Muslim Marriage

Preliminary- nikah in pre Islamic Arabia, meant different forms of sex relationship between a
man and a woman established on certain terms, in pre Islamic days, women were treated
as chattels, and were not given any right of inheritance and were absolutely dependent. it
was prophet mohammad who brought about a complete change in the position of
women.
Definition- The legal contract between a bride and bridegroom as part of an Islamic
marriage; the contract of Islamic marriage; Islamic marriage in general.
Nikah is an Arabic term used for marriage. It means "contract". The Quran specifically
refers to marriage as "mithaqun Ghalithun,". Which means "a strong agreement".
The original meaning of the work nikah is the physical relationship between man and
woman. It is also used secondarily to refer to the contract of marriage which makes that
relationship lawful.
"A contract that results in the man and woman living with each other and supporting
each other within the limits of what has been laid down for them in terms of rights and
obligations."
Ibn Uthaimeen takes an even more comprehensive view of the
institution of marriage in his definition of it as:
"It is a mutual contract between a man and a woman whose goal is for
each to enjoy the other, become a pious family and a sound society.
Essential Condition of Nikah
Nikah is based on few conditions. When these conditions are fulfilled, then
a man and a woman are proclaimed as husband and wife and can live
together and carry on their marital duties. These are:
Essentials of Marriage
The essentials of a valid marriage are as follows:(i) There should be a proposal made by or on behalf of one of the
parties to the marriage, and an acceptance of the proposal by or on
behalf of the other party. A Muslim marriage requires proposal Ijab
from one party and acceptance Qubul from the other side. This must
be done in one sitting.

(ii) The proposal and acceptance must both be expressed at once

meeting. The acceptance must be corresponding to what is being
offered. The marriage must be effectively immediate. If the Wali says
I will marry her to you after two months, there is no marriage.
(iii) The parties must be competent. The two parties must be legally
competent; i.e. they must be sane and adult.
(iv) There must be two male or one male & two female witnesses, who
must be sane and adult Mahomedan present & hearing during the
marriage proposal and acceptance. (Not needed in Shia Law)
(v) Neither writing nor any religious ceremony is needed.
Aim and Object of Nikah
Like anything a Muslim does, marriage should only be undertaken after
gaining an understanding of all that Allah has prescribed in terms of
rights and obligations as well as gaining an understanding of the
wisdom behind this institution. Nearly all peoples and all societies
practice marriage in some form, just as they practice business (buying
and selling). Umar ibn Al-Khattab used to expel people from the
marketplace in Madina who were not knowledgeable of the fiqh of
buying and selling. Likewise, a Muslim should not engage in
something as important as marriage without having understanding of
the purpose of marriage in Islam as well as a comprehensive
understanding of the rights and obligations which it brings about.
One of the principles of Islamic Jurisprudence says that: "The default
state of all things is lawfulness until some evidence shows otherwise."
Based on this, if new foods are discovered, they are considered lawful,
unless there is some specific reason or attribute which would make it
forbidden for example if it is causes intoxication. Relations between
men and women do not follow this general principle and in fact are
opposite to it. The principle is that: "Relations between men and
women are forbidden until some evidence shows otherwise."
Procreation (Children)
One of the most important purposes of marriage is to continue and
increase the population of the Muslims. Clearly, this goal could be
achieved without marriage, but when actions are undertaken in
disobedience to Allah, they do not receive the blessing of Allah and
the whole society is corrupted. The Prophet said:
"Marry, for I will outnumber the other nations by you on Qiyama."
It should be stressed that the goal is not simply to produce any child
that will live in the next generation. It is to produce righteous children
who will be obedient to Allah and who will be a source of reward for
their parents after they die. The Prophet will NOT be boasting before
the other nations on the day of Qiyama with children of Muslim

parents who left the path of Islam. Thus it is the responsibility of

Muslim parents to seek the means of giving their children the training
and education they need not just to grow, but to succeed as Muslims
worshipping and obeying Allah. This obligation may include
migration[1], establishing of Muslim communities and schools and
other obligations. As the scholars have said in another principle of
fiqht:
"That without which an obligation cannot be fulfilled is itself
obligatory."
Pleasure
Islam is the religion of the fitrah[2] - the religion which is consistent
with the natural instincts and needs of mankind. It is not like the manmade (of modified) religions which set unnatural constraints on people
whether self-inflicted prohibition of marriage (nuns and monks, etc.),
prohibition of divorce or monogamy. Men are inclined toward women
and women are inclined toward men. Marriage is the institution which
fulfills this desire and channels it in ways pleasing to Allah Most High.
Allah mentions this attraction:
The love of the desires for women, sons, ... has been made attractive
to people.
The Messenger of Allah himself made clear that the attraction
between the sexes is something natural and not something to be
denied or suppressed - only channelled in the ways pleasing to Allah
Most High, saying:
"Women and perfume have been made beloved to me of this world of
yours and my peace of mind is in the prayer."
The desire of men and women for each other is an urge which needs
to be fulfilled. If it is left unfulfilled, it will be a source of discord and
disruption in society. For this reason, the Prophet ordered all men who
are capable of meeting the responsibilities of marriage to do it:
"Whichever of you is capable should marry for it will aid him in
lowering his gaze and guarding his body (from sin). As for the one who
is not capable, fasting is his protection."
Nature of Muslim Marriage
The Prophet emphasised the necessity of marriage saying-"To live in
marriage is to observe my way. He who turns away from this way is
not of me".
Rights & Duties
Mutual Rights and Obligations:
Marriage is a union for life having mutually inclusive benefits and
fulfillment for the contracting parties including the following:

# Preservation of chastity and security of gaze

# Companionship inside and outside home
# Emotional and sexual gratification
# Procreation and raising of any children by mutual consultation
# Agreement to live together in a mutually agreed country and
establish their matrimonial home therein
# Working collectively towards the socio-economic welfare and
stability of the family
# Maintaining their individual property rights but contributing to the
welfare of the family according to their capacity
# Maintaining social contacts with family and friends mutually
beneficial for the family
# Managing their individual activities/roles inside and outside the
home by mutual consultation
Obligations of the husband:
In addition to the mutual duties and obligations, the husband
undertakes not to:
# abuse his wife/child(ren) verbally, emotionally, physically, or
sexually
# desert/be absent from the marital home for more than 60 days
unless by mutual agreement
# withhold economic contribution towards his wife/family
# sexually transmit disease or other transmissible diseases
# misuse /interfere with the wifes property
Obligations of the Wife:
In addition to the mutual duties and obligations the wife undertakes
not to:
# abuse her husband/child(ren) verbally, emotionally, physically, or
sexually
# desert/be absent from the marital home for more than 60 days
unless by mutual agreement
# sexually transmit disease or other transmissible diseases
# misuse/interfere with the husbands property
Composites of Marriage In Islam
Mahr
Mahr is the consideration for the contract of marriage between the parties.
It may be in the form of money and/or goods given by the Bridegroom
to the Bride in consideration for the marriage. It is an essential
element of Muslim marriage and is exclusively reserved for the use of
the female partner. Payment of Mahr could be immediate (prompt), or
deferred.

Full Amount of Mahr: Record the total value of the agreed Mahr, e.g.,
5,000 in cash, or xyz weight in gold.
a) Muajjal (Immediate/Prompt): This means the total amount of Mahr
payable by the Husband at the time of signing of marriage contract.
b) Muwajjal (Deferred): This means the portion of the Mahr which is
payable to the wife at a specified point in the marriage or at the time
of dissolution of the marriage through divorce or death of the
husband. Any deferred Mahr that remains unpaid at the time of
dissolution becomes a debt against the former husbands assets.
Portion of the Mahr paid at the time of marriage: the amount of money
and/or goods received as Mahr at the time of marriage. This does not
include general gifts to the bride from the bridegroom and/or his
family unless these be expressly included in (a) above as part of the
amount of Mahr.
WitnessesAccording to Islamic law, a witness should be sane, adult and reliable.
This requirement is gender/faith neutral. Hence, the Muslim Marriage
Certificate requires to be witnessed by two adult witnesses of good
character.
# TWO men can be the witness
# ONE man and TWO women can be the witness
# ONLY women can not be the witness
INSANE and MINOR can not be the witness
DivorceAccording to Islamic law, marriage is the most sacred commitment in
life between two adults of opposite sex. It attempts to save it
wherever possible. As a consequence divorce is regarded by Allah as
the most hated thing. However, breakdown in marriage does take
place for a variety of reasons. If the divorce is initiated by husband he
has to pay the woman any Mahr that remains unpaid. If the divorce is
initiated by the wife,and the husband is found to be at fault by the
arbiters she does not lose her Mahr. But if she cannot prove his fault,
she has to return to her husband whatever Mahr amount she has
already received. If the wife initiates the divorce without any grounds,
this is called khula and she must return whatever the husband has
given her in consideration for the marriage.
Legal Disability
It means the existence of certain circumstances under which marriage
is not permitted. these Absolute Incapacity.
There is absolute prohibition of marriage in case or relationship of
consanguinity. In this case the situation is such that the relationship

has grown up of the person through his/her father or mother on the

ascending side, or through his or her own on the descending side.
Marriage among the persons associated by affinity, such as through
the wife it is not permitted. Marriage with foster mother and other
related through such foster mother is also not permitted.
Consanguinity (qurabat)-it means blood relationships and bars a man
from marryingMother or grandmother, Sister, aunt, niece etc.
Affinity (mushaarat)-a man is prohibited from marryingmother-in-law, step-grandmother, danghter-in-law, stepgranddaughter, etc.
Fosterage (riza)- when a child under the age of two years has been
suckled by a woman other than his or her mother,the woman
bocomes his foster mother,a man may not marry his foster mother or
her daughter or foster sister.
A man cannot marry his foster mother, nor foster sister, unless the
foster brother and sister were nursed by the same mother at intervals
widely separated. But a man may marry the mother of his foster
sister, or the foster mother of his sister.
Exception# Sisters foster mother
# Foster-sisters mother
# Foster-sons sister
# Foster-brothers sister
Relative Incapacity
Relative incapacity springs from case which render the marriage
irregular only so long as the cause which creaes the bar exist,the
moment it is removed,the incapacity ends and the marriage becomes
valid and binding.
Unlawful union
# Marrying a fifth wife
# Marrying a woman undergoing iddat
# Marrying a non-Muslim
# Absence of proper witnesses
# Woman going for a second marriage even after the existence of the
first marriage.
# Marrying pregnant women
# Marrying during pilgrimage
# Marrying own divorced wife
Prohibitory Incapacity
It arises in the following cases:

(a) Polyandry- it means the fact of having more than one husband.it is
forbidden in the muslim system and a married women cannot marry
second time so long as the first marriage subsists.
(b) Muslim woman marrying a non-muslim- a marriage of a muslim
female with a non muslim male made whether he be Christian or jew
or an idolater or a fire worshipper is irregular in nature under sunni
law and void under shia law.
Directory Incapacity
# This may arise out of: Marrying a woman enciente
# Prohibition of divorce
# Marriage during pilgrimage
# Marriage with a sick man
Aspects of Marriage
Valid Marriage (Sahih)
Under the Muslim law, a valid marriage is that which has been constituted
in accordance with the essential conditioned prescribed earlier. It
confers upon the wife; the right of dower, maintenance and residence,
imposes on her obligation to be faithful and obedient to her husband,
admit sexual intercourse with him and observe Iddat.
Irregular Marriage (Fasid)
Those marriages which are outcome of failures on part of parties in non
fulfillment of prerequisites but then also are marriages; to be
terminated by one of the party is termed to be Irregular marriages.
They are outcome of(a) A marriage without witness (Not under Shia Law)
(b) Marriage with fifth wife.
(c) Marriage with a women undergoing Iddat.
(d) Marriage with a fire-worshipper.
(e) Marriage outcome of bar of unlawful conjunction.
An irregular marriage has no legal effect before consummation but
when consummated give rise to several rights & obligations.
Void Marriage (Batil)
A marriage which is unlawful from its beginning. It does not create any civil
rights or obligations between the parties. The offspring of a void
marriage is illegitimate. They are outcome of(a) Marriage through forced consent.
(b) Plurality of husband.
(c) Marriage prohibited on the ground of consanguinity.
(d) Marriage prohibited on the ground of affinity.
(e) Marriage prohibited on the ground of fosterage

Iddat
In Islam, iddah or iddat (Arabic: period of waiting) is a period after a
divorce, during which a woman may not marry another man. The
period is calculated on the number of menses that a woman has,
usually three. Iddah was intended to ensure that the male parent of
any offspring produced after the cessation of a nikah would be known.
Iddat after death of husband[4]Qur'an prohibits widows to engage themselves for four (4) lunar months
and ten (10) days after the death of their husbands. This is also to
ascertain whether a woman is pregnant or not, since four and a half
months is half the length of a normal pregnancy.
Husbands should make a will in favor of their wives for the provision of
one years residence and maintenance, unless the wives themselves
leave the house or take any other similar step.
The directive of the Qur'an regarding the waiting period of a widow,
are as under:
Whoever from amongst you dies and leaves behind wives, the wives
will hold themselves [from marriage] for four months and ten days.
Then, when they have expired this period, there is no blame upon you
in whatever they do regarding themselves, according to the
recognized traditions. And God is fully aware of whatever you are
doing. And there is no blame upon you in proposing [marriage] to
these women or in keeping such proposal to yourself - God is aware
that you would mention it to them - but do not make with them any
secret commitments, except that you say a noble word to them.
However, do not commit the marriage-contract with them, until the
law has reached its prescribed time.
Iddat after divorce[5]
Comparing this waiting period with the one prescribed for a divorced
woman (i.e. three menstrual periods of the divorced woman), we see
that the waiting period prescribed for a widow exceeds that, which is
prescribed for a divorced woman by at least a month and a half. It is
also clear from the stipulations of the Qur'an that the prescription of
the waiting period for a divorced woman is with the basic purpose of
ascertaining her condition with reference to pregnancy as well as to
provide the divorcing couple adequate time to review and, if possible,
to revise their decision. Thus, in view of the increased prescription of
waiting period in the case of a widow, it seems that the waiting period
prescribed for a widow entails other purposes, besides merely
ascertaining the woman's position with reference to pregnancy.
The Muslim jurists and thinkers have generally construed this

additional purpose entailed in the prescription of the waiting period

for widows to be that of the widow's 'mourning' her deceased
husband. The understanding of the Muslim jurists and thinkers seems
to be quite logical and in consonance with sayings ascribed to the
Prophet. However, it seems important to add that the prescription of a
specified 'waiting' or 'mourning' period is for the purpose of
safeguarding the woman against defamation, slander and ill-repute in
society. It is specifically for this purpose that others are directed
against making a 'secret' commitment of marriage with the widow or
deciding about the time and place of the marriage-contract, during
the prescribed period. It is reported that Muhammad advised widows
to be extra modest in their appearance and to even refrain from
wearing any fragrance, during this period. All these directives and
advice seem to point to the fact that a woman should not only be, but
also appear to be in a state of mourning, so that her social circles do
not get a chance to say a negative word about her.
No other restrictions apply to a widow during her waiting period.
Duration of Iddat
The Iddat of divorce commences immediately upon the pronouncement of
repudiation and in case of invalid marriage if they are separated
voluntarily then from the time of separation but if the separation is
effected by the court then it starts with the issuance of judicial decree.
In case of widowhood the period of Iddat begins with the decease of
husband. If the information of divorce or of her husbands death does
not reach the wife until after the expiration of Iddat period, she is not
bound to observe Iddat. The period is considered to have been
passed.
Iddat is normally observed in the following manner;
If the marriage is terminated by divorce or in consequence of
annulment by the Court, then the Quran has specifically explained the
situation in such words, women who are divorced shall wait, keeping
themselves apart, three (monthly) courses. And it is not lawful for
them that they should conceal that which Allah hath created in their
wombs if they are believers in Allah and the last day. Therefore the
divorced woman is bound to observe Iddat for three menstrual cycles
i.e. the period of three complete courses of menstruation.
In the above two cases if the marriage has not been consummated
nor any valid retirement has taken place then after the termination of
marriage the woman is not required to observe Iddat.

Iddat of A Pregnant Widow

In case of pregnancy, the widow is bound to observe the Iddat for a period
which ever is the longest. i.e. if the child is born before the period of
four months and ten days then her Iddat is not over with the delivery
but she will complete the normal specified period of Iddat (four moths
& ten days). If the child is expected to be born after the specified
period, then the Iddat will lost up till the delivery of a child. They
consider it binding upon all widows who are pregnant or non pregnant,
so according to their view the fore mentioned period of four months
and ten days is the minimum obligatory period for a widow.
Maintenance During Iddat
The husband is under obligation to pay for the wifes maintenance during
her period of Iddat, regardless of its duration. Thus, in the following
cases the wife is entitled to maintenance during Iddat:
When the marriage is dissolved by repudiation, no matter the
repudiation was revocable or irrevocable, it was perfect or imperfect.
# When the marriage is dissolved by Lien (oath of imprecation) or by
Illa (a vow of continence) or by way of Khula provided she has not
renounced her right to maintenance.
# When the husband on attaining puberty, exercises the right of
option and dissolves the marriage.
# When the marriage is dissolved by reason of the inferiority of dower
or by reason of the husbands inequality or his impotency.
When a wife, who is not subject to menstruation, observing Iddat by
months becomes subject to menstruation before the completion of
specified period. She is entitled for maintenance in the additional
period of Iddat because she is obliged to stay in Iddat for three full
monthly courses.
# Widow is not entitled to maintenance even if she is pregnant;
almost all the Muslim jurists have the same opinion in this regard.
Judicial Interpretation In Muslim Marriage
In Abdul Kadir vs. Salima[6]
This case was argued before the Full Bench, Mr. Justice Mahmood said
thatIn this view of the case the reference cannot, in my opinion be
satisfactorily answered without considering, first, the exact nature and
effect of marriage under the Muhammadan law upon the contracting
parties; secondly, the exact nature of the liability of the husband to
pay the dower; thirdly, the matrimonial rights of the parties as to
conjugal cohabitation; and fourthly, the rules of the general law as to
the decree of Court in such cases.
In nawab sadiq ali khan vs. jai kishori[7]
In the case of a shia female, the age of puberty begins with

menstruation, it has been held by the privy council in shia case that
the age of the majority in the case of the girl is attained at the age of
nine years.
In pooja arya vs. state of UP[8]
Where a muslim girl married a hindu boy, which created a furore in
local communities, in cases like this law authorities buy peace at the
cost of constitutional rights and privileges.
Conclusion
After analyzing thoroughly the system of Islamic marriage a
reasonable and prudent way of thinking would always conclude that
the Islamic personal law with regards to marriage and divorce need to
be changed a lot so to maintain its status in modern society.
Marriage is a religious duty of every Muslim and it is considered to be
a moral safeguard and a social need. The Prophet has also said
Marriage is my tradition whosoever keeps away there from is not from
amongst me.
Unlike Hindu where the marriage is a sacrament, marriages in Muslims
have a nature of civil contract. Marriage is necessary for the
legitimization of a child. When the marriage is done in accordance to
the prescribed norms it creates various rights and obligations on both
the parties.
It appears that Islamic law of marriage and divorce is not identical to
the man made laws which are changed by man himself moment after
moment. It is evident that the position of man and woman in the
social set up of the community, is equal in every respect, but keeping
in view the mindset of both the genders, Islam segregates the rights,
duties and functions of both the gender and then declares their status
with regard to family matters.
If it is asked that are man and woman equal in Islamic way of life?
There would not be simple positive or negative way of answer rather,
one must scrutinize, examine and inspect closely and thoroughly their
respective rights, duties and functions. And then placing a complete
picture in front, it may be possible to answer the above question. In
other societies of the world, the state of affairs is not in concurrence
to Islamic way of life. Those other societies always try to claim that
man and woman are equal in every respect which is not a natural
phenomenon.
Endnotes:
[1] hijrah

[2] the religion which is consistent with the natural instincts and needs
of mankind
[3] Dower-amonut paid by bridegroom to bride
[4] Iddat e wafaat
[5] iddat of Talaaq
[6] (1886) 8 All. 149
[7] (1928) 30 bom. LR 134
[8] AIR 2006 All 60
The author can be reached at: harshit@legalserviceindia.com / ph no:
+91-9634007061 / Print This Article
Also Read:
Guardianship Under Muslim Law:
The source of law of guardianship and custody are certain verses in
the Koran and a few ahadis. The Koran, the alladis and other
authorities on Muslim law emphatically speak of the guardianship of
the property of the minor, the guardianship of the person is a mere
inference.
Custody Under Muslim Law:
The first and foremost right to have the custody of children belongs to
the mother and she cannot be deprived of her right so long as she is
not found guilty of misconduct. Mother has the right of custody so
long as she is not disqualified.

Muslim women's right for dissolution of

marriage
Among almost all the nations of antiquity, divorce was regarded as a natural corollary or
marital rights. Romans, Hebrews, Israelis etc. all had divorce in one or the other form.
Even though the provision of divorce was recognized in all religions Islam perhaps the
first religion in the world which has expressly recognised the termination of marriage by
way of divorce. In England divorce was introduced only 100 years back. In India among
Hindus, it was allowed only by Hindu marriage act, 1955. Before the passing of the act
divorce was not recognized by Hindu Law.
Divorce among the ancient Arabs was easy and of frequent occurrence. In fact, this
tendency has even persisted to some extent, in Islamic law. It was regarded by prophet to
be the most hateful before the Almighty God of all permitted things; for it prevented
conjugal happiness and interfered with the proper bringing up of children.

Islamic reforms
According to Ameer Ali, the reforms of Prophet Mohammad marked a new departure in the
history of eastern legislations. The prophet of islam is reported to have said with Allah,
the most detestable of all things permitted is divorce, and towards the end of his life he
practically forbade its exercise by men without intervention of an arbiter or a judge. The
Quran Ordains,if ye fear a breach between them twain(the husband and the wife),
appoints an arbiter from his folk and an arbiter from her folks. If they desire amendment,
Allah will make them of one mind. The Quran permits divorce partly because of some
countenance to the customs and partly to enable men get rid of an odious union.
Prophet Mohammad restrained the power of divorce and gave to the women the right of
obtaining the separation on reasonable grounds. The Prophet is reported to have said, if
a women be prejudiced by a marriage, let it be broken off.
People are governed simultaneously by many different laws: laws recognized by the
state i.e. codified and uncodified laws and informal laws such as customary practices
which vary according to the cultural, social and political context. A half-hearted attempt
was made in 1937 when the Shariat Application Act was passed with the intention to
apply the Shariat, and not the customary laws, on the Muslim population. The Act said
that in all personal matters, Shariat laws and not the customary laws would govern the
Muslims, though it did specify the specific details of what would comprise this Shariat
law. In reality, each sect in the Muslim community continued to follow its own traditions
and customs. Moreover, there was opposition to a codified law for all Muslims from
certain quarters who were benefiting from the customary practices. Thus, the first
attempts at enacting a uniform Muslim Personal Law was rendered unsuccessful. The
only advantage of this Act lay in its attempt to bring the Muslim community under one
law despite its heterogeneity. It also brings home the fact that Muslims in India, postIndependence, have not made any serious attempt to codify diverse practices of its
different schools of thought and jurisprudence.
Another attempt was made in 1939 with the Dissolution of Muslim Marriage Act. It laid
down nine grounds on which a Muslim woman could seek divorce in the court. Islamic
law then allowed a man to divorce his wife at will but a wife did not have the right either
to give divorce or seek one. The only way out for them was to convert to another
religion to annul her marriage. Alarmed at this trend, the Ulemas coaxed the British
government to pass this Act. Although the Act allowed a woman approach the court for
divorce, it did not curb the mans right to divorce his wife orally and unilaterally. The
next step was the Muslim Women (Protection on Divorce) Act, which was enacted only
in 1986 after the Shah Bano controversy. This law prescribed the right to maintenance
for a Muslim woman after her divorce. Different courts interpreted the law differently
and some women even continued to take resort to the Cr. P.C 125 [Criminal Procedure
Code sec. 125] to demand maintenance.
The laws, passed in 1939 and 1986, were not the result of a concerted effort towards
reforms. They were more a result of reactions by the conservatives who saw reforms in

personal law as an infringement on their right to religion and a threat to their male
identity.

DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939 :

Marriages, as they define, are made in heaven and solemnized on earth. It is a sacrament for
Hindus, a sanctified contract for Muslims and a sacred knot for Christians. Husbands
and wives vow for each other, yet there have been innumerable cases of betrayals by the
spouses.
The complexity of modern society and its possible consequences such as fast changing
socio economic conditions, the disintegration of the joint family structure, the rapid
development of industrialization and urbanization, education and employment and laws
giving equal status and rights to women, led a tremendous impact on the institution of
marriage. Few decades ago divorce was considered as an evil, the grounds of divorce
were very limited and it was sought only under compelling circumstances. Positions
have however, changed now. Marriage is no longer treated as an indissoluble union. In
fact, there has been a considerable legislative and judicial interference in the sphere of
matrimonial laws during the past few decades all over the world. In view of the
changing times, divorce laws are being substantially modified and liberalized.
Like Hindu law, followers of Islam have their own personal law, which states that
Nikaah or marriage is a contract and may be permanent or temporary and permits a man
four wives if he treats all of them equally. There should be a proposal or `offer,` made by
or on behalf of one of the two parties;
The Muslim marriage law also states that to have a valid marriage under the Muslim
law, if a person is of sound mind, normal and has attained puberty at the age of 15 his or
her marriage cannot be performed without his or her consent. There are certain
prohibited relationships, whose marriage is considered void. Like mother and son,
grandmother and grandson, uncle and niece, brother and sister and nephew and aunt.
i. An `acceptance` of such proposal or `offer` by or on behalf of the other party;
ii. The `offer` and `acceptance,` both, must be expressed in the same meeting. There is
no prescribed form for proposal and acceptance. However, a proposal, made at one
meeting and an acceptance, made at another meeting, will not constitute a valid
marriage;
iii. The offer and acceptance must be made in the presence of two male witnesses, or one
male and two female witnesses, who must be adult Mohammedans of sound mind; iv. A
marriage, contracted without witnesses, is not void but is considered irregular. Such
irregularity can be cured by consummation. However, according to Shia law, the
presence of witnesses is not necessary in any matter.
Dissolution of marriage can be by following ways:
By Divorce
A Husband may divorce in the following manner-

a. Talaq: which is release from the marriage tie immediately or eventually.

b. Ila: where a husband of sound mind takes a vow that he will abstain from all
relationship from his wife.
c. Zihar: where husband sane and adult compares his wife to his mother or any other
female within the prohibited degrees.
A wife may divorce in the following mannera. Talaqetafwiz: talaq by the wife under the husbands delegated power.
By Judicial Decree:
Following are the grounds on which a marriage maybe dissolved under the Marriage
Act.
a. Lian: Where the wife is charged with adultery and the charge is false.She can file a
regular suit for dissolution of marriage as a mere application to the court is not the
proper procedure.
b. Fask: The cancellation, abolition, revocation, annulment. Before the passing of the
dissolution of Marriage Act, Muslim women could only apply for the dissolution of their
marriage under the doctrine of Fask.
Under the Muslim Law a marriage is dissolved either by the death of the husband or
wife, or by divorce. After the death of a wife, the husband may remarry immediately.
But the widow cannot remarry before a certain specified period called Iddat expires.
Muslim Marriage Act also has a provision for separation under the name of dissolution
of Marriage act, 1939. Both the parties to the marriage contract have an opinion for
divorce, but the husband`s right in this respect is much greater than that of the wife. In
case of divorce a husband can leave his wife without any reasons merely by
pronouncing the word "Talak" thrice. Like in Hindu marriage act, divorce can also take
place due to mutual agreement between the husband and the wife which is known as
Mubarat. The husband can dissolve the marriage tie at his will. A divorce can also take
place by mutual agreement. But the wife cannot divorce herself from her husband
without his consent. She can of course purchase her divorce from her husband and can
have the marriage dissolved by Tafweez (delegation).
Khula is another way of ending a Muslim marriage which is a form of divorce with the
consent and at the initiative of the wife. The wife gives or agrees to give a consideration
to the husband for her release from the marriage tie. In this form relieving the husband
from payment of mahr to the wife may be a consideration.
A woman married under Muslim law shall be entitled to obtain a decree for the
dissolution of her marriage on any one or more of the following grounds, namely:
(i) that the whereabouts of the husband have not been known for a period of four years;
(ii) that the husband has neglected or has filed to provide for her maintenance for a
period of two years;
(ii-A) that the husband has taken an additional wife in contravention of the provisions of
the Muslim Family Laws Ordinance, 1961;
(iii) that the husband has been sentenced to imprisonment for a period of seven years or
upwards;

(iv) that the husband has failed to perform, without reasonable cause, his marital
obligations for a period of three years;
(v) that the husband was impotent at the time of the marriage and continues to be so;
(vi) that the husband has been insane for a period of two years or is suffering from
leprosy or a virulent venereal disease;
(vii) that she, having been given in marriage by her father or other guardian before she
attained the age of sixteen years, repudiated the marriage before attaining the age of
eighteen years:
Provided that the marriage has not been consummated;
(viii) that the husband treats her with cruelty, that is to say,
(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such
conduct does not amount to physical ill-treatment, or
(b) associates with women of evil repute of leads an infamous life, or
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property or prevents her exercising her legal rights over it, or
(e) obstructs her in the observance of her religious profession or practice, or
(f) if he has more wives than one, does not treat her equitably in accordance with the
injunctions of the Quran,
(ix) on any other ground which is recognized as valid for the dissolution of marriages
under Muslim Law,
Provided that:
(a) no decree passed on ground (i) shall take effect for a period of six months from the
date of such decree, and if the husband appears either in person or through an authorised
agent within that period and satisfies the Court he is prepared to perform his conjugal
duties the Court shall set aside the said decree; and
(b) before passing a decree on ground (v) the Court shall, on application by the husband,
make an order requiring the husband to satisfy the Court within a period of one year
from the date of such order that he has ceased to be impotent, and if the husband so
satisfied the Court within such period, no decree shall be passed on the said ground.
A husbands failure to provide for the maintenance of the wife for a period of 2 years
mentioned in Cl.(ii) of Section 2 entitles the wife to a decree for dissolution of marriage
whether or not the husband has reasonable cause for withholding such maintenance.
Cl.(ii) of section 2 should be read in contradistinction with Cl.(iv) as per which the wife
is entitled to to decree for dissolution of her marriage on the ground that the husband has
failed to perform without reasonable cause his marital obligations for a period of 3
years. The words without reasonable cause are significantly absent in Cl.(ii). The duty
to provide wife with maintenance is self imposed to keep the relationship intact and it is
ot a duty corresponding to the right of the wife to claim maintenance against the
husband. As against the arbitrary power of the husband yo liquidate the marriage the
wife gets a right to dissolution of maariage on the husbands neglect or failure to provide
for maintenance for a period of 2 years. This construction of Cl.(ii) of Sec.2 is in
consonance with the Islamic law on the subject. There is therefore no jurisdiction in

introducing the words without reasonable cause into Cl.(ii). The legislature in its
wisdom, by providing those words in Cl(iv) has not thought it necessary to provide this
restriction in Cl.(ii).[1]
In a suit brought by wife for dissolution of marriage on the ground that her husband was
impotent at the time of marriage and continued to be so that facts were as follows.
Marriage was celebrated on June 12, 1960 and the suit was brought on Oct 3, 1960. the
husband asked for and was granted one year to prove that he has ceased to be impotent.
On the expiry of the period the court granted a decree on the application of the wife.
The requirements of Sec.2(v) that the husband is not only impotent at the time of the
marriage but that he continues to be impotent when the suit is filed. The evidence in the
case was held to establish impotency at both the point of time. On the question raised
that during the period of grace, the husband was denied the company of his wife in his
own house, the court held that after the act the rule of Mohammedan Law about the duty
of the wife did not apply. The act requires an opportunity to satisfy the court about the
cessation of the condition and that the opportunity is available only on application to the
court. The provision of the act abrogated the Mohamrdan Law. It is not the rule that the
acquisition of virility can be proved only by sexual act with the wife. Such a procedure
is likely to subject the wife to some peril.
In case of Abdul Azeem v. Fahimunnisa Begum[2] the facts were: In this case the wife
sued the husband for dissolution of her marriage for failure to maintain her for 2 years.
She was married in 1952. in 1955 she went away to her parents. The husband then
performed the second marriage. The suit failed. It was held that under Mahomaden Law
polygamy was allowed and could not be a ground for living apart and claiming for the
maintenance in the absence of other grounds which would justify the wife to follow
other course.
In Munnawarbai v. Sabir Mohammad[3] case the wife left the marital house and
stayed away without any justifiable cause and then asked for dissolution of marriage on
the ground that husband was not maintaining her, it was held that the wife is not entitled
to relief under section 2 (ii) of Dissolution of Marriage Act, 1939.
Other than these situations Cl. (ix) of Section 2 states that on any other ground which is
recognised as valid for dissolution of marriage under Muslim Law. This clause covers
the divorces by ila, zihar, khula, mubarat and tafweez. Imputation of unchastity or false
charge of adultery against the wife (Lian) makes a good ground for dissolution of her
marriage. This ground falls under clause(ix) of section 2 of the act.
In Noor Jahan Bibi v. Kazim Ali[4], one Noor Jahan filed a suit against her husband
Kazim ali who charged her that she was of bad character and she was enamoured of one
Asghar Ali and committed adultery with him. It was held by the court that the doctrine
of Lian has not been absolute under the Muslim Law and therefore a muslim wife can
bring a suit for divorse against her husband on the ground that her husband has charged
her with adultery falsely under section 2(ix) of the act.

In M.B. Rahim v. Shamsoonnissa Begum[5], the privy council observed that wherin
the husband disposed of the property of her wife and confined her to a room as if she
was in a jai. He also misbehaved with his wife. In appeal Husband raised contention that
as far as Muslim Law is concerned a wife has no right to live seperatly even though the
conduct of the husband is not good. It was held by privy council that if under the muslim
law no wife can separate herself from her husband then such law is clearly contrary to
the principle of natural justice. This case was decided in favour of wife by the privy
council.
CRUELTY: The general notion of cruelty is very subjective- depending on time, place,
persons and other factors also. The legal concept of cruelty, which is not defined by
statute, is generally described as act or conduct of such a nature as to have caused to life,
limb or health- physical or mental or as to make a reasonable apprehension of such
danger.
Cruelty, no doubt, constitutes a pompous ground for dissolution of marriage, as the term
cruelty and love and affection are repugnant to each other. There is no strait jacket
formula to define cruelty. Even a gesture, an angry look, a sugar coated joke, an ironic
look may be more cruel than beating. Every act or conduct of one spouse which makes
the other spouse unhappy or miserable can not amount to cruelty. The mere fact is that
the erring spouse is moody, whimsical, mean, stingy, selfish, boorish, irritable,
inconsiderable, irascible etc. will not be sufficient to amount to cruelty.
Cruelty in marital relationship, is a course of conduct of one spouse which adversely
affecting the other. Cruelty may be mental or physical, intentional or unintentional. If it
is physical, it is an issue of fact and degree. If it is mental, the enquiry must begin as to
the nature of the cruel treatment and then as to the treatment of the mind of the spouse.
Whether it caused reasonable apprehension that it would be harmful or injurious to live
with the other, is ultimately a matter of inference to be drawn by taking into account the
nature of the conduct and its effect on the complaining spouse. Cruelty is a ground for
matrimonial relief.
In Islamic law, the concept of cruelty (zirar) is not limited. The cruelty provision is to be
interpreted in the light of the Prophets exhortations that women are as tender as glasses
(qawarir) and he is the best man who is kind to his wife. It is worth mentioned here that
under Muslim law cruel nature is a disqualification for eligibility to marry.
Section 2(viii)(a) of the concerned Act uses the words by cruel conduct even if such
conduct does not amount to physical ill treatment. This language is wide enough to
include all cases of cruelty, not merely this, it would cover all types of misconduct or
misbehaviour, serious and not very serious on the part of the husband calculated to break
spirit of the wife by physical or moral force which was systemically exerted on her to
such a degree and to such a length of time resulting in undermining her health, it will
amount to cruelty.
Regarding cruelty of conduct the general test should apply, since the conduct that is

cruel for one woman can not be civilized enough for another just because of the religion
of the parties. The point lies in the statutory words makes her life miserable and the
social status and standard of self-respect of the wife should be decisive to ascertain if the
mans conduct amounts to cruelty. A simple allegation of the wife, unsupported by
independent testimony, is not sufficient in law to establish any charges mentioned in the
law.
In case of inequitable treatment between the co-wives which amounts to cruelty, the
courts earlier providing maintenance to one wife only and ill-treatment forcing co-wife
to leave the husband as instances of unequal treatment. In Umat-Ul-Hafiz v. Talib
Hussain[6], husband went abroad leaving behind his two wives in India. He provided
maintenance to one wife and neglected the other. The court granted divorce to the
neglected wife.
The Allahabad High Court in Itawari v. Smt. Asghari[7] observed that a Muslim has
the legal right to take a second wife even during the subsistence of the first marriage, but
if he does so, and then seeks the assistance of the Civil court to compel the wife live
with him against her wishes on pain of severe penalties including attachment of
properties, she is entitled to ask whether the court, as a court of equity, ought to compel
her to submit to co-habitation with such a husband. In that case the circumstances in
which his second marriage took place are relevant and material in deciding whether his
conduct in taking a second wife was in itself an act of cruelty to the first.
The onus in these days would be on the husband who takes a second wife to explain his
action and prove that his taking a second wife involved no insult or cruelty to the first.
For example, he may refute the presumption of cruelty by proving that his second
marriage solemnized at the suggestion of the first wife or in order to gain some financial
benefit( may be through contract) the first wife may indulge or insist her husband or
reveal some other relevant circumstances will prove cruelty. But in the absence of a
strong and proper explanation the court will presume, under modern prevailing systems,
that the action of the husband in taking a second wife involved cruelty to the first and
that it would be inequitable for the court to compel her against her wishes to live with
such a husband.
It will amount to cruelty if the husband disposes of his wifes property or prevents her
from exercising her legal rights over it. In case Zubaidaa v. Sardar Shah[8], the view
expressed by Abdul Rahman J., that, it is not always easy to determine for what
purpose, husband sells or assigns his wifes property of any value. Property may be
used for the treatment of wife, for the benefit of the family members, for the education
of children, for the maintenance of any other liabilities. If the property disposed of not
for the selfish ends of the husband, not with the object of meeting a pressing needs but
more in the sense of waste and this done to deprive the wife of her property and without
the consent of wife then it shall constitute the offence of cruelty.
In Shamsunnissa Begums case, II. M.I. 551 the test of cruelty is based on universal and
humanitarian standards by the husband which would cause such bodily or mental pain as
to endanger the wifes safety of health.

In another case the Bombay High Court in Shakla Bano v. Ghulam Mustafa[9], has
observed that an unwilling wife cannot be compelled to live along with her husband.
Cruelty can be of various shapes. It depends on various factors like health, environment,
education, economic and social backgroung. It is settled position that persistent charges
of adultery and immorality may amount to cruelty[10].
It is clear that to constitute cruelty it is not necessary that there should be actual violence
or a reasonable apprehension of it. Likelihood of violence is a good ground for the grant
of relief[11]. Presently physical violence is not the only essential ingredient of cruelty.
Mental agony also amounts to cruelty.
It is to be noted that the term cruelty includes habitual assaults, concubinage, associated
with the women of ill repute or leads an infamous life, attempts to force her to live her
an immoral life, dispose of her property, or prevent her to exercise her legal rights,
obstructs her in the observance of her religious profession or practice and if Muslim
husband has more than one wives, he doesnt treat her equitably.
Today, there is a large volume of case laws on cruelty in India and abroad. Since human
nature and conduct are infinitely diverse. No hard and fast rules can be laid down as to
what acts or conducts will amount to cruelty in any given case. However, there is a sea
change in the attitudes of the courts. There is no difficulty in holding when physical
violence amounts to cruelty. However deciding some clear cases, questions do arise in
the sphere of mental cruelty or not. The reason is that mental cruelty may be of any kind
or of infinite variety, new concept of mental cruelty may reveal. It may be subtle or
brutal. It may be by words, gestures or even by mere silence.
Section 3: Notice to be served on heirs of the husband when the husbands whereabouts
are not known.
In a suit to which clause (i) of section 2 applies:
(a) the names and addresses of the persons who would have been heirs of the husband
under Muslim Law if he had died on the date of the filing of the plaint shall be stated in
the plaint.
(b) notice of the suit shall be served on such persons, and
(c) such persons shall have the right to be heard in the suit:
Provided that paternal-uncle and brother of the husband, if any, shall be cited as party
even if he or they are not heirs.

Section 4: Effect of conversion to another faith.

The renunciation of Islam by a married Muslim woman or her conversion to a faith other than
Islam shall not by itself operate to dissolve her marriage:
Provided that after such renunciation, or conversion, the woman shall be entitled to
obtain a decree for the dissolution of her marriage on any of the grounds mentioned in
section 2;

Provided further that the provisions of this section shall not apply to a woman converted
to Islam from some other faith who re-embraces her former faith.

Section 5: Right to dower not be affected.

Nothing contained in this Act shall affect any right which a married woman may have under
Muslim law to her dower or any part thereof on the dissolution of her marriage

Section 6: (Repeal of section 5 of Act, XXVI of 1937)

Rep. by the Repealing and Amending Act, 1942 (XXV of 1942), section 2 and First Sch.
After the dissolution of marriage by any means discussed above the man and the woman
can remarry immediately. In fact, unlike in a Hindu marriage, Muslim widow is
encouraged to be remarried and that`s a responsibility of the Muslim community.
Merits:

Dissolution of Muslim Marriage Act 1939

, has enabled women to seek divorce on the grounds of cruelty without having a free of loosing
a substantial part of her property. Earlier, before the enactment of this act Muslim
women did not have this advantage to file an application for divorce on the grounds of
cruelty but now she can do so. This act has proved to be a boom for all Muslim women.
Womens struggle are interconnected and complementary and therefore has a
commitment to international solidarity.
DRAWBACKS: These laws were piecemeal, targeting only certain aspect of the
personal law. For instance, the Dissolution of Muslim Marriage Act only laid down
grounds on which women could seek divorce. It never curbed mens right to unilateral
oral divorce nor did it lay down any procedure for the recovery of mehr, post-divorce
maintenance or about the custody of children.All three instances of codification of
certain aspects of Muslim personal law show that religious men from the community
used their influence on the entire process to protect the Shariat from any pro-women
reform. Accordingly all attempts at bringing about pro-women reforms and some
uniformity in the Muslim law failed.Even statutory legislations are not without flaws.
Some aspects of the law like the right of Muslim women to seek divorce and the postdivorce maintenance have been codified. But other aspects like inheritance, custody of
children etc. have not been codified. On top of all these is the prevalence of customary
laws, which the community has been following as a matter of tradition.In the last 20
years except for some pro-women judgments, there has been no forward movement in
the effort to reform the Muslim law by codifying it and making it uniformly applicable
to the entire Muslim population across the country.
SUGGESTIONS: The Muslim women, meanwhile, continued to suffer because of
polygamy, oral unilateral divorce, low mehr amounts, lack of maintenance and other ills
which plague Muslim law. In the last two decades except for some pro-women
judgments, there has been no forward movement in the effort to reform the Muslim law
by codifying it and making it uniformly applicable to the entire Muslim population
across the country. Therefore a reform should be brought in the Muslim law to uplift the

position of the women. More of women organizations should be encouraged because of

the fact that the womens organizations have played a remarkable role in highlighting
the plight of the Muslim women. They have continued to play a catalyst in organizing
the Muslim women around the issues like demand for the abolition of oral unilateral
divorce. This movement got a fillip recently with the fatwa against Imrana. Imrana, a
mother of five children, from Muzaffar Nagar, was raped by her own father-in-law. The
shariah jamaat passed a fatwa, which nullified Imranas marriage with her husband. The
All India Muslim Personal Law Board, later put its stamp of approval on the fatwa
issued by the Darul Uloom Deobands above ruling. It also pinned down the State in
taking more responsibility in protecting the rights of the Muslim women who are equal
citizens and are entitled to all such benefits, which the women of other faiths inherit by
right. The progressive elements within the Muslim community must make themselves
known to the self-styled regressive leaders and to the State and demand a gender-just
codified Muslim law.
**************
[1] AIR 1978 Andh. Pra. 417 and AIR 1971 Cal. 218
[2] (69)A. Mys. 226.
[3] 1970 M.P.L.J. Notes 23.
[4] AIR 1977 Cal.90.
[5] (1967) 11 M.I. A.551.
[6] AIR1945 Lah.56
[7] AIR1960 All.684
[8] AIR1943Lah. 310
[9] AIR 1971 Bom. 167.
[10] Iqbal Kaur v. Pritam Singh, AIR 1963 Punj 242( A Hindu case)
[11] Hamid Husaain v. K. Begum,(1918) ILR 40 All. 332
The author can be reached at: nehamalik.law@legalserviceindia.com
Also Read:
Guardianship Under Muslim Law:
The source of law of guardianship and custody are certain verses in the Koran and a few
ahadis. The Koran, the alladis and other authorities on Muslim law emphatically speak
of the guardianship of the property of the minor, the guardianship of the person is a mere
inference.
Custody Under Muslim Law:
The first and foremost right to have the custody of children belongs to the mother and
she cannot be deprived of her right so long as she is not found guilty of misconduct.
Mother has the right of custody so long as she is not disqualified.
Maintenance Under Muslim Laws:
Under the "Women (Protection Of- Rights On Divorce) Act, 1986" spells out objective
of the Act as "the protection of the rights of Muslim women who have been divorced by,
or have obtained divorce from, their husbands."
Concept of Marriage in Muslim Law:

Islam, unlike other religions is a strong advocate of marriage. There is no place of

celibacy in Islam like the Roman Catholic priests & nuns. The Prophet has said There
is no Celibacy in Islam.
Cruelty as a Matrimonial offence under Muslim Law:
Cruelty, in marital relationship, is a course of conduct of one spouse which adversely affecting the other.
Cruelty may be mental or physical, intentional or unintentional. If it is physical, it is an issue of fact and
degree.
Divorce under Muslim Law
A husband may divorce his wife by repudiating the marriage without giving any reason. Pronouncement of
such words which signify his intention to disown the wife is sufficient.
Sources of Islamic Law:
Various sources of Islamic law are used by Islamic jurisprudence to elucidate the Sharia, the body of Islamic
law. The primary sources, accepted universally by all Muslims, are the Qur'an and Sunnah.
Muslim Marriage:
Nikah in pre Islamic Arabia, meant different forms of sex relationship between a man and a woman
established on certain terms, in pre Islamic days,women were treated as chattels, and were not given any
right of inheritance and were absolutely dependent.