26/04/2018 Law Notes (LL.

B Notes): Family Law

More Next Blog» praveen11693@gmail.com Dashboard Sign Out

Law Notes (LL.B Notes)

Notes and Video Lecture of LL.B ( 3 Year) Kurukshetra University Kurukshetra

Home Blog By.... CONSTITUTION CONTRACT ... Hindu Law Indian Penal Code JURISPRUDENCE

Muslim Law.. Registration Act.. Law of Torts.. ENVIRONMENTAL LAW Civil Procedure Cide (CPC)

Cr.P.C (Criminal Procedure Code) RTI Act 2005

BLOG ARCHIVE
Family Law
▼ 2013 (1)
▼ September (1)
UNIT- I
LL.B Notes
1. Define Dower. What are its kinds? Discuss the nature and legal
significance of Dower in Muslim Law.
INTRODUCTION: - As it is evident from Quran, “if you separate ABOUT ME

yourself from your wives, send them away with generosity, it is not
permitted to you to appropriate the goods you have once given them.”
Thus the custom originated in ancient times with the payment which
husbands often made to their wives as means of support in their old age or Career Muskan Magazine Hisar
when turned out by them. Mehr in the baal form of marriage was also Follow 95

recognised by the prophet to ameliorate the position of wife in Islam and it View my complete profile
was combined with sadaq, so that it became a settlement or a provision for
the wife. According to K.P.Sexena, “Dower is a sum of money or any
property promised by the husband to be paid o delivered to the wife as a
mark of respect for the surrender of her person after the marriage contract
but generally said to be consideration for marriage.”
DEFINITION:-Dower or mehr is a sum that becomes payable by the
husband to the wife on marriage either by agreement between the parties or
by the operation of law. It may either be prompt or deferred. According to
Wilson, “dower is a consideration for the surrender of person by the wife. It
is the technical Anglo Mohammedan term for its equivalent ‘Mehr’ in
Arabic. According to Amir Ali, “Dower is a consideration which belongs

http://kuklawnotes.blogspot.in/p/family-law.html 1/31
26/04/2018 Law Notes (LL.B Notes): Family Law

absolutely to the wife.” Mulla said, “Dower is a sum of money or other

property which the wife is entitled to receive from the husband in
consideration of the marriage.”
KINDS OF DOWER: - Dower may be divided into two kinds:-
1.Specified dower: -This kind of dower is further divided into a) Prompt
dower b) deferred dower.
2.Customary Dower.
1.SPECIFIED DOWER: - If the amount of dower is stated in the marriage
contract, it is called the specified dower. Dower is settled by the parties to
the marriage either before the marriage or at the time of the marriage or even
after the marriage. If the parties to the marriage attained the age of puberty
and are of sound mind they are competent to settle themselves the amount of
dower. Guardian can settle the amount of dower provided that at the time of
settlement of dower the boy is still minor or lunatic. Specified dower is again
sub divided into:-
Prompt dower: - It is payable immediately after marriage on demand.
Ameer Ali, a wife can refuse to enter into conjugal domicile of husband until
the payment of the prompt dower. 2. Prompt dower does not become
deferred after consummation of marriage. 3. It is only on the payment of the
prompt dower the husband entitled to enforce the conjugal rights.4. Prompt
dower is payable on demand.
Deferred dower:-It is payable on dissolution of marriage either by death or
divorce. 2. The wife is not entitled to demand payment of deferred dower. 3.
The widow may relinquish her dower at the time of her husband’s funeral by
the recital of a formula. 4. The interest of the wife in the deferred dower is a
vested one and not a contingent one.
2. Customary Dover:- When the amount of the dower is not fixed in the
marriage contract or even if the marriage has been contracted on the
condition that she should not claim any dower, the wife is entitled to proper
dower. The amount of proper dower is settled by female members of the
father’s family such as her father’s sisters.
Determination of Proper Dower: - the proper dower is regulated with
reference to the following factors:-
i) Personal qualification of wife, her age, beauty, fortune, understanding and
virtue.
Ii) Social position of her father’s family.
Iii) Dower given to her female paternal relations.
IV) Economic condition of her husband.
v) Circumstances of the time.
There is no limit to the maximum amount of proper dower under the
Sunni Law but under theshia law the proper dower should not exceed the 500
dhirams. This amount was fixed in the
Marriage of Fatima the Prophet daughter. In the shia Muslims it is therefore
considered a point of
Honour not stipulate for a sum higher than the sum of dower fixed by the
Prophet for his
Daughter Fatima.

http://kuklawnotes.blogspot.in/p/family-law.html 2/31
26/04/2018 Law Notes (LL.B Notes): Family Law

Legal Significance of Dower in Muslim Law :-The following are the legal
significance of Dower in Muslim Law:-
1. The reason of its significance lies in the protection that it imparts to the wife
against the arbitrary exercise of the power of divorce by the husband.
2. Dower is a right of the wife is fundamental feature of marriage contract and
has a pivotal place in the domestic relation affecting the mutual rights.
3. According to Muslim Law on the dissolution of marriage the wife can claim
her dower money. It may be higher or it may be low depends upon on the
source of income of the husband.
4. Legislature has given the power to make law providing that, the court will
not be bound to award the amount of dower according to marriage deed (Sec.
Of Oudh Law Act.1876). but only such sum as shall be reasonable with
reference to the means of husband and the Iddat of the wife as held in a case
of Adul Rehman v/s Inayati Bibi-1931.
5. Another Significance of Dower is to place a check on the capricious use of
divorce on the part of husband.
6. To impose an obligation on the husband as a mark of respect of the wife.
7. To provide for her subsistence after the dissolution of her marriage so that
she may not become helpless after the death of the husband or termination of
marriage by divorce.

2. A Muslim marriage is a civil contract. Discuss the nature of the

Muslim marriage.
INTRODUCTION: - Marriage i.e. nikah meant different forms of sex
relationship between man and a woman established on certain terms. In
ancient age 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. The
improvement was vast and striking and their position is now unique as
regards their legal status. After marriage woman does not lose her
individuality and she remains a distinct member of the community. Under
the Muslim Law marriage is considered as Civil Contract. The contract of
marriage gives no power to anyone over her person or property beyond
what the law defines. Woman remains the absolute owner of individual
rights even after marriage.
DEFINITION OF MARRIAGE (NIKAH):-Marriage (nikah) literally
means the union of sexes and in law this term means, ‘marriage’. Marriage
has been defined to be a contract for the purpose of legalising sexual
intercourse and procreation of children.”
In Hedaya, it is defined as, “Nikah in its primitive sense means carnal
conjunction.” Some have said that, “it signifies conjunction generally and
finally in the language of law it implies a particular contract used for the
http://kuklawnotes.blogspot.in/p/family-law.html 3/31
26/04/2018 Law Notes (LL.B Notes): Family Law

purpose of legalising generation.” The Prophet of Islam is reported to

have said, “That Marriage is my sunna and those who do not follow this
way of life are not my followers.”
Thus marriage according to Muslim Law is a contract for the purpose
of legalising sexual intercourse and the procreation of legitimating of
children and the regulation of social life in the interest of the society.
NATURE OF MUSLIM MARRIAGE:- There are divergence of opinion
with regard to the nature of Muslim marriage. Some jurists are of the
opinion that Muslim marriage is purely a civil contract while others say
that it is a religious sacrament in nature. In order to better appreciate the
nature of Muslim marriage it would be proper to consider it in its different
notions.
Muslim marriage by some writers and jurists is treated as a
mere civil contract and not a sacrament. This observation seems to be
based on the fact that marriage under Muslim Law has similar
characteristics as a contract. For example:-
i) A marriage requires proposal (Ijab) from one party ad acceptance
(Qubul) from the other so it is the contract. Moreover there can be
no marriage without free consent and such consent should not be
obtained by means of coercion, fraud or undue influence.
ii) Similar as in the case of contract, entered into by a guardian on
attaining majority so can a marriage contract in Muslim Law, be set
aside by a minor on attaining the age of puberty.
iii) The parties of the Muslim marriage may enter into any ante-nuptial
or post-nuptial agreement which is enforceable by law, provided
that it is reasonable and not opposed to the policy of Islam. Same is
in the case of a Contract.
iv) The terms of a marriage contract may also be altered within legal
limits to suit individual cases.
v) Although discouraged both by the holy Quran and Hadith, yet like
any other contract, there is also provision for the breach of marriage
contract.
vi) In the leading case of Abdul Qadir v/s Salima-1886, it emphasise
the contractual aspect and analogy of Muslim Marriage contract
with contract of sale.
CONCLUSION:- Thus marriage according to Muslim Law is a contract for
the purpose of legalising sexual intercourse and the procreation of
legitimating of children and the regulation of social life in the interest of the
society. However it is further viewed that marriage is not purely a civil
contract but a religious sacrament too. Though sacramental nature of
marriage is considered as an orthodox view but it is also supported by the
judiciary in the leading case of Anis Begum v/s Mohammad Istafa-1933,
in the case Sulaiman has tried to put a more balanced view of the Muslim
marriage by holding it both civil contract and a religious sacrament.

http://kuklawnotes.blogspot.in/p/family-law.html 4/31
26/04/2018 Law Notes (LL.B Notes): Family Law

3. What are the grounds of dissolution of Marriage under Dissolution of

Muslim Marriage Act - 1939?
INTRODUCTION: An Act to consolidate and clarify the provisions of
Muslim Law relating to suits for dissolution of marriage by women married
under Muslim Law and to remove doubts as to the effect of the renunciation
of Islam by a married woman on her marriage tie. These are as under:-
i. By stipulation in the marriage contract that she shall have such rights as
to effect a divorce. ii By an option to divorce from the husband. iii By
judicial divorce on ground of impotency false charge of adultery. iv By
Lian. v By Khula vi By Mubarat.
Whereas it is expedient to consolidate and clarify the provisions of
Muslim Law relating to suits for dissolution of marriage by women married
under Muslim Law and to remove doubts as to the effect of the renunciation
of Islam by a married Muslim woman on her marriage; it is hereby enacted
as follows:
2. Grounds for decree for dissolution of marriage:- 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 provided under
Dissolution of marriage Act-VIII of l939:-

(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; but wife is
not entitled to maintenance in the following situations and it is the
reason that she cannot present a litigation of divorce against her
husband on the following grounds :

http://kuklawnotes.blogspot.in/p/family-law.html 5/31
 26/04/2018 Law Notes (LL.B Notes): Family Law

When she lives separately without any reasonable cause. A case of

a)
Yusuf Saramma -1971.
b) When she is unchaste to her husband case: Mu. Khadiza v/s
Abdula-1942.
(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 venereal disease. Mulla the wife may obtain a
decree for the dissolution of her marriage if the husband has been
insane for a period of two years and suffering from leprosy or a verneral
diseases.
(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,
I. habitually assaults her or makes her life miserable by cruelty of conduct even
if such conduct does not amount to physical ill-treatment, or
II. associates with women of evil repute of leads an infamous life, or
I. attempts to force her to lead an immoral life, or
V. disposes of her property or prevents her exercising her legal rights over it, or
V. obstructs her in the observance of her religious profession or practice, or
VI. if he has more wives than one, does not treat her equitably in accordance
with the injunctions of the Quran. Noorjahan Bibi v/s Kazim Ali-1977: a
false charge of adultery by husband over wife was considered to be
cruelty.Begum Zohar v/s Mohammad Isfaq ut Majid-1955: The use of
abusive language by husband and use of defamatory words by husband was
held to be cruelty.
VII. on any other ground which is recognized as valid for the dissolution of
marriages under Muslim Law. They are known as Traditional Grounds:
such as : IIa, Zihar, Khula, Mubarat and Tafweez.
(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.
(c) If husband converts to another religion the marriage is dissolved at the
instance, so if husband changes religion wife has ground for divorce under
section 4 of the Act-1939.

http://kuklawnotes.blogspot.in/p/family-law.html 6/31
26/04/2018 Law Notes (LL.B Notes): Family Law

3. Notice to be served on heirs of the husband when the husband’s where

abouts 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.
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.
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
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.
4. Describe the sources of Muslim Law in detail.
INTRODUCTION:-Muslim Law in India means, “that portion of Islamic
Civil Law which is applied to Muslims as a Personal Law. It consists of the
injunctions of Quran of the traditions introduced by practice of the Prophet
of the common opinion of the jurists of the analogical deductions of these
three Qiyas. Muslim mean who believes in Islam and Islam means,
“submission to the will of God.” A person born as Muslim continues to be a
Muslim until he renounces Islam after attaining majority. Any person who
professes the Mohemadan religion is Muslim that he acknowledges that,
there is one God and the Mohamed is his prophet.
“Queen Empress v/s Ramzan and Abraham v/s Abraham: It was held
that a person may be a Muslim by birth or by conversion. If one the parents
of child are Muslim the child is deemed as Muslim. If Parents turned to
some other religion the child is Mohemadan.
The following are the sources of Muslim Law:-
Primary Sources
1. QURAN : The Quran is the primary source of Muslim Law in point of time
as well as in importance. Quran is the first source of Muslim Law. The
Islamic religion and Islamic society owes its birth to the word of Quran. It is
the paramount source of Muslim Law in point of Important because it
contains the very words of God and it is the foundation upon which the very
structure of Islam rests. Quran regulates individual, social, secular and
spiritual life of Muslims. It contains the very words of God as communicated
to Prophet Mohammad through angel Gabriel. The Quran has now been
codified. Quran is devided into 114 chapter and 6666 Ayats.

http://kuklawnotes.blogspot.in/p/family-law.html 7/31
26/04/2018 Law Notes (LL.B Notes): Family Law

2. Sunnat or Ahadis: Sunnat has three classes :

I. Sunnat-ul-fail: This is being done by Prophet himself.
II. Sunnat-ul-qual: Which Prophet enjoyed by words.
III. Sunnat-ul-tuqrir: Things done in his presence without his
disapproval.
Ahadis has also three classes:
I. Ahadis-i-muturatir: Traditions are of public & Universal property & held
as absolutely authentic.
II. Ahadis-i-mashorora: Though known to a majority of people do not possess
the character of universal propriety.
I. Ahadis-e wahid: which depend on isolated individuals?
When Quran is silent on any one of the subject and then that problem
is solved by Ahadis and Sunnat. But while giving the solution to a problem
it must be kept in mind that solution is not adverse to the basics of Quran.
Thus such type of acts which the Prophet himself did or supported it, they
came to be known as Adades and Sumat.
3. IJMAA:- It is third important source of Muslim Law. The origin of IJMAA
although Quran, Sunnat and Ahades had developed as the source of Muslim
Law. It takes place when new problem stated arising with the development of
society which were not possible to be solved by Quran. The principle of
IJMAA based upon the text, “That God will not allow His people to agree on
an error and whatever Muslims hold to be good is good before God.”
Kinds of IJMAA: -i) IJMAA of Jurists. ii) IJMAA of companions of the
Prophet:- It is universally accepted. iii) IJMAA of People:- This kind of
IJMAA has not much importance.
4. The Qiyas (Analogical deduction):- It is originated source of Muslim
Law, when any problem or question could not be solved by Quran, Sunnat,
Ahades and Ijmaa. Qiyas in the light of Holy Quran which says that
spend out of your good things because as you dislike taking back bad
things others also may dislike.” In such situations the problem are being
solved by comparative study of the above three sources.
i) It is the last primary source.
ii) Qiyas means reasoning by analogy.
iii) Qiyas does not purport to create new law but merely to apply old
established principles to the new circumstances.
iv) Hanbals shias & shafis do not accept Qiyas.
While solving problem through Qiyas it has to be considered that such
things shall not be adverse to basics of Quran, sunnat, ahades and Ijmma.
Secondary Sources
1. Urf or Custom: Custom never recognised as source of Muslim Law but
sometimes referred as supplementing the law. Muslim Law includes many
rules of pre-Islamic customary law, which have been embodied in it by
express or implied recognition.
Requirements of a valid custom:- i) Custom must be territorial. ii) it must
be existing from memorable time i.e. ancient. iii) It must be continuous and
certain and invariable. iv) Custom should not oppose the public policies. V)
Custom must not in contravention of Quran & IJMAA.

http://kuklawnotes.blogspot.in/p/family-law.html 8/31
26/04/2018 Law Notes (LL.B Notes): Family Law

Smt. Bibi v/s Smt. Ramkali-1982: It was held that the customs of case and
sub case acquire it to be proved for their validity that they are ancient,
definite and earnable.
2. Judicial Decisions:- These includes the decisions of Privy Council, the
Supreme Court & High Courts of India, Judges explain what law is. These
decisions are regarded as precedents for future cases. It becomes a source of
Law. Hammeera Bibee v/s Zubaida Bibi: In India interest on loan is not
allowed, but in this case the Privy Council allowed interest on the amount
unpaid dower.
3. Legislation: - In India Muslims are also governed by various legislation
passed either by Parliament or by state legislature e.g.:- i) Guardian & Wards
Act, 1890. ii) The Shariat Act, 1937. iii) Muslim Woman Protection of Right
& Divorce Act, 1986. iv) The Mussalman Waqf Act, 1923. V) The
Dissolution of Muslim Marriage Act, 1939.
Justice, Equity & Good Conscience: It is also regarded as one of source.
a) Abu Hanifa: Expounded principle that rule of law based on analogy.
These principles are “Isihsan” or Jruistic equity. b) Maliki:- Ibn-Anas
proposes the use of Istiah i.e. seeking peace or amending & he followed it
up by distinct method of juristic interpretation known as Istidal. However
the main sources are Quran, Ahadis and Ijmaa.
5. Discuss the various Schools of Muslim Law and point out their
differences.
INTRODUCTION:-There are two main schools of Muslim Law the Sunni
and the Shia. In India the majority of the Muslims are of Sunnis and hence it
is presumed that the parties to a suit are Sunnis unless proved otherwise.
Shia law has been applied to Shia since the decision of the Privy
Council in Rajah Deedar Hossein v/s Ranee Zuhor-oon-Nissa-1841. The
division between the Sunnis and the Shias originated in the dispute
concerning the question of Imamat or the spiritual Leadership of Islam.
Schools of Muslim Law:- After the death of Prophet the question arose who
would be his successor. On this point the Muslim community was divided
into two factions. The Shias advocatd that the office should go by the right
of succession and thus Imamat i.e. headship should be confined to Prophet’s
own family as his prophet. Whereas on the other hand 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 the
youngest wife of the Prophet. Thus the difference between the two lies in
political events.
Mohammadans
1 Sunni 2 Shia 3 Motazila

1.1 Hanafis 2.1 Ithna-Asharia or Imamia (2.1.1) Akhbari (2.1.2)

Usuli
1.2 Malikis 2.2 Ismailiyas—(2.2.1) Khoja (2.2.2) Bohra
1.3 Shafeis 2.3 Zaidais
1.4 Hanbalis
Sunni Sub-Schools:

http://kuklawnotes.blogspot.in/p/family-law.html 9/31
26/04/2018 Law Notes (LL.B Notes): Family Law

(i) Hanafi: This school is the most famous school of Sunni Law. Abu
Hanifa was the founder of this school, he recognised Qiyas, urf, Ijma.
(ii) Maliki: It was founded by Malik, leaned more upon traditions. He was
not different from Hanifa’s.
(iii) Shafei: Imam Shafie was the founder of this school. He was the
founder of doctrine of Qiyas based upon Quran, Ahadis or Ijma.
(iv) Hanbali:- It was founded by Ibn Hanbal who stressed on traditions and
allowed very narrow margin to the doctrine of analogy.
SHIA SUB SCHOOLS: -
I) Athana Asharia School:- This school is very orthodox. The supporter
of this school is the followers of twelve Imams and regards them.
II) Ismailia School: - The sixth Imam Jafar-us-Sadiq had two sons 1.
Ismail and 2.Musa-ul-kazim. The followers of this school called
Ismailas.
III) Zaidia School:-Zaid who was the son of fourth Imam, Imam Ali ashgar
was the founder of this school.
CONCLUSION:- Where it is not alleged not shown that the parties are
shias, there is a presumption that they are sunnies, to which sect the great
majority of mohammedans of this country belong. Shia law is also the law of
the land. In india shia law has been applied to shia since the decision of the
privy council.

DIFFERENCE BETWEEN SHIA & SUNNI SCHOOL

Shia School Sunni School
Muta or temporary Marriage is recognised. Muta marriage is not recognised.
Father and grand- father are recognised as Father and father’s father how high-so-ever,
legal guardians for marriage. brothers other paternal relations, mother are also
recognised legal guardians for marriage.
The minimum amount for dower is not fixed. 10 dirhams is the minimum amount of dower is
fixed.
Talaq must be pronounced orally in Arabic Talaq may be oral or in writing.
language.
Divorce under compulsion or threat or Divorce under compulsion or threat or intoxication
intoxication is void. or jest is not void.
The mother is entitled to the custody of boy She is entitled to the custody of the boy up-to seven
up-to two years and of a girl up-to seven years. years and of a girl until she attains puberty.
It is not obligatory to maintain the father if he It is obligatory to maintain even if he is able to earn
is able to earn. himself.
Without delivery of possession of the property Mere declaration is enough for a valid waqf.
the waqf is invalid.
A gift of undivided share in the property is A gift of undivided share in the property is invalid
valid provided it is capable of partition. if it is undivided and incapables of portion.
A person can be queath one third of his estate The consent of the heirs is essential in case of
without the consent of the other heirs. legacy in favour of an heir.
There are only two classes of heirs namely There are three classes of heirs:-
sharers and residuary. a. sharers b. Residuary.

http://kuklawnotes.blogspot.in/p/family-law.html 10/31
26/04/2018 Law Notes (LL.B Notes): Family Law

c. Distant kindred.

6. What are the different forms & Modes of divorce under Muslim Law?
Discuss.
Introduction:-Among almost all the nations of antiquity divorce was
regarded as a natural corollary or marital rights. The provisions of divorce
were recognised in all religions Islam is perhaps the first religion in the
world which has expressly recognised the termination of marriage by way of
divorce. In England it was introduced 100 years back. In India it was allowed
only by Hindu Marriage Act 1955 amongst the Hindu community. Before
passing this act divorce was not recognised by Hindu Law.
Before Shamim Ara v/s State of U.P.-2002, a Muslim husband had
unlimited power of effecting Talaq without assigning any reason. But in
Shamim Ara’s case the Supreme Court held that the talaq must be for a
reasonable cause and there must be preceded by an attempt of reconciliation
between her husband and the wife by two arbiters one chosen by the wife
and the other by the husband.
Different forms & Modes of divorce under Muslim Law
1.Capacity for Pronouncing Talaq:-The only and only essential condition
for pronouncing Talaq by a Muslim husband is that he must have attain the
age of puberty and must be of sound mind at that time. In view of the
position of Muslim Law it cannot be said that Talaq namah was not sufficient
to dissolve the marital relations. Refer case Abdul Wahid v/s Raisa Bi-
2007.
In another case of Mohamad Siddiqu Ali v/s Mustt. Fatima
Rashid-2007, it was held by the court that mere pronouncement of Talaw
orally or in writing is not sufficient to terminate the marriage. The factum of
the Talaq should be proved by the independent witnesses.
In the case of Iqbal Bano v/s State of U.P.-2007, the Apex Court
held that the conclusion that in view of the statement in the written statement
about an alleged divorce30 years back by utterance of the words talaq, talaq,
talaq three times is sufficient in law is not sustainable. A mere pleas in the
written statement of a divorce having been pronounced sometimes in the past
cannot by itself be treated as effectuating Talaq.
2. Talaq-ul- Sunnat: This form of Talaq is revocable hence it is regarded as
approved form of Talaq. This form of Talaq was approved by the Prophet
both Shia and Sunni schools recognise this form. It has two parts:-
i) Talaq Ahsan:- This consists of a single pronouncement of divorce made
during a tuhr followed by abstinence from sexual intercourse for the period
of Iddat. The main requirements of a Talaq Ahsan are :-
a) Formula of Talaq must be pronounced only once by the husband.
b) If the marriage has been consummated the pronouncement must be made
during the period of her purity.(tuhr). After such pronouncement the husband
should abstain from sexual intercourse during the period of purity and Iddat.

http://kuklawnotes.blogspot.in/p/family-law.html 11/31
26/04/2018 Law Notes (LL.B Notes): Family Law

c) When the wife is not subject to menstruation the pronouncement may be

made even after sexual intercourse.
The above form of divorce is regarded as the best form because there
is a chance of reconciliation between the parties.
ii) Talaq Hasan:- This consists of three pronouncements made during
successive tuhrs the period of purity no intercourse taking place during any
of these three tuhrs. The chief requirements of Talaq Hasan are :-
i) There must be three successive pronouncements of the formula of
divorce.
ii) In the case of a menstruating wife the first pronouncement should be
made during a period of tuhr or purity the second during the next
tuhr and third during the succeeding tuhr.
iii) In the case of a non-menstruating wife, the pronouncement should be
made during the successive 30 days.
iv) No sexual intercourse should take place during these three periods of
tuhr.
This is also proper form of Talaq but less proper than talaq Ahsan,
This Talaq is revocable before the third pronouncement but becomes
irrevocable immediately after the third pronouncement.
2.Talaq-ul-Biddat or Talaq-i-Biddat:- It is sinful form of divorce
recognised only under Sunni Law. It is the irregular mode of Talaq
introduced by Omeyyads in order to escape the strictness of law. It consists
the following two modes:- i) Three pronouncements made during single
tuhr either in one sentence e.g. “I divorce thee, I divorce thee, I divorce
thee. Ii) A single pronouncement made during a tuhr clearly indicating an
intention irrevocable to dissolve the marriage e.g .divorce thee irrevocably.”
Talaq-ul-Biddat form is recognised only in Sunni Law and not in Shia
Law.
When They Become Irrevocabale
1. Talaq-ul-Sunnat:- Talaq Ahsan:- it becomes irrevocably on the expiry of
the period of iddat.
2. Talaq Hasan:- It becomes irrevocable on the third pronouncement
irrespective of Iddat.
3. Talaq-ul-Biddat:- It becomes irrevocable immediately when it is
pronounced irrespective of Iddat.

UNIT - II
7. Discuss the provisions of Muslim Law concerning Guardianship for
marriage. Power of legal guardian alienation of minor’s property.
INTRODUCTION:- In chapter iv of the holy ‘Quran’ it is mentioned
that, “ to restore the orphans when they come of age, their substance do not
substitute bad for good, nor devour their substance by adding it to your own,
for this is an enormous crime.” However the term Guardianship (wilayat)
means the guardianship of a minor. Minor is one who has not attained the
age of majority, Puberty and majority are in the Muslim Law one and the
same. Puberty is presumed to have attained on the completion of 15 years
but now the Muslims are governed by the Indian Majority Act, except in the

http://kuklawnotes.blogspot.in/p/family-law.html 12/31
26/04/2018 Law Notes (LL.B Notes): Family Law

matters relating to marriage, divorce and dower. However 15 years is the age
of majority for the purposes of marriage, dower and divorce under the
Muslim Law.
DEFINITION OF GUARDIAN:-The term guardian is defined in the
Guardians and Wards Act, “A person having care of the person of a minor
or of his property, or both his person and his property.”
In Muslim Law, Quran is the basis of the law relating to guardianship and
therefore there is very little room for differences between Shia and Sunni’s.
GUARDIANSHIP IN MARRIAGE (JABAR):-1.One of the most
essential part of a valid marriage that the parties are competent to enter
into marriage contract, i.e. among other things they must have attained the
age of puberty. However there is exception which is most distinguishing
feature of Islam which empowers a father to impose status of marriage on his
minor children. This power of imposition is called Jabar. Under this
exception the marriage is contracted on behalf of the minors by the guardian.
2. No one can be appointed guardian by the Court in respect of marriage
guardianship.
3. The Court also cannot appoint Wali for marriage; however in some cases
Quazi or Court itself can act as a marriage guardian.
4. Under the Muslim Law of all schools, the father has the power to give his
children of both sexes in marriage without their consent until they reach the
age of puberty i.e. known as bulugh.
5. The following persons who can act as guardians in the marriage of a
minor:-
1. Father.2.The father’s father how high-so-ever. 3. Full brother and other
male relations on the father’s side. 4. Mother. 5. Maternal relation within
prohibited degrees. 6. The Quazi or the Court.
Legal Guardian: - The person entitled in the order mentioned below to be
guardian of the property of a minor: - 1. Father. 2. The executor appointed
by the father’s will. 3. The father’s father. 4. The executor appointed by the
will of the father’s father. Thus mother, brother and uncle etc. are not
entitled as of right to be the legal guardians of the property of minor as held
in the case of Sayed Shah Gulam Ghoshe v/s Sayed Shah Ahmad-1971.
POWERS OF LEGAL GUARDIAN:- 1.Regarding Immovable
Property:- Legal guardian cannot alienate by sale of mortgage the
immovable property of the minor except when alienation is absolutely
necessary or for the clear benefit of the minor.
When the minor has no other means of livelihood and sale is absolutely
necessary for maintenance. Where the double price of the property can be
obtained by him. Where the expenses exceed he income of the property.
When the property is falling into decay. The legal guardian has no power
to carry on business of his ward especially if the business is one which may
involve his minor’s estate in speculation or loss. When the property has been
usurped and the guardian has reason to fear that there is no chance of fair
restitution. A legal guardian is empowered to enter into contracts on behalf
of minor provided that such contracts are for the benefit of the minor.
2. Powers regarding movable properties:- The guardian is empowered to
sell or pledge the goods and chattels of the minor for the minor’s necessities

http://kuklawnotes.blogspot.in/p/family-law.html 13/31
26/04/2018 Law Notes (LL.B Notes): Family Law

as food, clothing and nursing etc. Muslim Law does not impose upon
minors any obligation to pay interest on sums advanced to them. The legal
guardian is bound to deal with the property as carefully as he has dealt with
it if it were his own property, as held by Madras High Court in l940.
3. De facto Guardian: A person who is neither a legal guardian nor a
guardian appointed by the Court but has voluntarily placed himself in charge
of the person and property of the minor is known as de facto guardian. He is
mere custodian of the minor’s person and property but has no right over
either as held in the case of M.Fiaz v/s Iftkhar-1932. He has only the
responsibility towards the minors person or property or both but no rights in
respect thereof. He has no power or authority to alienate the minor’s
property. However authority given by the Court is void as provided in
Guardians and ward Act.

8 What is the object behind making a gift under Muslim Law? Who can
make a valid gift? Explain Is Registration is necessary?
Introduction: - In India it is often assumed that term ‘gift’ is the exact
equivalent of ‘hiba’ and both are understood to connote all transfer of
property without consideration. Gift however an expression of much wider
explanation than hiba is. According to Baillie, “The conferring of a right in
something specific without an exchange.”
In Muslim Law, it is treated as a contract consisting of a
proposal or offer on the part of donor to give a thing and the acceptance of it
by the donee. The word hiba literally means the donation of a thing from
which the donee may derive a benefit, the transfer must be immediate and
complete. It is also to mention here the most important ingredient of Hiba is
the declaration, “I have given”.
DEFINITION OF GIFT:- Under Muslim Law a person is allowed to
lawfully make a gift of his property to another during his life time or he may
transfer it by way of will which take effect after his death.
In its technical sense, it is defined as, “unconditional transfer of property
made immediately and without any exchange or consideration by one person
to another and accepted by or on behalf of the latter.”
According to Mulla, “Gift is a transfer of property, made immediately and
without any exchange by one person to the other and accepted by or on
behalf of the latter.”
A leading case in this regard is of Smt. Hussenabi v/s Husensab Hasan-
1989, gist of the case that offer of gift was made by grandfather to his grand
children who were living with him and on behalf of minor children the
acceptance was made by the doner but no express or implied acceptance of
gift was made by the major grandson. The court held that when the three

http://kuklawnotes.blogspot.in/p/family-law.html 14/31
26/04/2018 Law Notes (LL.B Notes): Family Law

essentials are not there to complete, it cannot be a complete gift. Gift-deed

was valid for the minor children but the gift in favour of the major sons was
set aside.
Object Behind Making a Gift under Muslim Law
The following are the objects for making a gift under Muslim Law:-
1. The conferring of a right in something specific without an exchange:-
When a doner declare to make a gift to anybody, without any
consideration of it.
2. Following lawful methods while making of a gift:- Some of the
important observations that the doner adopts lawful methods for making
a gift of property in the possession and such a gift is valid provided the
doner either obtains and gives possession.
3. Thickness in relations comes out by making gifts:- For developing
strengthens and to create a co-operation in the society it is necessary that
there must be transaction of gifts in between each other’s which will
give strengthen to the society and respect to the doners.
4. To make a person the owner of the substance of a thing:- Under
Muslim Law a person becomes the owner of the substance of a thing
without any consideration and to make him the owner of the profits also.
Is Registration of Gift Necessary
Under Muslim Law writing is not essential to the validity of a gift either of
movable or of immovable property. Sec. 122 to 129 of the Transfer of
Property Act, 1882, deals with gits. As per provisions laid down in Sec. 123
of this act, Gift of immovable property must be effected by a registered
instrument signed by the doner and attested by at least two witnesses, and
that a gift of movable property may be effected either by a registered
instrument signed as aforesaid or by delivery. But these provisions of Sec.
123 do not apply to Muslim gifts; Section 129 of this act also states that
nothing in the chapter shall be deemed to affect any rule of Mohammedan
Law.
As per the Registration Act the gift of immovable property worth over
Rs.100/- is required to be by registered instrument. Mohammedan law
permits oral gift of immovable property irrespective of value of the property.
Hence the provisions of sec.123 do not apply to gifts covered by
Mohammedan law.
9. Discuss the concept of legitimacy under Muslim Law. Mention the
conditions of a valid acknowledgment.
Introduction:- Muslim law insist on the existence of a valid marriage
between the begetter and the bearer of the child at the time of its conception.
A person born in lawful wedlock is said to be the legitimate child of the
spouses. The main point in the case of legitimacy of a child is marriage
between its parents. In the case of Habibur Rahman Choudhari v/s Altaf
Alii Choudhary: It was held that the term wife necessarily connotes
marriage, but as marriage may be constituted without any ceremony the
existence of a marriage in any particular case may be an open question.
Direct proof may be available but if there be no such proof indirect proof
may be suffice.
Muslim Law does not recognize the institution of adoption
which is recognized by other systems. Under Hindu Law adoption is

http://kuklawnotes.blogspot.in/p/family-law.html 15/31
26/04/2018 Law Notes (LL.B Notes): Family Law

intimately connected with religion having relation to the repose of the souls
of the departed and the preservation of the house hold divinities. Amir Ali
explained that in fuller terms that adoption similar to what was practised in
the ‘Days of Ignorance’ created no such tie between the adopted and the
adopting as resulted from blood relationship. On the one hand Muslim Law
recognizes the institution of ‘iris or acknowledgment on the other hand it
disapproves legitimating.
The doctrine of acknowledgment relates only to cases where
either the fact of marriage itself or the exact time of occurrence with
reference to the legitimacy of the acknowledged child is not proved in the
sense of the law as distinguished from disproved. In a case of Mohammad
Khan v/s Ali Khan-1981.
ESSENTIALS OF LEGITIMACY
When there is a direct proof of marriage or there are
circumstances from which marriage may be presumed the question of
acknowledgment of legitimacy does not arise because in such cases the
legitimacy is ‘ipso facto’ established or presumed to be established. If there
is no such direct proof of legitimacy indirect proof may suffice and one of
the ways of indirect proof is by acknowledgment of legitimacy by father (not
mother) in favour of a son. In other words the doctrine applies only to cases
of uncertainty as to legitimacy and in such cases acknowledgment has its
effect but that effect always proceeds upon the assumption of a lawful union
between the parents of the acknowledgment child.
In the case of a good acknowledgment of legitimacy the
marriage between the parents of the child acknowledged will be held proved
and this legitimacy established unless the marriage is disproved as held in
the case of Mohammad sadiq v/s Mohammad Hassan- 1943.
In case the marriage between the parents of the child could not
be proved the acknowledgment shall carry no force in the eyes of law. The
acknowledger must acknowledge the child specifically as held in a case of
Haribur Rahman v/s Altaf Ali-1921.
EXPRESS OR IMPLIED ACKNOWLEDGMENT
It is not necessary that an acknowledgment should be express it
may also be implied as was held in the case of Mohammad Amin v/s Valil
Ahmad -1952: where a person habitually and openly treat another as his
legitimate child this fact may give rise to a valid presumption of legitimacy.
The acknowledgment may be of son or of daughter but it must
be made the father. The acknowledgment of the child must not be casual. In
a case of Mohabat Ali v/s Mohammad Ibrahim-1929: The father made the
acknowledgment of the child in a casual manner. He never intended that his
acknowledgment should have serious effects. It was held that the act of
the father is not sufficient to confer the status of legitimacy.
Conditions:-1.When a man expressly or impliedly acknowledges another as
his lawful child the paternity of the child will be established in the man
provided the following conditions are fulfilled:-
· Intention to Confer Legitimacy: The acknowledgment must be made in
such a way that it shows that the acknowledger is to accept the other not

http://kuklawnotes.blogspot.in/p/family-law.html 16/31
26/04/2018 Law Notes (LL.B Notes): Family Law

only as his son but as his legitimate son as held in Habibur Rahman v/s
Altaf Ali-1921.
· Age of the Acknowledger:- The age of the parties must be such that it is
possible that they may be father and son.
· Child of Others: - The child so acknowledged must not be known to be
the child of another.
· Person Acknowledged should confirm acknowledgment:- The child, if
adult, must confirm, or acquiesce in acknowledgment. It is very important
that the acknowledged child should verify acknowledgment.
· Legal Marriage possible between Parents of the child acknowledged:-
The acknowledger and the mother of the child must have been lawfully
joined in marriage at the time when the child was begotten. It is essential
to show that a lawful marriage is possible between the acknowledger and
child’s mother because the child is not the fruit of an adulterous
intercourse.
· Competency of the Acknowledger:- The acknowledger must be
competent to make a contract, that is, he should be adult and sane.
· Offspring of ‘Zina’:- An offspring Zina is one who is born either without
marriage, or of a mother who was the married wife of another, or of a void
marriage.
· An acknowledgment once made cannot be revoked:- In a case of
Ashrfod Dowlah v/s Hyder Hussain-1886: It was held that
acknowledgment of paternity is a recognition not simply of son-ship but
of legitimacy as a son.
Rules of legitimating:- depends on the assumption of legitimacy and its
establishment by avoidance of the hypothesis of unlawful relationship
between the parents. Refer the case of Nazibunnissa Bibi-1864.
· This rule is based on contractual form of marriage under Muslim Law.
· No ceremony is prescribed for a valid marriage.
· It is also not necessary that the marriage should be published.
· Muslim Law does not recognize western concept of legit
effects of acknowledgmrnt:-Acknowledgment of paternity raises a two-fold
presumption. B) One in the favour of son-claimant. C) The other in favour of
the wife claimant i.e. mother of the acknowledge. D) It produces all the legal
effect of natural paternity and vests in the child right of inheriting from the
acknowledger in case of a son. E) The mother of the acknowledged son gets
the status of legal wife and hence the right of inheritance.

10. Define Acknowledgement and kinds of Guardianship under Muslim

Law.
Introduction:- The Quran is the basis of law relating to guardianship which
connotes the look after of the minor. A minor is one who has not attained the
age of Majority. Puberty and majority are in the Muslim Law one and the
same. The term guardianship means a person having the care of that person
who is minor. He takes care for his property and for him. The guardian has
to be appointed lawfully under a will in accordance with the law to which the
minor is subject. Guardian has to perform his duties properly for the custody
of the minor and his property.

http://kuklawnotes.blogspot.in/p/family-law.html 17/31
26/04/2018 Law Notes (LL.B Notes): Family Law

Definition of Acknowledgment:- Where the paternity of a child that is his

legitimate descent from his father cannot be proved by establishing a
marriage between his parents at the time of his conception of birth, Muslim
Law recognizes ‘acknowledgment’ as a method whereby such marriage and
legitimate descent can be established as a matter of substantive for the
purpose of inheritance.”
Definition:- The guardianship has been defined in the Guardianship and
Wards Act, “That a person having the care of the person of a minor or of his
property or of both person and property.” The meaning of guardianship is
that a guardianship of a minor. But there is no mention of disposal in
marriage in any part of the Act and nothing to indicate that it was intended to
interfere with the rules of Muslim Law. The Quran is the basis of law
relating to guardianship which assigns that function under name of ‘jabar’
entitled to care and custody of the (hiznat) ward’s person (Wilson).
Who is Minor:- A minor is one who has not attained the age of majority.
Puberty is presumed to have been attained on the completion of the fifteenth
years. But now the Muslims are governed by the Indian Majority Act, 1875
except in the matters relating to marriage, divorce and dower. In Muslim
Law fifteen years is the age of majority for the purposes of marriage, dower
and divorce. At or above this age, he or she is free to do anything in the
sphere of marriage dower and divorce.
As regards other matters of guardianship of person and
property, a Muslim will be governed by the Majority Act which prescribes
18 years as the age of majority. Thus in cases of wills, waqfs etc. the
minority will terminate on the completion of 18 years.
Appointment of a Guardian:- When the Court is satisfied that it is for the
welfare of a minor then an order is to be made for the appointment of a
guardian of his person or property or both as declaring a person to be such
guardian, the Court make an order accordingly. Under Section 15(1) of the
Guardian and Wards Act-1890 it permits for the appointment of joint
guardian where the court has appointed joint guardian and any one of them
has died, the survivor continues to act as guardian.
Section 20 of the act imposes a duty on the guardian to deal
with the wards property carefully and honestly. Section 24, 25 and 26 of the
act provides for custody of the child by the guardian and to look minor’s
support, health and education and such other matters as the law to which the
wards subject required. Under sec. 33 guardian can seek the advice of the
court with regard to the management of the ward’s property.
Kinds of Guardianship:- Muslim Law makes a distinction between
guardian of the person, guardian of the property and guardian for the
purposes of marriage ( willayat-ul-nikah ) in the case of minors.
Mohammedan Law recognises three kinds of guardianship. They are as
under:-
1.Guardianship in Marriage (Jabar) :- This exception is main feature of
Islamic because it empowers a father to impose status of marriage on his
minor children. This power of imposition is called (jabar) the abstract right
of guardianship (wilayat) and the guardian so empowered is known as Wali.

http://kuklawnotes.blogspot.in/p/family-law.html 18/31
26/04/2018 Law Notes (LL.B Notes): Family Law

The persons entitled who can act as guardians in the marriage of a

minor:-
i) Father. ii) The father’s father, how high so ever. Iii) Full brother and other
male relatives on the father’s side in order of inheritance. Iv) Mother v)
maternal relations within prohibited degrees.vi) The Qazi or Court.
As mentioned in the chapter of Marriage, it is one of the essentials of a
valid marriage that the parties are competent to enter into marriage contract
i.e. among other things they must have attained the age of puberty. However
this general rule has one exception i.e. where the marriage is contracted on
behalf of the minors by the guardian. Shia Law recognises only the father
and failing him the father’s father how high-so-ever as guardian in the
marriage of a minor.
2. The Guardian of the person of the minor for Custody (hizanat):-
Regarding the nature and extent of the right to custody of a minor child, it
was observed by the Privy Council in the case of Immambandi v/s
Mutasaddi-1918, “It is perfectly clear that under the Muslim Law the
mother is entitled only to the custody of the person of her minor child up-to a
certain ages according to the sex of the child but she is not the natural
guardian. The father alone or if he s dead his executor (under the Sunni Law)
is the legal guardian. In Shia Law she is entitled to the custody of her male
child till the age of 2 years and to a female child till the age of 7years.
3. Guardianship for Property of Minor: - If a minor owns movable or
immovable property a guardian is necessary to manage it. Muslim Law
prescribes certain persons in an order of preference who can be guardian of a
minor’s property. The guardianship of the property of the minor under
Muslim Law may be classified as under:-
1. Legal (de jure) or natural guardian.
2. Guaradian appointed by the court or certified guardian.
3. De facto guardian.

UNIT- III
11. Define Maintenance. Discuss the provisions regarding maintenance of divorced
woman according to Muslim Women Protection Rights on Divorce-1986. OR What
are the arrangements for maintenance under Muslim Law? Who are entitled for
Maintenance? Discuss. OR Maintenance of Muslim Women.

http://kuklawnotes.blogspot.in/p/family-law.html 19/31
26/04/2018 Law Notes (LL.B Notes): Family Law

Introduction:-The Muslim Law, like the English Law treats the property as
primarily and naturally individual. It does not like the Hindu system
contemplate as the normal state of things. The existence of mass of family
property kept together thorough several generations as common fund for the
common needs. Under Muslim Law a man is bound maintain his wife
irrespective of his and her means and his minor children if he is not indigent.
Definition of Maintenance: - Maintenance is equivalent to Arabic ‘Nafqah’
which means, “What a person spends over his family” however in legal
sense maintenance signifies and includes three things: (i) Food (ii) clothing
(iii) lodging.
According to Hedaya: “Maintenance as all those things which are necessary
to the support of life such as food, clothes and lodging.”
Provisions regarding maintenance of divorced woman:- In Shah Bano
Beguum v/s Mohammad Ahmed Khan-1985, the five judges bench held
that a Muslim husband having sufficient means must provide maintenance to
his divorced wife who is unable to maintain herself. Such a wife is entitled to
the maintenance even if she refuses to live with the Muslim husband. The
court also held that the ability of the husband to maintain his divorced wife
till the expiration of the iddat period extends only in case the wife is able to
maintain herself. The following are the rights of maintenance of divorced
wife:-
1. Maintenance during the subsistence of marriage:-The husband is liable
to maintain the wife from the date when the wife attains puberty and as long
as she is obedient and faithful to her husband. The husband is bound to
maintain her even though she may have the means to maintain herself. A
Muslim wife who is living separately may claim maintenance against him for
example if the husband treats her cruelty or marries with second wife
without her consent or if he paid prompt dower to her as held in a case of
Itwari v/sAshgari-1960.
2. Maintenance of a divorced wife:-Under Muslim Law a divorced wife is
entitled to obtain maintenance from husband up-to her period of Iddat. In a
case of Mohammad Ahmad Khan v/s Shah Bano Begum-1985, although
the Muslim law limits the husband’s liability to provide maintenance for his
divorced wife up to the period of Iddat. The court held that if the divorced
wife is unable to maintain herself after the period of Iddat she is entitled to
recourse to sec. 125 Cr.P.C.
3. Maintenance of a Widow: - According to Hedaya says, “That a widow
shall not have any right of maintenance after the death of her husband. Under
the Shia Law a Widow is not entitled to any maintenance though she was
pregnant at the time of the death of her husband. There are some authorities
in Mohammadans who recognised widow’s right if on the death of her
husband she was pregnant to maintenance until delivery, out of share in
estate of her husband which child borne by her entitled to inherit.
In order to nullify the effect of the Shah Bano’s decision, Parliament
passed the Muslim Women’s Protection of Rights on Divorce Act-1986,
the following are the provisions :-
1. A reasonable and fair provision and maintenance to be made and paid to
her within the Iddat period by her former husband.

http://kuklawnotes.blogspot.in/p/family-law.html 20/31
26/04/2018 Law Notes (LL.B Notes): Family Law

2. Where she herself maintains the Children born to her before or after her
divorce a reasonable a reasonable and fair provision and maintenance for a
period of two years from the respective dates of birth of such children.
3. An amount equal to the sum of mehr or dower agreed to be paid to her at
the time of her marriage or at any time thereafter according to Muslim Law.
4. All the properties given to her before or at the time of marriage or after the
marriage by her relatives or friends or the husband or any relatives of the
husband or his friends.

12. discuss the jurisdiction, procedure and other salient features of

family courts under act, 1984. Or The jurisdiction of family courts.
Introduction:- The establishment of the Family court for the purposes of
exercising the jurisdiction and the powers to ensure that persons committed
to the need to protect and preserve the institution of marriage, declaration as
to the validity of a marriage or as to the matrimonial status of any person and
to promote the welfare of the family.
Definition of Family Court:-Family Courts with a view to promote
conciliation in and secure speedy settlement of disputes relating to marriage
and family affairs and matters connected therewith.
Jurisdiction of Family Court:-The complete detail in respect of the
jurisdiction of the Family Court under Family Courts Act, 1984 is as under:-
1. The family courts may exercise the entire jurisdiction exercisable by and
District Court or any subordinate civil court under any law for the time being
in force.
2. The Family Courts have the jurisdiction to accept a suit for proceeding
between the parties to a marriage with respect to the property of the parties
of either of them.

http://kuklawnotes.blogspot.in/p/family-law.html 21/31
26/04/2018 Law Notes (LL.B Notes): Family Law

3.Family Court has the jurisdiction to suit for proceeding between the
parties to a marriage for a decree of nullity of marriage(declaring the
marriage to be null &void or as the case may be annulling the marriage) or
restitution of conjugal rights or judicial separation or dissolution of marriage.
4. Family Court may accept the suit or proceeding for a declaration as to the
validity of a marriage or as to the matrimonial status of any person.
5. The Family Court may commence a suit or proceeding for an order or
injunction in circumstances arising out of a marital relationship.
6. Proceeding for declaration about the legitimacy of any person is accepted
by the Family Court.
7. The family court has the jurisdiction to suit or proceeding for
maintenance and in relation to the guardianship of the person or the custody
of, or access to any minor.
PROCEDURE:-
Section 9 of Family Courts Act, 1984, laid down the following procedures:-
1. Duty of Family courts to make efforts for settlement:- Every suit or
proceeding endeavour shall be made by the Family Court in the first
instance, with the nature of circumstances of the case to assist and persuade
the parties in arriving at a settlement and follow those rules framed by High
Court as deemed fit.
2. Family Court may Adjourn:-If any suit or proceeding at any stage seems
to be that there is a reasonable possibility of a settlement between the parties,
the Family Court may adjourn the proceedings for such period as it thinks fit
to enable attempts to be made to effect such a settlement.
3. The power to adjourn: - conferred by sub-sec.2 shall be in addition to
and not in derogation of any other Power of the Family Court to adjourn the
proceedings.
Procedure Generally
1. Sec.10 of Family Courts Act also provides subject to other provisions of
this act and the rules of provisions of the Code of Civil Procedure and of any
law for the time being in force shall apply to such proceedings under
criminal procedure code. Family Courts shall deem to be a civil court and
shall have all the powers of such court.
2.Provisions shall prevent a family Court from laying down its own
procedure with a view to arrive at a settlement in respect of the subject
matter of the suit or proceedings or at the truth of the facts alleged by the one
party and denied by the other. Under section 10(2).
3. Proceedings to be held in Camera:-In every suit or proceeding to which
this act applies, the proceedings may be held in camera if the Family Courts
so desires and shall be so held if either party so desires u/sec.11.
3. Assistant of Medical & welfare:-Under sec. 12 of the Act, every suit or
proceedings, it shall be open to family court to secure the services of a
medical expert or such person (preferable a woman where available) for the
purpose of assistance in discharging the functions imposed by this act.
4. Record of oral evidence:-In suits or proceedings before a family court it
shall not be necessary to record the evidence of witnesses at length but the
judge as the examination of each witness proceeds shall record or cause to be
recorded a memorandum shall be signed by the witness.

http://kuklawnotes.blogspot.in/p/family-law.html 22/31
26/04/2018 Law Notes (LL.B Notes): Family Law

OTHER SALIENT FEATURES OF FAMILY COURTS UNDER ACT,

1984:-
1.Act to have overriding effect:- One of the salient feature that the
provisions of this act that this act shall have the effect notwithstanding
anything inconsistent there with contained to any other law for the time
being in force or in any instrument having effected by virtue of any law other
than this act.
2. Power of High Courts to make rules: - sec.21 of this act provides High
court may make such rules may deem necessary by gazette notifications.
3. Power of Central Govt. To make rules: - Sec.22 provides that the central
govt. May with the concurrence of the Chief Justice of India make rules for
appointment of Judges by gazette notification.
4. Power of State Govt. To make rules:-Sec.23 of the act also provides that
the State Govt. By issue of gazette notification to make rules with the
consultation with High Court.
5 Preference shall be given to women.

13 Discuss the function of Social Welfare Agencies in settlement of

family disputes.
Introduction:-The State government shall in consultation with the High
Court to determine the number and categories of councillor, officers and
other employees required to assist the Family Court in discharge of its
function and provide the Family Court with such councillors, officer and
other employees as it may think fit.
Association of social welfare agencies:- The state government may with
the consultation the High Court, provide by rules for the association in such
a manners and for the purpose and subject to such conditions as may be
specified in the rules with a Family Court.
1. Institution or organisation engaged in Social Welfare or the
representative thereof:-Different Institutions or organisation who are
actively engaged with the society for the welfare of the Family and are
also helping the courts in settlement of the family disputes may also be
welcomed and to consider their counselling’s.
2. Persons working in the fields of social welfare of the Family:- Persons
working in the field of Social welfare and making their sincere efforts for
developing the mentality of the members of the society for the early and
better settlement of the family disputes may also be honoured by the
society so that they take more active part and interest in this field.
3. Any other people who association with a Family Court would enable
into exercise its jurisdiction mare effectively in accordance with the
purpose of the act.
4. Person professionally engaged in promoting the welfare of the
family:-Such persons who are professionally involves in promoting and

http://kuklawnotes.blogspot.in/p/family-law.html 23/31
26/04/2018 Law Notes (LL.B Notes): Family Law

doing efforts for the welfare of the families be encouraged by

appreciating their work by the government and must be rewarded.
5. Terms and conditions: The terms and conditions of the association of
the councillors and the services to be rendered by the officers and other
employees shall be such, as specified by rules made by government.
CONCLUSION:- On the nut- shell it is stated that the family courts have
been established for the speedy disposal of the cases related to family
disputes. These family courts have come into force on the date as the
government has notified the provisions in the govt. Gazette, by including the
persons working in the field of social welfare of the family. However in the
provisions it is also provided that any other person whose association with
family court would make the courts enables to exercise its jurisdiction more
effectively in accordance with the purpose of this act.

UNIT-IV
14 What are the essential conditions to solemnize the marriage under
Special Marriage Act, 1954? Discuss the consequences of Marriage
under this Act.
Introduction:-In Indian legislation enacted by the Parliament of India to
provide a special form of marriage for the people of India and all Indian
National in foreign countries irrespective of the religion or faith followed by
either party. The act originated from a piece of legislation proposed in 1872
was enacted, but later it was found inadequate for certain desired reforms
and Parliament enacted a new legislation.
The law legitimate the marriages for those willing to renounce their
profession of faith altogether. It is believed that the legislation encouraged
marriages based on lust which would inevitably lead to immorality. The
Special Marriage Act, 1954 replaced the old Act, l872.
DEFINITION: The Parliament of India to provide a special form of
marriage for the people of India and all Indian national in foreign countries,
irrespective of the religion or faith followed by either party.
Objectives:
1. To provided a special form of marriage in certain cases.
2. To provide for registration of certain marriage
3. To provide provision for divorce.
Applicability:
1. Any person irrespective of religion,Hindu, Budihist, Jains and Sikh can
also perform marriage under Special Marriage Act, 1954
2. The Muslim, Christian, Parsi or Jewish religions can also perform
marriage under the Special Marriage Act, 1954.
3. Inter-caste marriages are performed under this act
4. The act is applicable to the entire territory of India excluding the State of
J&K and extends to intending spouses who are both Indian nationals living
abroad.
Requirements
1. The marriage performed under SM Act is a civil contract and accordingly
there need be no rites or ceremonial requirements.

http://kuklawnotes.blogspot.in/p/family-law.html 24/31
26/04/2018 Law Notes (LL.B Notes): Family Law

2. The parties have to file a Notice of intended marriage in the specified form
to the marriage Registrar of the district in which at least one of the parties to
the marriage has resided for a period of not less than thirty days immediately.
Proceeding the date on which such notice is given.
3. After the expiration of thirty days from the date on which notice of an
intended marriage has been published the marriage may be solemnized
unless it has been objected to by any person.
4. The marriage may be solemnized at the specified marriage office.
5. Marriage is not binding on the parties unless each party states l. I take thee
_________to be my lawful wife/or husband, in the presence of the Marriage
Officer and three witnesses.
Conditions of marriage
1. The each party involved should have no other subsisting valid marriage in
other words each arty should be monogamous.
2. The bridegroom must be at least 21 years old and the bride must be at
least18 year’s ole.
3. The party should be competent in regards to their mental capacity to the
expedient that they are able to give valid consent for the marriage.
4. The parties should not fall within the degree of prohibited relationship.
Special Marriage Act, 1954 Hindu Law
Marriage solemnized is void if either of The marriage under Hindu law would not be
the parties to the marriage had not void though punishable under the Child
attained the requisite age. Marriage Restraint Act.

CONCLUSION:- In fact this act was introduced for the first time in 1872
and also was enacted too. After sometimes inadequate discrepancies were
noticed and it requires some reforms. The law sought to legitimate marriages
for those willing to renounce their profession of faith altogether means I do
not profess the Hindu, Christian, Jewish, etc. religion.
The Special Marriage Act replaced the old Act and new was enacted the
same during the year l954, which provides special form of marriage in
certain cases and registration of marriage as well as the provisions of
divorce.

http://kuklawnotes.blogspot.in/p/family-law.html 25/31
26/04/2018 Law Notes (LL.B Notes): Family Law

15 Discuss the cruelty as a ground of divorce under Special Marriage

Act, 1954. Discuss the consequences of marriage under this act.
Introduction:- Section 27 the Special Marriage Act 1954 provides for 12
grounds for divorce. One of them is cruelty. Sec.2 of the Dissolution of
Muslim Marriage Act 1939 provides for 8 grounds on which a woman
married under this act is entitled to obtain a decree for dissolution of her
mirage. One of them is cruelty.
Sec. 32 of the Parsi Marriage and Divorce Act, 1936 provides 11 grounds
for divorce. One of them is cruelty.
Sec. 13 of Hindu Marriage Act, 1955 provides for dissolution of a Hindu
Marriage by a decree of divorce on 13 grounds. One of them is cruelty.
It is matter of strange that none of these acts however define as to what
Cruelty is.
Definition: - The idea and meaning and the concept of cruelty changes from
time to time varies from place to place and differ from individual to
individual. It is not the same for persons situated in different economic
conditions and status.
Perhaps this is the reason why the legislature has not in any of the Acts
defined as to what cruelty is and has left it to the best judgement of the
judiciary to decide as to what amounts to cruelty to a particular person in a
particular set of circumstance.
Various judges have in numerous judgements defined as to what
amounts to cruelty but once again those definitions are not general but are
related to the facts of those particular cases.
The question of cruelty is to be judged on the totality of the
circumstances in order to term a conduct as cruel it should be so grace and
weighty that staying together becomes impossible. A conduct to be cruel
must be more serious than the ordinary wear and tear of marriage.
By cruelty we normally think a conduct behaviour an act of physical
violence the normal idea of cruelty in the common mans mind is assaulting
somebody however cruelty as a ground for matrimonial relief is just not
physical violence. Cruelty as a ground for divorce need not be physical only
it may be mental .And believes me mental cruelty is of a worse kind than
that of physical violence.
A wife’s conduct of:
1. Humiliating her husband in the presence of family members and friends.
2. Taunting her husband on his physical in capabilities.
3. Neglecting her husband and avoiding him not to share family problems.
4. Coldness and insults him openly.
5. Deliberately wearing clothes which her husband dislikes.
6. Purposely cooking food which her husband is not fond of.
7. Visiting her parent’s family off and on against her husband’s wishes.
8. Undergoing an abortion despite her husband asking her not to do so.
9. Keeping husband outside the door of house.
10. Refusing to do household work.
11. Threatening to commit suicide.

http://kuklawnotes.blogspot.in/p/family-law.html 26/31
26/04/2018 Law Notes (LL.B Notes): Family Law

12. Disobedience her husband and the parent of the husband.

All these are not acts of physical violence but yet it has an effect on the
husband’s mind and due to this the husband’s health suffers and therefore
these acts can be termed as cruel.

Husbands conduct of cruelty:-

1. Humiliating his wife, calling her frigid or cold fish making excessive
sexual demands.
2. Comparing her with the maid servant.
3. Touting her for not having any child or giving birth to female children.
4. Demanding dowry.
5. Asking her to bring money or articles from her parents.
6. Objecting to her visiting her parents insulting her relatives when they visit
her. 7. Deliberately removing all servants and making her do all household
work. 8. 8.Denying any medical treatment when she is ill.
9. The above are also the acts of mental cruelty by the husband upon his
wife.
10. In one of the cases the conduct of a wife abusing her husband and his
family members in her letters. In defamatory and derogatory language and
accusing her husband of infidelity was considered as cruelty afflicted was
considered as cruelty afflicted by her upon her husband.
In a decided case a Learned Judge of High Court held that the accusation
made by the husband in his written statement opposing the petition of his
wife and alleging there in without roving the same that his wife was leading
an adulterous life. Was cruelty afflicted by the husband upon the wife.
In order to find out whether a particular act is cruel or not one has to look
upon the effect which is caused by that act. If he effect is that by a particular
act harm has been caused o the body or mind of the other the said act is an
act of cruelty.
Indian people of whatever race and religion they may be and to whichever
class of society they may belong to are basically tolerant. Unless the
treatment received by a person from his or her spouse is extremely grave and
unbearable, it is not treated as a cruel conduct giving a ground for dissolution
of marriage. Still we do not have cases of divorce on the ground of husband
snoring at night or wife refusing to accompany husband to a party.
Conclusion: - The concept of cruelty changes from time to time varies from
place to place and differs from individual to individual. It is not the same for
persons situated in different economic conditions and status. The legislature
has also not in any of the Acts defined as to what cruelty is and has left it to
the best judgement of the judiciary.

16 What are the grounds of Judicial Separation under Muslim Law?

And Discuss about conjugal rights?
Introduction:- Marriage or Nikah in Muslim Law is a contract and needs
nothing in writing. There is only necessary is offer and acceptance made in
the presence and hearing of two male or female witness and recording the

http://kuklawnotes.blogspot.in/p/family-law.html 27/31
26/04/2018 Law Notes (LL.B Notes): Family Law

factum of the marriage in the concerned register maintain in every mosque.

Signed by the parties and attested by the witness.
Muslim Marriage Laws:- Under the Muslim Personal Law a suit has been
filed by the husband or wife on withdrawal from the society of other without
lawful ground.
Muslim law recognized two forms of divorce by mutual consent Khul
or Khula (Divorce at the request of wife) and Mubaraa or Mubaraat (by
agreement).
No provision so far enabling parties o the marriage parties to the
marriage to seek the remedy of Judicial Separation.
A Muslim wife may seek Judicial Separation on the following
grounds:-
i. Absence of the husband:- When a Muslim wife does not know where
about the husband for the last four years.
ii. Failure of husband to provide maintenance:- when a husband is
failed to provide maintenance to his wife from the last two year. Refer
case Fazal Mahmud v/s Ummatur Rahim, 1949 .
iii. Imprisonment of Husband:- When a husband has been sentenced of
imprisonment for seven years or more.
iv. Failure to perform to martial obligation:- When a husband is fail to
perform martial obligation in between the families.
v. Impotency of husband:- If the husband was impotent at the time of
marriage and continues to be so.
vi. Insanity, leprosy, venereal disease:- If the husband is has been insane
for a period of two years or suffering from Leprosy or venereal disease.
vii. Repudiation of marriage by wife:- If she having been given in
marriage by her father or other guardian before the attaining the age of
fifteen year, repudiated the marriage before 18 years and marriage is not
consummated. She is able to seek for Judicial Separation.
viii. Option of Puberty:- Option of puberty is the right of a minor boy or
girl whose marriage has been contracted through a guardian to repudiate
or confirm the marriage on attaining the age of puberty. Under this
obligation a boy or girl has the option of repudiating the marriage. In case
of any negligence of father or the guardian. Refer case Abhul Karim v/s
Amina Bai, 1935.
Cruelty of Husband:- Judicial Separation may also be claimed by the
Muslim wife if the husband treats her with cruelty.
Conclusion:- A Muslim women may file a suit of Judicial Separation in
courts of India on the basis of facts mention above under Muslim Law
which has been recognized by the Muslim Society. As per provision laid
down in Muslim law a husband after marriage become responsible to
maintain her wife and fulfil her reasonable requirement with in his
capacity but not on sake of his personal image.

10 Distinguish between Acknowledgment and Adoption.

Introduction:- Adoption differs materially from acknowledgment of
paternity. In adoption, the adoptee is the known son of another person while

http://kuklawnotes.blogspot.in/p/family-law.html 28/31
26/04/2018 Law Notes (LL.B Notes): Family Law

one of the essentials of acknowledgment is that the acknowledgee must not

be known son of another.
In Mohammedan Law the acknowledger is presumed to be the
lawful father of the acknowledgee. The acknowledgee is supposed to have
been born out of a lawful wedlock. Acknowledgment of paternity under
Muslim Law is the nearest approach to adoption, but the two processes of
filiations are quite different and their comparison will give a clear idea of the
subject:-

Adoption Acknowledgment

An adoptee is a son of another It proceeds on the basis of actual

person. paternity. If the son is proved to be
others acknowledgment is
ineffective.
It is established by a gift from the It is possible only when the
natural parents to the adoptive paternity of the child is not known
parents. and at the same time child is not
proved to be a child of another
person.
Parentage of the adoptive family is No such transplantation is possible
affiliated after renouncing the in acknowledgment.
natural family.
It has no connection between the It relates to the theory of actual
natural descent of the adoptee and descent of the acknowledgee by
the adoptive father. legitimate means.
The motive of adoption may be There is no such religious or
religious and spiritual. spiritual motive.

CONCLUSION:- The adoption is the transplantation of a son from the

family in which he is born into another family by gift made by his natural
parents to the adopting parents. Muslim Law does not recognize adoption.
In Acknowledgment the paternity of a child that is his legitimate descent
from his father cannot be proved by establishing a marriage between his
parents at the time of his conception of birth. Muslim Law recognizes
Acknowledgment.

11 comments:

Mohammed Ali Shaikh 23 May 2016 at 21:04

Really helpful notes.. Thank you so much
Reply

mortgagee 1 July 2016 at 20:36

super notes very helpful thank you very much
Reply

http://kuklawnotes.blogspot.in/p/family-law.html 29/31
26/04/2018 Law Notes (LL.B Notes): Family Law

Dave Kamil 12 September 2016 at 10:39

Useful note. . . Thank you so mucn
Reply

Dave Kamil 12 September 2016 at 10:41

Useful note. . . Thank you so mucn
Reply

Bhatia Saab 24 November 2016 at 23:52

Useful note .. thanks for help
Reply

DEXIN JOYAN MANACKAL 27 June 2017 at 23:49

thanks its very useful
Reply

DEXIN JOYAN MANACKAL 28 June 2017 at 00:07

thanks its very useful
Reply

Atta Ullah 6 November 2017 at 10:19

good efforts carry on...
Reply

RAW-ME 15 November 2017 at 23:00

Good notes , keep up the good work Kuklawnotes team
Reply

Unknown 16 December 2017 at 17:18

It's really useful n effective for exam purpose. Thanks for making these notes.
Reply

Fly High 16 April 2018 at 20:47

Will This Answer About Talaq Will Still be valid after teen talaq?
Reply

Enter your comment...

Comment as: PRAVEEN KUM Sign out

Publish Preview Notify me

http://kuklawnotes.blogspot.in/p/family-law.html 30/31
26/04/2018 Law Notes (LL.B Notes): Family Law

Home

Subscribe to: Posts (Atom)

Picture Window theme. Powered by Blogger.

http://kuklawnotes.blogspot.in/p/family-law.html 31/31