Introduction to the Family Law:
Family law is the body of law that
administers the marriage, divorce, custody, adoption, support, paternity, and
other domestic relations issues including matters related to non-marital couples
and family units. Family law deals with the rights of people in families. The
laws relating to such matters in India are governed through different sets of
personal laws namely, Hindu Law (regulating all Hindus including Jains,
Buddhists and Sikhs), Muslim Law, Christian Law, Parsi Law and a Special Law
comprising of the Special Marriage Act.
All the statutes relating to family law of other Indian communities, too, have
been passed by the Central Legislature such as the:
- Christian Marriage Act, 1872,
- Indian Divorce Act, 1869
- Divorce Act, 2001
- Parsi Marriage and Divorce Act, 1936
- Parsi Marriage and Divorce Act, 1988,
- Dissolution of Muslim Marriage Act, 1939 and
- Special Marriage Act, 1954.
Under the Indian Constitution, all aspects of family law are in the Concurrent
List. This means that both Parliament and the State Legislatures have power to
legislate in respect of these matters. Within the system of law of each
community. there are some variations; in a community people belonging to
different castes, sects, sub-sects or schools may be governed by separate rules,
sometimes custom also modifies the personal law in respect of some castes or
tribes. Sometimes law may be different on account of some religious
Marriage under Muslim law:
According to Ameer Ali: Marriage is an
institution ordained for the protection of society, and in order that human
being may guard themselves from foulness and unchastity. Marriage means
wedlock's. Marriage of Nikah is a civil contract, which is made by parties for
the sole purpose and object of benefiting themselves according to Shariat it is
a method to legalize the cohabitation of a man and a woman and issues out of
this union are legitimate. Under Islamic law, contract of marriage, need not to
be proved through a written document. A valid contract is necessary for Muslim
marriage. Following are objects of a marriage.
- Legalization of sexual inter course.
- Procreation of children.
- Preservation of human race.
- Regulation of social life.
Muhammedan marriage is purely contractual. it is considered a religious duty. it
is an act of Ibadat which is called Sunnat-Muwa-Akidah. Hazrat Muhammad (P.B.U.H)
says: If a person is in a position to maintain his wife and pay the amount of
dower, he must get himself married. The essentials of Muslim marriage are very
much similar to that of a Civil Contract.
- Essentials of marriage under Muslim law:
The essentials of a valid Muslim Marriage (Sahih) are as follows:
- Proposal and Acceptance:
In a Muslim Marriage, proposal is referred to as
'ijab' and acceptance of the same as 'qubul'. A proposal should be made by or on
behalf of one party and the same should be accepted by the other party. For a
valid Muslim marriage, proposal and acceptance should be carried out at the same
meeting. If a proposal is made at one meeting and the acceptance of the proposal
is done in the second meeting, it is not considered as valid.
- Competency of Parties:
The parties to the contract must be Major, Of Sound
Mind & Muslims.
For the aim of Muslim marriage, the age when an individual reaches
puberty is taken into account because the age of puberty. Consistent with Hedaya,
the age of Puberty for female is 9 years and for male, it's 12 years. The Privy
Council in the case of Muhammad Ibrahim v. Atkia Begum & Anr. held that under
Muslim law, a girl is considered to have attained the age of puberty if she has
attained the age of 15 Years, or attaining the state of puberty at an earlier
The same rule is also applicable to a Muslim Boy. Thus, it can also be said
that in absence of any contrary, a Muslim is considered to have attained the age
of puberty at 15 years. After attaining the age of 15, parties can give their
own consent and there is no need of consent of guardians. If an individual may
be a minor, i.e., not attained the age of puberty, the consent of the guardian
is required to form the wedding lawful. The persons recognized as guardian under
Muslim law are:
- Paternal Grandfather,
- Brother or the other male member of father's family,
- Members of Maternal Relation.
The proper passes from one guardian to other, in absence of the previous one, so
as of priority. In absence of any of those guardians, marriage could also be
contracted by Qazi or the other Government Authority.
- Soundness of Mind At the time of marriage:
Both the parties should be of
sound mind. Person of unsound mind has no capacity to enter into a contract and
within the eyes of law his consent is going to be considered as no consent.
Unsoundness is of two types:
It refers to an entire abnormal state of mind. Person belonging to the
present category are incompetent to contract, and
It refers to a curable mental illness. A lunatic person can enter into a
accept the interval during which he behaves like sane person
The parties to enter into marriage must be a Muslim regardless of
their sect or subsect. a wedding is taken into account to be as inter-sect
marriage is both the parties are Muslim belonging to different sect but the
wedding is valid.
It is mentioned as 'mahr'. It refers to the quantity of cash
or other property which a bride groom has got to give to bride as a
consideration of marriage. Its object is to supply the bride a way of monetary
security within and after the termination of marriage. within the case of Nasra
Begum v. Rizwan Ali[iv], Allahabad supreme court held that right to mahr comes
into existence before cohabitation. The Court also concluded that if wife may be
a minor, her guardians can refuse to send to her husband until payment of dower,
and if she is in husband's custody, then she will even be brought back.
4. Free Consent:
For a legitimate marriage free consent of the parties may be
a must. If the consent is obtained by means of coercion, fraud or mistake of
fact, it's considered as invalid and therefore the marriage is taken into
account as void. within the case of Mohiuddin v. Khatijabibi, the Court held
that a wedding is invalid if it's held without free consent of the parties.
5. Free From Legal Disability:
Under Muslim law, marriage is not permitted
under certain circumstances.
The restrictions/prohibition can be divided into
i. Absolute Prohibition:
- Absolute Prohibition
- Relative Prohibition
- Miscellaneous Prohibition
A Muslim marriage cannot happen if the parties are
within the within blood relationship or prohibited degree of relationship of
every other and therefore the Marriage turns to be void. absolutely the
prohibited degrees of relationship are as follows:
Under the Sunni law has a few exceptions with respect to prohibition on ground
of fosterage and the following Marriage is considered as valid:
A marriage with woman prohibited under consanguinity is not valid. Also,
children born out of that wedlock are not considered as legitimate.
- It refers to blood relationship in which a man is refrained from marrying
the following females. They are as follows:
- His mother or Grand-mother (how high so ever),
- His daughter or Grand-daughter (how low so ever),
- His sister (irrespective of full blood/ half-blood/ uterine blood),
- His niece or Great-niece (how low so ever), and
- His aunt or great aunt, whether paternal or maternal (how high so ever).
A marriage with certain close relatives is also prohibited in
Muslims due to closeness of relationship. The prohibited relationship are as
- His wife's mother or Grand-mother (how high so ever),
- His wife's daughter or Grand-daughter (how low so ever),
- His father's wife or paternal Grand-father's wife (how high so ever),
- His son's wife or son's son's wife or daughter's son's wife (how low so
- A marriage with woman prohibited under affinity is invalid.
It refers to milk relationship. it's a condition when a woman
aside from the mother of the wife, breastfed/ suckled the kid under the age of
two years, the woman turns to be foster-mother of the kid. a person is
restricted from marrying the persons who come under foster relationship.
restrictions are as follows:
- His foster mother or foster grandmother (how high so ever), and
- Daughter of foster mother (Foster sister).
- Sister's foster mother, or
- Foster's-sister's mother, or
- Foster-son's sister, or
- Foster-brother's sister.
The Shia jurists consider Consanguinity and fosterage at same footing and deny
the exception allowed by Sunnis.
iii. Miscellaneous Prohibitions:
- Relative Prohibition:
Under Muslim law, certain prohibitions are relative
and not absolute. If marriage takes place in violation of such prohibition, it
is only irregular and it can't be declared as void. The marriage becomes valid
as soon as the irregularities are removed.
Relative prohibitions are as follows:
- Unlawful Conjunction:
A Muslim man is prohibited to marry two different
women if they are related to each other by means of consanguinity, affinity or
fosterage as if they would have been of opposite sexes their marriage would have
been void (batil). After the termination of marriage/ death of his wife,
marriage can take place with the other. Under Sunni law, Marriage in violation
of unlawful conjunction is irregular (fasid) and not void but under Shia law, a
marriage violating the rule of unlawful conjunction is void (batil).
Muslim laws allow polygamy but it is restricted to a maximum of
four wives. A Muslim man can have four wives at a time, but if he marries the
fifth one despite of having four wives, the marriage turns to be irregular and
not void. The fifth marriage can be valid after death/ termination of marriage
of one of the four wives. However, the Shia law considers marriage with the
fifth wife as void. In India, a Muslim marriage can't have a second marriage if
his marriage is registered under The Special Marriage Act, 1954.
- Absence of Proper Witness:
Contracting of marriage must be done in the
presence of proper and competent witnesses. Under the Shia law, presence of
witness is not essential and marriage without witnesses is considered as valid.
Marriage is contracted by the parties themselves (if major) or by their
guardians itself. Under Sunni law, presence of witness is essential else the
marriage would be irregular. At least two male or one male and two female
witnesses should be present and the witness should be a major, of sound mind and
- Difference of religion:
Under the Sunni law, a Muslim male is allowed to
marry a female who shows respect for same scriptures, such as Christain, Parsi
and Jews, but if he marries with an idol/ fire worshipper, the same is
considered as irregular. A Muslim woman is not allowed to marry a non-Muslim man
and if it happens, the same is considered as irregular. Under the Shia Law, a
marriage with non-Muslim is considered as void. According to Fyzee, such
marriage is void, but According to Mulla, such a marriage is irregular.
- Marriage during Iddat:
It is referred to as a period of waiting after the
death of her husband or after termination of marriage during which she cannot
remarry. The purpose of the iddat is to check whether the woman is pregnant or
not to clear doubts of paternity of any child born. A divorced woman has to
observe for a period of three months whereas a widow observes it for four lunar
months and ten days after the death of husband. If the woman is pregnant then if
extends up to her delivery. Under Sunni law, marriage during iddat is considered
as irregular whereas, under Shia law, it is considered as void.
- Marriage during pilgrimage is considered as void in Shia law.
- Re-marriage between Divorced Couple:
A certain procedure needs to be followed
in which a Muslim lady has to perform a valid marriage with another man. Then
her husband needs to voluntarily divorce her. Then the lady needs to perform iddat. Now she can marry her previous husband. If this procedure is not followed
the marriage is considered as irregular.
It refers to a condition in which a woman can have more than one
husband. It is not permitted under Muslim law.
Registration of Marriage is not necessary according to Muslim
Law. However, few states like Assam, Punjab, Bengal, Bihar and Orissa have
enacted laws for registration of Muslim Marriage. The registration is not an
essential part for a Valid Muslim marriage but it acts as an authentic proof.
The apex court in the Case of Seema v. Ashwani Kumar
, held that marriage of
Indian citizens irrespective of their religion should be registered in their
states where the marriage has been solemnized. Also, in the case of M. Jainoon
v. Amanullah Khan
, Madras High court observed that although registration of
Marriage is not necessary, it cannot be said that registration of Marriage is
prohibited under Muslim personal Law.