Primer on Muslim Law for Law Entrance Exams
Primer on Muslim Law for Law Entrance Exams
A woman separated through talaq, ila, zihar or khula is free to remarry after observing requisite period of iddat.
Under Muslim law talaq means repudiation of marriage by the husband. Every Muslim husband of sound mind and who has attained the age of puberty is competent to pronounce talaq.
On the basis of pronouncement and effect, there are two kinds of talaq:
Talaq-ul-sunnat (Revocable talaq): it is an approved mode of talaq. There is a possibility of reconciliation between husband and wife in this type of divorce. It further has two forms:
Talaq-ul-biddat/bain (Irrevocable talaq) - it is the disapproved mode of talaq. It has two forms:
Triple talaq- it consists of three pronouncements in a single tuhr either in one sentence or in three separate sentences. It becomes irrevocable at once. The wife has to then observe iddat. In the case of SHAYARA BANO AND OTHERS V. UNION OF INDIA 2017 Supreme Court has declared this form of divorce as unconstitutional.
Single irrevocable declaration- it consists of a single pronouncement made during a tuhr clearly indicating an intention to irrevocably to dissolve the marriage.
Talaq-ul-biddat is not recognized under Shia law.
It is a form of incomplete divorce. When the husband expresses his dissatisfaction with his wife by comparing her with any woman within the degree of his prohibited relationship (e.g. he would say to his wife that you are like my mother or sister) and refuses to cohabit with her for a period of four months. Upon the completion of four months the wife may either file for judicial divorce or for restitution of conjugal rights in the court.
A divorce by khula is a divorce with the consent and at the instance of wife, in which she agrees to give a consideration to the husband for her release from the marriage tie. Once the offer is accepted by the husband it becomes an irrevocable divorce. Under Shia law khula is revocable during the period of iddat and wife can reclaim consideration, then husband can revoke khula.
It is a divorce by mutual consent of the husband and wife; both are equally willing to take divorce, thus offer of separation may come from either of the party. Once it is accepted, it becomes irrevocable. The wife is bound to observe iddat and no consideration is to be paid in this type of divorce.
Dissolution of Muslim Marriage Act, 1939
The annulment of marriage by judicial decree at the instance of wife is known as faskh. Under the Act divorce can be granted at the instance of wife and not of husband. Prior to passing of the Act, a Muslim woman could apply for the dissolution of marriage on the grounds of i) impotency of husband, ii) lian (false charge of adultery by the husband on his wife and iii) option of puberty.
Now section 2 of the Dissolution of Muslim Marriage Act, 1939 provides that a woman married under Muslim law shall be entitled to obtain a decree for the dissolution of marriage on the following grounds:
The whereabouts of husband are not known for a period of four years.
The husband has neglected or has failed to provide her maintenance for a period of two years.
The husband has been sentenced to imprisonment for a period of seven years or upwards.
The husband has failed to perform, without reasonable cause his marital obligations for a continuous period of three years.
The husband was impotent at the time of marriage and continues to be so till the time of presentation of the petition.
The husband has been insane for a period of 2 years or is suffering from leprosy or virulent venereal disease.
If she having been given in marriage by her father or other guardian before the age of 15 years, repudiated the marriage before attaining the age of 18 years and the marriage has not been consummated.
The husband treats her with cruelty such as habitually assaults her, attempts her to force her to lead an immoral life, disposes her property etc.
Any other valid ground recognized under the Muslim law.
Under Muslim law the following persons are entitled to maintenance:
The necessitous parents
Other necessitous relations within the prohibited degrees.
MAINTENANCE OF THE WIFE
Under Muslim law, the person maintaining the children, aged parents and other close relatives, should be in a position to maintain them. It is only ion case of wife that the obligation is absolute in the sense that a husband is required to maintain his wife irrespective of her financial position even if the husband is not in a position to support her. The maintenance of wife is a primary obligation. Wife’s right of maintenance is regulated by Muslim personal law and also by the statutory provisions of the Criminal Procedure Code 1973 (Section 125-128).
MAINTENANCE OF THE DIVORCED WOMEN
It can be discussed under the following heads
Muslim personal law
Section 123 Criminal Procedure Code 1973 and
The Muslim women (Protection of Rights on Divorce) Act,1986
Under section 125 of the Criminal Procedure Code 1973, the term ‘wife’ includes a ‘divorced wife’. Section 125 is applicable also to a divorced Muslim wife Section 127(3) provides that the order of maintenance in favour of a divorced wife shall be cancelled, and such woman shall not be entitled to maintenance under the following circumstances:
Where the divorced woman has remarried
Where such women has received the whole sum due to her on divorce under any customary or personal law , and
Where the woman, after obtaining divorce from her husband, has voluntarily surrendered right to maintenance.
In Mohd. Ahmad Khan v. Shah Bano Begum AIR 1985 SC 945, the Supreme Court reiterated its stand and held that a divorced Muslim woman, so long as she has not remarried, is a wife for the purpose of section 125, and is entitled to maintenance from her former husband.
Definition of Waqf
Section 2(1) of the Mussalman Waqf Validating Act, 1913 defines Waqf as: “Waqf means the permanent dedication, by a person professing Mussalman faith of any property, for any purpose recognized by the Mussalman law as religious, pious or charitable”
Feature of Waqf
Religious or charitable use of usufruct