● “Marriage is a contract underlying a lifelong partnership based on mutual consent on the part of a man and woman,” says Ashabah in Abdul Kadir v. Salima.
● Muslim law is derived from several codified and uncodified sources, including the Quran, Ijma, Qiyas, customs, urf, precedents, equity, and various laws.
● The classification of marriages under Muslim laws are:
1. Sahih Nikah (Valid Marriage)
2. Batil Nikah (Void Marriage)
3. Fasid Nikah (Irregular Marriage)
4. Muta Marriage
● Iddat is a period of chastity that a Muslim woman must follow after her marriage has ended due to her husband's death or divorce before she can legally marry again.
● Dissolution of Muslim Marriage by husband, wife and by mutual consent
The laws in pre-Islam Arabia were patriarchal and skewed in favour of men. Just a few blood relationships, such as marriages to one's actual mother or sister, had to account for polygamy. There were various types of marriages, and divorce was simple and straightforward for men. Since men were still considered dominant, women were denied basic rights. Women were regarded as chattels, with no right of inheritance and were completely reliant on men. Prophet Mohammad was responsible for a complete shift in women's status.
In the exercise of all legal powers and duties, Prophet Mohammad put a woman on a nearly equal footing with men. A Muslim considers a law marriage to be a civil contract. Women do not lose their individuality after they marry. She is still a unique member of society.
The Arabic word Nikah means "union of sexes" in law and "marriage" in Arabic. Under Muslim rule, the word 'Nikah' is used to refer to a marriage. The word Nikah means "to bind together." It entails a specific contract to legalize generation.
In its most basic form, Nikah refers to carnal conjugation. It is both a matrimonial contract and an institution that grants women a unique and high social status. The Nikah aimed to ensure marital stability by binding both partners for an unspecified period and requiring the woman to be honoured with the mahr.
“And one of His signs is that He made mates for you from yourself so that you could find peace in them; He put love and mercy amongst you. Indeed, there are signs for people who think like that.” The Holy Quran (30:21)
Definition of Marriage
Marriage (Nikah) is characterized as a contract between two people for procreation and the legalization of children.
Contractual obligations: Marriage is a civil contract, not a sacrament, according to Mahomedan law. Many of the rights and duties it produces take effect immediately and are not subject to any conditions precedent, such as the payment of dower by a husband to his wife.
“Marriage is a contract underlying a lifelong partnership based on mutual consent on the part of a man and woman,” says Ashabah in Abdul Kadir v. Salima.
The Privy Council stated in Shoharat Singh v. Jafri Begum, that Nikah (marriage) is a religious ceremony under Muslim law.
Outsiders have not fully comprehended or understood the sanctity attached to the institution of marriage in the Islamic system. Marriage is regarded as the foundation of society in Islam. It's a legal agreement, but it's also a spiritual covenant. Marriage, as an institution, promotes man's advancement and ensures the survival of the human race. The primary goal of marriage is to protect society from immorality and unchastity. It has also been said that marriage is such a sacred sacrament that it is an act of ibadat or worship.
Thus, according to Muslim Law, marriage is a contract to regulate intercourse, procreation, and social life in the interest of society by establishing the rights and responsibilities of the parties, as well as the children born from the union.
“So Allah has made for you wives from yourself, and sons (i.e. sons and daughters; seeds) and grandchildren from your spouses and He has provided you with the good” (things). Is it then that they believe in deception while disbelieving in Allah's favour?” The Holy Quran (16:72)
Classification of Marriage
Sunni Muslims and Shia Muslims are two groups of Muslims that are separated by their views and customs all over the world. Since marriages in both sects are performed in various ways, with different rites and customs, Islamic law recognizes different types of marriage.
Furthermore, as previously said, Islamic marriages are social contracts that bind the parties legally.
Muslim law is derived from several codified and uncodified sources, including the Quran, Ijma, Qiyas, customs, urf, precedents, equity, and various laws. Hanifa, Hambali, Maliki, and Shafai are the four main Sunni schools of thought. These four schools acknowledge each other's legitimacy and have engaged in legal discourse for decades. In India, the Hanifa school of Islamic law is the most common.
“And Allah created you from dust, then from a sperm-drop, then from pairs; and no female can conceive or give birth unless she has Allah's knowledge; no one can be granted a long age, (i.e., bear the burden of) nor is anyone's age diminished unless it is written in a Book. That must be simple for Allah.” The Holy Quran (35:11)
The classification of marriages under Muslim laws are:
1. Sahih Nikah (Valid Marriage)
2. Batil Nikah (Void Marriage)
3. Fasid Nikah (Irregular Marriage)
4. Muta Marriage
Essential of Marriage
The following are the requirements for a legal marriage:-
1. A marriage proposal should be made by or on behalf of one of the parties to the marriage, and the proposal should be accepted by or on behalf of the other party.
2. Both the proposal and the approval must be made at the same time.
3. The parties must be competent.
4. Two male or one male and two female witnesses must be present and hearing during the marriage proposal and approval, and they must be sane and adult Mahomedans. (In Shia Law, this isn't necessary.)
5. There is no need for writing or another religious ritual.
Capacity to Marry
The following are the general requirements for marriage in Islam:-
(i) Every Mahomedan of sound mind who has reached puberty is eligible to marry. The age of puberty is fifteen years where there is no proof or signs of puberty.
(ii) By their parents, a minor and insane (lunatic) who have not reached puberty may be validly married.
(iii) The consent of the parties is required. If there is no consent, a Mahomedan marriage that is of sound mind and has reached puberty is void.
Registration of Marriage
Marriage registration is required in Muslims since a Muslim marriage is considered a civil contract. “Every marriage contracted between Muslims after the commencement of this Act shall be registered as hereinafter given, within thirty days from the end of the Nikah Ceremony,” according to Section 3 of the Muslim Marriages Registration Act 1981. Nikahnama is a form of legal document used in Muslim marriages that contains the marriage's basic conditions and information.
The term Sahih is an Urdu term for the words "right" or "true," and Nikah means "marriage," as previously mentioned. A Sahih Nikah, or legitimate marriage, occurs when all of the basic requirements of a Muslim marriage are met. It means that if two Muslim individuals (one a man and the other a woman) enter into an arrangement by way of offer and acceptance, and the groom has paid the bride's Mehr, the marriage is legitimate.
● The partners are legally married, allowing them to legally consummate their union.
● The parties gain inheritance rights over the assets that can be inherited as a result of their marriage.
● But, according to Muslim law, the wife is not entitled to maintenance in the event of a divorce because it is assumed that the dower paid at the time of marriage is adequate for her well-being. Nonetheless, the Supreme Court has stated that the wife has the right to alimony and maintenance for herself and her children after a legal marriage.
● Apart from the right to earn the guaranteed dower, the right to maintenance is a separate right.
● Husband and wife must be respectful and obedient to one another. A Muslim man, on the other hand, is permitted to engage in polygamy. A Muslim woman is not allowed polygamy.
● If a man's wife is disobedient or unfaithful to him, the Quran enables him to reprimand or chastise her by fair means.
● If there are any children born as a result of a Sahih marriage, they are considered legitimate children.
● If the wife is a widow or has been divorced by her husband, she is required by Muslim law to perform the Iddat, which prohibits the wife from remarrying until a period of 90 days has passed after the husband's death. This is to ensure that the woman was not expecting a child when her husband died.
Effects of a valid Marriage
The following are the legal consequences of a legitimate (Sahih) marriage:
(1) The husband and wife's cohabitation is recognized as legal.
(2) Children born from a legal marriage are legitimate and have the right to inherit their parents' assets.
(3) Inheritance rights are created for both the husband and the wife. That is, after the husband's death, the wife is entitled to inherit the husband's property, and after the wife's death, the husband is also entitled to inherit her property.
(4) A prohibited marriage relationship is established between the husband and wife, and each of them is prohibited from marrying the other's relations under prohibited degrees.
(5) The wife's right to dower is completely established only after the marriage is completed.
(6) With immediate effect, the marriage grants the wife the right to maintenance from her husband.
(7) After the dissolution of the marriage, the widow or divorced wife is required to observe the Iddat, during which time she is not permitted to remarry.
(8) Under Muslim law, a woman's legal status is unaffected by marriage. Her personality is distinct from her husband's. Even after marriage, a wife remains a member of the same school of law of which she was a member before the marriage. That is, if a Shia woman marries a Sunni, she retains her Shia status and is subject to Shia law after the marriage. Both the husband and wife have the right to buy and sell their property on their own.
“It was He who made you from a single soul, as well as its mate so that he could live in peace with her. And when he covers her, she feels a lightweight lifted from her shoulders and continues on her way. When the going gets tough, they both pray to Allah, their Lord, saying, "If You should send us a good [child], we will surely be among the grateful." The Holy Quran (7:189)
An arrangement that is not legally enforceable is invalid, according to the Indian Contract Act of 1872. A void arrangement is one in which a prospective bride and groom do not fulfil any of the requirements of a Muslim marriage, and any marriage that occurs in furtherance of a void agreement is referred to as a void marriage or Batil Nikah.
In Munshi v. Mst. Alam Bibi, the Court held that a marriage is invalid if there is a permanent or lifelong ban from marrying due to non-compliance with a condition.
A Muslim marriage is null and void in the following circumstances.
1. When a marriage takes place between two people who are completely incapable of cohabiting.
2. When a man marries the wife of another man while the lady's marriage is still going well.
3. Being married to more than four wives. In this case, the fifth and subsequent marriages are null and void.
4. Getting Married to a Non-Muslim.
5. In Tangela Bibi v. Bajrul Sheikh, the court ruled that a marriage with a woman who is pregnant from a previous relationship is null and void.
When one or more of the above-mentioned pre-requisites for a legitimate marriage are not met by the partners before marriage, the marriage is null and void.
The following are the most important social and legal ramifications of a void marriage:
1. The marriage is void-ab-initio, which means that it is void from the very first day of the marriage, even though it is consummated.
2. A void marriage does not give the parties any civil rights or bind them to any legal obligations.
3. The right to obtain maintenance after divorce is lost if the marriage is found to be invalid.
4. If any children are born from a void union, they are considered illegitimate and have no right of succession or inheritance.
5. In the case of void marriages, the partners are not required to receive a divorce decree. They will simply split up without having to go through any legal wrangling.
A marriage becomes irregular due to a lack of formality or the presence of an impediment that can be overcome. This irregularity, however, is not permanent and can be removed. As a result, marriage is not illegal in itself. Once the irregularities are removed, they can be made legitimate. Marriage in such cases, or with the restrictions that follow, is referred to as "Fasid."
When a marriage is temporarily forbidden but not necessarily limited, it is merely irregular or fasid and not invalid, according to Ata Mohammed v. Saiqul Bibi. There are many facets of irregular marriage, as well as different points of view.
Irregular marriages occur only among Sunni Muslims, while an irregular marriage is a void marriage under Shia law. An illegitimate marriage occurs when a marriage is performed by violating one or more of the provisions of a legal marriage. A marriage between a Muslim and a Christian or a Jew is the best example of an irregular marriage.
An irregular marriage is generally voidable rather than void-ab-initio. If an illegitimate marriage can be made legitimate by removing the irregularity, the marriage becomes valid. So, if a Sunni Muslim man marries a Jewish woman and converts her to Islam, the marriage is legitimate. The social and legal consequences of an irregular marriage are determined by whether or not the marriage was consummated.
The following are the ramifications:
1. Once the marriage is consummated, the wife has no right to dower from the husband if he divorces her.
2. The wife is not bound by the iddat law, which prohibits remarriage within three months of divorce if the marriage has not been consummated.
3. During the three-month iddat period, the wife has no right to maintenance from the husband.
4. If the irregular marriage is consummated and children are born, the children will be considered legitimate and will be entitled to all inheritance rights.
Muta marriage is a temporary marriage between a Shia Muslim man and a woman of Islam, Judaism, or Christianity for a set period in exchange for the payment of a certain amount of dower when the marriage ends. The bride must also be told and agree on the period and dower.
Muta marriage is the fourth form of Muslim marriage that is only found among Shia Muslims and not among Sunni Muslims. It is necessary to consider the history of this marriage to comprehend it. The Shia sect of Muslims is prevalent in most Arabian countries, including Abu Dhabi and others. The people known as Sheikhs worked in the oil industry, mining, processing, and exporting it. They were forced to fly to distant locations and stay for several days or even months due to business agreements. The Sheikhs were required to fulfil their sexual needs and desires during this period, but Islam forbids cohabitation with any woman other than one's wife.
The phrase translates to "pleasure marriage." Muta marriage is a temporary arrangement between two people for a certain period. There is no set minimum or maximum length of time; it can be a day, a month, or a year (s). The marriage ends when the agreed-upon date expires; however, if no such time limit was stated or written, the marriage is assumed to be permanent. Sunni Muslims consider this form of marriage to be prostitution and therefore do not approve of it.
As a result, the Sheikhs used to marry the women for a limited time when they were in town, then divorce them when they left and pay the dower as compensation for marrying. The Shia sect accepted this definition of marriage in Muslim personal law, and it is known as Muta marriage.
Even though India has partly allowed live-in marriages, the Supreme Court would have a tough time legally invalidating this form of marriage. In today's world, feminists all over the world consider this arrangement to be prostitution. Many supporters of Nikah mut'ah claim that because it is a contract, this arrangement is preferable to live-in relationships.
Iddah, also known as Iddat, is an Arabic term that refers to a time of waiting observed by Muslim women. It is a period of chastity that a Muslim woman must follow after her marriage has ended due to her husband's death or divorce before she can legally marry again. The aim of observing the iddat period is to determine whether or not the woman is pregnant and to confirm paternity.
The iddat time varies depending on the situation.
● If the marriage was consummated or not, a divorced woman observes it for three months, while a woman whose husband has died observes it for four lunar months and ten days after her husband's death.
● For a divorced woman who is pregnant, the Iddat phase lasts until she gives birth or has a miscarriage.
● If a woman is pregnant when her husband dies, she must follow iddat for a full year, which includes nine months of pregnancy and three months of iddat.
Some Islamic scholars consider this timeframe to be a good compromise because it gives the widow enough time to mourn her husband's death while also shielding her from criticism for remarrying too soon after her husband's death. This time is primarily used to determine whether or not a woman is pregnant since four and a half months is half the length of a typical pregnancy. If the wives leave the house of their own free will, a Muslim husband must make a will in favour of their wives for the provision of one year's residence and maintenance.
In the form of chapters, the Quran lists the following facts regarding Iddah:
1. A widow's observing duration is four months and ten days.
2. During this time, she is not allowed to marry another man.
3. If a man wishes to marry a widow or divorced woman, he will do so in a socially appropriate manner while the iddat duration is in effect; however, there should be no hidden marriage commitment with the widow.
4. After four months and ten days have passed, a marriage contract with the time and location of the wedding ceremonies can be finalized.
Commencement of Iddat
Iddah begins immediately after the death of the husband or the divorce of a Muslim wife. Despite her failure to follow iddah, she would not be held responsible or impacted in any way.
● If she did not receive news of her husband's death in time but learned of it during the prescribed iddah period, she is required to observe it for the remaining days of the iddat period.
● She is not obligated to perform iddat if she receives the news after the iddah time has passed. The clock starts ticking when the husband dies or when the divorce is granted.
Maintenance during Iddat
The husband is responsible for the wife's maintenance during her Iddat time, regardless of how long it lasts. As a result, the wife is entitled to maintenance during Iddat in the following situations:
● When a marriage is dissolved by repudiation, regardless of whether the repudiation was revocable or irrevocable, perfect or imperfect, the marriage is dissolved.
● If she has not renounced her right to maintenance, the marriage is dissolved by Lien (oath of imprecation) or Ila (a pledge of continence) or by Khula.
● When the husband exercises his right of choice and dissolves the marriage after reaching puberty.
● When the marriage is dissolved because the dower is inferior, or because the husband is unequal or impotent.
● When a wife who is not subject to menstruation begins to menstruate before the end of the prescribed time while observing Iddat by months. Since she is required to remain in Iddat for three full months, she is entitled to additional Iddat maintenance.
Dissolution of Muslim Marriage
A husband can divorce his wife without providing a reason by repudiating the union. It is sufficient for him to say those terms that indicate his intention to divorce his wife. This is usually achieved by talaq. He can, however, divorce by Ila and Zihar, which vary only in appearance and not in substance from talaq.
A woman can not leave her husband on her own. She can only divorce her husband if he has delegated his right to her or if they have reached an agreement. The wife may divorce her husband by Khula or Mubarat if they have reached an agreement. Before 1939, a Muslim wife had no right to divorce unless the husband was falsely accused of adultery, insanity, or impotency.
However, the Dissolution of Muslim Marriages Act of 1939 establishes several other grounds on which a Muslim wife may have her divorce decree granted by a court order.
Dissolution of Marriage by Husband
Before a husband, there are four options for severing the marriage ties:
1. Talaq- ul- Sunnat
In reality, Talaq was regarded as evil, and if it becomes difficult to prevent it, the best method was Talaq-ul-Sunnat, which enabled the results of the evil to be reversed. Talaq is also known as revocable Talaq because it does not become final immediately and there is always the chance of a reconciliation between the husband and wife. During the Prophet's lifetime, only this form of Talaq was used. This form of Talaq is accepted by both Sunnis and Shias.
It is then subdivided into two sections:
As the name implies, it is considered the best type of talaq. The method that the husband follows is as follows:
a. He must make a single-sentence divorce declaration, and this declaration must be done in a state of purity (when a woman is free from her menstrual cycle).
b. If a husband engages in some kind of sexual activity during the iddat time (the period of chastity that a Muslim woman is required to follow after the breakup of her marriage, whether by death or divorce), it will be considered an implied revocation of talaq. It's important to remember that once the iddat time has passed, the divorce is final.
c. Even if the wife is in her menstruation, talaq-e-Ahsan can be pronounced if the spouses have not consummated their relationship.
● Talaq Hasan:
Hasan means "good" in Arabic, so divorces pronounced in Hasan mode is good but not as valuable as those pronounced in Ahsan mode.
The husband must make three divorce declarations in a row.
a. Such three pronouncements should be rendered in three consecutive Tuhr in the case of a menstruating wife (state of purity).
b. Pronouncement should be made at three 30-day intervals in the case of a non-menstruating wife.
c. There should be no sexual activity during these three times of pronouncements, and if there is, the divorce process will be revoked.
d. On the third pronouncement, regardless of the iddat period, Talaq Hasan becomes irreversible.
2. Talaq-ul- Biddat
The “Umayyads” introduced this form of talaq to get around the strictness of the law. As far as the Hanafis are concerned, this is a sinful type of talaq. Sunni law recognizes this kind of talaq, though it is also considered sinful. Shias and Malikis, on the other hand, are unaware of this mode.
“Talaq, talaq, talaq” or “I divorce thee, I divorce thee, I divorce thee” are examples of three pronouncements rendered in a single Tuhr, either in a single sentence or in separate sentences.
A single declaration expresses the desire to break a marriage and renders it irreversible. Partners who have been split by triple talaq are unable to remarry without the woman marrying another man and divorcing him, a procedure known as Nikah Halala.
The Supreme Court of India recently ruled in Shayara Bano vs Union Of India And Ors. that the practice of triple talaq is unconstitutional since it violates the fundamental right to life guaranteed by Article 14 of the Indian Constitution.
3. Ila (Vow of Continence)
It refers to the condition in which a husband of sound mind who has reached the age of majority swears in the name of God that he will not have sexual relations with his wife and leaves her to observe iddat. If the husband resumes sexual activity during the iddat period, the Ila will be cancelled and there will be no dissolution of the marriage. Ila is not practised in India, which is important to remember.
In Ila, the husband swears never to have sexual relations with his wife. After this oath, there is a four-month cycle of no consummation. The marriage is irreversibly dissolved at the end of the fourth month. Ila does not act as a divorce without a court order under the Ithna Asharia (Shia) School. The wife is entitled to a statutory divorce after the fourth month has passed. If there is no cohabitation after four months, the wife has the right to sue the husband for restoration of conjugal rights.
The husband compares his wife to a woman from his forbidden relationships, such as his mother or sister. After such a contrast, the husband decides to live apart from his wife for four months. Zihar is observed when the time limit expires.
After the fourth month has passed, the wife has the following options:
(i) she may petition the court for a judicial divorce;
(ii) she may petition the court for a decree of restoration of conjugal rights.
The wife cannot pursue judicial divorce if the husband wishes to revoke Zihar by resuming cohabitation within the specified time. Cohabitation with a wife who has been compared to a mother or sister, on the other hand, is a sin. While the wife cannot obtain a judicial divorce in this situation, she may force the husband to perform penance for his immoral behavior in comparing her to his mother or sister. It may be revoked if the husband fasts for two months, or if he feeds at least sixty people, or if he frees a slave.
Zihar must be done in the presence of two witnesses, according to Shia law.
Dissolution of Marriage by Wife
This is the only way for a woman to divorce her husband; however, the right to divorce must be delegated solely by the husband. It is a type of pre-marital or post-marital agreement that gives the wife the right to divorce her husband if certain conditions are met, such as:
a. If the husband marries a second time,
b. Any other requirement that must not be contrary to public policy is that the husband is unable to sustain her for a given period.
If the husband adheres to the terms of the arrangement, the wife may sever her marital relations without violating the law. The fact that the husband delegated power to the wife does not absolve him of his responsibility to issue talaq.
Dissolution by Mutual Consent
While divorce by mutual consent was not recognized by Muslim law, it became available to Muslim women after the passage of the Dissolution of Muslim Marriages Act in 1939.
Khula means "to lie down" in front of the constitution. The husband places his right hand on top of his wife. It refers to an agreement made to end a sexual relationship in exchange for compensation paid by the wife to her husband out of her house, including all that can be offered as dower.
Khula is a divorce by mutual consent and at the request of a woman, upon which she decides to give her husband some consideration. It is essentially a "redemption" of the marital contract.
The husband cannot cancel the divorce after it has been approved under Shia law, but the wife has the right to regain the consideration during the iddat period.
It denotes the mutual dissolution of marital relations. The most important factor is that all parties must agree to the breakup of the union.
In this divorce mode -
1. You can make an offer from either side.
2. Acceptance of the offer makes the divorce final.
3. Iddat is needed.
Parties may break their marriage under Shia law if they are unable to continue their marriage by mubarat.
Dissolution of Muslim Marriage Act, 1939
Lian may simply be described as a husband's false accusation of adultery against his wife. When a husband falsely accuses his wife of adultery, she will sue him and seek a divorce under the Act on the same grounds by filing a standard suit for dissolution of marriage.
In the case of Zafar Husain v Ummat ur Rahman, the Allahabad High Court held that a Muslim wife has the right to file a divorce suit against her husband and obtain a decree because she was wrongly accused of adultery by him.
The fundamentals of Liam are
a. A husband must be an adult and sane.
b. He accuses his wife of adultery.
c. This accusation must be false.
d. False charges do not dissolve the marriage ipso facto (by their existence); rather, they provide a basis for the wife to petition the court to dissolve the marriage.
e. The marriage will proceed until the court issues an order of dissolution of marriage.
f. The judicial separation via lian mode is irreversible.
This mode is only applicable to Sahih marriages, not fasid marriages. Before the conclusion of the trial, the husband will retract, admitting that he made the accusation of adultery against her wife and that it was false.
According to the Quran, husband and wife should honour each other, treat each other with respect, and follow each other's lawful orders. If they find that they can no longer live as husband and wife, they may approach the qazi, who, after a thorough inspection, can decide to end their marriage.
The Dissolution of Muslim Marriage Act of 1939, Section 2, lists nine grounds on which a Muslim wife can receive a divorce decree:
a. Husband's Absence– the husband's whereabouts have been unknown for the past four years. The decree of dissolution of marriage on this ground will take effect six months after it is issued, and during that period if the husband appears in person or by authority, the marriage is continued.
b. If a husband fails to provide maintenance to his wife for two years, he is considered to be in default. Poverty, deteriorating health, or unemployment are not valid defences in front of the husband.
c. If a husband is imprisoned for seven years or more, it is considered a felony.
d. Failure to perform marital duties- If the husband is unable to perform his marital obligations for three years without reasonable cause.
e. Husband impotency—the husband was and appears to be impotent at the time of marriage. If the husband proves to the Court that he is no longer impotent within one year of the date of the order obtained by the wife for dissolution of marriage on the grounds of impotency on application. If the husband satisfies the court, the court will not issue a decree on this basis.
f. Insanity, leprosy, or venereal disease- If the husband has been insane or has had leprosy or other venereal diseases for more than two years, the wife can seek judicial divorce on the same grounds.
g. If a girl is married by her father or guardian before the age of 15, she has the right under Muslim law to repudiate the marriage after reaching the age of 18, as long as the marriage is not consummated. For the same, she is entitled to a divorce decree.
h. The wife is also entitled to a divorce based on a legitimate legal ground recognized by Mohammedan law.
i. Cruelty by the husband- If the husband treats his wife cruelly, she may petition the court for a judicial separation order on the same grounds.
Important case laws
1. Mohammed Ahmed v Shah Bano and Anr.
Facts - The case's facts revolve around the concepts of dower and repair. Following the respondent's divorce through 'triple talaq,' when she requested maintenance from her husband, the problem emerged.
In Muslim tradition, a woman is entitled to Mehr, or dower, which is offered to her as a token of gratitude and is intended for her to use after the marriage or if her husband dies.
Issue - Whether personal law or Code of Criminal procedure apply?
Held - the petition was brought under the code of Criminal Procedure and the court ruled that even after the ‘iddat' period, the Muslim woman is entitled to maintenance. This decision was reversed in 1986 when the Muslim Women (Protection of Rights on Divorce) Act was passed, reiterating that Muslim men are not obligated to support their wives after the iddat period.
2. Shayara Bano v. Union of India and others
Facts - The case revolves around a woman from Uttarakhand who acted as a spokesperson for many Muslim women. Her marriage was a disaster, and she was divorced by her husband through triple talaq (Talaq-ul-biddat).
Issue - If the practice of triple talaq is illegal because it violates the Constitution's Articles 14, 19, and 21.
Held - The Supreme Court ruled that this practice is in violation of Article 14 because it can only be done by the man in the marriage and not by the woman, thereby violating the concept of equality. Article 19 states that a woman should be able to choose whether or not to divorce. Article 21 guarantees the right to life as well as personal liberty.
3. Danial Latifi and another v. Union of India
Facts - The facts of this case is related to the Shah Bano case, in which the complainant filed a court petition challenging a parliament act. As a result of the Shah Bano decision, the Act was passed. The Muslim Woman Protection of Rights on Divorce Act of 1986 stipulated that the husband in a marriage is liable to pay the sum of dower and maintenance during the time of ‘Iddat' as specified by Muslim personal law, after which the husband is not liable or responsible to maintain his wife under any circumstances unless he prefers it.
Issue - The question before the court was to declare Section 3 of the Act, which was passed, unconstitutional and in violation of Sections 14 and 21 of the Constitution.
Held - The court debated the claims presented by the petitioners. He claims that there is no excuse to deny a Muslim woman the protection guaranteed by the Criminal Procedure Code. Also, the woman should be entitled to spousal support from her husband. As a result, the court ruled in his favour, declaring the amendment to be unconstitutional.
4. Shamim Ara v. the State of U.P.
Facts - The complainant, in this case, requested maintenance from her husband for herself and two of her four children, claiming that he had abandoned her and treated her cruelly. The respondent believed that the dower had been paid and that the husband had agreed to pay Rs. 150 a month for the minor child's care. As a result, the repair proposal was denied, and an appeal was lodged with the Supreme Court. This appeal concerns the principle of maintenance in the case of a wife who was divorced by her husband and received the dower as well.
Issue - When the dower has been paid, may the court order the husband to pay maintenance to the wife?
Held - The Supreme Court ruled that the husband is liable to pay maintenance for the two sons they have from their marriage, and therefore ordered the husband to pay maintenance so that the wife, who has custody of the twins, can care for them.
5. Sarla Mudgal vs. Union of India
Facts - The Supreme Court decided to dismiss two appeals. The husband flees from the first marriage, which was solemnized under the Hindu Marriage Act of 1955, in each of these petitions. Furthermore, the husband fled and converted to Islam solely for the purpose of remarrying, thereby circumventing Section 494 of the Indian Penal Code, which forbids remarriage when one marriage is still alive.
Issues - The validity of a second marriage after converting from Hinduism to Islam.
Whether or not the man is liable under Section 494 of the Indian Penal Code.
Held - The Supreme Court ruled that the man is attempting to infiltrate the first marriage and abandon the woman. As a result, the court ruled that a man cannot have two marriages at the same time under the Hindu Marriage Act of 1955. The court ruled that the second marriage is void in nature because the first marriage has not been dissolved, and that the conversion that took place solely to commit fraud and marry two women at the same time is invalid. The conversion is unaffected, but the second marriage is nullified.
6. Chand Patel v. Bismillah Begum
Facts - The plaintiff Chand Begum filed an application for maintenance for herself and her minor daughter before the Magistrate on the grounds that the respondent-husband married her niece, after which she was ignored and not sustained.
Issues - Whether a Muslim man's marriage to sisters is legitimate, invalid, or simply irregular, and whether the husband is responsible for the maintenance of both sisters.
Held - The Supreme Court ruled that a man's marriage to two sisters is not invalid. It was claimed that this marriage would be of a purely irregular nature. Also addressed was the fact that the child of such a marriage would be entitled to inherit from his father. It was also debated that a marriage in which the wife is Hindu, and the child born from such a marriage, would have the right to inherit. It claimed that marriages that took place without witnesses or during the former wife's "iddat" era are circumstances under which the marriage between the parties can be declared invalid.
7. Ahmedabad Women Action Group (AWAG) v. Union of India
Facts - As a Public Interest Litigation, this case was brought by a non-profit group dedicated to women's empowerment. It jolted the entire nation. In this case, the petitioners argued that many common Muslim personal law practices were unconstitutional.
First, polygamy was said to be in violation of Articles 14 and 15. Second, the practice of Muslim husbands using the unilateral talaq scheme as a violation of Articles 14 and 15. Third, to believe that remarriage, when a Muslim husband is already married, is cruel is to believe that remarriage is cruel in and of itself.
Last but not least, to declare the Muslim Women (Protection of Rights on Divorce) Act of 1986 unconstitutional.
Held - The court stated that this practice can only be carried out by the Muslim husband in a marriage, not the wife. As a result, it was also reported that this causes pain to the wife and can be considered cruel. The practise of triple talaq, which is the dissolution of a marriage by simply saying the word Talaq without giving the woman any recourse in court or elsewhere. When the guy decides he doesn't want to marry her, she is left high and dry. This is also a ritual that can only be carried out by the husband and not the wife. The rules of inheritance are patriarchal because they do not extend to female family members.
8. Imambandi v. Mutsaddi
Facts - In this case, the Bombay High Court was dealing with a property dispute involving three widows of a Muslim man who died intestate. The complainant argued that she was the child's mother and therefore the legal guardian, and as such, she was entitled to a share of the child's land. The principle of guardianship and the division of property based on guardianship are discussed in this case.
Held - It affirms that the man is the ultimate and sole guardian of the child from the union and that the mother is not considered the natural guardian of the child upon the death or demise of the man or the father of the child. The grandfather or the man's parent, on the other hand, is the child's natural guardian. In the absence of the grandfather, the father's brother takes over as a natural guardian.
9. Gohar Begum vs. Nazma Begum
Facts - The details of this case concern the father's guardianship over an illegitimate child. The applicant is the mother of an illegitimate child who has applied to have custody of her child transferred from her husband to her under Section 491 of the CrPC. In Mohammedan law, the illegitimacy of a child is a big problem that raises a number of legal issues, as in this case.
Issue - The question before the court is whether the husband or the father has natural guardianship of the minor illegitimate child under Mohammedan law.
Held - The court ruled that a woman or wife may only be a natural guardian of an illegitimate child. It was stated that in the case of an illegitimate child, the circumstances are different from those of a legitimate child and that even a woman or a wife may be a natural guardian to the illegitimate child, and that failure to pass custody of such a child will be considered unlawful detention of the child under Section 491 CrPC.
10. Noor Saba Khatoon v Md. Qasim
Facts - This case explicitly addresses the issue of child support for children born out of a marriage after the man and woman divorce. Md. Qasim married Noor Saba and they had three children together.
The respondent divorced the appellant and remarried another woman, leaving the appellant with her three children. Later, the wife filed an application for maintenance for herself and her three children under Section 125 CrPC, which was granted. The respondent divorced her and went to the High Court, arguing that because he had divorced her, the Muslim Women Protection Act of 1986 would apply, allowing him to stop supporting his wife and children after two years.
Issue - If the children born of a Muslim marriage are entitled to maintenance under the CrPC after the couple's divorce.
Held- According to the court, the child has the right to seek maintenance under Section 125 of the Code of Criminal Procedure as well as the Muslim Woman (Protection of Rights on Divorce) Act. The father is responsible for paying the son's maintenance before he reaches the age of majority and is able to stabilize and provide for himself. Furthermore, the father is responsible for his daughter's upkeep before she marries.
Based on legal opinion, we can easily infer that under Muslim law, marriage is nothing more than a civil contract. It meets all of the contract's requirements, including proposal and approval, free consent, and consideration.
From a religious standpoint, however, Muslim marriage is a devotional act. There are religious and moral beliefs about marriage. It contains elements of a holy marriage of two souls for spiritual purposes, in addition to its secular component.
Husbands and wives are commanded to love and respect each other in the Quran and Hadith. It has been described as a noble act to enjoy oneself and shower one another with love and affection. Marriage is considered a sacrament in Islam, according to Quranic injunctions and customs.
In the end, it is possible to say that marriage in Islam is neither solely a civil contract nor a sacrament.