Key Bullet Points – Mohammedan Law

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Sources of Muslim Law

  • Primary Sources: Quran, Sunna (Hadith), Ijma (Consensus), Qiyas (Analogy).

  • Secondary Sources: Custom, Judicial Precedents, Legislation (e.g., Shariat Act 1937).

  • Shariat Act, 1937: Overrides custom; applies personal law to matters like marriage, divorce, maintenance, inheritance, gifts, etc.

Schools of Law

  • Sunni School: Majority in India; major sub-sects: Hanafi, Maliki, Shafei, Hanbali.

  • Shia School: Sub-sects: Ithna Ashari, Ismaili, Zaidi.

  • Key difference: Shias believe in Imamate (leadership by Prophet’s family), Sunnis in Caliphate (election-based leadership).

Marriage (Nikah)

  • Contractual nature: Not a sacrament but a civil contract.

  • Essentials: Proposal, acceptance, witnesses.

  • Capacity: Puberty (15 for boys, 9 for girls); Option of puberty to repudiate marriage.

  • Disabilities: Prohibited degrees of blood, affinity, fosterage; polygamy limit is four wives.

  • Classification: Valid (Sahih), Void (Batil), Irregular (Fasid).

  • Muta Marriage (Temporary Marriage): Valid only among certain Shia sects.

Dower (Mehar)

  • Essential in Muslim marriage.

  • Types: Prompt (payable on demand) and Deferred (payable on dissolution).

  • Widow's Right to Retention till payment.

Divorce (Talaq)

  • By husband: Talaq, Ila, Zihar.

  • By wife: Talaq-e-Tafwid (delegated talaq).

  • By mutual consent: Khula (wife's request), Mubaraa (mutual consent).

  • Judicial divorce: Lian, Faskh (judicial rescission), Dissolution under Muslim Marriage Dissolution Act, 1939.

  • Talaq Forms:

    • Talaq-ul-Sunnat (approved): Ahsan, Hasan.

    • Talaq-ul-Biddat (triple talaq): Sinful but valid in Hanafi law.

Maintenance (Nafaqa)

  • Wife entitled to maintenance regardless of her own means.

  • Husband must maintain children till puberty (sons) or marriage (daughters).

  • Shah Bano Case: Led to enactment of Muslim Women (Protection of Rights on Divorce) Act, 1986.

Guardianship (Wilayat)

  • Types: Guardian of person, property, marriage.

  • Natural Guardian: Father, then grandfather.

  • Mother's Custody: Up to 7 years (male), puberty (female).

  • Guardianship of Property: Father > Executor > Court.

  • De facto guardian has no legal authority to alienate property.

Gifts (Hiba)

  • Essentials: Declaration, Acceptance, Delivery of possession.

  • Writing/registration not compulsory.

  • Types:

    • Hiba-bil-iwaz (with consideration).

    • Hiba-bi-shart-ul-iwaz (gift with stipulated return).

    • Marzul Maut (death-bed gift) limited to 1/3rd property.

    • Sadaqah (gift for religious merit).

    • Areeat (usufructuary gift).

    • Mushaa (gift of undivided share) – valid in certain cases.

Wakf (Endowment)

  • Permanent dedication of property for religious or charitable purposes.

  • Property becomes immobilized, ownership vests in God.

  • Managed by Mutawalli (caretaker).

  • Family Wakf (Wakf-alal-aulad) allowed.

Pre-emption (Shufa)

  • Right of co-sharer, neighbor to purchase immovable property before stranger.

  • Three demands:

    • Talab-i-Muwasibat (immediate demand on hearing of sale),

    • Talab-i-Ishhad (demand before witnesses),

    • Talab-i-Tamlik (demand via legal suit).

Acknowledgement of Paternity (Iqrar)

  • No concept of legitimation post-birth.

  • Acknowledgment creates legitimacy if:

    • Paternity is unknown.

    • Child is not known to be illegitimate.

    • No proof to rebut the claim.

  • Effects: Grants inheritance rights.

Dissolution of Muslim Marriages Act, 1939

  • Grounds for wife to seek dissolution:

    • Husband missing for 4+ years.

    • Failure to maintain for 2+ years.

    • Impotency, insanity, cruelty.

    • Imprisonment for 7+ years.

    • Marital neglect, false accusation of unchastity, option of puberty.

Life Estate (Life Interest)

  • Life interest recognized through family wakf, wills, gifts with conditions.

  • Life estate in gifts valid if possession is delivered (Amjad Khan vs. Ashraf Khan).

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