Muslim Law MCQ Part 7

 Under the dissolution of Muslim Marriages Act,1939, the Muslim Wife can seek Divorce on the following grounds:

A. Husband is missing for four years or more

B. Failure to maintain for a period of one year

C. Imprisonment for 3 years.

D. Bigamy.

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‘Talaq ahsan’ is :

(a) Revocable during the tuhr in which it has been pronunced

(b) Revocable until the next successive tuhr

(c) Revocable during the period of iddat

(d) Irrevocable

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Husband who is sane and adult compares his wife to his mother or any other female within the prohibited degrees. This is called :

(a) Talaq (b) Ila (c) Zihar (d) Lian

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Where a husband charges his wife of adultery and the charge is false, his wife is ethical to sue for and obtain divorce which is:

A. Khula

B. Lian

C. Mubara’at

D. Zihar

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A Mohammedan male of _____ may contract any number of Muta marriages.

(a) Ithna Ashari sect of the Shias

(b) Isamil sect of the Shias

(c) Zayadia sect of the Shias

(d) All the above

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Muslim Law MCQ Part 6

 For a valid Muslim marriage

(a) Offer and acceptance must be at the same time

(b) Offer and acceptance must be at the same place

(c) Offer and acceptance must be at the same time and place

(d) Offer and acceptance may be at different times and at different places

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A Muslim can marry any number of wives not exceeding

(a) Four è

(b) Five

(c) Two

(d) one

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In case of talak, the duration of iddat is

(a) Four courses

(b) Five courses

(c) Three courses

(d) Six courses

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A Muslim is prevented from marrying his wife’s sister

(a) During the subsistence of marriage with his wife

(b) After the death of his wife

(c) After the divorce of his wife

(d) All the above

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When does the Muslim Husband married during minority loses his right to repudiate the marriage?

A. on cohabitation after attaining majority

B. on payment of dower

C. either A or B è

D. none of the above

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Muslim Law MCQ Part 5

 For a valid Muslim marriage

(a) Offer and acceptance must be at the same time

(b) Offer and acceptance must be at the same place

(c) Offer and acceptance must be at the same time and place

(d) Offer and acceptance may be at different times and at different places

===========

A Muslim can marry any number of wives not exceeding

(a) Four è

(b) Five

(c) Two

(d) one

===========

In case of talak, the duration of iddat is

(a) Four courses

(b) Five courses

(c) Three courses

(d) Six courses

============

A Muslim is prevented from marrying his wife’s sister

(a) During the subsistence of marriage with his wife

(b) After the death of his wife

(c) After the divorce of his wife

(d) All the above

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When does the Muslim Husband married during minority loses his right to repudiate the marriage?

A. on cohabitation after attaining majority

B. on payment of dower

C. either A or B è

D. none of the above

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Muslim Law MCQ Part 4

 A person is a Muslim ________.

(a) Only by birth

(b) Only by conversion

(c) Either by birth or by conversion è

(d) None of the above

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Muta marriage under the Muslim law means :

(a) A temporary marriage è

(b) A permanent marriage

(c) A joint venture marriage

(d) An illegal marriage

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Khula under Muslim law is kind of _____.

(a) Talak è

(b) Dower

(c) Marriage

(d) Guardianship

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Muslim Women (Protection of Rights on Marriage) Act criminalises

A. Khula B. Mubarat C. Talaq- E- Sunnat

D. Talaq-E-Biddat è

It stipulates that instant triple talaq (talaq-e-biddat) in any form – spoken, written, or by electronic means such as email or SMS – is illegal and void, with up to three years in jail for the husband. Under the new law, an aggrieved woman is entitled to demand maintenance for her dependent children.

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The concept of Triple Talaq under Muslim Law is

A. approved form of talaq.

B. mostly approved form of talaq.

C. protected form of talaq.

D. mostly disapproved form of talaq. è

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Muslim Law MCQ Part 3

 As per Muslim law, a marriage with a woman before completion of her Iddat period is

(a) Void

(b) Voidable

(c) Irregular è

(d) None of these

===============

In ______ case, Muslim Women (Protection of Rights on Divorce) Act 1986 was held Constitutionally valid.

(a) Danial Latifi Case (b) Shahbano Case è

(c) Sarla Mudgal Case (d) None of the above

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Who of the following is related to Khyar-ul-Bulugh ?

(a) Father of the groom

(b) Mother of the bride

(c) Minor Muslim girl è

(d) Great grand mother of the boy

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The bigamous marriage of a Muslim woman is punishable under ______ Section of IPC.

(a) 125

(b) 498

(c) 494 è

(d) It is not punishable

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Which amongst the following are kinds of Muslim Marriage ?

(a) Batil

(b) Fasid

(c) Sahih

(d) All of the above è

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Gift of undivided property is called as ———— .

(a) Areeat

(b) Hiba-ba-shart-ul-iwaz

(c) Mushaa è

(d) None of the above

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Muslim Law MCQ Part 2

 According to _______, marriage is regarded as a civil contract between a man and woman which has for its objects procreation and legitimating of children.

(a) Muslim Law è

(b) Hindu Law

(c) Christian Law

(d) All the above

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The Muslim Women (Prohibition of Rights on Divorce) Act, 1986 is the outcome of the controversy usurped the attention of the Muslim Community all over India after the _ case.

(a) Mohd. Ahmad Khan Vs. Shah Bano Begum è

(b) Parvez Ahmad Khan Vs. Shahnaz Bano

(c) Usman Khan Bahmani Vs. Fatimunissa Begum

(d) Danial Latifi Vs. UOI

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Divorce by order of a court of law is called :

(a) Faskh è

(b) Khula

(c) Mubarat

(d) Talaq Ahsan.

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In _______ case the constitutionality of the Muslim Women (Protection of Rights on Divorce) Act, 1986 had been challenged in the SC.

(a) Danial Latifi and Others Vs. UOI

(b) Mohd. Ahmad Khan Vs. Shah Bano Begum è

(c) Zohra Khatoon Vs Mohd. Ibrahim

(d) None of above

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Muslim Law MCQ Part 1

 The Muslim Women (Protection of Rights on Divorce) Act, is of - - - - -

(a) 1986 è

(b) 1987

(c) 1996

(d) 1997

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The dissolution of Muslim Marriage Act, 1939 provides for grounds of divorce -------

(a) Where nothing here for 4 years about husband

(b) Husband has been sentenced imprisonment for 7 years

(c) Husband is impotence

(d) all of the above è

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Under Muslim Law, marriage is —— .

(a) An institution legalizing male and female conjugal relations.

(b) A civil contract.

(c) Sunna.

(d) All the above.

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A Muslim woman observing iddat period marries with another man. The marriage is

(a) Sahih.

(b) Batil.

(c) Fasid. è

(d) None of the above.

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When the whereabouts of the husband have not been known for a period of ____ a Muslim wife can avail it as a ground for divorce.

(a) 2 yrs

(b) 7 yrs

(c) 5 yrs

(d) 4 yrs è

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Law for Muslim Women

 Law for Muslim Women

·         Irregular marriage is also known as Fasid marriage. Thus when a person marries his wife's sister, the marriage is irregular, but he can validate it by pronouncing talaq on his wife.

·         An agreement between a prospective bride and a groom which does not meet all the essential conditions of a Muslim marriage is a void agreement and any marriage that takes place in furtherance of a void agreement is called a void marriage or Batil nikah.

·         The object of the iddat is firstly to ascertain whether the wife is pregnant, and if so, the paternity of the child. Secondly, in the event of a revocable divorce, it gives the husband the opportunity to return to his wife, and thirdly, it gives a widow the opportunity to mourn the death of her husband.

·         In Islam, iddah or iddat is the period a woman must observe after the death of her husband or after a divorce, during which she may not marry another man.

·         When all the essential conditions of a Muslim marriage are duly fulfilled, it is called a sahih nikah or valid marriage.

·         Apart from the divorce which may emanate either from the husband or the wife without the intervention of the court or any authority, Muslim law also provides for the dissolution of marriage to the wife by decree of the court. It is called Faskh. The word Faskh means annulment or abrogation.

·         Talaq is also of three kinds - 'Talaq-e-ahsan', 'Talaq-e-hasan' and 'Talaq-e-biddat'. The Quran and 'hadith' i.e. sayings of the Prophet Muhammad, approve of 'talaq-e-ahsan', and 'talaqe-hasan' as they are considered most reasonable form of divorce.

·         The difference between a khula divorce and a mubara'at divorce is that in khula the wife desires the divorce and initiates it, while in mubara'at both spouses desire the separation.

·         The Hanafi school believes that all adult females have the exclusive right to enter into a khula.

·         Ahmed Khan v Shah Bano Begum', which cites the victory story of a 62 year old Muslim woman for her right to maintenance from her husband under section 125 of CrPC who had divorced her.

·         ARIYAT. This form of gift permits the enjoyment of the property without the inhibiting the title of the donor.

·         In Hiba- bill-iwaz the consideration is paid by donee voluntarily whereas in Hiba-ba-Shartul-iwaz its payment is a condition precedent.

·         In Hiba- bil-iwaz the consideration is at the will of donee but in Hiba-ba-shartul- iwaz the value and kinds of consideration is at the discretion of the donor.

·         Gift of Musha or Gift of undivided share : The word Musha means an undivided share or part in a property.

·         Such property may be movable or immovable. Under Muslim law, Musha signifies an undivided share in a joint property.

·         Musha is therefore, a co-owned or joint property.

·         Muta is a temporary marriage that is contracted for a limited or fixed period and involves the payment of money to the female partner.

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Salient features of Dowry Prohibition Act, 1961

The practice of dowry has to be examined in the broader context of the devalued status of women. Parents are often compelled to pay dowry to ensure the security and happiness of their daughter in her matrimonial home.

Dowry Prohibition Act, Indian law, enacted on May 1, 1961, intended to prevent the giving or receiving of a dowry.

Amendments to the original Dowry Prohibition Act also established minimum and maximum punishments for giving and receiving dowry and created a penalty for demanding dowry or advertising offers of money or property in connection with a marriage. The Indian Penal Code was also modified in 1983 to establish specific crimes of dowry-related cruelty, dowry death, and abetment of suicide. These enactments punished violence against women by their husbands or their relatives when proof of dowry demands or dowry harassment could be shown.

The definition of dowry in the Dowry Prohibition Act, 1961 is given in Section 2 as follows:

2. Definition of “dowry”.—In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly—

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;

at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Dowry does not include dower or mahr in the case of Shariyat laws.

The definition of the dowry includes the demand for any property before marriage, at the time of marriage, or even after the marriage from one party of marriage to the other party. Such demand should be in connection with the marriage. This demand shall be fulfilled by the party of the marriage, or parents of the party of the marriage, or any other related person of the party of the marriage.

If the husband demanded an amount of Rs 50,000 by way of dowry some days after the marriage from the wife’s father and in the event of her not being able to give that amount was subjected to torture, it would mean that the amount was demanded in connection with the marriage and it was a demand of dowry even though it was demanded after marriage.

The Dowry Prohibition Act 1961 does not bar the traditional giving of presents at or about the time of a wedding. Thus such presents or dowry given by the parents is therefore not at all within the definition of the statute. But it is provided that such gifts must not be demanded, they must be given voluntarily.

The Act provides for the penalty for taking dowry and abetting to take dowry. Such a person may get a punishment of imprisonment not less than five years and he has to pay a fine of at least 15,000 or value equal to such dowry demanded, whichever the more. Such punishment is provided in Section 3 of the Act.

The Act also makes agreements of giving and taking dowry void by Section 5.

Section 6 of the Act provides for the transfer of the property received in the name of dowry to the woman within three months from the date of its receipt. Such transfer in the name of the woman will be beneficial to her and her children. If the receiver of the dowry fails to transfer such property to the concerned woman then an amount equal to the value of the property may be recovered from him.

Every offence under the Act is non-bailable and non-compoundable.

The Act empowers the State Government to appoint the Dowry Prohibition Officer and to make rules for carrying purpose of the Act. Also, Central Government is empowered to make rules for the implementation of the Act.

 

Read More

References:

1) The National Commission for Women Recommendations and suggestions on Amendments to the DOWRY PROHIBITION ACT, 1961

2) Dowry Prohibition Act

3) Dowry Prohibition Act, 1961

Bigamy in India:

Meaning:

Marriage has been defined as a pure sacrament, particularly in our Indian culture a bond that joins two lives together till the end of their lives, unlike in other countries where entering into a marriage is a contract.

If a certain person in a marital bond cheats with the other person and enters into a new bond of marriage during the lifetime of the other partner, doing this is also known as committing the offence of Bigamy, the sole reason being it is immoral on the part of the first partner to start a new life at the expense of happiness and peace of the previous partner in marriage.

The second marriage while the first marriage is in subsistence is called Bigamy. Bigamy, in simple words, means a person marries for the second time while his first marriage is in subsistence.

The bigamy law is applicable to Hindus, Jains, Buddhists, Sikhs, Parsis, and Christians [except Muslims].

Position in society:

In a case, where the husband or the wife is alive then, the second marriage contracted by a person is not legal and does not hold any validity in the eyes of law, i.e. it is termed to be a void marriage. The position of bigamy in India is certainly mentioned in the law but the practice is still very common and hence the contrast between the law and social practice results in the second wives not having enough protection.

Women in the second marriage are cheated on and are not provided with much protection under Indian laws. There is no legal recognition given to second wives. Nevertheless, the victims of bigamy can still approach the Courts for claiming maintenance. The second wife is entitled to maintenance, she is not entitled to property rights.

Legal provisions;

The key law forestalling Bigamy in India is the Indian Penal Code yet in the event that personal laws do not explicitly specify Punishment for Bigamy or illegalize Bigamy, at that point any person can’t be indicted for the offense of bigamy. Bigamy is prohibited in India under Section 494 of the Indian Penal Code. The law expresses that, whoever marries another person in the lifetime of the existing spouse, such marriage by reason of its occurring during the lifetime of such husband or wife, should be viewed as void and should be punished for such offense. If any person marries more than once during the life of his first spouse, he/she should be punished with imprisonment which may extend to seven years, and shall also be liable to a fine.

Section 494 of the IPC provides about “Bigamy” as thus “Whoever, having a husband or wife living, marries again in any case in which such marriage is void by reason of its taking place during the life of such husband or wife shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”.

Bigamy in India is a non-cognizable offence. It is bailable and compoundable when the permission of the Court is granted if the offence is committed under section 494 of the IPC. The punishment for bigamy is imprisonment, of a maximum of 7 years or a fine or in some cases, both. In case the person charged with bigamy has performed the second marriage by concealing the fact of the first marriage, then he shall be punished with imprisonment of up to 10 years or a fine or both. Such offence under section 495 is not compoundable.

Hindu Marriage Act, 1955- As per the Section 17 of the Hindu Marriage Act, 1955, if a person considered to be a Hindu under the Act, marries another person in the existence of his/her first marriage, i.e, while the first husband or wife is alive, then that person shall be punished under the Indian Penal Code. Section 16 of the Hindu Marriage Act 1955 states that the children born from a bigamous relationship shall be held perfectly valid. But there is no legal recognition for the second wife, but she may have a chance of maintenance under the Act.

Muslim Women (Protection of Rights on Divorce) Act, 1986- Under this Act, unlike other religions, there are no particular or specific provisions for bigamy. A Muslim man has a right to marry twice, thrice, or four times if he is able to treat and respect all of his wives in an equal manner. In case he fails to do so, then he is liable.

Parsi Marriage and Divorce Act, 1936- Section 5 of this act affirmed Bigamy null and void or dissolved and imposes a penalty which has been laid down under Section 494 and 495 of Indian Penal Code, 1860.

Christian Divorce Act, 1896- This act does not provide a specific law for bigamy but at the time of registration of marriage, Section 60 lays down that none of the parties to the marriage should have been in an existing marriage and if a person gives a fall oath or declaration, then he/ she is punishable under Section 193 of the Indian Penal Code. This provision explains that under this Act, more than one marriage is considered to be illegal.

Special Marriage Act, 1954- Section 44 of this Act lays down that if any person commits bigamy then he/ she is liable under Section 494 and 495 of the IPC, 1860.

Foreign Marriage Act 1969- Section 19 of this act states the punishment for Bigamy and imposes a penalty under Sections 494 and 495 of the Indian Penal Code.

Sarla Mudgal v. Union of India (1995 AIR 1531 SC): The Supreme Court of India in its landmark judgment held that “where any man (not Muslim initially) converts his religion into Islam for the sole purpose of contracting a second marriage without legally divorcing his first wife ), the marriage shall be regarded as void and illegal and he shall be punished in the similar manner as he would have been punished had he not converted his religion.”

Bigamy shall not apply if:

a) the first husband or wife is dead, or

b) the first marriage has been declared void by the Court of competent jurisdiction, or

c) the first marriage has been dissolved by divorce, or

d) the first spouse has been absent or not heard of continually for a space of seven years. The party marrying must inform the person with whom he or she marries of this fact.

Read More

References:

1) Rights of the second wife in India

2) Is Bigamy a Punishable Offence in India?

3) BIGAMY LAWS FAQ

Section 8. Sealing certificate

 The Coasting Vessels Act, 1838

8. Sealing certificate.—¹*** Such certificate of registry shall be sealed with the seal of the ²[Government of India], and shall be signed by the person authorised to make such registry.

Footnotes:

1. The words “And it is hereby enacted, that” rep. by Act 16 of 1874, s. 1 and the Schedule, Pt. I.

2. Subs. by the A. O. 1950, for “East India Company”.

9. [Dates for commencement of certificate and registration.] Rep. by the Repealing Act, 1876 (12 of 1876), s. 1 and Sch., Pt. I.

Waqf in India: Introduction and definition

Definition in India:

The law (Waqf Legislation) in India conceptualizes waqf as ‘the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable.’

 

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Implication of creating a waqf suggests that the said property can never again change hands by inheritance, sale or seizure. 

As per Sachar Committee Report of 2006, there are more than 4.9 lakh registered wakfs in India. The total area under these properties is estimated at about six lac acres.

Types of properties of Wakfs: Apart from agricultural, commercial and residential properties, waqf in India include functional/non-functional mosques, darghās (tomb or shrine of Muslim saint), khanqahās (building or space for Sufi brotherhood) maqbaras (tombs), ashoorkhanās (mourning place for Shias), qabristāns (graveyards), idghās (space to offer Eid Prayer), imam-baras (space for prayers and gatherings for Shias) etc.

Auqāf is meant to create a welfare and just society- a society which does not leave anybody to die hungry and ignorant.

The law for wakf legislation: 

For the better administration of waqf properties in the country, Government of India passed the Waqf Act 1954.

Before it was repealed and replaced by the Waqf Act 1995, the Waqf Act 1954 was amended in 1959, 1964, 1969 and 1984. 

Presently waqf administration in India is governed by the Waqf Act 1995 which was amended by the Waqf (Amendment) Act 2013.

The Waqf Amendment Act 2013 was repealed by Repealing and Amending (Second) Act, 2015. 

It however does not nullify the amendments made by Waqf (Amendment) Act 2013 to Waqf Act 1995. 

Therefore, wherever Waqf Act 1995 is mentioned, it means Waqf Act 1995 as amended by Waqf (Amendment) Act 2013.

Definition and meaning:

Definition as per wakf Act, 1995:

As per Section 3(r) of waqf Act 1995 reads “waqf” means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes— 

(i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser; 

(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkaan or by any other name entered in a revenue record; 

(iii) “grants,” including mashrat-ul-khidmat for any purpose recognized by the Muslim law as pious, religious or charitable; and 

(iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim law as pious, religious or charitable, provided when the line of succession fails, 

The income of the waqf shall be spent for education, development, welfare and such other purposes as recognized by Muslim law.

Monzer Kahf defined waqf as “holding a Maal (an asset) and preventing its consumption for the purpose of repeatedly extracting its usufruct for the benefit of an objective representing righteousness / philanthropy. (as stated in article “Financing the Development of Awqaf Property,” of The American Journal of Islamic Social Sciences, 16 (Winter 1999): 4, 41.)

Purpose of Wakf:

A per Islamic law a waqf property is permanently dedicated to Allah and is to be used, as specified by the Waqif for permissible purposes. (As per Qazi Mujahidul Islam Qasmi, written in "Auqāf: Ahkam-o-Masa'il")

The theoretical implication of creating a waqf suggests that the said property can never again change hands by inheritance, sale or seizure. (As stated by Gregory C. Kozlowski, in book Muslim Endowments and Society in British India)

 On the issue of ownership, there is consensus of the Ummah that it vests in Allah Almighty and is incapable of human ownership. (As per Qazi Mujahidul Islam Qasmi, written in "Auqāf: Ahkam-o-Masa'il")

Allah is not a physically tangible entity the community, so it is considered to be the actual heir of auqāf (plural of waqf) and through appointed Mutawalli (trustee of waqf) controls its affairs. (as per Hilal Ahmed stated in "Muslim Political Discourse in post-colonial India: Monuments, Memory, Contestations" ).

As per Mohd. Zain bin Haji Othman "When the specified purposes cease, the relief of the poor is the ultimate purpose of every waqf. "

So this is very short introduction of Wakf  in India which is biggest charitable board governed by Government of India and having its own Laws and Acts. Following are the some social questions:

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Short Q & A: Muslim Law 6

Q. What is another name of Ithna- Ashriyah school?

Ans. Imamiyah School

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Q. Which school believed in Muta?

Ans. Ithna- Ashriyah school of Shia sect.

Q. What is Muta?

Ans. Muta means temporary marriage.

Q. What two further sects of Ithna- Ashriyah school?

Ans. Akbaris Sect and Usuli Sect

Q. Which sub-school follows a modern form of legal deductions and reasoning when there requires an interpretation?

Ans. Akbaris Sect of Ithna- Ashriyah school.

Q. The Khojas and Boharas of Bombay belong to which School?

Ans. The Ismaili

Q. What is Article 25 (1) of Constitution of India?

Ans. Article 25 (1) guarantees to every person the freedom of conscience and the right to profess, practice and propagate religion. Consequently, any person may accept any religion he likes or he may renounce his religion.

Q. What is conversion to Islam?

Ans. When a non-Muslim accepts Islam it is termed as “Conversion to Islam”.

Q. What are the requirements of Muslim law to be applicable on a person?

Ans. For the application of Muslim law it is not necessary that a Muslim should be a born Muslim, it is sufficient if he is a Muslim by profession or by conversion.

Q. When a marriage will dissolve immediately if the wife is non-Muslim?

Ans. As per Dissolution of Muslim Marriages Act, 1939 when a non-Muslim wife who had adopted Islam at the time of marriage or after marriage renounces her faith back to her original faith then such marriage stands dissolved immediately. e.g. A Hindu girl adopts Islam at the time of marriage or after marriage and then after some time she renounce her faith in Islam and re-embrace Hinduism then such marriage stands dissolved immediately.

Q. What will happen if a wife who is already Muslim renounce her faith in Islam?

Ans. As per Dissolution of Muslim Marriages Act, 1939; if a wife who is already Muslim renounces her faith in Islam and embraces other faith, then such marriage will not dissolve until the period of iddat i.e. period of three month from such renunciation. If that woman remarries before iddat then she can be held for begamy.

Q. What is effect on marriage if a Muslim man renounces his faith in Islam?

Ans. If a husband renounces Islam, the marriage stands automatically dissolved.

Q. What will happen, if a Muslim wife remarries before iddat, when her husband renounces his faith in Islam?

Ans. If a husband renounces Islam, the marriage stands automatically dissolved. in this case, if his wife remarries even before the expiry of iddat, she will not be guilty of bigamy under Section 494 of the Indian Penal Code, 1860.

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The Muslim Personal Law (Shariat) Application Act, 1937 Section 1

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The Muslim Personal Law (Shariat) Application Act, 1937

1. Short title and extent.—

(1) This Act may be called the Muslim Personal Law (Shariat) Application Act, 1937.

(2) It extends to the whole of India [except the State of Jammu and Kashmir].

Explanation:

Extended to the Pondicherry by Act 26 of 1968, sec. 3 and Part I, subject to the modifications. Also some words are Substituted by the Act (48 of 1959), sec. 3 and Sch I, for certain words (w.e.f. 1-2-1960). Also the words “excluding the North-West Frontier Province” omitted by the Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948; because North-West Frontier Province is now included in Pakistan.

Muslim Personal Law Act 1937 was not applicable to the state of Jammu and Kashmir. In Bhaderwah it was found that Muslim women in Bhaderwah do not suffer as compared to Muslim women in other parts of India. Rate of talaq and polygamy is low among the Muslims of Jammu and Kashmir. The Muslims in Bhaderwah in particular and in Jammu and Kashmir are giving preference to female education and employment so that they will not suffer in future.

All the Muslims in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937. This law deals with marriage, succession, inheritance and charities among Muslims. But the word ‘Muslim’ is not defined in this Act. The Dissolution of Muslim Marriages Act, 1939 deals with the circumstances in which Muslim women can obtain divorce and rights of Muslim women who have been divorced by their husbands and to provide for related matters.

We are using a short title as Shariat Act. This Act was enacted on 7th October 1937 during British Rule in India. Shariat Act and all other Acts governed by this Act are applicable in India where the parties are Muslims. There are only 6 Sections in the Shariat Act. It aims at restoring the law of Islam to all Muslim communities residing in India. All customs contrary to the Shariat are void. The Shariat Act is applicable to Shia and Sunni sects and all the respective sub-sects in Muslim community. If any act includes any provisions that might be in contradiction to the spirit of this act, it will still stand.

Shariat Act is applicable to all properties. But it is not applicable to agricultural land. These laws are not applicable in Goa state, where the Goa Civil Code is applicable for all persons irrespective of religion. These laws are not applicable to Muslims who married under the Special Marriage Act, 1954.

(Note: The words in Red colour are taken as they are in the Shariat Act 1937.)

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Apostasy from Islam

Apostasy from Islam:

Prior to the passing of the Dissolution of Muslim Marriage Act, 1939 DMM Act, apostasy from Islam of either party to marriage operated as a complete and immediate dissolution of marriage ipso facto. Section 4 of the DMM Act provides:

“The renunciation of Islam by a married Muslim woman or her conversion to faith other than Islam shall not by itself operate to dissolve her marriage.”

After coming into operation of this provision the Law may be described thus –

1) Apostasy from Islam of husband operates as complete and immediate dissolution of marriage.

2) Apostasy from Islam of a married woman cannot by itself operate to dissolve the marriage, but she may file a suit for dissolution of her marriage on any of the grounds mentioned in Section 2 of the Act.

But where the woman was originally converted to Islam from some other faith, and now she re-embraces her former faith, the conversion will operate as dissolution of the marriage.

e.g. C, a Christian female becomes Muslim and marries a Muslim male in Nikah form. Later she converts to Christianity. The marriage is ipso facto dissolved because she has reverted back to her former faith. Had she, instead of reverting back to Christianity, converted to Hinduism, the marriage would not be ipso facto dissolved.

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Rights of inheritance not affected by apostasy:

According to the provisions of pure Muslim law, a non-Muslim cannot succeed to the estate of Muslim. But this provision of law has been altered by the provisions contained in the Caste Disabilities Removal Act, 1850. The Act has now superseded the provisions of Muslim law to the effect that now non-Muslim relations are not debarred from inheriting to the property of Muslims. In other words, the result of the said Act is that the apostasy does not deprive a person who was once a Muslim of his right of inheritance or other rights.

Illustration – M a Muslim has two sons X and Y. X becomes Christian. Without making a will M dies surviving him Christian son X and Muslim son Y. Both will inherit half and half. But before the operation of the Caste Disabilities Removal Act, 1850; X could get nothing and Y would have taken the whole property.

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Conversion to Islam in India

Conversion to Islam in India:

One of the fundamental rights guaranteed by our Constitution is “right to freedom of religion”. Article 25 (1) guarantees to every person the freedom of conscience and the right to profess, practice and propagate religion. Consequently, any person may accept any religion he likes or he may renounce his religion.

Religion is a very sensitive and personal aspect of individual's life and the constitution of India guarantees the freedom of conscience and religion to people of all denominations. Thus, a person is free to profess any faith or relinquish his faith of birth and convert to another religion.

When a non-Muslim accepts Islam it is termed as “Conversion to Islam”. For the application of Muslim law it is not necessary that a Muslim should be a born Muslim, it is sufficient if he is a Muslim by profession or by conversion. On conversion to Islam the convert subjects himself to the provisions of Muslim law. A man becomes a Muslim by making a confession of the unity of God and of the prophet hood of Muhammad, and so long as he does not renounce his faith in this, he remains a Muslim technically, or in spite of any opinion he may hold on any religious question, or any evil which he may commit or have committed, and a man who does not make this confession is a non-Muslim technically, in spite of any good that he may do.

Effect of Conversion to Islam on Marital rights:

The logic underlying the grant of relief in case of conversion is however, not merely a legal one, viz., that after conversion, the convert will be governed by different personal law, but also because conversion could mean a radical change in the personality of the convert. The event is often very much akin to a breakdown of the marriage and goes to the root of conjugal life of the spouses.

According to pure Muslim law a distinction is made between conversion to Islam of one of the spouses when such conversion takes place –

1) In a country subject to Muslim law: In this case, when one of the parties embraces Islam, he or she should invite his or her spouse to become Muslim. If that person does not do so, the Judge should dissolve the marriage.

2) In a country where the Muslim law is not the law of the land. The marriage is automatically dissolved after the lapse of a period of three months after the adoption of Islam by one of the spouses. This however is not the law in India.

Prior to the enactment of the Dissolution of Muslim Marriages Act, 1939 (DMMA), conversion of either spouse had the effect of automatic dissolution of the marriage under the Muslim personal Law.

But as per DMMA Act there is difference as follows:

a) A Muslim wife who was before her marriage a non-Muslim i.e. A wife who adopted Islam after marriage: In this case, the conversion of the wife would result in instant dissolution of the marriage. In other words, if a woman converts to Islam from some other faith and then re-embraces her former faith, then it will have the effect of immediate dissolution of her marriage. 

To take an example: a Muslim male marries a woman who was a Hindu prior to marriage but she Converts to Islam and gets married. After sometime, she renounces Islam and converts to Christianity. This will not ipso facto dissolve the marriage, because she has not re-embraced her former faith, viz., Hinduism. Had she re-embraced Hinduism, it would have had the effect of immediate dissolution of the marriage bond.

Munavvar-ul-Islam v. Rishu Arora

In Munavvar-ul-Islam v. Rishu Arora, a Hindu wife converted to Islam at the time of marriage. On her re-conversion back to her original faith viz Hinduism, her marriage stood dissolved. Her case falls under the second proviso to Section 4 of the Act, and the pre-existing Muslim Personal Law under which apostasy of either party to a marriage ipso facto dissolves the marriage, would apply.

b) A wife who was a Muslim before marriage i.e. A wife who was already Muslim:

In the case of a Muslim married woman, her renunciation of Islam or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage. Thus, if she remarries before the dissolution of her marriage, she can be prosecuted bigamy.

However, even after such reconciliation or conversion, the woman is entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in Section 2 of the Act, viz, unknown whereabouts of the husband, neglect, imprisonment of husband, failure to perform marital obligations, impotency, insanity, and cruelty. She can also exercise her option of puberty by repudiation of the marriage. The husband's apostasy is not a ground on which she may seek dissolution.

If a husband renounces Islam, the marriage stands automatically dissolved. Thus if his wife remarries even before the expiry of iddat, she will not be guilty of bigamy under Section 494 of the Indian Penal Code, 1860.

In Abdul Ghani v/s Azizul Huq. A Muslim man and woman got married. After sometime, the husband embraced Christianity but reverted to Islam during the wife's iddat. Before the expiry of the iddat period, however, the wife got married to another man. The first husband thereupon filed a complaint against the wife, her father and her second husband under Section 494. It was held that no offence had been made.

Whatever view be taken of the uncertain status of the parties during the period of iddat and however illegal and void under Mohammedan law the second marriage of the woman during the period of iddat may be, there is no foundation for any charge under Section 494 of IPC against her. Her second marriage is not void by reason of its taking place during life of prior husband but by reason of special doctrine of the Mohammedan law of iddat with which the Indian Penal Code has nothing to do.

Who is Muslim?

Who is Muslim?

The religious duties of the Muslim concentrate on the five pillar’s of Islam, which are:

1) Profession of full faith i.e. Shahada:

A person having “musallam imaan” means full faith is called Musalman. Full faith in Kalamah, “La ilaha illallah, Mohammad rasul-ullah” i.e. there is no god but One God and Mohammad was the prophet of God. In short, the belief in unity of God and prophetship of Mohammad. One becomes a Muslim by reciting this phrase with conviction.

2) Prayer i.e. Namaz or Salat:

The prayer is the second pillar of the Muslim religion. Five times a day (dawn, noon, mid-afternoon, sunset and night-fall) is the faithful Muslim supposed to turn his face towards Mecca and recite his prescribed prayer. The Friday noon prayer is public one and is obligatory for all male adults. Prayer includes a recitation of the opening chapter (sura) of the Quran, and is sometimes performed on a small rug or mat used expressly for this purpose. Muslims can pray individually at any location or together in a mosque, where a leader in prayer (imam) guides the congregation. Men gather in the mosque for the noonday prayer on Friday; women are welcome but not obliged to participate. After the prayer, a sermon focuses on a passage from the Quran, followed by prayers by the imam and a discussion of a particular religious topic.

3) Alms-giving (Zakat):

It is a voluntary act of love and is considered almost identical with piety. In accordance with Islamic law, Muslims donate a fixed portion of their income to community members in need. Many rulers and wealthy Muslims build mosques, drinking fountains, hospitals, schools, and other institutions both as a religious duty and to secure the blessings associated with charity.

4) Fasting (Roja of Sawm):

The month of Ramzan or Ramadan, the ninth month of Islamic calendar, has been chosen as most sacred, and every Muslim must keep fast (from all food and drink) from dawn till sunset. Through this temporary deprivation, they renew their awareness of and gratitude for everything God has provided in their lives including the Quran, which was first revealed during this month. During Ramadan they share the hunger and thirst of the needy as a reminder of the religious duty to help those less fortunate.

5) Pilgrimage (hajj):

Every Muslim whose health and finances permit it must make at least one visit to the holy city of Mecca, in present-day Saudi Arabia. The Kaba, a cubical structure covered in black embroidered hangings, is at the center of the Haram Mosque in Mecca. Muslims believe that it is the house Abraham (Ibrahim in Arabic) built for God, and face in its direction (qibla) when they pray. Since the time of the Prophet Muhammad, believers from all over the world have gathered around the Kaba in Mecca on the eighth and twelfth days of the final month of the Islamic calendar.

But courts are not concerned with all the five pillars of Islam to be practices. It has been held that for the purposes of the application of Muslim law, a person is Muslim who believes in two things – Tauhid and Rasul i.e. There is only one God Allah, and Mohammad was the prophet of God. This is the indispensable minimum.

Short Q & A: Muslim Law 5

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Q. What are the main schools or sects of Muslim law?

Ans. There are two main schools of Muslim law: 1) Sunni school 2) Shia School.

Q. Why there are two sects of Muslim community?

Ans. After demise of the prophet raised a momentous question: on party advocated the principle of succession, while another pressed the election of the successor.

Q. Who is a Shia Muslim?

Ans. The Shias advocated that the office should go by the right of succession and thus the Imamat i.e. headship should be confined to prophet’s own family as his nominees.

Q. What are the sub-schools of Shia?

Ans. a) The Ithna – Asjiaris; b) The Ismaili; c) Zaidvs.

Q. Who is Sunni Muslim?

Ans. The Sunnis advocated the principle of election by the Jamat and chose out their Imam by means of votes. The majority of Muslims suggested that there should be election to choose successor of the prophet.

Q. Enlist the sub-schools of Sunni?

Ans. a) Hanafi; b) Maliki; c) Shafei; d) Hanbali.

Q. Which school only relies on the customs and traditions of Prophet Mohammed?

Ans. Hanafi School

Q. Which School was established by Imam Malik-bin-Anas?

Ans. Maliki School

Q. Which school rejected the importance of Qiya and re-emphasised on Sunna and Hadis?

Ans. Hanbali School

Q. The Qiya source of law originates from which school?

Ans. Shafi School

Q. People consider which source to be the primary authority of Muslim law.

Ans. Quran

Q. The scholars are responsible for creating which source.

Ans. Ijma

Q. Which source relies on precedents of Prophet Mohammed.

Ans, Sunna and Hadith

Q. Which is the least important primary source.

Ans. Qiya

Schools of Muslim Law

Schools of Muslim Law:

There are two main schools of Muslim law: 1) Sunni school 2) Shia School.

The majority of Muslims are Sunnis and hence it is presumed that the parties to a suit are Sunnis unless proved otherwise. After demise of the prophet raised a momentous question: one party advocated the principle of succession, while another pressed the election of the successor. The difference between the two lies in political events, not in law or jurisprudence.

Since it was inevitable for jurists to interpret all sources differently, conflicting interpretations often emerged. Consequently, these differences of opinions led to the creation of various schools of law. Although there are differences of opinions amongst these schools, the Muslim world considers all of them to be correct. Thus, no school has more prominence over another.

1) Shia School:

The supporters of succession to the office by inheritance to the prophet are known as Shias. The Shias advocated that the office should go by the right of succession and thus the Imamat i.e. headship should be confined to prophet’s own family as his nominees. This group was represented by Fatima, daughter of the prophet and then Ali, son-in-law of the prophet became the Caliph of the Shia group.

Shia Sub-Schools:

The Shias are divided into the following three sub-schools:

a) The Ithna – Ashriyah:

They follow the ‘Ithna- Ashriyah’ law. The great majority of the Shias in India follow this of law. Their important text is ‘Shar’ya-ul-Islam’.

The followers of this School can be found in India, Iran, Iraq and Pakistan. This School was also called the Imamiyah School. This School believed in a Muta i.e. ‘temporary marriage’.

This School further subdivided itself into two:

Akbaris Sect– they follow a modern form of legal deductions and reasoning when there requires an interpretation. The traditions by the Imams hold vital importance while following this Sect. This Sect as the name suggests come from the word Akhbari which is derived from the word news and newspaper.

Usuli Sect – Which is in quite a dominance as compared to the Akbaris. This School believed in the true sources of Muslim Law. The Quran, the hadiths and the Ijmas. The word Usuli essentially means theory of jurisprudence. Meaning that the School relies on the jurisprudential principles.

b) The Ismaili:

The Khojas and Boharas of Bombay belong to this School. The followers of this School can be found in Pakistans, India and Syria. The School refers to the Nizaris who acknowledged Aga Khan the fourth as a true Imam. However, there was a division in this Sect since the ‘Khojas’ who were actually Hindus and ‘Bohras’ the other sub-Sect believed that the true Imam was different for the two Sects. The issue arose when Jafar inherited his eldest son and therefore did not believe him to be the true and divine Imam.

This Sect as a whole believed that God is one and the teachings of the prophet were vital and followed the same as well.

c) Zaidvs:

They do not exist in India, and are to be found mostly in South Arabia. The followers of this School are majorly found in Yemen only. The name of this School is from Zayd Ibn Ali who was the son of the fourth Imam. The name of the fourth Imam was Ali Ibn Husain. This School believed in responsibility and political uprise. It was believed that untrue and un-divine leaders should be revolted against.

This School is very similar to the teachings of the Sunni Muslims. Also, they believed that the Muslims should follow the true successor of the Prophet Mohammed and since Faithma was the surviving daughter only her sons should be true Imams of Muslim community.

d) Motazila School

The followers of this School are in minority and can be found in Iran. This School arose out of a different Sect. It does not co-relate itself to either of the two Sect either Sunni Sect or the Shia Sect. These Muslims were although defectors of the Shia sect. This Sect was founded by Al-Gazzal.

The followers of this Sect believed in true divine justice and unity and believed that evil could be overpowered by the good and that the Quran itself can only be the truest and divine source to overcome evil from the society

2) Sunni School:

The supporters of the principle of election came to be called Sunnis. The Sunnis advocated the principle of election by the Jamat and chose out their Imam by means of votes. The majority of Muslims suggested that there should be election to choose successor of the prophet. This group was led by Ayesha Begum, the youngest wife of the prophet. This group then lead by Abu Bakr as the Caliph.

Sub Schools or Sub-Sects:

a) Hanafi:

This is the most famous school of Sunni law. Abu Hanifa was the founder of this school. Abu Hanifa placed little reliance on the oral traditions, which had not yet been reduced to writing and laid more stress on Ijma and Istehsan. He recognised the authority of the custom (urf) also. It is followed by Muslims in the Levant, Central Asia, Afghanistan, Pakistan, India, Bangladesh, Western lower Egypt, Iraq, Turkey, Balkans, Russia etc. There are movements within this school such as Barelvis, Deobandis, Tabliqui Jamaat, which are all concentrated in South Asia and in most parts of the India. The Prophet had disallowed codification of his words and sayings; hence whenever the Quran did not explain something, this school relied on the Prophet’s traditions.

The Hedaya is the most authoritative book of this school. It covers topics like inheritance as well as succession amongst followers of this school. Sirajiyya is also an important work in this regard. The Hanafi school is the most followed school amongst all schools of Muslim law and the Muslims in India. Thus, whenever courts have to interpret Islamic law principles, they generally rely first on this school. The Hanafi school relies on Ijma (interpretations of jurists)

b) Maliki:

It was founded by Malik Ibn Anas. Malik leaned more upon traditions and the usages of the prophet and the precedents established by his companions. The powers of the head of the family over his wife’s property and over his children are the main features of this school. It is followed by Muslims in North Africa, West Africa, United Arab Emirates, Saudi Arabia, Upper Egypt, some parts of Europe, etc. Murabitun world movement follows this school.

It originates almost to the same period as the Hanafi school but it flourished first in the city of Madina. the Maliki school originates from Sunna and Hadis. These two important sources give importance to the sayings, teachings, customs and traditions of Prophet Mohammed. Imam Malik had personally collected information on thousands of recorded traditions of the Prophet. Then he codified most of them in a book, which is the most prominent Hadis today. Although there are very few followers of this school, Indian laws have derived and codified some of their provisions.

It is the only school in which a married woman is not the complete mistress of her own property. Maliki School believed that in a marriage a wife was incapable of owning and maintaining her personal properties and therefore, according to him all the property of the wife in the marriage should be owned and maintained by her husband due to this disability. This School had a very different and unique view with regards to the property and no other Schools had such an outlook.

c) Shafei:

Imam Md Ibn Idris ash-Shafei was the founder of this school. He was noted for his balance of judgement and moderation of views. He relied more upon traditions than Abu Hanifa but less than his master Malik. He was the founder of the doctrine of Qiyas which must base upon Quran, Hadith and Ijam. The doctrines of this school are less favourable to womwn. There are very few followers of this school may be found in Indonesia, Malaysia, South East Asia, Eastern lower Egypt, Somalia, Jordan, Palestine, Saudi Arabia, Thailand, Singapore, Philippines, Yemen, India, Brunei etc.

The Shafei school is basically a combination of the Maliki school and the Hanafi school. Ijma, i.e. the interpretations of jurists is the most important source of law in the Shafei school. It also relies on the customs of the Muslim people. The Qiya source of law, which depends on analogical interpretations by people, originates from this school.

This School further stated that the wife in the matrimony was not a free tool or device. However, in cases of marriage and all even if she is an adult she needs to take the permission of her parent or guardian to guide her in such matters.

d) Hanbali:

It was founded by Ahmad Ibn Hanbal. He laid much stress on traditions and allowd very narrow margin to the doctrine of analogy. This fourth and the latest of the jurists, was a saintly reactionary and his teaching was characterised by blind reliance on tradition. It is followed by Qatar, Saudi Arabia, Syria, Iraq, etc. Salafist movement follows this school.

Imam Hanbal rejected the relying on Qiyas and insisted on going back to Sunna and Hadis to interpret the Quran and other laws. This was because in his opinion the teachings and traditions of Prophet Mohammed matter more than peoples’ interpretations. As a result, Imam Hanbal collected thousands of Hadis and codified them in his book, Musnath.

e) Lahiri:

The Lahiri school was founded by Dawud Al Zahiri. It is followed in Pakistan, Morocco, Mesopotamia, Portugal, Balearic Island, North Africa, Spain, etc.

Thus these are the various schools of Islamic law across the world. All these schools follow the principles laid in Quran and Quran is the only authority for all of these.

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