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All about Muslim Law

Muslim Law is a divine law as opposed to man made law which are passed by legislature. The concept of oneness of God is unlike Hindus which believe in the plurality of Gods. Muslims believe that Mohommad was the last prophet sent by God (Allah) and the Quran is the only revealed book of Allah.

They acknowledge religious preachers and leaders after Mohammad but they were not considered prophets. Islamic society was not divided on the basis of caste like Hindu society and everyone was considered as an equal in the eyes of God. They are divided on the basis of ideology or politics (Shia/Sunni).

Who is Muslim?
  • A person whose religion is Islam and who follows Islam they are called Mohammedan or Musalman.
  • One who says that there is one God and that is prophet Mohammad.
  • Muslim by birth.
  • Muslim by conversion.

What is Islam?
  • Islam is a Arabic word which means submission to the will of God.
  • Legally Islam is a religion in which it is believed that God (Allah) is one and only one.

To whom Muslim Law apply?
  • Muslim by Religion;
    • Muslim by birth
    • Muslim by conversion
  • Muslim by Birth;
    • Both parents are belongs to Muslim religion.
    • One of the parent is belongs to Muslim religion the other one is belongs to any other religion.
    • Any other person not govern by any other laws;

To whom Muslim Law not apply?
  • Any person who is not Muslim;
  • Any person who converted himself in any other religion other than Muslim religion;

What are the Schools of Muslim Law?
The Muslim community devided in two parts on the basis of politics. That is, Shia favors successor leaders and Sunni favors elected leaders.
  • Under the Shia's school there are two major sub-schools such as follows:
    • Ithana: This type of school follows the successor of Prophet Mohammad. It further divided in two parts;
      • Akhari
      • Ushali
    • Ismail: This type of school follows Ismail who was the son of the 6th Imam. It further divided in two parts;
      • Khojas
      • Bohras of Borobay
    • Zaidi: This type of school follows the 1st son of the 4th Imam.
       
  • Under Sunni's school there are four major sub-schools such as follows:
    • Hanafi: Abu Hanifa was the founder of this school. He was known as a master of jurisprudence. He also extended the doctrine of Ijma and interpretation of the text. This type of school is prevalent in Arabia, Syria, Turkey, Egypt & India.
       
    • Maliki: Malik Iba Annas was the founder of this school. This school follows the tradition and the validity of Ijma. This type of school is prevalent in North Africa & Spain.
       
    • Shafei: Muhammed Ash - Shatei was the founder of this school. He adopted the views of Abu - Hanifa and his master Imam Malik. He was also the founder of science of usual principle and wrote legal treatises. This type of school is prevalent in South India.
       
    • Hanbali: Abu Abdullah Hamid Ihn Harabal was the founder of this school. He placed implicit reliance on tradition and restricted Qiyas & Ijma to narrow limits. He gave liberal interpretation of traditions.

What is the difference between Shia and Sunni schools?
There are some basic differences between these schools based on the certain conditions and the restrictions imposed by their founders. Some of them are as follows;
Under Shia school there is no witness required for marriage whereas in Sunni school there are two male witnesses or one male witness and two female witnesses are required for marriage.

Under Shia school marriage between non Muslim religion are not allowed whereas in Sunni school they can marry Muslim man with non Muslim woman only if she is kitabia or converted the religion before marriage is allowed.

Under Shia school the talaq must be pronounced orally in presences of two competent witnesses whereas in Sunni school talaq pronounced without witness or even without presence of wife is considered valid.

What are the Sources of Muslim Law?
There are total eight sources of Muslim Law in which four sources are known as formal or primary sources and rest of four sources known as informal or secondary sources.
  • The Quran (koran): This is the first primary sources of Muslim Law.
    • This is the word of God. The word 'Quran' is derived from the Arabic word 'Quarra' which means 'to read'.
    • This is the collection of 23 years of the revolution of prophet Mohammad arranged by Abu Bakar (1st khalifa) and revised by Usman (3rd khalifa) after which it is declared as a Holy book and cannot be amended anymore.
    • It consists of 6,000 verses out of which 200 deal with legal principles such as marriage, matrimonial remedies maintenance, acknowledgment of paternity, transfer of property, gift, will, inheritance etc.
    • Abolished objectionable customs like female infanticide, gambling, usury and unlimited polygamy.
    • Provisions for safeguarding the interests of Minors and disabled and for overall increasing the status of women were also there.
  • The Sunnah (sunnat) the path: This is the second primary sources of Muslim Law.
    • Whatever the prophet said, did or allowed tacitly is called 'hadis' (traditions);
      1. Sunnat-ul-qual - whatever the prophet said in words.
      2. Sunnat-ul-fail - whatever he did.
      3. Sunnat-ul-tuqiri - whatever he allowed to be done without actually saying it (tacitly) can be manipulated, can be used as a political weapon compiled called monads.
         
  • Ijmaa: This is the third primary sources of Muslim Law.
    • Consensus of the most learned members of the community this source has been validated by both the Quran and the prophet ( via Sunnat)
       
  • Qiyas: This is the fourth primary sources of Muslim Law which is basically;
    • A collection of rules and principles deductible by the method of analogy and interpretation from the Quran, Sunnah and Ijma.
    • It is not recognized by Shia's they say that only imam can widen it no one else.
       
  • Legislation: This is the first secondary sources of Muslim Law in which;
    Though most of Muslim Law is not codified but some of it is codified such as follows;
    1. Shariat Act, 1937
    2. Dissolution of Muslim Marriage Act, 1939
    3. The Muslim Women Act, 1985 (protection of rights on divorce)
    4. The Muslim Women Act, 2019 (protection of rights on marriage)
       
  • Customs and usages having force of law: This is the second secondary sources of Muslim Law. The custom are now regarded as a legitimate source of Muslim Law but they are considered inferior in position hierarchically after Quran, Sunnah, Ijma and superior to Qiyas.
     
  • Judicial Decision: This is the third secondary sources of Muslim Law. It may be a decision of the privy council, the Supreme Court and High Court of India are regarded as a precedent for future cases.
     
  • Justice, Equity and good conscience: The doctrine of justice, equity and good conscience is the fourth secondary sources of Muslim Law. The rule of law is based here on the analogy that could be set aside at the option of a judge on a liberal construction or juristic preference to meet the requirement of a particular case.

Muslim Marriage (Nikah):
It is a contract that only requires the fulfillment of the conditions of a valid contract of marriage. No ceremony required for marriage.

What are the essential conditions of a valid contract of nikah?
There are four essential elements of a valid contract of marriage such as follows:
  • The party must have the capacity to contract marriage.
    • Sound mind
    • Age of Puberty (it is not mandatory that his guardians agree to fulfill the conditions of mahr).
    • Can marry in a different religion:
      1. A women cannot marry any other religion man under Muslim Law.
      2. A Sunni mohammedan man can marry a non Muslim women if she is kitabia.
      3. A Shia mohammedan man cannot marry a non Muslim women even if she is kitabia.
    • If the other religion person converts to Islam before marriage then there is no bar.

  • There should be a proposal (ijab) and also there should be acceptance (qubul) of the proposal which should be expressed in one meeting means at the same time when the proposal needs to be accepted in front of;
    • Two male witnesses or
    • One male and two female witnesses
       
  • There should be no impediment (obstruction) to the marriage.

What are the three different kinds of nikah?
There are three different types of marriage such as follows:
  • Sahih nikah is known as a valid marriage. Which fulfills all the conditions of a valid contract of marriage.
  • Batil nikah is known as 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 of prohibited relationships. A man cannot marry;
      1. His ascendants means mother/grandmother/how high soever.
      2. His descendants means daughter/grand daughter/how low so ever.
      3. His sister whether full (same parents), consanguine (different mother) or uterine (different father).
      4. His niece/great niece/how low so ever.
      5. His aunt/great aunt/how high soever.
    • Fosterage is another impediment to a valid Muslim marriage.
       
  • Fasid nikah is known as an irregular or a voidable marriage which becomes valid after removing the obstacles.
    • Absence of witnesses is considered an irregular marriage but after acknowledgment of witnesses can remove its irregularity.
    • Marriage with a fifth wife is considered as an irregular marriage but if he divorced any one from his four wife can remove its irregularity.
    • Marrying a woman who is undergoing an iddat period is considered an irregular marriage but once the iddat period expires, it automatically removes its irregularity.
    • Marriage prohibited by reason of difference of religion is also considered as an irregular marriage but after conversion of religion automatically removes its irregularity.
    • Marriage with woman so related to the his previous wife that if one of them had been male they could not have lawfully intermarriage but after divorcing the wife who is the obstacle automatically removes its irregularity.
       
What do you mean by Dower/Mahr?
Dower/Mahr is a certain sum of money or any property given by the husband in respect of the marriage. In other words it is a consideration for the contact of marriage given by the husband to his wife.

The main objective:
  • To impose an obligation on the husband as a mark of respect for the wife;
  • To place a check on capricious use of divorce on the part of the husband;
  • To provide her substance after the dissolution of marriage.

Kinds of Dower; There are two types of Dower as follows;
  • Specified (Mahr-i-mussamna): The amount or value of Dower is specified at the time of nikah, called specified Dower. It is further divided into two parts such as follows;
    • Prompt Dower (muajjal): Under this type of Dower, the wife has the right to demand it at any time after or before marriage either fully or partially.
    • Deferred Dower (postponed): Under this type of Dower wife is liable to receive at the time of talaq fully in case of marriage consummate or half in case of if not consummate. It is also claimed by the wife in case of husband death or claimed by the wife's heirs in case of wife death within the period of three years.
    • Unspecified (Mahr-i-misel): It is also known as Proper Dower or Customary Dower. The amount or value of Dower is unspecified at the time of marriage and is called unspecified Dower. The amount depends upon the basis of certain grounds as follows;
      • Reputation of the wife and her family in the society,
      • How much was received by the other female members of the wife's family,
      • Wife's qualifications,
      • Husband position in the society,
      • Wife qualities like age, beauty, fortune understanding and virtue must be considered to be her equal.
         

Right of wife and Remedies against the non-payment of Dower
  • Wife can refuse to cohabit (sexual intercourse) with her husband (expect in case of deferred Dower);
  • Right to receive the Dower in case death of his husband his family is liable to pay;
  • Right to retain her diseases husband property;
  • Within the period of three years the wife has the right to file a suit against it according to Article 113.
  • Wife's right to remit the Dower fully or partially is considered only if she should have attained Puberty and the decision should be given in free consent.

What are the various kinds of Talaq?
There are two modes of dissolution of marriage acceptable under the Muslim Law such as follows;
  • Extra judicial divorce means talaq without involvement of the court. It is a traditional mode of divorce in which the procedure is followed by them on the basis of the Quran only applicable on peoples belongs to Muslim communities as follows;
    • Divorce by husband: There are four types of divorce claim by husband against his wife;
    • Talaq-ul- Sunnat: 'Sunnat' means 'word of God'. This is known as a pure form of talaq in Muslims. It is further divided into two types as follows;
    • Talaq-e-Ahsan: Under this there are three conditions needed to perform;
      1. Husband makes a single pronouncement of talaq;
      2. It must be pronounced during the tuhr period;
      3. After the pronouncement they must be observe iddat period (90 days there must be no sexual intercourse between them).
         
  • Talaq-e-Hasan: Under this there are three conditions needed to perform;
    1. Husband makes three pronunciations of talaq;
    2. It must be pronounced during the three successive tuhr period or three lunar months;
    3. No sexual intercourse between them before the third last pronouncement.
       
  • Talaq-ul-biddat: It is also known as triple talaq or instant talaq. Biddat came from biddah, which means innovation which did not previously exist; it was devised later. In India only recognized by Sunni's.
    1. Under this husband making three pronouncements of talaq at a time is considered as a irrevocable talaq (in India after Shayara Bano case this act criminalized with the maximum punishment of 3 years)
       
  • Ila: It is a type of constructive divorce in which the husband taken a oath or pledge for having no sexual intercourse if he continued for four months then the wife get the right of divorce on the above ground.
     
  • Zihar: It is a form of inchoate divorce in which if the husband compares his wife to any woman to whom the marriage is prohibited the wife can claim for divorce on the above ground.

Divorce by wife: There are two types of talaq claim by wife as follows
  • Talaq-e-Tafweez: Under this husband delegated the power of talaq in the hand of his wife or any other third person because of the specific reason. It may be absolute or temporary.
  • Lian: Under this type of talaq a wife can claim when a husband makes false charges of Adultery (out of aggregation).
  • Divorce by mutual consent of both husband and wife: There are two types of talaq based on mutual consent as follows;
    • Khula: Under this wife offer talaq on the condition of repay of dower and also pay the compensation to breach of contract marriage and at the same time husband must agree on the same. They must observe Iddat period.
    • Mubara'at: Under this type of talaq both husband and wife mutually agreed on the matter of talaq.
    • Faskh: talaq declared by Qazi with the assistance of both husband and wife.
  • Judicial Divorce: There are 9 grounds of divorce is mentioned under section 2 of the Dissolution of Marriage Act, 1939 as follows;
    • Absence of husband for 4 years;
    • Failure to maintain for 2 years;
    • Imprisonment 7 years and above;
    • Failure to perform marital duty;
    • Impotency of husband;
    • Insanity or venereal diseases;
    • Reputation by wife;
    • Grounds recognized by Muslim Personnel Law;
    • Additional grounds such as:
      • Cruelty,
      • Physical assault,
      • Statement against wife's character,
      • Forcing immoral acts by wife,
      • Not letting my wife practice her religion,
      • Bigamy.

What is tuhr?
According to Muslim Law tuhr is a period between two menstruation cycles is called one successive tuhr. It is also known as the purity period of women.

What do you mean by the Iddat period?
According to the Muslim Law Iddat is a period which is very important to observe by both for final confirmation of talaq after its pronouncement. During this period they restricted from any sexual intercourse between them it becomes irrevocable talaq. This iddat period may differ for their nature of talaq such as follows;
  • Iddat period for dissolution of marriage by talaq: According to the Muslim Law Iddat period fixed under this head which is either 90 days or 3 successive tuhr period or next 3 lunar months any of them it must be observe after the final pronouncement of talaq it cannot revoke which means finally the marriage is dissolved. In this case if marriage is not being consummate there is no need to observe iddat period which mentioned above.
     
  • Iddat period for dissolution of marriage by death of the husband: According to the Muslim Law Iddat period fixed under this head which is 4 months and 10 days it must be observe by his wife from the death of his husband. In this case, no matter whether the marriage is consummate or not, the wife must observe the Iddat period mentioned above.
     
  • Iddat period for a pregnant woman: According to the Muslim Law there are two periods mentioned;
    • 4 months and 10 days;
    • Date of delivery;
From the date of final pronouncement of talaq whichever is longer is considered as a iddat period. It is applicable in both the cases of either dissolution of marriage by talaq or by death of the husband.

What is Will/Wasiyat?
  • Will/Wasiyat is a document in which a person mentions all details about his desire to transfer his property in the hands of one or more persons after his death.
  • According to Muslim Law there is some provisions given regarding the Will as such as follows;
    • A person only makes a will against property which is under his ownership,
    • Only ⅓ parts of the property can transfer through will to the person other than the part of their heirs. It simply means Will must be made within the limits of his testamentary power mentioned in the Muslim Law. These limits may be increased with the consent of their heirs,
    • A person who makes a will is known as 'testator', to whom in favor of will made is known as 'legatee' and the document is known as Wasiyatnama,
    • Testator must be a competent person,
    • Will in case in favor of unborn child only valid if child born within the period of six months,
    • It comes into effect after the death of the testator,
       
  • Revocation of Will/Wasiyat;
    • Expressed: It may be oral or written.
    • Implied: It must be implied by the conduct of the person.

What is Gift/Hiba?
According to the Muslim Law any property self acquired or ancestral, movable or immovable, corporal or incorporal and conditional or unconditional can be gifted. There are three main conditions for a valid gift such as follows;
  • Doner's declaration with real bonafide intention,
  • Donee's acceptance expressed or implied by himself or someone else on his behalf,
  • Delivery of the subject matter of a gift , actual or constructive,
  • Doner must be competent means Muslim as a religion, major and sound mind,
  • Actionable claims can be gifted,
  • Conditional gifts are valid except for corpus conditions only.
     
What are the various kinds of Hiba?
  • Hiba Bil-Iwaz
  • Hiba Ba Surat Ul Iwaz
  • Sadkah
  • Ariyat

What exactly does Waqf mean?
The word Waqf simply means detention or stoppage. According to the Muslim Law under the Waqf Act, 1954 a person who works as a charitable purpose under the religious faith and sentiment for the benefit of uplifting the society and he has donated his property on the name of 'Allah' is called Waqf and the person called is Waqif. A person who manages the Waqf is called Mutawalli. It may be created by an act of a living person or by Will or by previous usages of that property.

Essential Condition of a valid Waqf:
  • Permanent dedication to God
  • Competency
  • Right to make Waqf

What are the various kinds of Waqf?
  • Public Waqf
  • Private Waqf

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