family law Archives

Following notes on Family Law have been taken from Principles of Mahomedan law By D.F Mulla.

Conception of Marriage

THE central idea in the family law of the Muhammadans is the institution of nikah or marriage.

How marriage is contracted

A marriage like any other contract is constituted by proposal and acceptance and does not depend for its validity upon the observance of any religious rite or ceremony.

But, according to the Hanafis, the proposal and acceptance must, in a contract of marriage, be witnessed by two properly qualified witnesses otherwise the marriage would be invalid.

According to the Malikis the presence of witnesses is required only for the sake of publicity.

Guardianship for the purpose of Marriage

Guardianship for purposes of marriage is allowed because of necessity, for a proper and suitable match may not always be available.

It is extended by the Hanafis to the father and grandfather and other relatives; among the latter the order of priority is the same as that in respect of their right to inherit.

But when a minor is given in marriage by a guardian other than the father or the grandfather, he or she can, in the exercise of what is called the option of puberty refuse to be bound by the marriage and ask the Court to pass a decree annulling the marriage.

This absolute option does not exist in the case of a marriage contracted by the father or the grandfather in whose favour the law rises a presumption that they must have acted in the best interests of the minor.

The Malikis would confine the right of matrimonial guardianship to the father, whose right is expressly recognized by a tradition and the Shafi’is would also recognize the right of the grandfather by giving an extended application to the words of that text.

According to the Shafi’is, if a minor girl is married by the father to a person who is not her equal it will be invalid according to some jurists and according to other Shafi’i jurists she will have the option to get rid of the marriage on attaining majority.

Unequal Marriages

The law confers on certain relatives of a female of the age of majority to object to a marriage contracted by her with a man who is not her equal.

Equality is generally had in regard with reference to the following matter- : (1) lineage, (2) character, (3) property, (4) profession, (5) status, such as of a freeman, a freedman or a slave and perhaps (6) education.

Conjugal Rights

Marriage confers important rights both on the husband and the wife against each other, subject to any especial stipulations which the parties might have entered into at the time of marriage or afterwards.

Husband can control her freedom of movement within certain limits and correct her for unseemly behaviour. This restriction upon her liberty is, however, measured by the necessities of his own right. He cannot, therefore, refuse to afford her opportunity to see her relatives.

The exercise of most of his rights by the husband will be suspended if he does not satisfy the corresponding rights of the wife. Similarly, if he treats her with such cruelty as to endanger her personal safety she will not be bound to live with him. The husband has also the right, as we have seen, to dissolve the marriage at his discretion.

Right to wife’s Property

Under the Muhammadan law the husband does not acquire any right to or control over his wife’s property by the fact of marriage. Whatever property she had at the time of marriage remains absolutely her own and at her disposal and she is under no disability to acquire property by reason of coverture.

Mahr or Dower

Mahr or dower as it is usually translated is either a sum of money or other form of property to which the wife becomes entitled by marriage.

It is not a consideration proceeding from the husband for the contract of marriage, but it is an obligation imposed by the law on the husband as a mark of respect for the wife as is evident from the fact that the non-specification of dower at the time of marriage does not affect the validity of the marriage.

She or her guardian may stipulate at the time of marriage for any sum however large as dower. If no sum has been specified she is entitled to her proper dower (mahru’l-mithl), that is the dower which is customarily fixed for the females of her family.

In case of dissolution of marriage by the husband or of separation for some cause imputable to the husband before there has been consummation or valid retirement, the wife becomes entitled to half the specified dower and if no dower has been specified to a present called muta’t.

In case the separation was due to some cause imputable to the wife herself, she will not be entitled to any dower or present if there has been no consummation of the marriage.

If a marriage has been annulled on the ground of invalidity, the wife will not be entitled to more than her proper dower.

Time for Payment of Dower

Having regard to the time when it becomes payable dower may be mua’jjal, that is, immediately exigible or prompt, or muajjal that is, deferred.

Even during the subsistence of the marriage the wife is entitled to demand so much of her dower as is exigible, but she is not entitled during the continuance of the marriage to demand the deferred portion of the dower.

Dissolution of Marriage

The law as we have seen concedes to the husband the right to dissolve the marriage. He can, therefore, put an end to the marriage at his uncontrolled option and the wife may do the same if the husband has conferred such a power upon her.

Divorce

The dissolution of marriage by the husband’s own act, that is, by his making a declaration to that effect in appropriate words is called talaq , which is usually translated as repudiation, divorce.

Talaq or divorce is strongly condemned by the Muhammadan religion and it should not be resorted to unless it has become impossible for the parties to live together in peace and harmony, but once it is pronounced it is upheld as valid, although there may be no good cause for it.

It is described in a precept of the Prophet as the worst of all the things which the law permits.

There are certain limitations imposed by the law upon the right of the husband to dissolve the marriage.

The object of these rules is to ensure that the husband was not acting in haste or anger and that separation became inevitable in the interests of the husband and the wife and their children.

Dissolution of Marriage by Wife

The husband, as I have said, may confer on the wife the power of pronouncing talaq, and thereby dissolving the marriage.

Once he has conferred such power, he cannot afterwards revoke it and it will depend upon the wife whether to exercise the power or not. Such conferment of power is called tafwid or delegation.

Khula

If the husband confers the power of dissolving the marriage on the wife in exchange for money or property, it is called khula’ or mubarat, that is, mutual release.

Separation

Apart from the dissolution of marriage by the husband or by the wife in exercise of the authority derived from him, the law allows of a marriage being dissolved in certain cases by a decree of the Court. It is called furqat , literally separation.

If a decree of separation be for a cause imputable to the husband, it has, generally speaking, the effect of a talaq.

If the decree for separation be for a cause imputable to the wife, then it will have the effect of fas’kh or annulment of marriage.

In connection with the law of divorce it should be pointed out in fairness to the jurists that the wide interpretation which they have given to the traditions bearing on the subject was evidently influenced by their anxiety to avoid the evil of the pre-Islamic customs which empowered the husband to divorce the wife as often as he chose, which had the effect of depriving the wife of her conjugal rights, without setting her free from the matrimonial ties of a man who had ceased to regard her with affection and respect. The rules enunciated by the jurists have undoubtedly been effective in preventing the power of repudiation being used merely for purposes of oppression, but it may well be said that they have made divorce too easy.

Iddat

‘Iddat literally means counting and in law it means the time during which the wife must wait after the cessation of marriage before she can marry again.

‘Iddat has been ordained with a view to ascertain correctly the paternity of the child that may be born to the wife after the termination of the marriage.

The period of probation for a woman, who has been divorced, is according to the Hanafis the period covered by three menstrual courses and according to the Shafi’is and Malikis the period covered by three intervals and in the case of an old woman or of a girl of immature age it is three months.

‘Iddat of a widow is four months and ten days, of a pregnant woman whether divorced or a widow the period of probation does not end until delivery.

Until ‘iddat is over the woman cannot marry again and she has a right to reside in her former husband’s house and if she was divorced to be maintained by him.

Inheritance

The death of a person brings about a transfer of most of his rights and obligations to persons who are called his heirs and representatives.

What is left after the last needs of the deceased have been satisfied, namely, after the payment of his funeral expenses and the discharge of his obligations and debts is to be distributed according to the law of inheritance.

The rules regulating inheritance in the Muhammadan system are based on the principle that the property which belonged to the deceased should devolve on those who by reason of consanguinity or affinity have the strongest claim to be benefited by it and in ‘proportion to the strength of such claim.

Different classes of heirs and sharers

Of the heirs there are some whose shares or portions have been fixed in the Qur’an. These are called Ashabu’l-fara’id or ‘ sharers ‘ as commonly translated.

They are altogether twelve in number, four males and eight females : father, father’s father how high soever, half-brother by the mother, the husband, the wife, daughter, son’s daughter how low soever, full sister, consanguine sister, uterine sister, mother and true grandmother, that is, grandmother in whose line of relationship to the deceased no false grandfather intervenes.

The shares of the ‘ sharers ‘ in the inheritance are either one-half, one-fourth, one-eighth, two-thirds, one third, or one-sixth.

The husband has one-fourth when there is a child or son’s child how low soever and one-half when there is no child or son’s child.

The wife has one-eighth when there is a child or son’s child and one-fourth when not.

The daughter’s share is one-half when only one and no son, and if there are two or more daughters and no son, they take two thirds between them.

The son’s daughter takes one-half if only one and there is no child or son’s son ; if there are two or more son’s daughters they take two-thirds when there is no child or son’s son, and the son’s daughter takes one-sixth when there is one daughter or a higher son’s daughter and no son.

The sister takes one-half when only one and there is no son or son’s son how low soever, father, daughter, son’s daughter or brother and if there are two or more sisters, they take two-thirds under the same circumstances.

The consanguine sister takes one-half when only one and there is no son, consanguine brother or sister, if there are two or more consanguine sisters under the same circumstances they take two-thirds and the consanguine sister takes one-sixth when there is one full sister but no son, etc., or consanguine brother.

The mother’s share is one-sixth when there is a child or son’s child or two or more brothers or sisters and one-third when not, but she takes one-third only of the remainder after deducting the wife’s or the husband’s share when there is wife or husband and the father.

The true grandmother has one-sixth when she is not excluded; the father takes one-sixth; the grandfather’s share is one-sixth when he is not excluded and the uterine brother or sister gets one-sixth when only one and no child or son’s child, father or true grandfather, and if there are two or more of them they will get two-thirds in the same circumstances.

Residuaries

The next class of heirs are called ‘asba (<w^c) which is ordinarily translated as ‘ residuaries ‘, because they take the residue after such of the sharers as are not excluded have been satisfied.