Family Law

UNIT- I

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 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 when turned out by them. Mehr in the baal form of marriage was also recognised by the prophet to ameliorate the position of wife in Islam and it 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 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.

i)                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.

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 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.

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 :

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

III.          attempts to force her to lead an immoral life, or

IV.          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.

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.

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.

III.          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.

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:

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

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 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 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 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 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 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.

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. 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.

 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.

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. 

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.

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 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.

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 Marriage solemnized is void if either of the parties to the marriage had not attained the requisite age.

Hindu Law The marriage under Hindu law would not be void though punishable under the Child 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.

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.

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