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Unit 2

Marriage Under Muslim Law

3.1 Capacity for marriage / Fasid and Batil marriage

3.2 Mehr (Dower)
3.3 Prohibition to Marriage
3.4 Iddat and its duration
3.5 Guardianship in marriage
3.6 Option of puberty
3.7 Muta marriage

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Muslim Marriage
Introduction: The laws in pre-Islam Arabia were patriarchal were in favour of
men. Just a few blood relationships, such as marriages to one's actual mother
or sister, had to account for polygamy. There were various types of marriages,
and divorce was simple and straightforward for men. Since men were still
considered dominant, women were denied basic rights. Women were regarded
as chattels, with no right of inheritance and were completely reliant on men.
Prophet Mohammad was responsible for a complete shift in women's status.
In the exercise of all legal powers and duties, Prophet Mohammad put a
woman on a nearly equal footing with men.
Before the advent of Islam , any Muslim could buy any number of women
according to his financial capacity. However after the advent of Islam, the
prophet ruled that such unethical custom should be dispensed with. In old days
there were plenty of war widows and they had to face many problems without
a husband. It was against this background that the Prophet permitted to have
four wives so that a man could undertake the responsibility to protect four
women at a time.
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Prophet Mohammed believed that one who marries fulfils half his duty as a
Muslim by the virtue of marrying to secure his chastity to defend the almighty
and his cause and to be free and one who marries will be blessed by the
almighty.
It should be noted here that Quran advocates and prefers monogamy though it
permits a Muslim to have four wives. Quran preaches that when a Muslim
marries two or more wives he would not be able to bestow equal love and
affection on all of them. Therefore it is better to have only one wife.

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Definition of Muslim Marriage:
Etymologically, the meaning of marriage according to the Mohammedan
dictionary is “the celebration of a marriage contract.
Marriage is enjoined upon every Muslim, celibacy is condemned by the
prophet”.
The Arabic word Nikah means "union of sexes“ or “sexual intercourse
agreement. Under Muslim rule, the word 'Nikah' is used to refer to a marriage.
The word Nikah means "to bind together.“ or “ tie up together”.
In the Hans Wehr Dictionary of Modern written Arabic , Nikah is defined as
“Marriage contract”.
Definition of Marriage (Nikah) is characterized as a contract between two
people for procreation and the legalization of children
The Nikah aimed to ensure marital stability by binding both partners for an
unspecified period and requiring the woman to be honored with the mahr
The arguments made in the legal aspect for a marriage to be a contract is
partially incorrect because according to the teachings of Islam, a man who
marries fulfils half the duties of his religion.
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A few Muslim Jurists however say that a Muslim marriage have both religious
and social dimensions. One of them is Chief Justice Suliman, according to the
him a Muslim marriage is not only a civil contract but also has social and
religious aspects. He compares a contract and a Muslim marriage and comes
to the conclusion that it cannot be a purely civil contract, for example a
Muslim can enter into ay number of contacts but he cannot enter into any
number of marriages. Further a Muslim can make contract with any person
including his own sister and mother, but he cannot make a contract of marriage
with such relatives.
In a civil contract consideration is a must and it should be demanded. But in a
Muslim marriage there is no consideration as such. The dower payable by the
husband to his wife is not a consideration. It is a mandate in Quran that certain
amount should be paid by the husband as a mark of respect to his wife. Hence
According to Suliman Muslim marriage cannot be a purely a civil contract.

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In order to justify that a Muslim marriage has social aspects, he says that the
marriage is a woman’s social status and dignity. She acquires a status of
equality with men. The same rights and obligation can be enforced by or
against her . The marriage controls and regulates indiscriminate licentious
life, so that she can enjoy peaceful life and dignified life in society.
In order to justly that a Muslim Marriage has religious dimensions as well, he
says that to remain without marriage is to disobey the words of God . By
marrying not only a Muslim obeys the command of God Allah but also pleases
him. Therefore every man and woman must marry. Through marriage a
Muslim obtains divine benefits.

With these reasons Suliman arrives at the conclusion that a muslim marriage
is not only a Civil contract but also a social and religious institution.

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Justice Mahmood said in the case of Abdul Kadir v. Salima ,1886, that,
Marriage among Mohammedans is not a sacrament, but purely a civil
contract.”
According to Asaf Ali Fyzee, a well known Islamic scholar, the Institution of
marriage has got thee aspects, legal social and religious.
1. Legal aspect: It legalizes sexual intercourse and procreation of children,
in its true legal sense, marriage is a contract.
2. Social aspect: it gives woman higher status and dignity in society
3. Religious aspect: It required for continuance of human race and
generations and it is obeying the mandate of God.
The classification of marriages under Muslim laws are:
1. Sahih Nikah (Valid Marriage)
2. Batil Nikah (Void Marriage)
3. Fasid Nikah (Irregular Marriage)
4. Muta Marriage.
I Valid Marriage: A valid marriage is one that fulfills all the essentials of a
lawful marriage.
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Essential of a valid Muslim Marriage(Sahih Nikah)
The essentials of Muslim Marriage are very much like a general contract like,
● Offer and Acceptance.( ijab and its acceptance, i.e. qabool)
● The parties are competent to enter into the contract.
● There should not be any legal disability. They are:
1. Capacity or competency to contract: for a Muslim marriage the first
essential is that both the boy and the girl should be competent to contract.
That means, the parties should fulfill three conditions, namely :
a) Both of them should be Muslims:
b) They should be of the age of majority;
c) They should posses sound mind;

a) Marriage with non Muslim is void under Shias law for both male and
female. but however under Sunni law , if a Male marries a Non Muslim girl ,
is she is Kitabia, that is who has holy book such as Christians or Jews, then the
marriage become valid. But if a Sunni marries a Non Kitabia, that is fire or
idol worshippers, then the marriage becomes irregular.
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1. The Age Majority for the purpose of Muslim Marriage is the age of
puberty. Puberty is the age at which a boy or a girl becomes competent
for sexual intercourse. According to Islam a boy attains the age of puberty
at the age of 12 years and a girl at the age of 9 years.
However in the case of Itkia Begaum v. Mohammed Ibrahim, the Judicial
committee of the Privy Council laid down the age of puberty of Majority is 15
years for both girl and the boy or it can be earlier, if puberty is earlier to 15
years. At this age , both the parties in a Muslim marriage can enter into a
contract of marriage independently and can give their consent and the consent
of the guardian is not necessary.
If the parties had not attained the age of puberty , then the consent of their
guardians is essential.
2. The parties should be of sound mind. Otherwise the guardian in marriage
should act on behalf of the person of unsound mind in arranging the
marriage contract.
3. The consent of the parties is required. If there is no consent, a
Mahommedan marriage that is of sound mind and has reached puberty is
void.
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2. Other formalities:
(i) Offer/ Ijab on the part of one: A marriage proposal should be made by or
on behalf of one of the parties to the marriage, It can be either in writing or it
can be oral too and Acceptance or Kabul on the part of the other. and the
proposal should be accepted by or on behalf of the other party.
The words conveying proposal and acceptance must be uttered in each other's
presence or in the presence of their agents. As held in the case of Ms. Zainaba
v. Abdul Rahman, 1945 . The words with which the marriage is contracted
must be clear and unambiguous
Both the proposal and the approval must be made at the same time . It should be
in the same meeting.
In Rashida Khatoon v. S.k. Islam, 2003, A man promised a lady to marry her
and cohabited with her. After some time a child was born and the women
claimed the status of wife. In this case court observed that a valid muslim
marriage requires the proposal of a party and acceptance of the other in front of
two male or one male and two female witnesses and the Qaji. And both the
proposal and acceptance of it shall be done in one meeting. In the present case
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there was no marriage thus the women does not constitute the status of validly
married women.
Hence,‘assurance to marry’ cannot be equated to an ‘acceptance’ to
marry so as to confer status of legal marriage under Muslim Law.
(ii) Witness for Muslim marriage: Two male or one male and two female
witnesses must be present and hearing during the marriage proposal and
approval, and they must be sane and adult Muslims. (In Shia Law, this isn't
necessary.) however absence of witnesses, can only render the marriage
irregular and not void.
Marriage registration is required in Muslims since a Muslim marriage is
considered a civil contract. “Every marriage contracted between Muslims after
the commencement of this Act shall be registered as hereinafter given, within
the commencement of this Act shall be registered as hereinafter given, within
thirty days from the end of the Nikah Ceremony,” according to Section 3 of the
Muslim Marriages Registration Act 1981. Nikahnama is a form of legal
document used in Muslim marriages that contains the marriage's basic
conditions and information.

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3. Legal disability- 4. Prohibited relationships:
It means the existence of certain circumstances under which a marriage will
not be permitted. These prohibitions are divided as follows;
a. Absolute incapacity
b. Relative incapacity
c. Prohibitory incapacity
d. Directory incapacity
(i) Absolute Prohibitions(Qurbat): The parties should not be within prohibited
degrees of relationship. On ground of blood relationship, that is
consanguinity, the following relationships are not suitable for marriage
and make the marriage void: these are called absolute prohibitions; for
example:
(a) Mother and son;
(b) Grandmother and grandson;
(c) Brother and sister;
(d) Uncle and niece; and
(e) Nephew and aunt
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Father and daughter or grandfather and grand daughter. Etc,.
(ii) On ground of affinity,( Mushaarat) the following relations connected
through marriage are prohibited for marriage:
(a) wife’s mother or grandmother;
(b) Wife of father or paternal ancestor;
(c) Wife of son or son’s son or daughter’s son .
(d) Step daughter or granddaughter
(e) Father in law
(f) Husbands brother etc.,
(iii) Fosterage(Riza) – child under the age of 2yrs had the breast milk of a
woman other than its own mother, the woman becomes the foster mother of
the child.
Hence fosterage also may give rise to prohibited degrees o relationship.
Thus a foster-mother would come under the ban as much as the mother
herself.
It is valid for Muslim Male to marry four women but a Muslim woman
cannot carry more than one husband. If a Muslim woman marries a second
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husband, she is liable for bigamy u/s 494 IPC and the issues of a such a
marriage are illegitimate.
Relative incapacity
It is the prohibition which bars the marriage only for the duration it exists and
as soon as the causes of this prohibition are removed the marriage becomes
valid.
The following are the cases of relative incapacity;
Unlawful conjunction
Marrying a fifth wife
Absence of proper witnesses
Differences of religion
Woman undergoing iddat
C. Prohibitive incapacity
It arises in following cases:
● Polyandry (a women has more than one husband)
● Muslim women marrying a non muslim.

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● D. Directory incapacity
● It arises from
● Marrying a women ‘enciente’ i.e, pregnant.
● Prohibition of divorce
● Marriage during pilgrimage
● Marriage with a sickman.

Consequences of A Valid Marriage:

Valid Marriage The term Sahih is an Urdu term for the words "right" or "true,"
and Nikah means "marriage," as previously mentioned. A Sahih Nikah, or
legitimate marriage, occurs when all of the basic requirements of a Muslim
marriage are met. It means that if two Muslim individuals (one a man and the
other a woman) enter into an arrangement by way of offer and acceptance, and
the groom has paid the bride's Mehr, the marriage is legitimate. The
consequences are:

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Effects of a valid Marriage The following are the legal consequences of a
legitimate (Sahih) marriage:
(1) The husband and wife's cohabitation is recognized as legal.
(2) Children born from a legal marriage are legitimate and have the right to
inherit their parents' assets.
(3) Inheritance rights are created for both the husband and the wife. That is,
after the husband's death, the wife is entitled to inherit the husband's property,
and after the wife's death, the husband is also entitled to inherit her property.
(4) A prohibited marriage relationship is established between the husband and
wife, and each of them is prohibited from marrying the other's relations under
prohibited degrees.
(5) The wife's right to dower is completely established only after the marriage
is completed. If the husband fails to pay the dower , the wife can refuse to
cohabit with him.
(6) With immediate effect, the marriage grants the wife the right to
maintenance from her husband.
But, according to Muslim law, the wife is not entitled to maintenance in the
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event of a divorce because it is assumed that the dower paid at the time of
marriage is adequate for her well-being. Nonetheless, the Supreme Court has
stated that the wife has the right to alimony and maintenance for herself and
her children after a legal marriage.
(7) During marriage each party becomes entailed to enforce against the other
parry conjugal rights and obligations.
(8) In case the husband wants to divorce his wife he can adopt any one of the
modes of divorce contemplated under Muslim Law.
(9) After the dissolution of the marriage, the widow or divorced wife is
required to observe the Iddat, during which time she is not permitted to
remarry.
(9) Under Muslim law, a woman's legal status is unaffected by marriage. Her
personality is distinct from her husband's. Even after marriage, a wife remains
a member of the same school of law of which she was a member before the
marriage. That is, if a Shia woman marries a Sunni, she retains her Shia status
and is subject to Shia law after the marriage.

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II Void Marriages:
Void Marriage An arrangement that is not legally enforceable is invalid A
void arrangement is one in which a prospective bride and groom do not fulfil
any of the requirements of a Muslim marriage, and any marriage that occurs in
furtherance of a void agreement is referred to as a void marriage or Batil
Nikah.
1. This marriage is null and void which comes under any one of the conditions
under absolute prohibitions. That is:
i. Prohibition of consanquinity;
ii. Prohibition of Affininty;
iii. Prohibition of fosterage;
2. When a man marries the wife of another man while the woman's marriage
is still going well.
3. Being married to more than four wives. In this case, the fifth and
subsequent marriages are null and void

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4. Marriage to a Non-Muslim under Shia law
5. In Tangela Bibi v. Bajrul Sheikh, the court ruled that a marriage with a
woman who is pregnant from a previous relationship is null and void
6. when a Muslim marries his own wife after Talak without observing the
prescribed formalities.
Consequences of void marriage:
A void marriage is not a marriage at all. It is is void-ab-initio, which means
that it is void from the very first day of the marriage, even though it is
consummated.
1. A void marriage does not give the parties any civil rights or bind them to
any legal obligations
2. The right to obtain maintenance after divorce is lost if the marriage is
found to be invalid.
3. If any children are born from a void union, they are considered illegitimate
and have no right of succession or inheritance
4. In the case of void marriages, the partners are not required to receive a
divorce decree. They will simply split up without having to go through any
legal procedure.
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7. Each party cannot inherit the property of other party
8. The wife is not entitled to claim dower.
9. The wife does not become obligated to observe iddat.
10. The cohabitation is illegal.

III Irregular marriage: Irregular marriage is recognized only in Sunni Law . It

is not recognized under Shia Law.
A marriage becomes irregular due to a lack of formality or the presence of an
impediment that can be overcome. This irregularity, however, is not permanent
and can be removed. As a result, marriage is not illegal in itself. Once the
irregularities are removed, they can be made legitimate. Marriage in such
cases, or with the restrictions that follow, is referred to as "Fasid." When a
marriage is temporarily forbidden but not necessarily limited, it is merely
irregular or fasid and not invalid, according to Ata Mohammed v. Saiqul Bibi.
There are many facets of irregular marriage, as well as different points of
view.

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An irregular marriage is generally voidable rather than void-ab-initio. If an
illegitimate marriage can be made legitimate by removing the irregularity, the
marriage becomes valid. So, if a Sunni Muslim man marries a Jewish woman
and converts her to Islam, the marriage is legitimate. The social and legal
consequences of an irregular marriage are determined by whether or not the
marriage was consummated

The following are the instances of irregular marriage. They are also called
Relative Prohibitions, which can be regularized later . they are:
1.When Muslim marries a non Muslim; A marriage between a Muslim and a
Christian or a Jew is the best example of an irregular marriage
2 When a Muslim marries a fifth wife.
3. When a Sunni Muslim marries without the presence of witnesses
4. When a Muslim marriage a woman who is under going Iddat period.
5. Unlawful Conjunction: under this prohibition, a Muslim cannot marry two
females who are related in such a way that if one of them was male he could
not have married the other female example : sisters.
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6. Marriage during pilgrimage: when a Muslim pilgrimaging, he is expected to
observe divine customs. During such period he cannot enter into a contract of
marriage.
The following are the ramification of irregular marriage:
1. The children are legitimate.
2. The children can inherit the properties.
3. Each party has no right to inherit the properties of each other.
4. Once the marriage is consummated, the wife has right to dower from the
husband . If it is not consummated no right of dower.
5. The wife is not bound by the iddat law, which prohibits remarriage within
three months of divorce if the marriage has not been consummated.
6. During the three-month iddat period, the wife has no right to maintenance
from the husband.

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4. Muta Marriage
Muta marriage is practised only by Ithna Asharies of Shias and not by any
other subsects. The word ‘Muta’ means pleasure or enjoyment . Muta
marriage means marriage contracted only for the purpose of enjoyment.
When three is a temporary union of a male Ithna –Asharia with a Muslim
female . There is Muta marriage. Muta marriage is declared as lawful by the
Prophet.
At the initial stages of Islam the Muslim males used to go for places for
business or wars. They used to live with prostitutes in order to fulfil their
sexual desires. In order to avoid such a bad practices, prophet permitted the
Muta marriages so that the children born out of the marriage can have
legitimacy.
But in course of time , the rich and unscrupulous Muslims Sheikhs took
advantage of the system , therefore Prophet issued a mandate abolishing the
Muta marriage. However till today the Ithna –Asharias continued this
practise and the Mohammedan law has given sanction to this practice.

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A female Shia is not free to contract muta with a non-Muslim.This practice is
almost obsolete in India.
Most of the Arabian countries such as Abu Dhabi, Dubai, etc. have Shia
sects of Muslims.

Definition: Muta marriage is a temporary marriage between a Shia Muslim

man and a woman of Islam, Jew or Christian religion for a fixed period of
time and in return of the payment of a fixed amount of dower at the time of
divorce. The time period and the dower must be informed and accepted by the
bride as well. This marriage is not followed in Sunni Muslims which consider
marriage to be a permanent union and not a temporary one.
however the practice and institution of Muta marriage is completely obsolete
in India .

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Essentials of Muta marriage

1.The parties must have attained the age of Puberty. If one of the parties are
below the age of puberty , then the guardians cannot contract the Muta
marriage.
2. They must be of sound mind.
3. There must be free consent of parties.
4. They shall not be within prohibited degrees of relationships.
5. There must a valid offer and acceptance.
6. Witnesses are not required as in the case of Nikaah
7. The term for which the contract is to last should be clearly mentioned at
the time when Muta is contracted. If the term is not fixed , then it will be
treated as Nikah.
8. The dower should be specified in the contract. If dower is not specified the
contract is void.
9.Shia woman should not have Muta marriage contract with a non-Muslim.
Where as Shia Muslim man is allowed.
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The rule is that in the absence of specified term or period, the marriage will be
deemed to be a Nikaah, wa applied in the famous case;
Rajamma vs. Husssain.
In this case one Habibhulla entered into a contract of Muta marriage with
Rajamma a Harijan converted to Muslim religion. On the death of Habibhulla,
Rajamma claimed the properties of her husband. However Hussain , the
Habibhulla’s brother filed a suit contending Rajamma’s right to inherit
Habibulla’s properties. He disputed before the court that the marriage between
Habibulla and Rajamma was a Muta Marriage. Some of the witnesses also
deposed before the court that they have witnessed the marriage. The term
for which the marriage had been contracted was not specified. Under these
circumstances the court ruled that the marriage was Nikaah and Rajamma had
the right to inheri her husband’s properties.

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The Legal aspects of Muta Marriage:
1. The cohabitation between the spouses is lawful
2. Children born out of such marriage are legitimate
3.Children have mutual right of inheritance from both the parents
5. The spouses have no mutual right of inheritance
6. Divorce is not recognized in Muta Marriage
7.The wife is not entitled to maintenance , for she is not regarded as
dependent. But she entitled to maintenance under Cr.p.c.
8. In case the marriage gets dissolved before the stipulated time period by
the wife walking out of the marriage then the wife will be only entitled to the
dower amount for the period which she has stayed.
9. In case the husband dissolves the marriage before the stipulated period
then the husband would make the gift of the unexpired period to the wife
known as Hiba-I -Muddat .
10. The marriage is dissolved by the expiry of time bound.

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11. A man may contract Muta with any number of women.
12. A Muta marriage cannot be contracted with a Hindu girl, permissible
with a Christian
13. women cannot enter into more than one Muta marriage at a time.
14. The wife is entitled to claim half of the dower if there is no
consummation. After consummation, the wife can claim full dower.

15. Where consummation has not taken place, the wife need not observe any
Iddat. If the Мutа-marriage terminates after consummation, the wife is
required to undergo an Iddat of two monthly courses. But, where the marriage
dissolves due to death of the husband, the Muta-wife is required to observe an
Iddat of four months ten days. Where the Мutа-wife is pregnant, the period of
Iddat extends till delivery of the child.

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Option of Puberty
the expression ‘Option of Puberty’ means exercising by a boy or a girl his or
her option to confirm or repudiated the marriage on attaining the age of
Puberty. In Muslim law if the parties for marriage are minors their guardians
can enter into contract of marriage on behalf of the minors. The contract so
made by the guardians will obligate the minors . However if the boy or girl
on attaining the age of puberty is of the opinion that such a marriage is not
beneficial , he or she has the right to exercise the option of puberty. In other
words, he or she can repudiate the contract of marriage. So far as the boys
right is concerned it should be noted that the option could be exercised by him
only in respect of a marriage entered into by guardians other than the father or
paternal grand father. If the marriage is contracted by father or paternal
grand father, the boy has no right to repudiate the marriage in exercise of the
option of puberty. This is a general principle . However when the boy
proves that the father or the paternal grand father ha acted fraudulently or
negligently, the court have held that the boy can repudiate the marriage as
held in the case of Aziz Banu v. Mohammed Ibrahim.
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A wife can exercise option of puberty even if her marriage was contracted by
her father or grandfather. Before 1939, a Muslim wife was not entitled to
exercise option of puberty if the marriage was contracted by father or
grandfather. But the Dissolution of Muslim Marriage Act, 1939, has now
modified the law in regard to the ‘option of puberty’ by a wife.
Section 2(vii) of this Act provides that a Muslim wife is entitled to obtain a
decree for the dissolution of her marriage on the ground that her marriage was
contracted by her father or any other guardian during her minority (i.e. when
she was under the age of 15years). At present, a Muslim wife has an absolute
right of the option of puberty and she can repudiate her marriage even if it
was contracted by her father or grandfather
The option must be exercised by a wife immediately after the attainment of
puberty. If there is an unreasonable delay in the exercise of the option, her
right is lost. However, under Section 2(vii) of the Dissolution of Muslim
Marriage Act, 1939 a Muslim wife has aright to exercise this option till she
attains the age of eighteen years, if she fails to exercise the right after
attaining the age of eighteen years, it may be considered as unreasonable
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delay . The girl should exercise these right within a reasonable time.
When either of the parties performs certain acts , it is understood to be
implied consent for the marriage. For instance: sexual intercourse before
the exercise of option of puberty or payment of dower by the husband to
wife or living together for reasonably long period can be taken as implied
consent for the marriage.
Repudiation of marriage per se does not amount to dissolution of marriage.
Such repudiation should be confirmed by a court of competent jurisdiction.
Until the order of confirmation is passed, the marriage continues to exist.
On the death of either part the other party can inherit the property of
deceased party. In the case of Shia Muslims, option of puberty is
compulsion. If option of puberty is not exercised, the marriage is deemed to
be dissolved.
In Sunnis the exercise of option of puberty is not compulsory, if it is not
exercised the marriage is deemed to be ratified.
However, marriage before the age of 7 even if contracted by a lawful
guardian, is void ab initio.
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Iddat
Introduction: When a marriage is dissolved by death or divorce, the wife
should not remarry for a specific period. This period is called as Iddat. The
restraint is imposed for ascertaining whether she is already pregnant. If the
woman is subject to menstruation iddat lasts for three cycles. Otherwise it
lasts for three lunar months. If the woman is pregnant , iddat lasts till
delivery. If the marriage is dissolved by the divorce before consummation,
iddat need not be observed. After divorce maintenance may be claimed by the
wife during the period of Iddat. The death of the husband puts an end his duty
to maintain the wife , hence a widow cannot claim maintenance even during
the period of Iddat.
Woman undergoing Iddat– it is a period during which a woman is prohibited
from marrying again after the dissolution of her first marriage.

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Essentials requirements of Iddat:
The reason behind observing Iddat is to ascertain the pregnancy of the wife
hence the clearly the paternity can be identified. If she marries immediately
then there will some confusio , if she conceives.
According to Sunni law , marriage during Iddat period is irregular but not
void, but under Shia law it is void.
Iddat to be maintained by a widow is 4 months and 10 day during this period
she is prohibited from marrying before the expiration of 4months and 10 days.
In case of Iddat of pregnant woman , the iddat will last till the delivery of the
child or miscarriage.
Iddat when marriage is irregular –if the parties have separated before actual
consummation of marriage then there is no need to observe Iddat.
The period of iddat begins from the date of divorce but not from the date on
which the woman gets the information of the divorce /death of the husband.

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If husband had divorced his wife and has died before the completion of iddat,
the woman is required to undergo a fresh iddat for 4 months and 10 days from
the date of the husband’s death.
Consequences of Iddat
Wife is not suppose to marry another person until completion of her iddat and
the wife is entitled for deferred dower, if prompt dower has not been paid, it
becomes immediately payable. In the instance of death of either party
before the expiration of the period of iddat the other is entitled to inherit from
him as the case may be if the divorce has not become irrevocable before the
death of deceased.
Husband is bound to maintain the wife during the period of iddat.

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Guardianship in Marriage under Muslim Laws
Guardianship of a minor refers to the overall supervision of the minor’s
personality.
Who is a minor in Muslim personal law?
A minor is an individual who has not attained the age of majority as
mentioned in the (Indian) Majority Act, 1875. Except in the matters of
marriage, divorce and Mehr, the Muslim community is governed by the rules
of majority as defined in the 1875 Act.
According to customary laws, fifteen years of age is the age of majority
relating to marriage, divorce and mehr. Thus, while fifteen years is the age of
majority in general, in the context of guardianship of a person and property, a
minor Muslim will be governed by the 1875 Act which states 18 years of age
as the age of majority for all persons.
What are the categories of guardianship in Muslim personal law?
There are three major types of guardianship, and they are
Guardianship in marriage of a minor (Wilayat-ulnikah)
Guardianship of property of a minor (Wilayat)
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II. Guardianship of Minor in Marriage and Person
Guardianship in marriage (Jabar)
Under this form of guardianship, the father as an empowered guardian or
‘wali’ may contract marriage on the behalf of his minors. The power of
imposition of marriage by the wali is known as ‘jabar. Apart from the father,
the role of wali may even be assumed by the grandfather, mother, maternal
relatives, full brother and other male relatives.
The Qazi or Court may also assume this role. A person who has renounced
Islam cannot be a guardian of a minor Muslim girl for marriage.
Guardianship of person (Hizanat)
Just as modern systems of law place the best interests of the child at the centre
of guardianship in any form, the central principle of hizanat in Muslim law is
the welfare of the minor.
It is for this reason that Shariat has always preferred the mother to the father
in the case of guardianship of minor children in their tender years. If
the hazina (the person who performs the function of hizanat) is cruel or
neglectful towards the minor then she likely forfeits her right of hizanat
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Interestingly, however, the lack of funds does not mean that the hazina loses
her right of hizanat, if the hazina has no funds to maintain the child, then it
shall be the responsibility of the father to provide for the hazina with a house
and relevant financial support which is essential for the maintenance of the
minor. Thus, poverty of the hazina is no ground for depriving her from
custody. In case the child has property, then, the hazina may provide
maintenance out of that property for the benefit of the minor.
What is remarkable about the Muslim law of hizanat is that every other
consideration is subordinated to the welfare of the child. A woman who is
unworthy of credit may still retain the custody of child, if the welfare of the
child so requires. This means that every misconduct which otherwise
disentitle a hazina from the custody of the child is tested on the touchstone of
welfare of the child. Thus, no misconduct is absolute, and what amounts to
misconduct will vary from case to case.

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Dower
A Muslim marriage is said to be purely a civil contract . A civil contract
should always should be supported by consideration.
Therefore some Muslim jurist declared that dower is the consideration for
Muslim marriage.
Others are of the view that the money or property payable by the bride
groom to the bride is a mark of respect to the wife .
Few people view it as a the money or the property payable by the husband
to the wife by way of fund can be sued by the wife to maintain herself in
cases of crisis. The concept of dower had its origin in the initial stages of
Islam .
In those days there were two types of marriages :
1. Baal marriage: In case of the Baal marriage , the bridegroom
approaches the guardians of bride and pays certain sum of money as the
price for the bride . The bride was considered to be the property of the
bridegroom.

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2. Beena Marriage: In case of Beena marriages, the bride groom will
directly approach the bride and pays certain sum of money to the bride.
In turn the bride will agree to live with him.
However after the advent of Islam , the Prophet having decided to dispense
with such system declared that both the types of marriages were abolished and
only Nikaah was recognized. In such marriages the prophet declared that the
bridegroom should pay certain sum of money or property to the bride as a
mark of respect to her .
Definitions: Dower is certain sum of money payable or property to be
delivered by the husband to the wife.
Mulla in his book “ Principles of Mohammed Law” defines Dower as a
certain sum of money payable to the wife by the husband as a consideration
for the marriage.
Justice Mohammed in the case of Abdul Kadir v. Salima defines dower in the
following words:
1. Dower is a certain sum of money payable to the wife or certain property to
be delivered to the wife by the husband as consideration for the marriage and
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Where the dower is not expressly fixed by the parties, the law confers a right
on the wife to claim the dower as an effect of marriage”.
Abdul Rahim in his book Muslim Jurisprudence differs from Mulla and
Mohammed and declares that dower is certain sum of money or certain
property to be paid or delivered by the husband to the wife as a mark of
respect for the wife.
In Shah Bano’s case,1985 SC – Jus. Chandrachud observed that Mahr was not
a consideration for marriage but an obligation imposed upon the husband as a
mark of respect for his wife and was therefore not a sum payable on divorce.

When we consider the above definitions we notice that the concept of dower
has one common factor and that is, the husband should pay certain sum of
money or deliver certain property to the wife.
Lord Parker of Waddington in the famous case of Hameera bibi kv. Zubaida
Bibi, has made certain remarks about the concept of dower which are in use
even to this day. He says that the dower is so essential for a Muslim marriage
that there can be no marriage at all without dower . The parties may not agree
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upon the dower or specify the quantum of dower at the time of the contract of
marriage. But nevertheless, the dower is an integral part of the marriage. The
right of dower is conferred on the wife has so much of significance that the
wife can go to the extend of disassociating herself with the husband . The
dower must be paid by the husband before they enter into conjugal domicile.
The Muslim does not specify the maximum quantum of dower,
the minimum is specified as 10 dirhams . Each dirham is equal to twenty five
paisa. There are certain circumstances in which the Prophet allows the
marriage to take place without any monetary dower being paid but the
husband was asked by the prophet to teach the Quran to his wife in lieu of
dower.

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Types of Dowers:
1. Muta Dower: Muta marriage is for a specific period of time. This
marriage if not consummated then the woman is authorized to take only half
the dower.
And if otherwise, meaning if the marriage has been consummated between
the husband and the wife, then the wife is entitled to the entire dower payable
by the man. However, under circumstances, if the wife leaves the marriage
before the duration or limitation of the marriage then the woman shall not be
entitled to the dower or ‘Mehr’.
I Specified dower
Specified Dower is that which is agreed upon by both the parties about
specific amount of sum of money or property as decided between the parties
of the marriage. Hence, it is the duty of the husband to clear the dower
before the marriage is consummated. The dower is specifically divided into
two modes of payment, prompt payment and deferred payment.
(a) Prompt dower:
In a prompt dower as the name suggests need to be paid promptly. This
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means the husband is liable to pay the dower as soon as the demand for it is
made.
The prompt dower is usually paid just before the marriage or as soon as the
marriage is over. This dower is required to be paid before the consummation
of marriage is made. Hence it can be said that the man has the right to
restitution of conjugal right only after the payment of the dower is carried out.
Therefore, it would not be wrong to infer that the dower is a pre-condition to
the right to conjugal rights.

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(b) Deferred dower
This is also called Muwjjal. Deferred dower is that which is payable by the
husband either on death or on the dissolution of marriage or on the happening
of any future event agreed between the husband and wife.
Generally the parties fix the specified dower at the time of marriage and
divide it into prompt dower and deferred dower.
And the woman is also entitled to the right to lien over the property under
circumstances where the legal heirs have failed to give the dower. Hence,
when there is non-payment of dower on behalf of the legal heirs of the
deceased.
Under a circumstance where the marriage has not been consummated between
the couple. The woman or the wife is entitled to only receive half the dower.
On the other hand, if the marriage is consummated she has the right to receive
the entire amount of dower. The dower should be fully paid as soon as
possible.

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II Unspecified dower : unspecified dower is that which is not agreed upon
between the parties, in such a event the quantum of dower payable has got to
be fixed or settled by the parties . It is also called as proper dower. Proper
dower, as the name, suggests that when the parties to a marriage, the husband
and the wife have not pre-decided the amount or the sum of dower payable to
the wife then, the woman or the wife can decide upon her own reasons the
dower to be paid which would be proper.
In other words, It is also believed that even if the parties had decided that no
dower shall be paid to the wife, later she can decide what shall be the proper
dower to be payable to her. It also needs to be asserted that proper dower is
not decided on the basis of the earnings or the ability of the husband.
While fixing the quantum of dower several facts are taken into
consideration such as social status of the wife’s family, the quantum of dower
fixed for sisters of the wife, the personal qualification of the wife and the
status, virtue and beauty of the wife and so on. The husband’s status and his
capacity to pay the dower is never considered.

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The right to claim the dower once vested in the hands of the wife is never
divested even if the wife is guilty of adultery , renunciation of Islam or even
divorcing or committing suicide or even murdering the husband. The
Dissolution of Muslim Marriage Act 1939, declares that even if the marriage
is dissolved by the wife , her right to claim dower is not taken away.
When the husband defaults in paying the doer, the wife’s right is similar to
that of a creditor. If the wife so desires she may give up the right of the dower
or reduce the quantum of dower or the husband may increase the dower
subsequently by special arrangement. If the wife desires to exercise her right
of dower the husband is bound to pay. If the husband dies , his legal
representatives are bound to pay. The wife becomes the creditor of the
husband but no preference will be given to her over other creditors of the
husband. She will be an unsecured creditor. However if she has acquired the
possession of any property with the consent of the husband , she has the right
to withhold it till the dower is cleared.

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Means of the enforcement of Dower:
The right of dower conferred on the wife is most important in the institution
of Muslim marriage. The law has provided the means for enforcement of that
right. The means of enforcement of right are so effective that the husband can
never escape from the liability of paying the dower.
Following are the means provided;
1.Right to refuse cohabitations with the husband: the wife has the right to
refuse her society with the husband unless the dower is cleared. If the
marriage is consummated the wife can refuse to live with him. If the
marriage is not consummated, the wife can refuse to have the physical
relationship with the husband, till the dower is paid. It should be noted that if
the marriage is consummated the right of the wife to refuse to live with him
cannot be effectively exercised. But the courts have held that the wife can
refuse to live with the husband.
Abdul kadir v. salima 1886, wife can refuse to cohabit for non-payment of
dower, is a complete defence to the husband’s restitution of conjugal rights
and the suit will be dismissed.

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In the case of Anis Begum v. Mohammed Istafa Wali Khan, Istafa, has to pay
Rs. 15,000 as prompt and immediate Dower. the couple had a daughter , the
Mohammed defaulted in paying the prompt dower. The wife went to her
parents house and refused to come and live with Mohammed. The husband
Istafa filed a lawsuit for conjugal rights compensation.
The court pointed out principle that if the marriage is consummated the wife
cannot refuse to live with the husband but the courts have discretion in such
matters to direct the husband to clear the dower.
In this case, Sulaiman, C.J. held that a husband had no absolute right to
unconditionally assert conjugal rights. The courts can make the restitution
decree dependent on payment of the Prompt Dower unpaid to their wife even
though they already have a marriage. The order for restitution of the conjugal
right pronounced by the court subject to precondition of he paying the
prompt dower of Rs. 15000.
Hence , Where a marriage has been consummated, by refusing marital rights
to a husband, the wife cannot enforce her claims. In this case, the wife will
recover her unpaid dower via court proceedings.

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2. Right to enforce the dower as a debt: when the husband defaults to pay the
dower the wife becomes a creditor to him. She can file a suit against the
husband and recover the dower. This right can be enforced against then
husband during his lifetime or after his death. His legal representatives are
liable to discharge the dower. But the legal representatives have no personal
liabilities.
They are liable only to the extent of their share in their father’s estate.
Supposing there are 3 legal representatives, these person’s share is 1/3rd share.
Each legal representative is liable to clear his share of dower only to the
extent of 1/3rd share. In case the wife dies her legal representatives can file a
suit against the husband or his legal representatives to recover the debt.
3. Right to retain the possession of husband property:
This is another means provided by law to enforce the women’s right to
recover the dower. If the wife has obtained the possession of husband’s
property with his consent for non payment of dower, she can retain the
possession till the dower is cleared.

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Sometimes certain property may have been delivered by the husband to the
wife for using the profits arising out of the property and to adjust such benefits
towards the dower due from the husband. In such case the wife has to
redeliver the property to husband, if the dower is discharged by the benefits
arising out of such property.
The right to retain the property cannot be transferred to any other person. It is
a personal right and non-transferable. Further the wife cannot sell the property
to any other person for the recover of unpaid dower. The wife is only entitled
to the possession of the property. She cannot become the owner of the
property. If she sells the property, the transferee will not get any title to the
property.
This right of retention is a heritable right, on her death her legal representatives
can inherit the property and refuse to deliver the property till the dower is
cleared.
Mainabibi v. Chowdari Vakil Ahmed, in this case one Muinuddin and
Mainabibi, were lawfully married as husband and wife. Upon the death of
Muinuddin, Mainabibi retained certain movable property of her deceased
husband in lieu of her unpaid dower. No payment of her dower was made by
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the legal heirs of the husband. She gave possession to the donees. When the
case came up before the Privy Councl , it held that the wife’s right is only to
retain the possession and she cannot transfer the property and the gift in this
case was held to be void.
Tahirin Nissa v.Nawab Hasan, in this case, a widow has lawfully retained
certain properties of her deceased husband inlieu of unpaid dower. The widow
died during retention, leaving her daughter as her only legal heir. Held by the
court that daughter was entitled to inherit the possession of those properties
until her deceased mother's dower debt was paid by other legal heirs . That
means this right is a heritable right but is, till the dower is cleared.
This right is subject to the limitation that is, if the wife wants to recover the
dower she must file a suit within the period of limitation as prescribed by the
Indian Limitation Act 1963. and it is three years.
Anjum Hassa Siddiqui v. Salma Bi 1992, Application by the divorced
woman for sum of dower under section, 3 of Muslim Women Act can lie only
before Magistrate concerned, and family court is not competent to deal for the
want of jurisdiction.
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