garg.

Table of Contents

Introduction 

Marriage is said to be the union of two people and is seen as the purest and oldest institution in India. The object of marriage for every religion is different. For example, marriage in Hindus is considered to be a ‘dharma’, but every religion places an obligation to get married for some or other reason. Where marriages among Hindus are considered a sacred institution, marriage among Muslims is seen as a contract. Unlike Hindu Law, Mohamedan Law, or Muslim Law is not codified. This leads to chaos and confusion regarding the various ceremonies and authenticity of various things related to marriage, like consent, age, divorce, maintenance, etc. In order to deal with different problems that arose due to the non-codification of Muslim law, the parliament passed various acts. The article explains all these acts and their important provisions. It also describes the nature and essential conditions of a Muslim marriage.  

Nature of Muslim marriage 

Marriage in Muslim law is known as Nikah. It is an Arabic word which means “union of two people”. Baillie’s Digest defines Muslim marriage as a contract done to legalise sexual relationships and the procreation of children, while on the other hand, in Hedaya (a guide or commentary on Islamic Law), nikah means carnal conjunction in its primitive sense. As said by the Prophet of Islam, marriage is his sunna (practices of the Prophet Muhammad) and his followers must obey his practices and follow them properly. 

When we talk about the nature of Muslim marriage, a question that always arises is whether it is a sacrament or a contract. Some jurists opined that marriage in Muslims is a civil contract while others argue that it has a sacrament attached to itself. Thus, while studying the nature of Muslim marriage, three different aspects are taken into consideration. These are:

  • Legal aspect
  • Social aspect
  • Religious aspect

Legal aspect of Muslim marriage

The legal aspect says that  among Muslims, marriage is a civil contract because it has similar characteristics to a contract. These are:

  • Like a contract, there is a proposal i.e., Ijab by one party and acceptance i.e., Qubul by the other party.
  • In a contract-free consent plays an important role. Similarly, there can be no marriage without the consent of the parties, and such consent must not be obtained through fraud, coercion, force or undue influence. 
  • If a minor is married by their guardians, then the minor has a right to repudiate the marriage on attaining the age of majority, which is the same as the age of puberty in Muslims. This option of puberty is also known as khyar-ul-bulugh. Similarly, a contract entered into by a guardian on behalf of a minor can be set aside or controlled by him on attaining a majority. 
  • The parties to a marriage are allowed to enter into any kind of ante-nuptial or post-nuptial agreement if it is enforceable by law. The only condition is that it must be reasonable and not contrary to their religion. 
  • The terms of marriage in the nikahnama can be altered according to the wishes of the bride and groom, but it must be within the limits of the law.  
  • In the case of Abdul Kadir v. Salima (1886), it was held that Muslim marriage is a contract and not a sacrament. 

Social aspect of Muslim marriage

Like any other marriage, Muslim marriage also has some objectives. These are as follows:

  • It orders the continuation of domestic life. 
  • Procreation of children. 
  • Care and responsibility for the wife and children. 
  • Perpetuation of the human race. 
  • Attainment of chastity, mutual love, continence, affection and peace. 

These objectives indicate that Muslim marriages have a relationship with society and thus have a social aspect attached to them. In the case of Anis Begum v. Mohd. Istafa (1933), CJ Sulaimaan held that Muslim marriage is not only a civil contract because it believes in the union of two people by virtue of affection, love, and a sense of togetherness. He balanced the view by stating that it is both a civil contract and a religious sacrament. 

Religious aspect of Muslim marriage

Another view regarding Muslim marriage is that it is a religious sacrament and not a purely civil contract. Some jurists believe that it is an Ibadat, which means a devotional act. The Prophet believes that marriage is essential for every Muslim who is fit and capable of taking responsibility for a wife and children. The reasons that indicate that it is not merely a contract are as follows:

  • Unlike a civil contract, it is not dependent on future events. 
  • It is done for a limited or specified period, but muta marriage is an exception. 
  • There is no concept of the right to lien in a Muslim marriage, unlike in a civil contract. 
  • The dower, which is given to the wife, is considered a mark of honour and respect. 

Thus, it can be said that marriage in Islam is a contract but also regarded as a sacred covenant. The aim is to protect society from foulness and unchastity. Abdul Rahim gave a balanced definition of Muslim marriage. According to him, the institution of Muslim marriage is considered an ibadat or devotional act, and muamlat or dealings among men.    

Essentials of Muslim marriage

The following are the essentials of a nikah or Muslim marriage:

  • Parties must be competent.
  • All the formalities must be fulfilled properly. 
  • There must be free consent from both parties. 
  • It should be free from any kind of legal disability.

Competency of parties

In order to enter into a nikah, the parties must be:

  • Major 
  • Sound mind 
  • Muslims 

Major 

A person is capable of entering into a nikah only when he attains the age of puberty. It is an age when a person is capable of procreating children. According to Hedaya, girls attain puberty at 9 years old while boys attain it at 12 years, but the presumption is that one attains this age at 15 years {Atika Begum v. Muhammad Ibrahim (1912)}. After attaining the age of majority or puberty, the parties are capable of giving their own consent regarding the marriage. 

Sound mind

The parties are competent only when they are of sound mind at the time of marriage. An unsound person is not capable of entering into a contract and his consent is not taken into consideration. Thus, an idiot person is not capable of giving his consent and his marriage is void, while the marriage of a lunatic person can be contracted by their guardians at lucid intervals when they are conscious and capable of understanding the formalities and intricacies of marriage. 

Religion 

Another important element of Muslim marriage is that both parties must be Muslim at the time of marriage. A marriage between a Muslim male and a female of any other religion is regarded as an irregular marriage, while a Muslim female can only marry any Muslim man and no one outside their religion, or else the marriage will be void. The irregularity can be removed from the conversion of females to Islam.

Formalities required in Muslim marriage

The following formalities must be fulfilled in a Muslim marriage:

  • One party must make a proposal while the other must accept it. 
  • Under Sunni law, the presence of two witnesses is mandatory for a valid marriage. Generally, the two witnesses are males, but in the absence of any male, two females can become witnesses to the marriage. If this formality is not complied with, it will render the marriage irregular. The witnesses must be of sound mind, adults and Muslims. However, in Shia law, no witness is required for a valid marriage.  
  • The parties must sign the nikahnama in the presence of two witnesses. 
  • Dower or Mehr must be given to the wife. 

Consent in Muslim marriage

The parties must be capable of giving their consent for the marriage. This consent can either be expressed or implied, but it must not be obtained by means of fraud, force, coercion, or any kind of undue influence. If the consent is obtained on the basis of a mistake of fact, then the marriage is considered invalid, but if it is obtained by fraud, then the marriage is void. 

In the case of Mohiuddin v. Khatijabibi (1939), a Shafei girl was contracted to marriage by her father against her will and consent. The Bombay High Court declared the marriage void. 

Free from legal disability

A valid Muslim marriage must be free from any kind of disability or restriction. There are 2 types of restrictions on Muslim marriage:

  • Absolute prohibition
  • Relative prohibition

Where an absolute prohibition renders the marriage void, a relative prohibition makes it irregular, which can become a valid marriage on the removal of the irregularity. 

Absolute prohibition 

If the parties to a Muslim marriage are bound by blood relationships or prohibited degrees, then they cannot marry each other. Such marriages are prohibited absolutely, and if done, it renders a marriage void. Absolute prohibition arises from the following relationships:

  • Consanguinity (Quarabat) – all blood relationships fall under this category and a man is not allowed to marry in his blood relationships. Some examples of such relationships are: his mother or grandmother, his daughter or granddaughter, his niece, etc. 
  • Affinity (Mushaarat) – a marriage within certain close relationships is also prohibited. Example: wife’s mother, daughter, wife of his father, wife of his son, etc. 
  • Fosterage (Riza) –  if a child has been breastfed by a woman other than his mother then that woman becomes his foster mother. He cannot marry his foster mother or foster sister. This is absolutely prohibited. 

Relative prohibition 

Some of the prohibitions in a Muslim marriage are relative, which means that if a marriage is done in contradiction or violation of such prohibitions, then it will be rendered irregular and not void. 

The different kinds of relative prohibitions are:

  • Unlawful conjunction – it means that a man cannot marry two women who are related to each other by consanguinity, affinity or fosterage. Such marriage is prohibited by Muslims. This is done to avoid any kind of confusion about kindred or dual relationships. However, such marriages are irregular in the Sunni but void in the Shia. 
  • Marrying a fifth wife – it is unlawful for a Muslim man to have more than 4 wives and if he marries a fifth woman then, the marriage will be irregular and can be valid only if one of 4 marriages is terminated. 
  • Absence of proper witnesses – witnesses are one of the essentials for a valid marriage in Sunni and if a marriage is contracted in their absence, it renders the marriage irregular. However, the presence of witnesses is not necessary under Shia law. 
  • Difference of religion – a Sunni male can marry a Muslim female of any sect or a kitabia but cannot marry an idolatress or fire-worshipper. Such marriages are irregular in Sunni law and void under Shia law. 
  • Marriage during the iddat period – iddat is the period of seclusion that a wife has to observe if the marriage is terminated. Marrying a woman during her iddat period is prohibited, and if a marriage is contracted, then such a marriage will be irregular in Sunni but void in Shia. 

Divorce under Muslim law

Divorce, according to the prophet, is the most unapproved stage of marriage, and he never encouraged it. It can be classified as:

  • Extrajudicial divorce 
  • Judicial decree of divorce 

Extra-judicial divorce is further classified on the basis of who can initiate the divorce. If the husband initiates the divorce, it can either be:

  • Talaq or,
    • Talaq is further divided as:
      • Talaq-ul-Sunnat which is also known as the approved form of talaq. Ahsan and Hasan are two types of talaqs under talaq-ul-Sunnat. 
      • Talaq-ul-biddat which is known as the unapproved form.
  •  Ila (vow of continence) or,
  •  Zihar (injurious assimilation). 

If the wife initiates it, it is called talaq-e-tafweez or delegated divorce. If a divorce is mutually initiated by both parties, it can either be:

  • Khula (redemption) or,
  • Mubarat (by mutual agreement).

A judicial decree is further divided into two types, namely:

  • Lian (False charge of adultery).
  • Fask (cancellation of marriage).

Extra-judicial divorce 

There are different types of extra-judicial divorce depending on who can initiate it. These are explained below:

By husband 

The husband can dissolve the marriage either by Talaq or Ila or Zihar. Talaq is further divided into Talaq-ul-Biddat and Talaq-ul-Sunnat. 

Talaq-ul-Biddat (triple talaq)

This form of talaq is regarded as the most unapproved form. In this form, the husband pronounces the word ‘talaq’ in a single sentence during a tuhr period i.e., the period between two menstruation cycles, with the intention of dissolving the marriage. It becomes irrevocable as soon as the pronouncement is made and the wife has to observe iddat for 3 months if she is menstruating or else 3 lunar months. This form of talaq has been made unconstitutional by the Supreme Court in the case of Shayara Bano v. Union of India (2017)

Talaq-ul-Sunnat 

This form of talaq is in accordance with the traditions followed and approved by the prophet. It is further divided into:

  • Ahasan – the word ‘Ahasan’ means most laudable or best. In this form of talaq, the husband pronounces the word ‘talaq’ in a single sentence during a tuhr period and then abstains from sexual intercourse. This form of talaq is revocable during the iddat period, which may either be expressed or implied. 
  • Hasan – In this form, the husband pronounces the word ‘talaq’ in 3 successive tuhr periods and must abstain from sexual intercourse after the first pronouncement. It can be revoked until the third pronouncement but becomes irrevocable after the third pronouncement. 

Ila (vow of continence)

When a husband who has attained the age of majority and is of sound mind, swears or vows that he will abstain from sexual intercourse with his wife for 4 continuous months and leaves her to observe iddat, he is said to make ila. The marriage then dissolves after 4 lunar months and 10 days. 

Zihar (injurious assimilation)

When a husband compares his wife with his mother or any other female within the prohibited degrees, he is said to have performed zihar, provided that he must be sane and adult. If he agrees to restitution of conjugal rights, he has to perform penance. The penance is:

  • Free a slave or,
  • Observe fast for 2 months or, 
  • Feed 60 poor people. 

By wife 

Talaq-e-Tafweez or delegated divorce, is the only form of extra-judicial divorce which can be initiated by the wife. This power to divorce is delegated to her by her husband either before or after marriage. The conditions under which the wife can initiate this form of talaq must be reasonable and Islamic. Even though it is initiated by the wife, the finality of this talaq lies with the husband. If he refuses, it is deemed as if the divorce never happened.

By mutual consent 

Khula (redemption)

The wife, after giving consideration to the husband, can initiate khula. An offer to divorce is made by her and must be accepted by her husband. The only condition is that both must be adults, sane and capable of giving consent. Once the proposal is accepted by the husband, it cannot be revoked. But can be revoked under Shia Law. If the wife fails to pay the consideration amount, the husband can claim it as a creditor, but there will be no effect on the sanctity of the divorce. 

Mubarat (by mutual agreement)

It means discharging each other from marriage claims. An offer or proposal for divorce can be made by either spouse. There is no need to give any kind of consideration. However, the wife is entitled to a dower. When the offer is accepted, it is irrevocable and the wife has to observe iddat. 

Acts related to Muslim marriages in India 

The Dissolution of Muslim Marriage Act, 1939

Under Muslim law, a marriage can be dissolved in different ways, as listed above. Fask or cancellation of marriage by a woman can be done on different grounds. Where under Hanafi law, impotency of the husband is the only ground for fask, other grounds are:

  • Irregular marriage,
  • Marriage performed in prohibited degrees, etc. 

There is no specific number of grounds on which women can apply for divorce. The legislation felt a need to make legislation which could provide certain specified grounds for divorce for women. In view of this, they enacted The Dissolution of Muslim Marriage Act, 1939. Since the Act has its origin in fask, which is part of Muslim law, its sanctity cannot be questioned. 

Application of the Act

The Act applies to all Muslim women, irrespective of their sect or school. Any woman, whether a Shia or Sunni, can apply and seek a divorce on the basis of various grounds specified in the Act. 

Grounds of divorce 

Section 2 of the Act specifies nine grounds for divorce. These are:

  1. Absence of the husband. 
  2. Failure to maintain a wife. 
  3. Imprisonment of the husband.
  4. Failure to perform marital obligations. 
  5. Impotency of the husband. 
  6. Insanity or venereal disease.
  7. Repudiation of marriage. 
  8. Cruelty 
  9. Residuary grounds. 

Absence of the husband

If the husband or his whereabouts are unknown for 4 years or more, the woman is entitled to obtain a decree of divorce, but a decree once passed will not be effective for another 6 months from the date of such decree. This is done to ensure that if the husband comes back within these 6 months, then the decree will not be applicable and set aside if the court is satisfied that he will fulfil conjugal rights. Section 3 of the Act places an obligation to serve notice to the heirs of the husband so that they can be heard if he is missing or his whereabouts are not known. 

Failure to maintain the wife

A Muslim woman can seek a divorce if her husband neglects her or fails to maintain her for 2 years for any reason for which she is not responsible. The Karnataka High Court in the case of Mehfoz Allam Dastagirsab Killedar v. Shagufta (2003) held that provisions related to protecting women must be read in their favour even if the woman in the said case left her husband herself. 

Imprisonment of the husband

If the husband has committed any crime and has been sentenced to imprisonment of 7 years or more, the wife is entitled to apply for a divorce. However, the court will not pass any decree if the sentence is not final. 

Failure to perform marital obligations 

A woman can seek a divorce if her husband does not fulfil any marital obligations without any reasonable cause or justification for 3 years. 

Impotency of the husband

Another ground for divorce is the impotency of the husband. If at the time of marriage the husband was impotent and continues to be so, the wife can initiate a suit for divorce. But it is mandatory for the court to pass an order on the application of the husband that requires him to prove that he has ceased to be impotent within 1 year of such an order. If the husband is able to satisfy the court that he ceased to be impotent, then no decree of divorce will be passed. 

Insanity or venereal disease

If the husband is insane or suffering from any kind of venereal disease and has been in this condition for 2 years before the suit for divorce is filed, the wife is entitled to seek a decree of divorce from the court. 

Repudiation of marriage

In case, the marriage was performed by the guardians when the bride was minor, she has a right to repudiate her marriage as soon as she attains the age of puberty. However, this right must be exercised before she attains the age of majority, i.e., 18 years old. This option of puberty is also known as Khyar-ul-Bulugh. This can only be done if the marriage was not consummated. 

In the case of Mustafa v. Smt. Khursida (2006), the Rajasthan High Court rejected the contention of the husband about the age of his wife in nikahnama. He argued that his wife is 18 years old according to nikahnama, but the court rejected his argument, stating that nikahnama is evidence of marriage but not the age of the wife. The age of the wife cannot be determined from the nikahnama. 

Cruelty 

According to Section 2, ‘cruelty’ not only means physical cruelty but mental cruelty is also recognised. A wife can seek a divorce on the following grounds that amount to cruelty:

  • Habitual assault or her life being made miserable, or any bad conduct by her husband. Such conduct not only means physical ill-treatment but also includes any other such behaviour that amounts to mental cruelty as well. 
  • Wife is associated and compared with women of ill-repute or forced to live an infamous life.
  • Forced by him to lead an immoral life.
  • Her property is disposed of against her will and she is not allowed to exercise her legal rights over her property. 
  • She is prevented from observing her religion and faith. 
  • She is not treated equitably like other wives if there is more than one wife. 

In the case of K.P. Siddique v. Amina (1996), the Kerala High Court held that when a woman is tortured and forced by her husband to abort her child, it amounts to mental cruelty. In another case of Uz-Zafar Shaikh Hasan v. Mrs. Razia Kalim Shaikh (2001), the Bombay High Court held that the divorce must be granted in a case where the husband had doubts regarding his wife’s infidelity merely on the ground of miscommunication as it amounts to cruelty. 

The Allahabad High Court considered the question of whether the second marriage in Muslim would amount to cruelty to the first wife or not, in the case of Itwari v. Smt. Asghari (1960). In this case, the wife alleged that when she went to live with her parents, the husband did not try to bring her back but instead married another woman. She sought divorce on the ground that the husband did not treat her well after his second marriage and left her, which amounted to mental cruelty as well. On the other hand, the husband argued that according to Muslim personal law, a man is allowed to marry four women and argued that the wife refused to return with him when he asked her. He further pleaded for the restitution of conjugal rights. 

The Allahabad High Court in this case held that the test to determine cruelty is whether the acts are such that make it difficult and unsafe for the wife to live with her husband. The wife refused to live with her husband when the Court asked whether a decree of restitution of conjugal rights must be passed. In lieu of the response of the wife and her unwillingness to live with her husband, the court decided not to pass any decree for restitution. 

Residuary grounds 

If a woman tries to seek a divorce on some other grounds that are not mentioned in the Act and the court is satisfied that it is reasonable under Muslim law, then the decree of divorce will be passed. Such grounds will fall under this category and are called residuary grounds. Some of these grounds are:

  • Ila, 
  • Zihar, 
  • Lian, 
  • Fask, etc. 

Conversion of Muslim women to any other religion

According to Section 4 of the Act, if a Muslim woman converts to any other faith or religion, then the husband cannot seek a divorce or leave her merely on the ground that she converted to any other religions. After conversion, she is still entitled to seek a divorce on any of the grounds mentioned in the Act. However, the Section will not apply to any woman who converts to Islam. 

According to Section 5, nothing in the Act will affect her right to receive dower or Mehr after the dissolution of marriage. 

Muslim Women (Protection of Rights on Divorce) Act, 1986

The controversy and aggression in the Muslim community due to the judgement in the case of Shah Bano v. Mohd. Ahmed Khan (1985), the Parliament decided to pass and enact The Muslim Women (Protection of Rights on Divorce) Act, 1986.  

Application of the Act

The Act applies to all Muslim women, irrespective of the sect or school they follow. 

Payment of maintenance 

According to Section 3 of the Act, a Muslim woman after a divorce is entitled to:

  • A reasonable and fair amount to be paid by the former husband during her iddat period. 
  • In the case of a child, the former husband has to pay a reasonable and fair amount to maintain the child for two years from the date of birth of the child.. 
  • She is entitled to the dower/mehr that was agreed at the time of marriage. 
  • The properties that have been given to her before, during, or at the time of marriage. 

If the husband fails to do so, the court will pass an order directing him to fulfil the obligations given in the Section. 

Section 4 further gives the order for payment of maintenance. 

  • If the divorced woman is not able to maintain herself and has not remarried, the court will order her relatives having an interest in the property to maintain it until the death of the husband or if he is incapable of doing so. 
  • If she has children, the court will order them to maintain her, but if they are incapable, then such an order will be given to her parents. 
  • In the absence or incapability of her relatives, children or parents, the court will order the State Wakf Board established pursuant to Section 9 of The Wakf Act, 1954 to maintain her. 

Muslim Women (Protection of Rights on Marriage) Act, 2019

Triple talaq or Talaq-ul-biddat is considered the unapproved form of talaq because of its irrevocable nature. This talaq becomes irrevocable as soon as it is pronounced, so if the husband wants to marry his wife again, he cannot do so until the wife undergoes nikah halala. This form of talaq was not mentioned in Shariat or Quaran and lacked sanctions. The constitutional validity of this form of talaq was challenged in the case of Shayara Bano v. Union of India (2017) on the ground that it is violative of Article 14, Article 15, Article 21, and Article 25 of the Indian Constitution. The Court, in this case, declared triple talaq unconstitutional on the grounds that it is arbitrary in nature and violates the fundamental rights of Muslim women.  

In order to reduce and prevent the instances of divorce due to this form of talaq, Parliament passed and enacted The Muslim Women (Protection of Rights on Marriage) Act, 2019 which made the practice of divorce by triple talaq unconstitutional. 

Application of the Act

The Act is divided into 3 chapters and 8 sections and is applicable in the whole country. The 3 chapters are:

  • Chapter 1 – deals with application and definitions. 
  • Chapter 2 – deals with sections declaring triple talaq as void and illegal. 
  • Chapter 3 – deals with the protection of the rights of married Muslim women. 

The legality of triple talaq

According to Section 3 of the Act, talaq-ul-biddat is void whether spoken, written or given in any electronic form. Thus, if a husband pronounces talaq in the form of talaq-ul-biddat, it is void and illegal. Section 4 further prescribes the punishment for pronouncing talaq according to talaq-ul-biddat. The punishment includes imprisonment for up to 3 years along with a fine. Section 7 classifies the offence of pronouncing triple talaq as cognizable. 

Rights of women divorced according to talaq-ul-biddat or triple talaq

The Act gives the following rights to those women who have been divorced and left by their husbands on the basis of triple talaq:

  • She has a right to be given a subsistence allowance by her husband to maintain her and her children (Section 5).
  • According to Section 6 of the Act, such a woman is entitled to the custody of her children. 
  • Section 7 provides that the husband accused of an offence under the Act will not be released on bail unless the Court is satisfied with the reasons.  

Landmark judgements 

Shayara Bano v. Union of India, 2017

Facts of the case

In this case, Shayara Bano, a Muslim girl, was married to Rizwan Ahmed for 15 years. But in 2016, he divorced her by way of triple talaq without stating any reason. In return, she filed a writ petition in the Hon’ble Supreme Court challenging the constitutionality of talaq-e-biddat asking to hold it along with practices of polygamy and nikah halala unconstitutional as they infringe upon the fundamental rights of women (Article 14, 15, 21 and 25). Women’s rights organisations like BEBAK collective and Bhartiya Muslim Mahila Andolan supported her.

The opposition i.e. All India Muslim Personal law argued on the fact that Muslim law is not codified and hence not subject to judicial review and that divorce is a religious practice under Article 25 of the constitution and is thus, protected. The court accepted the petition by Shyara Bano and formed a five-judge Constitution Bench in 2017. The first hearing was held on May 11, 2017 and on August 22, 2017, it gave its decision in the case. 

Issues involved in the case

  1. Whether the practice of talaq-e-biddat (instantaneous triple talaq) an essential practice in Muslim personal law is protected under Article 25 of the Indian Constitution?
  2. Whether the triple talaq infringes the fundamental rights guaranteed under the constitution and is unconstitutional?

Judgement of the Court

The five judges’ bench of the Hon’ble Supreme Court gave its decision in favour of Shayara Bano and others. It declared the practice of Triple Talaq unconstitutional by a 3:2 majority and directed the legislature to take measures against it in order to stop the abuse against women. Both Justice Nariman and Lalit opined that triple talaq is a way by which marital bonds can be broken on the whims of the husband and the wife cannot do anything and is thus violative of Article 14. Justice Rohinton Nariman and Uday Lalit had similar views and declared it unconstitutional on the ground that it is arbitrary. 

Shah Bano v. Mohd. Ahmed Khan, 1985

Facts of the case

In this case, a 62-year-old woman named Shah Bano was told by her husband to leave the house, as a result of which she filed a writ petition under Section 125 of the Code of Criminal Procedure, 1973 (CrPC) and asked for maintenance. The husband, in return, divorced her and stated that he had no liability to maintain her after her iddat period. 

Issues involved in the case 

Whether a wife is entitled to maintenance after the iddat period?

Judgement of the Court 

The Supreme Court in this case rejected the plea and argument of the husband and stated that a Muslim wife is entitled to maintenance even after her iddat period if she is incapable of maintaining herself. The husband has the liability to maintain her under Section 125 of the CrPC if she is incapable of doing so until she remarries. The Court also said that the Section applies to women irrespective of their caste or religion.  

Daniel Latifi v. Union of India, 2001

Facts of the case 

This case challenged the validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which was enacted by the Parliament after the judgement of the Hon’ble Supreme Court in the case of Shah Bano v. Union of India (1985). There was an issue in the Act as to when the husband had to make arrangements for the maintenance of the wife and how much amount had to be paid. 

Issues involved in the case 

The constitutional validity of the Act was in question. 

Judgement of the Court

The Hon’ble Supreme Court in this clarified that the husband has to provide a reasonable and fair amount to his wife even after iddat if she is incapable of doing so until she remarries. He must make the arrangements for maintenance during her iddat period only. The Court further clarified that under Section 4, relatives have to maintain her after the death of the husband and if there are no relatives, then the Wakf Board must do so. The Court further said that no provision of the Act is violative and thus upheld the constitutional validity of the Act. 

Conclusion 

The major problem with Muslim law is that, unlike Hindu law, it is uncodified. Due to this, there have been different interpretations and practices, which have further led to chaos and confusion. Some of its practices were violative of fundamental rights and thus, declared unconstitutional. In order to bring clarity and avoid ambiguity, Parliament enacted certain Acts that have been discussed in detail in the article. However, there is still a scope of ambiguity which needs to be addressed by the courts of law as and when it is brought before them. 

Frequently Asked Questions (FAQs)

What are the rules related to the requirement of religion as an essential part of Muslim marriage?

The parties to a marriage must be Muslim but there are certain rules that are different between Shia and Sunnis. A Sunni male is allowed to marry a kitabia but cannot marry an idolatress or fire worshipper. On the other hand, Shia males are not allowed to do so. Muslim women cannot marry anyone outside of their religion, or else the marriage will be void. This can be better understood with the help of a table:

S. no. Combination Type of marriage 
Muslim male (any sect) + Muslim female (any sect)Valid marriage
Sunni male + kitabia female Valid marriage 
Sunni male + idolatress or fire worshipperIrregular marriage
Sunni male + any other female (neither Muslim nor kitabia)Irregular marriage 
Shia male + non-Muslim female (kitabia, idolatress or fire worshipper)Void marriage, but muta marriage is an exception. 
Muslim female + non-Muslim maleVoid marriage 

What are the different kinds of absolute prohibitions in Muslim marriage?

A Muslim male is not allowed to marry anybody in his blood relations or prohibited degree of relationships. These are absolute prohibitions. It arises from:

  • Consanguinity (qurabat) – which means blood relationships like mother, daughter, sister, grandmother, etc. 
  • Affinity (mushaarat) – which means close relationships like the wife’s mother, wife of her father, etc. A marriage between close relationships is prohibited under absolute prohibitions. 
  • Fosterage (riza) – which means milk relationship. When a child under the age of 2 years has been fed or suckled by a woman other than the mother, the woman becomes the foster mother. Marriage in these relationships is also prohibited. 

What do you mean by muta marriage?

It is a kind of temporary marriage for enjoyment or pleasure, which is recognised by Shia schools. The period of marriage is fixed at the time it is contracted along with the dower. If the term of marriage is fixed but the dower is not fixed, then the marriage is void. A Shia Muslim can contract this type of marriage with a Muslim, Christian, Jewish or fire worshipper woman but not with a Hindu woman. However, a Shia female is not allowed to enter into this type of marriage. 

What do you mean by iddat and what is the duration of any iddat period?

Iddat is a period of seclusion that a woman has to observe if the marriage is terminated either by divorce or the death of the husband. The reason behind observing this period is to ascertain the pregnancy of a woman and avoid confusion related to paternity. The duration of the iddat period is as follows:

  • When the husband dies, the wife has to observe an iddat of 4 months and 10 days and if she is pregnant then till delivery. 
  • In case of divorce, the iddat period is 3 months if the wife is menstruating for 3 lunar months.
  • The period begins from the date of divorce or death of the husband. 
  • In case of irregular marriage, if it has not been consummated then no iddat has to be observed. 

References 


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