ABOUT:-
Muslim Laws applies on Muslim persons, they are those who believes in Islam religion and according to them, there is only one God Allah and the Muslim law is preferred open AL-QURAN which is believed by the Muslims to have exist from eternity and the essence of god. According to them, It is the one who shows the path of truth, and taught us about what is right and what is wrong.
Muslim is the one who believes in the Mission of Mohammad as Prophet and the one who believes in a number of other essential belief in Mohammad. Man can be Muslim by birth or by conversion.
INTRODUCTION: –
From the view point of application of branch of law, laws may be either Territorial or personal.
Territorial law is the branch of law which is applicable to persons of all communities that are living in that territory. For ex. Indian Contract Act, Civil Procedural code. While personal law is that branch of civil law which applies upon the persons of particular religion community. Ex. Hindu law applies on Hindu; Mohammedan law applies on Muslim.
HISTORY OF MUSLIM LAW:-
Muslim law which is also known as Sharia, It was all started in 7th Century in Arabia. It was mainly based on the Quran and the teachings of the prophet Mohammad as after the Islam world begins to grow, this leads to various questions that were not mentioned in the texts , to solve this, Islamic jurisprudence and logic to build a fair legal system. This leads to the creation of different schools like Hanafi, Maliki (Sunni) and Ithna, Ismailis, Zaidis (Shia) schools, After their interpretation of rules, it ultimately led to the formation of Muslim law, Nowadays , Most Muslim majority countries use traditional Muslim law for family matters like Marriage, Divorce and Maintenance rights.
MARRIAGE-
In Muslim law, Marriage called Nikah, is viewed as legal and social contract rather than a religious sacrament. Just like contract, It’s main goals are to bring a couple together legally. Just like contracts, it also has same essentials for a valid marriage .
- Essential of valid marriage in Muslim Law:
- The Proposal and Acceptance- For Valid Marriage, the one side must prepare proposal (Ijab) and other side accept (Qabul).
- Both parties should give their consent, consent should be free.
- Mahr- This is termed as Marriage gift in which groom must give or promise to give a specific amount of money to bride. Therefore under the Muslim law , marriage is a contract.
which generally means the existence of certain circumstances under which the Marriage is not permitted. The restriction can be divided into two parts-
a). Absolute prohibition in which absolute incapacity arises from,
* Consaguinity(Qurabat)
* Affinity (Mushaarat)
* Fosterage (Riza)
b). Relative prohibition are those prohibitions in the compliance of which is not mandatory but their persons is deemed to be unjust.
KINDS OF MARRIAGE-
Marriage under Muslim Law is of these kinds-
- Valid (Shahi)
- Void (Batil)
- Irregular (Fasid)
1. Valid (Shahi) Marriage- Marriage is neither Void or irregular is valid. Marriage which confronts in all respects with the legal requirements is a valid marriage
2. Void (Batil)- Void Marriage is an unlawful connection which creates no mutual rights and obligation between the parties.
3. Irregular (Fasid)- Irregular Marriage is recognized only under the Sunni law. This irregular marriage is an incomplete Marriage. If there is an illegality in marriage then it is termed as irregular.
- MUTA MARRIAGE- It may be defined as Temporary union of male and female for specified duration or payment on consideration.
DISSOLUTION OF MARRIAGE–
In Muslim law as we know marriage is treated as contract, it can also be dissolved as a contract. The basis of divorce in Islamic law is the inability of the spouses to live together, where a marriage Terminates by the act of the parties , this dissolution is called Divorce.
#MODES OF DIVORCE-
There are various modes and practices of divorce under Muslim law.
- Divorce by Husband-
a). Talaq-ul-Sunnat -: It is regarded as to approved form of talaq . it is based on the possibility of compromise and reconciliation between husband and wife. There are two forms of Talaq-ul-Sunnat.
b). Talaq-e- Ahsaan- In this the husband must pronounce the divorce in single statement and pronouncement must be in a state of purity that is Tuhr when women is free from her menstrual cycle and pronouncement made in the ahsaan form is revocable during Iddat period.
c).Talaq-e-Hasan- It is also regarded to the approved form of Talaq. In this , The husband has to make a single declaration of talaq in a period of tuhr , there is another single pronouncement for second time. It is also provided that first and second pronouncement may be revoked by the husband.
d). Talaq-e-Biddat- In order to escape from the strictness of laws, this is a sinful form of talaq. In this , Three pronouncement made in a single tuhr talaq, talaq, talaq. This clearly indicates an intention to dissolves a marriage and make it irrevocable.
Case – Shayara Bano. V Union of India & ors (2017)
In this case, Sc Declared that the practice of Triple talaq is unconstitutional and as this form is violative of fundamental right of Article 14.
- Divorce by Wife-
a). Talaq-e- Tafweez- In this, Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may transfer the power absolutely or conditionally.
b). Dissolution of Muslim Marriage Act 1937-
In this Muslim Marriage Act, section 2 provides that women married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on the grounds provided in this act.
- Absence of Husband
- Failure to Maintain
- Failure to perform Marital Obligations.
- False charge of Adultery
- Cruelty of husband
3. Mutual Consent-
In this process, the divorce procedure occur through mutual consent-
a). Khula- In this, wife want divorce from her husband so she send proposal of divorce to her husband and her husband accept the offer and divorce occur through mutual consent.
b). Mubarat- In this, both parties mutually decided to separate from each other.
MAINTENANCE RIGHTS-
When a Marriage is dissolved, the Muslim Women (Protection of rights on divorce) Act 1986, tells us her about their maintenance Right.
Under Section 3(1)(a)- it stated that a divorced Muslim Women is entitled to a reasonable and for maintenance to be made and paid to her within Iddat period.
Case- Danial Latifi vs. Union of India (2001)
The Court ruled that “within Iddat” means that the husband arrange the money during 3 months but the amount must be large enough to take care of her entire life/until she marry.
Section 3(1)(c) – Payment of Mahr-
The Husband must return or pay any unpaid mar immediately upon Divorce.
Section-3(1)(b)- Maintenance Rights for Children-
If a Divorced women is looking after the children, the ex-husband must pay attendance of those children for a period of 2 years.
Case- Mohd. Ahmed khan V Shah Bano (1985)
In this Case, Court held that a divorced Muslim women is entitled to claim maintenance under section.144 BNSS, If she cannot maintain herself.
CONCLUSION: –
Muslim Law is one of the Personal Law in India, which regulates the personal and family matters of Muslim which includes marriage, divorce, maintenance. It is made up of Quran and other Islamic sources. It treats marriage as a civil contract and provides legal mechanisms for its dissolution while protecting the rights of both spouses. Judicial decisions and legislative reforms, particularly in cases such as Shayara Bano, Shah Bano, and Danial Latifi, have strengthened the rights of Muslim women and promoted constitutional values of equality, dignity, and justice. Thus, Muslim Law continues to evolve by balancing religious principles with the demands of modern society.
