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Old Wednesday, April 25, 2012
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SOURCES OF ISLAMIC LAW



Introduction:

The Islamic law is referred to as “Sharia”. Islam has given the most comprehensive legal system to mankind. Islam has its own personal, civil, criminal, evidence and international law.

I.) The Quran:

Since the text of the Quran is held to be the very word of Almighty God Himself, it almost goes without saying that the Quran is not only a source of Sharia but the primary material source.

It is criticised that Quran is not a code of law because of two main reasons. Firstly, it is argued that Quran is rather a moral code determining ones way of life. Secondly, it is also said that Quran is not a code of law as out of its 6219 verses, no more than about 600 deal with specifically legal matters.

However, one must remember that, unlike western legal systems, the Sharia makes no distinction between religious and civil matters; it is the codification of God's Law, and it concerns itself with every aspect of legal, social, political and religious life. Secondly, information is judged by its quality not quantity. It is the Quran that identifies six specific crimes against religion i.e. “hadd punishments”. The Quranic legislation also covers a range of other topics, e.g. homicide, marriage, divorce and inheritance. There is an authentic hadith of the Prophet that “he who knows the law of inheritance is possessed of half the knowledge of the world”. But if we look at the Quran, the complete outline of the law of inheritance is encapsulated within only three verses (11, 12 and 176) of Surah Al-Nisa and Ijma and Qiyas, which give the details of succession, derive their authority from these three verses only.

No description, however, can fully capture the great importance of the Quran to Muslims. Objectively, it is the foundation and framework of Islamic law, and its primary material source.

II.) The Sunna:

The Sunna is the second most important source of Islamic law. It comprises the practices and precedents set by the Prophet Muhammad himself. The authority of the Sunna is derived from the text of the Quran. Because the circumstances of each revelation were thought necessary to correct interpretation, it was imperative to gather as many traditions as possible about the actions of the Prophet to fully understand the Quran.

The Sunna clarifies the ambiguities of the Quran. The Quranic injunction is sometimes implicit; the Sunnah makes it explicit by providing essential ingredients and details. The details of the acts of prayer, fasting, alms-giving and pilgrimage were all illustrated by the Sunna of the Prophet (p.b.u.h.). Again, it was established by the Sunna that a killer cannot inherit from the property of his victim. Thus, for answers to many problems to which the Quran offers no solution jurists turn to the second source of Islamic Law. For, according to the Quran itself, Prophet Muhammad was not only in possessions of the Book; he was also endowed with Wisdom.

But the wide legislative role of the Sunna cannot overcome that of the Quran because it lacks originality in itself; rather it is just the elaborations of the Quran put into the practice by the Prophet. The Words of the “Quran” are of “divine” origin while the words of the “Hadith” are words of the “Prophet” reported by people. And it is obvious that divine words have the utmost precedence. Secondly, after the death of the Prophet (p.b.u.h.), it was not earlier than two and a half centuries that the written hadith compilation from religious scholars came onto the scene and a lot of fabrication took place into that period. But Quran is the only book of Allah which has not been distorted and thus it is the only reliable source of Islamic law. There is an authentic tradition of the Holy Prophet (p.b.u.h) in which he is reported to have said that if you find any tradition of mine contrary to the instructions of Quran, then leave my tradition and follow the Quran.

III.) Ijma:

Ijma represents the third source of Islamic law which is more like delegated legislation. It is defined as the consensus of the jurists of a certain period over a religious matter. It is considered a sufficient means for action because the Prophet of Islam said, “My community will not agree on an error”.

A good illustration for the principle of Ijma occurred right after the death of the Prophet: no guidance was available on who would now be the political leader. The election of Abu Bakr to the post of caliph by the votes of the people was the first manifestation of Ijma. Today there are many schools of law in the Muslim community. For them the doctrine of consensus was a source of harmony.

However, the formation of different schools of law also had an adverse effect on the instrument of Ijma. In the course of time, it became impossible to obtain a consensus on a given problem just by asking all those learned in Islamic law. There was no organisation that represented all jurists, and as a result Ijma has come to be determined by looking into the past. Thus, unlike Quran, the authority of Ijma for legal innovation is very limited and that is why it ranks lower than the Holy Quran.


IV.) Qiyas:

Qiyas is essentially a tool of interpretation and is not a mean to alter the existing law but can only be used to find a legal principle in conformity with Quran and Sunna for a new factual situation. Ijtihad means “individual reasoning”. It involves both the knowledge of the rules of Islamic law and the exercise of one’s judgment; even Qiyas would be impossible if jurists were not allowed to apply their own reasoning.

An example of this procedure can be found in the prohibition of alcohol. The drinking of wine is one of the Quranic crimes against religion. With the appearances of other alcoholic drinks unknown to early Islam the jurists extended the prohibition of wine to include such drinks by analogical deduction from the Quranic ruling.

However, this source of law also has its weaknesses. Firstly, it ranks below because it derives its authority from the Quran. Human reason was not to be exercised independently but rather in accordance with the Divine Will as manifested in the Quran. Secondly, Ijtihad has been a controversial subject in Islamic history. Once the schools of Islamic law had been firmly established, the prevailing opinion was that that the privilege of Ijtihad was restricted to the great scholars of Islamic law, like for instance the founders of the schools of Islamic law. Thus, there is a strong opinion law that by the 10th century all main principles of Islamic law had been settled and therefore “the gates of Ijtihad” had been closed. Thus, it is noticeable that it is subordinate to Quran because Quran is an ever illuminating source of Islamic law but Qiyas/Ijtihad is just a matter of past now.

V.) Additional Sources of Law:

In its early stage, Islamic jurisprudence was heavily inspired from prevailing customary law e.g. the practices of the Caliphs, the decisions of the judges and the traditions of the people. But even then, Quran acted as a mentor guiding the people. For instance, Caliph Abu Bakr made alms payment compulsory in the light of the Quran; the Qazis i.e. judges did equity by seeking guidance from Quranic verses; and it was under Verse 3 of Surah Al-Nisa that the customary right of unlimited polygamy was curtailed only to a maximum of four wives. Thus, the supremacy of Quran as a primary Islamic source got fully established in that epoch.

Courtesy: Hassan Nawaz

PS: Complete notes on Ijtehad will be posted later InshaAllah ..

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MARRIAGE



Introduction:

Marriage is a civil contract between a man and a woman who is lawfully eligible to be his wife with the objective of joint life and breeding.

I.) Requirements of a Valid Muslim Marriage:

1.) Offer & Acceptance:

Marriage in Islamic law is a contract that is concluded by an offer made by one party and an acceptance given by the other. No particular form of words is required so long as the intention to conclude of marriage is clear.

2.) Presence of Witnesses:

Hanafi, Shafi and Hanbali schools require 2 adult male witnesses or one male plus two females. However, in Maliki and Ithna Ashari’s law the presence of witnesses is recommended but not mandatory, provided that in Maliki law sufficient publicity is given to the marriage.

3.) Capacity of the Parties:

According to Sunni schools, marriage guardian shall be agnates. In the absence of agnates, guardianship shall be vested in relatives according to proximity, otherwise it will be vested in the Head of the State. In the Ithna Ashari, the guardian is indispensable in order for the marriage of minors and majors of defective or no legal capacity to be valid. Guardianship in marriage falls under two categories:

• Guardianship “With” the right of compulsion, which is exercised over a person of no or limited legal capacity wherein the guardian may conclude a marriage contract which is valid and takes effect without the consent or acceptance of the ward;
• Guardianship “Without” the right of compulsion, which is exercised when the woman possess the full legal capacity but delegates the conclusion of her marriage to a guardian.

Islamic law also requires the parties to a marriage contract to have the capacity to enter into the contract. According to Hanafi and Ithna Ashari's any sane adult, whether male or female, has the capacity to conclude his or her own contract of marriage. According to traditional Islamic law, majority is attained at the onset of physical puberty. There is an irrebuttable presumption of law that no female below the age of nine and no male below the age of 12 has attained majority and an equally irrebuttable presumption that by the age of 15, majority has been reached by both sexes.

The right of a female to contract her own marriage is, however, not absolute according to Hanafi doctrine. Her guardian may seek dissolution of the marriage if she marries a man who is not her equal according to the law. Equality is determined with regard to piety, lineage, wealth and occupation. However, the right of the guardian to dissolve the marriage lapses if the woman becomes pregnant.

In Maliki, Shafi and Hanbali law a virgin woman may never conclude her own marriage contract. In Maliki law the hierarchy of marriage guardians follows strictly the order of succession. Accordingly, the son of the woman ranks before her father. In Hanbali law the guardian having first priority is the father, followed as in Maliki law by the paternal grandfather and the other agnatic kinsman. The woman only becomes capable of contracting herself in marriage when she ceases to be a virgin by reason of a consummated marriage or an illicit sexual relationship.

II.) Child Marriage:

In traditional law no minimum age is laid down for marriage. However, in Hanafi law, a girl who is contracted in marriage during her infancy may on attaining puberty repudiate the marriage. This “option of puberty” is found neither in the Quran nor in the Sunna, but is based on juristic opinions in the various schools. A woman retains this right until she becomes aware of the marriage and assents to it. However, the woman does not possess this option if the guardian who contracted her marriage was her father or paternal grandfather.

The other Sunni schools recognise this option of “Khiyar” in the area of jest and duress. A person who was induced into performing the marriage, for instance through threat, can rescind the contract by this option.

According to Hanafi law, guardian has no power when the child reaches the age of puberty. In “Saima Waheed’s case”, a major woman married a man of her own choice. His father filed a suit to secure his daughter’s custody. It was held, in accordance with the Hanafi law, that a marriage, of a major girl, without the guardian’s consent is not invalid.

The same decision was reached in the Indian case of “Abdul Ahad v. Shah Begum”. Here, a wife claimed to have repudiated her marriage. The girl’s Wali was her uncle who happened to be the groom’s father. The court held that this is a settled principle of law in Islamic law that once the girl becomes major, she has the absolute right to contract the marriage and this right cannot be exercised by any one else including the father of the girl.

In the Indian subcontinent, Child Marriage Restraint Act 1929 is used to restrain child marriages. This Act is still in operation in all three countries, with a variety of different amendments. In India, the Child Marriage Restraint (Amendment) Act 1978 sets the minimum ages to 18 and 21 years for females and males respectively. In Pakistan, the 1929 Act was amended by S.12(1)(a) MFLO 1961 and the minimum ages are now 16 years old for the woman and 18 years old for the man. In Bangladesh, the minimum ages stipulated have been 18 years old for the woman and 21 years old for the man since the Child Marriage Restraint (Amendment) Ordinance 1984.

In the Pakistani case of “Allah Diwaya v. Kammon Mai”, a young woman alleged that she had been subjected to sexual intercourse and fraudulently married before she reached puberty. It was held that a marriage entered into while the girl had not even attained puberty was no marriage in eyes of law therefore it was void. It was also said in this case that if the girl has not attained the age of 15 years then her consent to the consummation of marriage will not amount to consent in eyes of law.

In S.2(7) DMMA 1939, stated that a woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on the ground that she, having been given in marriage by her father or other guardian before she attained the age of 15 years repudiates the marriage before attaining the age of 18 years. In Pakistan, the age was increased to the age of 16 years by S.13(b) MFLO 1961.

According to 1939 Act, it is mandatory for the exercise of the option of puberty to obtain a court’s decree from court. However, according to Pakistani authorities, court decree is not necessary. It was said in “Muni v. Habib Khan”, that repudiation puts an end to the marriage without the aid of court and when matter comes into court then it recognises the termination of marriage rather than to dissolve marriage.

Certain codes of personal status in Arab world have also been enacted against child marriages. In Tunisia, no marriage can be contracted between a man under 20 and a woman under 17, unless a special court’s permission is taken. The marriage of persons under the legal age is subject to the guardian’s consent.

In Moroccan law, the legal capacity for marriage is attained at the age of 18 for boys and 15 for girls. Marriages of persons under this age are allowed with the guardian's consent with the right of appeal to the court.

In Jordan, the age is fixed at 16 for boys and 15 for girls to posses the legal capacity for marriage.

In Syria, puberty is set as a precondition to marriage by setting the respective age at 18 for boys and 17 for the girls. However, a boy aged 15 years or a girl aged 13 years, claiming to have reached majority, may apply for marriage to the judge who will grant the permission after being satisfied of the truthfulness of their claim.

An innovation in Syrian, Jordanian and Moroccan Codes is the age gap between the perspective spouses. In Syria, if the spouses are disproportionate in age the judge may withhold permission for them to marry. In Jordan, if the woman is under 18 and the future husband is 20 years older than him, then the marriage will not be valid unless the judge makes sure of her free consent and choice. In Morocco, the matter of disproportionate ages is left to the discretion of the wife alone.

III.) Classification of Marriages:

There are three types of marriages in Sunni schools. Firstly, there is “Sahih” marriage which is fully valid and effective. Under such a marriage, sexual intercourse is lawful and the woman is entitled to both dower and maintenance.

Secondly, there is a “Batil” (void) marriage. Under such a marriage, no rights or obligations exist between the parties. Parties would be guilty of zina, save where the parties were unaware of the fact that the marriage was void. If a marriage is affected by a permanent impediment, then the marriage is declared void. The permanent impediments arise:

• Under the bar arising from relationship of blood, a man may not marry any ascendant or descendant, any descendant of his father or mother, or the immediate child of any ascendant, nor may a woman marry any corresponding male.
• Under the bar of fosterage, two persons who were suckled by the same foster-mother are permanently barred from marrying each other.
• The bar of affinity arises from marriage, so a man may not marry the former wife of any ascendant or descendant, or any ascendant or descendant of a former wife with whom he actually had consummated his marriage.
• Under the bar of polyandry, i.e. when a woman contracts a second marriage during the subsistence of her first marriage.

Thirdly, there is a “Fasid” (irregular) marriage, which is middle way out. This is also no marriage, but can be regularised in certain conditions. Under such a marriage, no zina is committed and a dower is payable. An irregular marriage arises from temporary impediments, which occur when:

• There is an absence of witnesses.
• A woman who is already married.
• A woman who is still observing the idda period.
• A woman whom he has triply repudiated, unless she has married another man and that marriage has been terminated.
• A man may not marry at the same time two sisters or a mother and her daughter.
• A man who already has four wives may not validly marry a fifth.
• A Muslim man may contract marriage with a non-Muslim woman provided she is a khitabiyah. A Muslim woman, on the other hand, may only validly contract marriage with a Muslim man.
• According to the non-Hanafi schools of Sunni law, a marriage concluded by a woman herself without a guardian is also invalid as is a marriage concluded by a person performing haj.
• According to Maliki law, a person who is in a state of death sickness is prohibited from marriage.

IV.) The Effects of Impediments to Marriage:

The presence of an impediment to marriage may render the marriage either void or irregular. The impediments that have the potential to render a marriage void are those that are permanent and those where the impediment, although of a temporary nature, is one that the parties themselves have no power to remove – such as if the woman is married to another man. Where any other impediment exists, the marriage is not void but irregular. If the marriage is irregular certain effects flow from it:

• The parties may not be found guilty of zina.
• Any children born out of the union will be held to be legitimate.
• When the parties separate, and separate they must, the woman must observe an idda period.

A marriage, which may be held to be potentially void, will be regarded as irregular if the parties have acted in good faith, i.e. they were unaware of the existence of the impediment. This is the only instance where Islamic law recognises ignorance of the law as a defence.

V.) Incidents of a Muslim Marriage:

Marriage has its own specific incidents and effects. The law defines the rights and duties of husband and wife, some of which are mutual and some of which are peculiar to one or the other of the parties:

• Mutual Rights – Legitimacy of children, inheritance, sexual intercourse.
• Rights of the Wife (Maintenance).
• Rights of the Husband (Polygamy).
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DOWER



Introduction:

Dower is a sum of money or property which becomes payable by the husband to the wife as an effect of marriage. In Surah Al-Nisa, Verse 4, the Quran says: “And give the women (on marriage) their dower as a free gift”.

According to both Sunnis and Shias, the dower may consist of anything that can be valued in money, is useful and ritually clean. Therefore, the dower may be land, building, cattle, crops, chattels etc. The property given as dower must be reasonably specified. A vague dower, e.g. “an animal” or “a house” shall not be valid, without however invalidating the marriage contract itself.

I.) Dower & Bride-Price:

Dower is a unique feature of a Muslim marriage. But contrary to a widely held misconception in the West, it is not a bride-price. Although, in the pre-Islamic period a bride price was paid to the bride’s father, but the requirement of dower itself is one of the most significant reforms effected by the Quran. According to the Hanafi Jurist Al Kamal, dower is there to underline the prestige of the marriage, it is not a consideration like a price, and otherwise it would have been set as a prior condition.

Dower is not a precondition to marriage. It is mentioned in Surah Baqara, Verse 236, that: “It is no sin for you if ye divorce woman while yet ye have not touched them nor appointed unto them a portion (dower)”. This means that there is no sin if no dower is paid and the woman is divorced, before consummation. Since divorce can only occur after a valid marriage contract, this shows that dower is not a precondition to marriage.

It is also different from a bride price because a bride price was paid to the father of the bride, but dower, on the other hand, is an inalienable and imprescriptible right of the wife. It is inalienable in that it is taken for granted even if it is not expressly stated in the contract. If the husband makes a condition in the marriage contract that no dower will be paid, this shall be void but not the remaining contract. It is imprescriptible in that the wife shall not lose her entitlement to it through prescription alone.

II.) Quantity of Dower:

Classical jurists set no higher limit for the dower. But there is no such unanimity on the minimum dower. The Shafis, Hanbalis and the Shias maintain that there is no such limit. However, the Malikis set a quarter dinar of gold or three dirhams of silver as the minimal dower, by analogy with the Sharia limit for punishable theft. A dirham weighs 2.97 grammes. The Hanafi doctrine maintains that the minimal dower shall be 10 dirhams, citing the authority of a tradition of the Prophet to that effect, a tradition whose authenticity is disputed by other schools. The Shia’s say that what was given to Bibi Ayesha should be the minimum limit.

III.) Types of Dower:

The parties may stipulate an amount to be paid as dower in the marriage itself. This is called specified dower, and it may be reduced or increased by mutual consultation. Provided that the husband is sane and major, the addition shall be binding on him under three conditions:

• It has to be determinate, i.e. if a husband says to his wife, “I have added to your dower” without further specification, no addition shall be valid.
• It occurs while they still live together, i.e. no divorce or separation.
• That it is accepted, at the same sitting where it has been offered.

Likewise, a wife possessing full legal capacity may discharge her husband, subsequent to the marriage contract, of all or any part of her specified dower. It shall be valid if the husband accepts it or keeps silent, and void if rejected. However, if waiving off occurred due to pressure, i.e. threat or on husband’s death bed, then it will not be valid. Unlike increase, no guardian of the minor wife has the power to reduce her specified dower.

But if no dower is specified or if the contract expressly states that there shall be no dower payable, the wife is nevertheless entitled to receive dower, i.e. the proper dower. The Sunni and Shias agree that the proper dower is to be calculated by taking into account the amount of dower received by comparable members of the wife’s family such as her sisters or cousins. Her personal attributes are also relevant: her virginity, age, education, beauty and so on.

The specified dower is further sub-classified into “prompt” or “deferred” dower. The parties may agree between themselves when the dower shall be paid. If it is payable immediately at the conclusion of the marriage contract marriage it is called prompt dower. Dower will be deferred if it is payable some time later, otherwise it shall become payable immediately on the earlier of two events: death or divorce. If the marriage contract is silent on the type of dower it is presumed that it will be prompt.

IV.) Entitlement to Dower:

1.) Entitlement to Whole Dower:

It is unanimously agreed by the Sunnis that the whole dower shall become due to the wife on the occurrence of either of two events:

• The actual consummation of marriage;
• The death of either spouse before consummation.

If it is the wife who dies, her heirs can claim it from the husband. All the jurists agree that the whole dower shall be due to the wife if the husband dies by natural causes or murder by a third party, or if the husband himself kills the wife. With the exception of Hanafis, all the other schools agree that the wife shall lose her entitlement to any dower if she killed her husband before consummation.

The Shias have a different view. According to them, if the husband dies before consummation without having specified a dower then nothing is payable to the wife.

2.) Entitlement to Half Dower & Mutat:

Jurists deduce the following conditions for half the dower to be paid:

• That marriage is under a valid contract and the dower is specified;
• That divorce occurs before consummation and due to an act of husband, other than his exercising the option of puberty or recovery from insanity.

It should be remembered that only the stipulated dower shall be halved and any additions which were made to it after the marriage contract shall be dropped altogether.

However, if no dower has been fixed in the contract, then the wife is entitled to a mut’at, i.e. a gift of consideration. Under Hanafi law, it consists of three articles of dress or of their value provided that the value shall not be less than 5 dirhams. The Sunnis in general hold that the mut'a is regulated by the circumstances of both husband and wife. The Shias stick to the Quranic text and consider the circumstances of the husband only.

3.) Entitlement to NO Dower:

No dower, whether specified or proper, shall be due to the wife if:

• The marriage is dissolved by the husband before consummation through exercising his option of puberty or recovery from insanity, as in such a case, the very contract of marriage is declared null and void.
• If the marriage is dissolved before actual consummation by a lawful/ unlawful act of the wife. Lawful acts include option of puberty, recovering from insanity, or taking khula. Unlawful acts include apostasy.

V.) Legal Disputes over the Payment of Dower:

There are a number of legal disputes which relate to the payment of dower. The first relates to the amount of dower. Recently, there has been a trend for very large Maher sums to be announced. There are probably three reasons for this trend:

1.) The brides’ family often demand high Mehar sums for status purpose.
2.) In many cases the bridegrooms themselves encourage the insertion of large Maher sums for their own aggrandisement.
3.) A large dower sum can be viewed as insurance for the wife against the possibility of an unjustified divorce by the husband or his early death.

However, in certain cases, apart from that publicity agreement, there is also a private agreement for a lesser sum agreed between the parties. The same dispute arose in “Nasir Ahmad v. Asmat Jehan”, and it was held that the real dower payable would be that agreed in private because this is the only agreement really intended to be enforced by both the parties.

The second dispute relates to the refusal of conjugal relations. In Pakistan and Bangladesh, under S.10 MFLO 1961, if no details of the mode of payment of dower are specified, then the dower would be presumed prompt and payable on demand. Therefore, can a Muslim wife whose prompt dower has not been paid is entitled to refuse consummation of the marriage?

This question was answered in “Abdul Kadir v. Salima”, where a Muslim wife refused conjugal relations on non-payment of dower after consummation had earlier occurred. The court found that the wife has lost her right to refusal once consummation had earlier occurred. The decision was based on the views of Hanafi Disciples rather than on the view of Abu Hanifa.

The same issue arose in a recent Indian case of “Rabia Khatoon v. Muhammad Ahmad”. The court did acknowledge that under the classical Hanafi law, the wife may refuse to live with her husband on non-payment of dower even after consummation. However, due to policy and social grounds, the court still stuck to their old position of Hanafi Disciples. Thus, the husband was granted his claim of restitution of conjugal relations in addition to the order of paying his wife the outstanding dower.

However, the position in Pakistan changed with the case of “Rahim Jan v. Muhammad”. Here, the High Court had to decide whether, in Hanafi law, the wife is entitled, even after consummation, to refuse to live with her husband when her prompt dower has not been paid. It was said that “Abdul Kadir’s case” comments are obiter. It was, therefore, firmly held that even after consummation the wife retains the right to refuse the performance of marital obligations till the prompt dower is paid.

The third dispute relates to the remission of dower by the wife. It is obvious that remission would only be valid if it is made by free consent and not due to coercion. In “Shah Banu Begum v. Iftikhar Muhammad”, the wife had remitted the dower so as to prevent the husband form taking a lover. It was held that the waiver was void and of no effect.

The fourth dispute relates to unpaid dower. Generally, an unpaid dower represents an unpaid debt and the wife may sue to enforce payment. The widow has a right to retain possession of the deceased husband’s property until the dower debt is paid to her. In “Maina Bibi v. Chaudhri Vakil”, a widow remained in possession of certain property that was claimed by the deceased’s heirs. The wife defended on the ground of her unpaid dower. The judge found that the wife has the right to possession unless the heirs pay her the unpaid dower.

PS: Remaining notes will be posted after my law exams InshaAllah ..

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MAINTENANCE

Introduction:

Maintenance consists of the provisions of accommodation, food, and clothing. It is a lawful right of the wife under a valid marriage irrespective of her means or religion. The entitlement of the wife to maintenance derives its authority from the Quran, Prophet’s tradition and consensus. In Surah Al-Nisa, Verse 34, The Quran says: “Men are the protectors and maintainers of women because God has given the one more (strength) that the other, and because they support them from their means”.

I.) Assessment of Maintenance:

The scale of maintenance was not discussed in The Holy Quran or the Sunna, but it was rather left to juristic opinions. It is calculated in Hanafi, Maliki and Hanbali law as the mean between the resources of the husband and the previous living standard of the wife. However, Shafis and Shia’s fix it according to the means of the husband alone.

The husband is required to provide the wife with a house that is safe both structurally and in location and is free from any other members of his families, including other co–wives. The only exception is that the husband can require his wife to live with infant children of his previous marriage, although Shia school differs.

The right to be maintained belongs to the wife even if she is wealthy and her husband poor. When the husband has no means at all, this is a misfortune that has to be shared by the wife.

II.) Entitlement & Loss of Maintenance:

Maintenance shall be due to the wife during the subsistence of a marriage if all the following conditions are fulfilled:

1. A Valid Marriage – In a Batil (void) or Fasid (irregular) marriage, the wife shall not be entitled to maintenance, since the husband has no lawful right of access to her. The wife shall also lose her right to maintenance if she apostasies because apostasy renders the marriage contract void.

2. Lack of Access – It is tamkeen, i.e. availability of the wife for her husband, and not the marriage itself, that makes maintenance the right of the wife, this right shall be lost if the husband is denied access to the wife at all lawful times. Thus, a woman in jail is not entitled to maintenance, even if she is innocent and consummation has occurred. The same rule applies for a kidnapped wife.

3. Obedience – A disobedient wife has no right to maintenance. The husband’s duty to maintain begins when the wife submits her to husband. If the wife declares herself ready to start cohabiting with the husband, he is to maintain her even if she is living in the house of her guardian, as she has done everything she could. Even a minor husband is obliged to maintain his wife, if he is of an age where consummation is possible.

Sharia defines a disobedient wife as a woman who leaves the matrimonial home without a lawful excuse. The Shias consider as a lawful excuse, wife visiting her sick father who needs her to stay with him, having nobody else to look after him, even if the husband denied permission. Both Sunnis and Shias agree that there will be no maintenance for a wife who goes to work without the husband's permission. The disobedient wife’s lost right to maintenance shall be revived on the removal of the cause.

Similarly, the wife’s maintenance shall be suspended if she travels, unaccompanied by her husband. The wife is bound to travel with her husband to whatever he wishes, provided that she is safe and unless otherwise stipulated in the marriage contract.

However, if the wife disobeys her husband for some lawful reason, then the right to maintenance does not extinguish. Non-payment of prompt dower is a reasonable ground for a wife to refuse to live with her husband e.g. “Rahim Jan v. Muhammad”.

III.) Termination of Wife’s Maintenance:

The wife’s maintenance terminates on two occasions: (a) death; or (b) divorce. Regarding divorce, all schools agree that if the divorce is “revocable”, the wife is entitled to maintenance throughout the idda, because repudiation is a matter in the husband’s hands and wife still remains under his control.

If, however, the divorce is “irrevocable”, then only Hanafis allow maintenance during idda. The Malikis states that such a woman is entitled to full maintenance only when she is actually pregnant. If she is non-pregnant, then the wife is entitled to lodging only during the idda.

All schools agree that a divorced Muslim woman is entitled to no maintenance after the idda period, the rationale being that these women would normally return to their natural family or would remarry. However, if a man wants to provide maintenance for the rest of her life is not preventing from doing so by any provision of Muslim law. This area has been a subject of considerable reforms.

Surah Al-Baqara, Verse 236 provides that Mutat is payable in deserving cases as a matter of goodwill and of custom. However, this remedy is not a general entitlement. Various Muslim states have incorporated the Mutat payments in their statutes. In Syria, Jordan and Egypt, the law agree on the principles in general but they differ on the amount payable. Generally, the wife will be entitled to Mutat, on repudiation by the husband after consummation, as compensation for an arbitrary talaq i.e. if it is proven to a qadi that the husband exercised talaq without a lawful justification. In Syria, the amount payable should not be in excess of the amount of maintenance for her equals for three years. In Jordan, the amount is equivalent of the maintenance due to her for a year. In Egypt, the amount is equivalent of the maintenance due to her for two years.

In South Asia, rather on Mutat, reforms have taken place on the wife’s right of maintenance itself. In India, S.2(2) DMMA 1939 allows Muslim women to seek divorce if her husband fails to maintain her for two years. However, in India, the reforms started with the coming of S.125 of the Code of Criminal Procedure 1973 in which the definition of a wife, entitled to maintenance, also included an unmarried “divorcee”.

In the controversial case of “Shah Banu”, a Muslim husband drove his wife, an old lady, out of the house after contracting a second marriage. She filed a petition for maintenance under the 1973 Code. The husband gave the respondent an irrevocable talaq and his defence to the lady’s claim for maintenance was that she had ceased to be his wife. The Supreme Court confirmed the High Court’s decision that she was entitled to maintenance.

The Supreme Court stated that that there is inadequate proof to support the proposition that a Muslim husband is not under an obligation to provide for the maintenance of his divorced wife, “who is unable to maintain herself”. The court said that the true position is that the classical Islamic law provides no maintenance, with the expiration of idda, for a divorcee who “can” maintain herself. However, if she “cannot” maintain herself, then she can take recourse to S.125. The court supported this proposition with the Surah Baqara, Verse 236 and 241-42 which provided that for divorced woman, maintenance should be provided on a reasonable scale and this was a duty on the righteous Muslim.

The decision in this case was opposed by various Muslim scholars. Mahmood argued that once the idda period is over, it is the duty of the wife’s natural parents to maintain her. In his view women were being treated too favourably by the law and that the basic principles of Muslim law were being violated in the process.

However, I disagree with his views. The Supreme Court did nothing than to reflect the true Islamic position. Though one may say that it’s unfair to force an ex-husband to maintain his ex-wife till death, but conversely it is equally unfair to a let a woman die on the streets that has on other means of survival. It is not correct to say that Muslim law is being violated, because the above mentioned Quranic verses themselves say that divorced women should be provided maintenance on a reasonable scale and it is not unfair to the husband because the scale of reasonable payment is judged according to the means of the husband alone, i.e. a poor ex-husband should pay less for maintenance and a rich ex-husband should pay more. It is very harsh to say that this decision favours women heavily just because of the fact that the decision hits the pockets of many Muslim husbands.

In explicit reaction to this case, the Muslim Woman (Protection of Rights on Divorce) Act 1986 was promulgated. This has done precisely what its name suggests and has proved rather beneficial to divorced Muslim wives who were unable to maintain themselves appropriately after the idda.

S.3 of 1986 Act offers a more or less instant remedy today to any divorced Muslim wife in India who, at the end of the idda period, finds that her ex-husband has not made reasonable provisions for her future maintenance. After this Act, there are a number of High Court cases which supports the view that the divorcing husband remains liable for his former wife’s welfare. Only the very few cases go the other way.

In Ali v. Sufaira, the judge again turned to the Quranic text and said that Surah 2, verse 236-37 and 241-42 makes it clear that any Muslim must give a reasonable amount by way of gift or maintenance to the divorced lady and they are not limited to the period of idda. It was therefore held that under S.3(1)(a) of the Act a divorcee is entitled to maintenance for the period of idda as well as a reasonable and fair provision for her future.

Contrastingly, in Usman Khan v. Fathimunnisa Begum, the judge examined the precise wording of S.3(1)(a) in particular the phrase “within the idda period” and concluded that the husband is not liable to make reasonable and fair provisions beyond idda period. However, the decision in this case seemed faulty ignoring the intention behind the 1986 Act and the idealistic spirit of the Quranic provisions.

Under the Quranic law Mutat is payable in deserving cases only and not unconditionally to every female divorcee. The cloak under the 1986 Act gives an absolute right to all divorcees irrespective of the circumstances.

In Pakistan and Bangladesh S.9 MFLO 1961 places an obligation on the Muslim husband to maintain his wife(s) during marriage. The socio religious problems of maintenance are same, but in Pakistani law a divorcee is no longer a wife and therefore gets no maintenance beyond idda. Neither the Pakistani law makers nor the Pakistani courts had considered the matter in any depth and the current situation is that the burden of maintaining divorced women is normally borne by the natural family, rather than the divorcing husband or his family.

However, Bangladesh also seems to follow India. In Md. Hefzur Rahman v. Shamsun Nahar, it was held that a person after divorcing his wife is bound to maintain her on a reasonable scale beyond the idda till she remarries.
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POLYGAMY


Introduction:

Polygamy means that a man can engage into more than one marriage. The unrestrained polygamy of pre-Islamic Arabia was effectively restricted by Islam and a man was allowed only to marry four wives at one time.

I.) Contemporary Position:

The most relevant Quranic text on this subject is Surah Al-Nisa, Verse 3, which states:

“If ye fear that ye shall not
Be able to deal justly
With the orphans,
Marry women of your choice,
Two, or three, or four;
But if ye fear that ye shall not
Be able to deal justly (with them)
Then only one
That your hands possess.
That will be more suitable,
To prevent you
From doing injustice”


Under guidance of this Quranic text, evidence form Sunna and massive support from Ijma, all schools, Sunni and Shia, are agreed that a Muslim man can have up to four wives at the same time if he is honest with all of them, i.e. if he can treat them all equally and fairly.

So, it is husband's responsibility to treat the wives equally and he has no need to submit himself to examination by any person or institute in advance of the final decision to contract a second or subsequent marriage. Therefore, it is a matter purely of personal conscience and male discretion.

II.) Controversial Issues:

Polygamy became a controversial issue because of two main reasons. Firstly, due to the ambiguity found in the above mentioned Quranic verse. The meaning of “equality” has been subject to different interpretations, i.e. equal maintenance or equal affection. The Quran itself appears to suggest that treating equally is impossible. Surah Al-Nisa, verse 129 says that “Ye shall not be able to deal in fairness and justice between two women however much ye wish”. This pushed for the argument that Islam never in fact gave permission for polygamy and it should be banned completely.

However, certain writers oppose this view and maintain the equality of financial support as the deciding criterion. It was said by Doi that once a Muslim marries more than one wife, it is essential for him to treat them equally in food, residence, clothing and even in sexual relationship as far as is possible. If one is a little doubtful in showing equal treatment in fulfilling their rights, he must not take more wives. Not all schools agree that a polygamous husband should provide all wives with maintenance on exactly the same basis. Doi himself emphasises the impact of different living standards.

Secondly, no corresponding right was given to Muslim women. In my view this tilts the balance in the marriage relationship. The very fact that a husband can marry another woman anytime places him in a much powerful position than the wife and he can use this as a constant threat against her. Worse than that is the fact that legal remedies available to a wife against her polygamous husband are limited. Hinchcliffe states “for the vast majority of Muslim women who find themselves in this unfortunate situation the law, unhappily, provides no solution whatever”. This situation led many women right’s groups to protest that the existence of polygamy hinders the progress in women liberation.

III.) Reasons for Allowing Polygamy:

Surah Al-Nisa was revealed after a battle which had resulted in many men being killed, leaving behind many war widows who found it difficult to provide for their children. It was in this context that polygamy was tolerated in Islam, to provide for the welfare of widows and their orphaned children.

Apart from this, in modern times, unbalanced sex ratio is also a cause for polygamy, i.e. there are more females than men. In hot climatic regions like Arabia, it is the man’s nature to have more than one woman to content himself. In such a situation, it is better to practice polygamy than to indulge in prostitution or extramarital affairs. Multiple marriages may serve as a potential alternative for divorce. Children would be better served if family expansion rather than only separation and dissolution were seen as options.

It is due to these reasons that Islam tolerated polygamy. In fact, the Islamic system, if fully practised, eliminates the dangers of seduction, prostitution and extramarital affairs. Thus, in line with this objective, numerous Islamic countries introduced reforms in this area.

IV.) Legislative Reforms:

The boldest step was taken by Tunisia and only it has abolished polygamy outright. The juristic argument is that since in modern economic conditions, the financial criterion of equal treatment has become impossible to fulfil, therefore, there is no more room for polygamous marriages.

In Syrian law financial ability appears to be the only criterion for polygamy. A judge has the power to deny permission for polygamy if the court thinks that a man cannot financially support two wives. However, if a man marries without the court’s permission, the marriage would still be valid but the man would be liable for penalties.

In Moroccan law, a subsequent marriage cannot take place until the new wife has been informed that the husband is already married. The existing wife has a remedy, in accordance with Maliki law, which allows her a ground for seeking divorce if she is not given proper maintenance.

The Iraqi law also imposed some restrictions on it. A man cannot marry more than one woman without authorisation from a judge who will only grant such permission if the husband can fulfil three conditions:

1.) He is financially capable of supporting an additional wife.
2.) There is no unlawful benefit for the husband in such a marriage.
3.) The Qadi must be satisfied that there was no fear of any unequal treatment of the wives.

Jordan provides no further remedy to women than to rely on stipulations in the marriage contract. In line with the Hanbali doctrine, a wife may seek a judicial divorce if the husband violates such a clause.

The Family Protection Act 1967 in Iranian law radically reformed this area. A man has to first satisfy the court of his financial capability to do justice with his wives. If he marries without the court's permission, it would nevertheless be valid, but the husband would be liable for sentence upto a maximum of two years. Hinchcliffe also noted that a wife who had not consented to the marriage could ask for divorce.

Egyptian law still does not support the complaining polygamously married wife, unless she can establish ill-treatment. Failure to treat a wife on a par with a co-wife could be construed as ill-treatment but Egyptian law does supports polygamously married wives in their claims for divorce.

In India, the situation is governed by the pre-partition Dissolution of Muslim Marriages Act 1939. Under S.2(8)(f) DMMA a Muslim woman shall be entitled to dissolve her marriage if the husband treats her with cruelty, i.e. if he has more wives and does not treat her equitably in accordance with the Quranic injunctions.

In “Itwari v. Asghari”, a polygamous husband filed a suit for restitution of conjugal relations against the first wife. The judge found that Muslim law permits polygamy but does not encourage it since Quranic injunction showed that achieving perfect equality in the treatment of co-wives is practically impossible.

In “Shahulameedu v. Subaida Beevi”, a Muslim wife refused to live with her polygamous husband after he failed to maintain her. It was said that the Quran enjoined monogamy upon Muslims and departure therefrom as an exception. Therefore, in the true spirit of the Quran polygamy is severely restricted. Thus, the wife was entitled to maintenance.

The current position in Indian law is therefore clearly that an unwilling wife to a polygamous Muslim marriage can approach the courts for various remedies, but cannot legally challenge the basic right of the husband to make polygamous arrangements.

Reforms in Pakistan came in the form of S.6 MFLO which appears to restrict polygamy by making it mandatory to seek prior permission from the Arbitration Council. This looks only of academic value as Rubya Mehdi correctly states that it seems useless in practice because obtaining prior permission form the Arbitration Council appears to be a formality only rather than an effective deterrent.

In “Ghulam Fatima v. Anwar”, the husband's second marriage had been entered into without agreement of the first wife. This led the first wife to allege that the marriage was invalid as it was in violation of S.6 MFLO. However, the appeal was unsuccessful as the judge noted that even if a marriage is in contravention of S.6, it could not be held invalid.

This case, thus, led many commentators to argue that MFLO is ineffective as an effective deterrent to polygamy because the very fact that polygamy is lawful has a negative effect on woman’s position because it enables emotional pressures to be used as a constant threat to woman. In summary, it is evident that the legal reformers in Pakistan have not seriously attempted to control polygamy. Pearl observed that the law was not very effective and that many men were ignoring the MFLO procedures.
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DIVORCE


Introduction:

According to a tradition of the Prophet, “Of all permitted things, divorce is the most reprehensible” (Abu Dawood). However, divorce was permitted because forcing unwilling or unhappy spouses to stay together may lead to various forms of zina. Divorce in Islam is possible under a number of ways.

I.) Talaq:

Islamic law, according to all the schools and sects, gives to the husband the right to unilaterally terminate the marriage at will without recourse to the court. Sunni law requires neither the presence of the wife nor witnesses for a valid talaq. In Sunni law a talaq may either be in accordance with the Sunna (i.e. the Quranic verses on talaq) or it may be in the bid’a form. A divorce in accordance with the Sunna has two categories:

• Talaq Al-Ahsan – The most approved form, where the husband pronounces a single talaq during the wife’s purity period. The wife then starts idda during which the husband may revoke the talaq to take back his wife. Revocation may also be implied e.g. resumption of intercourse. The repudiation becomes irrevocable, if the idda expires, but it is of lesser degree and the parties may remarry without an intervening marriage.

• Talaq Al-Hasan – It is the good form, where the husband pronounces three repudiations during three successive purity periods. Once he has pronounced three talaqs, his wife is irrevocably repudiated to the greater extent; she can only remarry after an intervening marriage to another man.

The Ithna Ashari's sect of the Shia only recognises Talaq Al-Sunna. This sect also requires that a precise set of words must be used, and two adult male Muslim witnesses of good character must be present.

Sunni law, however, also recognises Talaq Al-Bid’a. The most prevalent form of talaq al bid’a is where the husband pronounces three talaqs at the same time. Other forms include repudiations suspended on a condition e.g. the wife is forbidden from leaving the house. If she does, the marriage is dissolved. In Hanafi law a divorce pronounced when drunk, or by mistake, or by jest, or under duress is valid. The justification for this rule under Hanafi law is that this looks to the act rather than the intent.

II.) Khula:

A marriage may also be dissolved by mutual agreement between the parties under the Quranic ruling of Surah Al-Baqara, Verse 229. This form of dissolution is called khula. Khula is concluded by an offer and acceptance. It is usually the wife who makes the offer, offering to pay a certain sum of money, usually the dower, in consideration for the husband releasing her from the marriage. Compensation in khula may, with the exception of the Shafi School, be anything that is of value; in Shafi law the compensation must be monetary.

III.) Judicial Divorce:

There are two forms of judicial divorce: (1) Lian; and (2) Faskh. Lian denotes the grant of a divorce on the ground that the husband has accused his wife of adultery. Such an allegation, if made by affirmation, inevitably leads to a divorce even if the husband cannot adduce any evidence to prove his claims. Lian divorces are irrevocable, and the parties cannot remarry.

Faskh is judicial dissolution of marriage. In classical Hanafi law, the only ground for judicial divorce was where the woman could prove that her husband is impotent. The Ithna Ashari School recognises further grounds e.g. where the husband is suffering from insanity, leprosy or venereal disease. The Shafi School, in addition to these grounds, considers wilful refusal to maintain as a sufficient reason for a judicial divorce. The Hanbali School recognises various physical and mental defects, as well as the following: failure to maintain, desertion, and failure to comply with a condition in the marriage contract. Even more liberal than the Hanbalis is the Maliki School where physical and mental defects, failure to maintain, desertion, absence for more than one year, and ill-treatment are all valid grounds for divorce. Maliki law, therefore, is the only classical school which permits a divorce on the basis of cruelty or ill-treatment by the husband.

IV.) Reforms:

1.) Talaq:

The triple talaq has been a prime target for reforms in the Muslim world. In Egypt, the provisions of Hanbali law were placed which stated that any divorce uttered in intoxication or under compulsion is henceforth invalid. So, the Hanafi doctrine which had looked to the act of the talaq ignoring its intent was silently repealed.

In many Muslim countries, reforms provided that the triple talaq shall only take effect as a single talaq, thus adopting the Sunna methods of talaq and effectively abolishing talaq al-bid’a. In Egypt, a repudiation coupled with words or gestures indicating a number is equivalent to a single repudiation. In Jordan, the law derecognises a talaq which is not intended, as well as talaq al-bid'a. In Yemen, the law also turned a triple talaq into a single talaq. In Syria, if a divorce is coupled with a number, expressly or impliedly, still not more than one divorce shall be deemed to have taken place.

In Tunisia alone, divorce can only be obtained by judicial means. The rationale being Surah Al-Nisa, Verse 37 which states: “Where discord arises between spouses, then appoint arbitrators”.

A very significant reform was that divorce compensation (Mutat) was payable to every divorcee for an arbitrary talaq. This was the first real attempt to control the husband’s unilateral power of repudiation in that his motive for exercising this power was subjected to scrutiny and the wife’s position was at least to some extent protected in the event of abuse of this power. (Note: See the section on Mutat in the chapter of maintenance).

In India, DMMA 1939 introduced some reforms incorporating provisions from Maliki law. S.2(8) of the Act provides a number of examples of cruelty by the husband, e.g. assault or treating more than one wives inequitably, which could be used as grounds for divorce. In the leading case of “Itwari v. Asghari”, where the husband had taken a second wife against the wishes of his first wife, cruel conduct was defined as “conduct of the husband which would cause such bodily or mental pain as to endanger the wife’s safety or health”. Thus, the court supported the wife’s case.

A number of reforms have been effected in this area, in both Pakistan and Bangladesh, by S.7(1) MFLO 1969. According to it, a husband has to give notice to the Chairman of the Union Council about the fact that he has given talaq to his wife. S.7(3) postpones the legal validity of talaq for 90 days. Furthermore, in S.7(6), it is said that unless the termination of marriage is for the third time, the wife can marry the same husband without an intervening marriage.

The leading case on this subject is “Ali Nawaz Gardezi v. M. Yusuf”, where a German woman claimed to have been divorced by her previous Shia husband and married another person after conversion to Islam. However, the former husband, Mr. Gardezi, claimed that he had not divorced her wife. Regarding S.7, it was established that Mr. Gardezi had not given notice to the Chairman. It was held that the effect of S.7 was to prevent hasty dissolution of marriages by talaq and therefore the marital status of the parties does not change for a certain period of time. Thus, the new husband was found guilty because the woman was still the wife of the complainant as the divorce had not been effective.

In “Inamul Islam v. Hussain Bano”, the court held that under S.7(1), there are three essential requirement: (1) giving of talaq in accordance with Muslim law; (2) giving notice to the Chairman; and (3) giving notice to the wife. If any of these is not fulfilled then the talaq is not valid even after 90 days.

A good illustration of the effectiveness of the 90 days was given in “Muhammad Latif v. Hanifa Bibi”, where the husband, married polygamously only after eight days of serving the notice to the wife and the Chairman. The wife filed a suit against the husband’s polygamy arguing that the divorce became effective only after expiration of 90 days while the husband argued that under the Sharia it was effective instantly. However, the High Court found against the husband holding that the divorce remained ineffective until 90 days and the husband should have sought permission of the Arbitration Council before marrying polygamously. It was stated that the effect of S.7 MFLO is to replace talaq al-bid’a with talaq al-ahsan referred to in Surah Al-Talaq of the Quran. Thus, this section is not against the spirit of Islamic law and its sanctity is more enhanced, being nearest to the injunctions of the Quran and the Sunna.

However, during the past few years the argument has gained strength that the serving of the notice of talaq may not be essential to achieve legal validity. In “Maqbool Jan v. Arshad Hassan”, it was held that a talaq which has not been notified to the Chairman within 90 days and which has not been revoked, may be presumed to have become legally valid for all intents and purposes.

Thus, it is quite evident that the notice requirement is used for the benefit of the divorced woman and this requirement is waived in situations: (1) where the parties are unaware of S.7; (2) where it would otherwise be disadvantageous to the women; or (3) if there is a lack of reliable evidence to support the woman’s claim.

2.) Judicial Divorce:

This area has been a subject of considerable reforms. A number of grounds were provided for the wife to seek judicial dissolution of marriage. In Syria, firstly, on the basis of husband’s cruelty, the judge can order a divorce, if reconciliation fails. If the injury is not proved, arbiters should be appointed to investigate the facts and decide on an irrevocable divorce. Secondly, if a defect is found on the husband’s part, then there are two specific cases: (1) if the husband is impotent, and the wife neither knew nor consented to the defect; and (2) if the husband becomes insane after the contract, the judge shall order an irrevocable divorce forthwith if such a defect is incurable. Thirdly, if a husband fails to pay maintenance, the wife can also seek divorce, provided that the husband has no known means and fails to prove his insolvency. Proving his insolvency, would grant him a period of three months after which, if he still fails to pay maintenance, the judge would order a “revocable” divorce i.e. the husband can resume matrimony during the idda if he proves his solvency and is willing to pay maintenance. Fourthly, if the husband is absent or received a sentence for 3 years, the wife can seek divorce after one year of the absence or imprisonment, even if she is still maintained from the husband’s property.

In Egypt, according to the Hanafi doctrine, the husband’s impotence can be a ground for judicial divorce. But reforms placed Maliki provisions to add further defects to the wife's aid, if three conditions are satisfied: (1) the defect is of long standing; (2) that the injury shall affect her e.g. leprosy; and (3) she neither knew nor consented to the defect. Secondly, a wife could also seek an irrevocable divorce on basis of her husband’s cruelty. If she was unable to prove her case, the arbiters would investigate the facts in an attempt to reconcile the parties. However, if they find against the husband, then an irrevocable divorce would be granted. Thirdly, failure to pay maintenance can also be a valid ground for divorce. If the husband has no known property, and refuses to declare his means and insists on abstaining from maintenance, the judge shall order a “revocable” divorce. If he proves insolvency, the judge shall grant him a delay of one month after which, a divorce decree shall be issued. Fourthly, on the basis of husband’s absence, if the husband is away for a year or received a sentence for three years, the wife may seek irrevocable divorce after one year of the husband’s imprisonment/absence. If it is possible to send messages to the absent husband, the judge would warn him to return living with his wife within a fix time, failing to comply with would result in an irrevocable divorce.

In Jordanian law, firstly, on grounds of injury, the court will appoint arbiters to investigate the matter. If they find against the husband, they shall award an irrevocable divorce, reserving all the wife's rights as if it was the husband himself who effected the divorce. Secondly, on the basis of a husband’s defect, e.g. mutilation, impotence, leprosy or tuberculosis, that makes consummation impossible or an injury to the wife, the judge shall order a divorce if the disease is incurable. Insanity of the husband after the marriage shall also entitle the wife to sue for a divorce. Thirdly, on failure to pay maintenance, if the husband has no known property, and insists on refusing to pay maintenance, the judge shall order a divorce. If he proves his insolvency, he shall be given a period between one and three months, after which the judge shall order a divorce. Such a divorce shall be revocable. Fourthly, regarding the husband’s absence, Jordan has incorporated the Egyptian provisions within her statutes.

In Algeria, the wife has the right to apply for a divorce on the ground that the husband is incapable of consummating the marriage. Secondly, on grounds of failure to pay maintenance, the wife has the right to sue for a divorce, unless the woman knew of his insolvency at the time of the marriage. Thirdly, on grounds of the husband’s absence, if the husband is in prison of over a year for an offence that is a disgrace to the family, or is absent for a year without an excuse or maintenance, the wife has the right to sue for judicial divorce.
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CHILDREN


Introduction:

Guardianship is defined as the carrying of a decision affecting a third person whether the latter wishes or not. Minor children are subject to three types of guardianship:

• Custodial care (hadannah).
• Guardianship of the person (also including marriage guardianship).
• Guardianship of the property.

I.) Custodial Care:

In Islamic law, according to all schools and sects, guardianship of the person of the child belongs primarily to the father and, in the absence of the father, to the next male kinsman in the agnatic line, the first person having priority after the father being the paternal grandfather.

The mother may never be the guardian of her infant children. The right of the mother is restricted to keeping her children in her custodial care. Custody under the Sharia is defined as the caring for the infant during the period when it cannot do without the woman in a prohibited degree who have the right to bring it up.

If the mother is dead, however, or deprived of the right, there is disagreement among the schools as to who is entitled to the custody of the infant child:

• The Hanafis and Malikis hold that the hadannah is the right of females, and accordingly the right will pass to the kinswomen of the mother.
• In Shafi and Hanbali law, if mother has no surviving female ascendant, the right of custody passes to the father and in his absence to his ascendants.
• In Shia law, the mother’s right passes in all cases to the father of the child and in his absence to the paternal grandfather.

1.) Qualifications of the Custodian:

All the schools and sects are agreed that certain conditions must be fulfilled before a person is given the right of custody. Two self-evident requirements are that the custodian should be adult and of sound mind, i.e. neither insane nor feeble-minded. The person having the right to hadannah must be trustworthy. She must not pursue a life in any way immoral. Finally, the custodian of the child should physically be able to take proper care of the child. All the schools and sects are agreed that the custodian must not be married to a man who is related to the child within the prohibited degrees. During the mother’s period of custody, the overall control of the child is in the hands of the father e.g. he alone decides on the child’s education and whether the child may travel. The right of the mother is merely to keep the child in her custodial care, to have it live with her on a day-to-day basis. The mother will lose her right to custody if she attempts to take the child away from the father’s “sphere of influence”, i.e. if she removes the child to a place so distant that the father cannot visit the child on a daily basis to oversee its welfare.

If the mother of the child is a Christian or a Jew the schools are divided on whether such a non-Muslim mother may have the custody of her Muslim child:

• The Hanafis and Malikis hold that the custodian of the child need herself be Muslim. However, such a mother will lose the right to hadannah if she attempts to impose her faith upon the child.
• According to the doctrine of Shafis and Hanbalis, a non-Muslim mother may never have the custody of a Muslim child.

II.) Guardianship of the Person:

How long does the mother have the right of custody for her children?

• According to the Hanafi doctrine, the mother has the right of custody until the male children attains the age of seven years and the female child attains the age of nine years.
• In Maliki law the mother’s custodial right lasts in the case of a boy, until he attains puberty, and in the case of girls, until they are married and are able to begin married life.
• The Shafi school gives both girls and boys at seven years – the option of choosing whether to remain with the mother or to live with the father.
• In Hanbali law, this right to choose is given only to boys at seven years.
• In Ithna Ashari law, the mother's right lasts until her son is two years and her daughters seven years.

The father is the natural guardian of the child, gaining priority over the mother. However, a father may also appoint a testamentary guardian for his child, in the vent of the death of the father. But the testamentary guardian will only take over if the mother has dies or lost her legal capacity.

The guardianship of the person of the minor ends on the boy reaching puberty unless he is insane, when it will continue by the same guardian even if he is not the guardian of the property or the maintainer.

The guardianship of the person of the girl is either in respect of marriage, or in respect of care and protection. The matter form of guardianship comes to an end on the girl reaching the age at which she can fend for herself and is no longer in need of anybody to protect her from dangers that threaten her dignity and honour. Such a guardian is also deemed to terminate on marriage, with the husband providing the care and protection under the marriage relationship, rather than by way of guardianship of the person.

However, guardianship of the person shall be resumed on the occurrence of any mental defect that renders the person in question of no or of defective legal capacity.

III.) Recent Laws on Custody & Guardianship:

In Arab world, considerable changes have taken place regarding the right of hadannah. According to them, the period of custody will come to an end on the minor attaining the following ages:

• Syria: Boys 9 years and Girls 11 years.
• Tunisia: Boys 7 years and Girls 9 years.
• Jordan: Boys 9 years and Girls 11 years (If custody belongs to any other female than the mother) and in case of mother, the hadannah will continue until the children reach puberty.
• Egypt: Boys 10 years and Girls 12 years.

In South Asia, instead of altering the ages, the courts have been more concerned about what is in the best interest of the minor. The laws on custody and guardianship are governed by the Guardians & Wards Act 1890. In the Indian case of “Muhammad Shafi v. Shamim Banoo”, a marriage broke up and the wife sought the return of her two children under the Guardians & Wards Act. It was held that even during the marriage the custody of the minor children is with the wife. Thus, the custody of the children was granted to the mother.

In Pakistan, classical law rules have not been where they seem not to operate in the best interests of the minor concerned. In “Niaz Bi v. Fazal Ilahi”, the judge reluctantly gave custody of minor children to the father because of the mother’s poor health.

Also in “Grace Haqani v. Abdul Haqani”, the mother of the child was a Muslim convert, when she commenced an affair with another man and left the matrimonial home. The father filed an application for custody of the child. Under classical rules, custody belongs to the mother or the maternal aunt after her. However, it was deemed in the child’s best interest to be brought up as a Muslim and thus the custody was given to the father.

IV.) Guardianship of Property:

The guardianship of property is the father’s right. In all the schools, the guardianship of property continues, with the exception of Maliki law, until the child, whether male or female, attains majority. Upon attaining majority, males and females alike may deal with their own property and will acquire contractual capacity with regard to civil and commercial contracts. In Maliki law, however, though guardianship will cease in case of males, females get contractual power only upon consummation of a valid marriage.

According to the classical Sharia rules, a father he is known to be reliable and of good business sense shall have full legal capacity to dispose of his ward’s property as if it was his own, but cannot make a gift for no consideration as it would be disadvantageous to the ward.

In both Iraqi and Jordanian laws, a disposition by the father or agnate grandfather of the minor’s property will be valid if it is of the same value or slightly less. If, however, they are found to be of poor management sense, the judge may restrict or cancel their guardianship.

In Syria, property guardianship is the sole right and duty of the father and agnate grandfather, from whom it shall not be withdrawn unless their dishonesty or poor management is proven. Neither may make a gift of any of the minor’s property without permission of the judge who must be convinced of the sound grounds.

In South Asia, the general principle is that after the father’s death, guardianship falls on the father’s executor, next the parental grandfather’s executor. The guardian stands in a fiduciary relationship to his ward. Only in the most exceptional circumstances, when it is in the best interests of the child, will the court allow a guardian to buy or sell a ward’s property.

In “Imambandi v. Mutsaddi”, it was held by the Privy Council that the legal powers of a guardian are subject to strict conditions as to immovable property. While a mother, as de facto guardian, had the power to incur debts or to pledge the minor’s goods and chattels for the minor’s imperative necessities, such as food or clothing, she had no power at all to deal with the minor’s immovable property. Even a legal guardian has no power to sell the immovable property of the minor except in a case where he can obtain double its value or where the minor has no other property, and it is necessary to sell the property for the child’s maintenance.
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SUCCESSION


Introduction:

A hadith tells us that “he who knows the law of inheritance is possessed of half the knowledge of the world”. Islamic law recognises a system of what is called forced succession in that the propositus does not have the capacity of his property on his death as he wished.

I.) Testate Succession:

Every sane and major Muslim may dispose of his property by will. However these powers are restricted. All schools and sects agree that a Muslim cannot by will dispose of more than one-third of his estate. However, an excessive bequest is not rendered void ab initio, but is reduced to one-third of the estate. The remaining two-thirds must go to the heirs in form of “forced succession”.

The Sunni Schools hold that a bequest to an heir is not valid, unless the other heirs consent to it after the testator’s death. But, the Ithna Ashari and Zaidis permit a bequest to an heir, without the consent of other heirs, as long as it does not exceed one-third of the testator’s estate. Only Zahris believe that a bequest to an heir is completely void.

II.) Intestate Succession:

The estate of the deceased is applied successively to payments of: (1) deceased’s debts; (2) funeral expenses; (3) valid and effective legacies within one-third of the remainder; and (4) the shares of the heirs from what is left.

Under the Sharia, marriage is a ground for inheritance between spouses. Consanguinity is the blood relationship between the deceased and the heirs, including descendants, ascendants, siblings, uncles etc.

The doctrine of return (rudd) applies in case of a residue when, in case of no residuary, it reverts to the sharers, apart from the spouses, in proportion to their shares. The doctrine of awl applies if the shares given exceed unity, by increasing the denominator.

1.) Sunni Law of Inheritance:

Sunni Islam recognises 12 Quranic heirs, divided into 3 categories:

a.) The Quranic heirs, called sharers.
b.) The residuate heirs: the male agnatic kinsmen.
c.) Distant kindred or uterine heirs (They rarely inherit anything).


 Sharers:

These are those heirs who are entitled to a fixed share (fard) of the inheritance, and whose specific shares should be given in the first instance.

• The husband’s minimum Quranic share is one-quarter (¼) if the propositus is survived by children. However, when there are no children, his share is increased to one-half (½) of the estate.

• The wife’s minimum Quranic share is one-eighth (1/8) if the propositus is survived by children. However, when there are no children, her share is increased is to one-fourth (¼). Two or more wives collectively inherit one-fourth or one-eighth, which shall be equally divided among them. The shares of the spouses are defined in Surah Al-Nisa, Verse 12.

• The father shall inherit, if there is a son or son’s son (h.l.s), as a sharer, one-sixth (1/6). But if the propositus is survived only by a daughter or son’s daughter (h.l.s), the father will inherit first as a Quranic sharer, taking one-sixth (1/6), and secondly as a residuary heir, any remainder.

• The mother’s minimum Quranic share is one-sixth (1/6), which she inherits if there is a child of the propositus or if there are two or more siblings of the propositus of whatever blood tie. However, she will get one-third (1/3) if there is no surviving child or son’s child, or only one sibling.

• The daughter shall inherit one-half (½) if there is no son. If there are more daughters and no son, they will together inherit two-third (2/3). If there is a son, then, after deductions of other sharers, the male shall take double than the female i.e. the son two-thirds (2/3) and daughter one-third (1/3). Support for this proposition is found in Surah Al-Nisa, Verse 11.

There are also other sharers who can be excluded:

1. True Grandfather – Excluded by the father.
2. True Grandmother – Excluded by the mother.
3. Son’s Daughter – Excluded by a nearer male descendant.
4. Full Sister – Excluded by a son, a son’s son (h.l.s) or a father.
5. Consanguine Sister – Excluded by a son, a son’s son, a father, full brother or a full sister.
6. Uterine Brother/Sister – Excluded by a son, a son’s on or a father.

 Residuaries:

They have no fixed share but succeed to the residue after the claims of the sharers are satisfied. The first group of residuaries are those males between whom and the deceased no female intervenes. They occur in the following order of priority:

• The male descendants i.e. the son and the son’s son (h.l.s), together with female descendants who co-exist with a male descendant.
• The male ascendants i.e. the father and the true grandfather (h.h.s).
• The descendants of the father i.e. full and consanguine brothers and sisters and their sons (h.l.s).
• The descendants of the true grandfather i.e. full or consanguine paternal uncles and granduncles and their sons and grandsons.

The above order of priority is followed in that each category shall exclude any other below. Within the same category, the nearest i.e. with fewer links to the deceased, excludes the more distant. If they are equal in the category and nearness, then the full blood excludes the consanguine blood. If they are equal in all these aspects, they shall receive equal shares.

The second group comprises of all female sharers who need a residuary from the above group to share with. There are four such female sharers: (1) the daughter with the son; (2) the son’s daughter (h.l.s) with an equal or lower son’s son; (3) the full sister with the full brother; and (4) the consanguine sister with the consanguine brother. They shall share the residue after the sharers, with the male receiving twice the portion of a female.

The third group comprises of only two females, full and consanguine sisters, who are both sharers, but in the absence of a male agnate, they become residuaries with the daughter(s) or son’s daughter(s) (h.l.s).

2.) Shia Law of Inheritance:

In Shia law, the heirs are classified into three groups:

a.) Solely sharers – spouses and the mother.
b.) Sharers but can also be residuaries e.g. daughters and sisters.
c.) Solely residuaries e.g. the son.

The spouse always takes the Quranic share, but otherwise, all relatives fall into one of the three classes, with sub-sections in each class:

Class1a Parents
Class1b Lineal descendants
Class2a Grandparents
Class2b Brothers, sisters and their issue
Class3a Paternal uncles and aunts and their issues
Class3c Maternal uncles and aunts and their issues

Within the same class the nearer in degree will exclude the more remote, so that a daughter will exclude the son’s son. If any heir in Class 1 survives, they will exclude the members of the lower classes, whereas, Class 2 members have the capacity to exclude the members of Class 3.

 Spouses:

Since the spouses are always sharers, therefore they shall have priority over other sharers. Both the Sunnis and Shias give the husband half (½) the estate of the deceased wife if she has left no child, and a quarter (¼) if she has; the widow shall receive one-quarter (¼) or one-eighth (1/8) respectively. Both the schools rely on Surah Al-Nisa, verse 12.

However, the two sects differ on the meaning of the child. The Sunnis maintain that a child is any descendant who is related to the deceased without any female links e.g. a son’s son or daughter. So, a daughter’s son is no descendant. But, the Shias consider that every descendant, whether related through male or female links, is a child which shall reduce the share of the surviving spouse.

The husband is also entitled to receive the residue by way of “return” (rudd). However, the wife is not entitled to any such return.

Another difference is that the husband shall inherit his share of the estate without distinction between real and movable property. But the wife, a childless widow can never inherit from the real estate of her husband.

 Heirs of the First Class:

• The father on his own, without a spouse or a member of the first class shall inherit the whole estate.

• The mother on her own, without a spouse or a member of the first class shall receive the whole estate: one-third (1/3) as a sharer and the residue by way of return. If she inherits with a husband, he shall take his share of one-half (½).

• With both parents surviving, the mother shall get one-third and the father the residue. Both with one spouse, the mother shall receive one-third of the estate, his spouse his or her share and the father what is left thereafter.

• An only child of the deceased shall take the whole estate on its own without any other heir surviving: a son through kinship and a daughter as a sharer (one-half) and by way of return (one-half).

• On the same grounds, an only child with a spouse of the deceased shall take the whole residue after deducting the spouse’s share.

• More than one child, males and females, shall share the whole estate if there is no sharer, and the residue if there is a sharer, the male taking twice the portion of the female. If they are all males or females they shall share equally such a residue.

• Every grandchild shall be excluded by a direct child of the deceased, under the general Shia rule that within the same class of blood relations, the nearest excludes the more remote. A daughter’s daughter shall be excluded by a daughter or a son, and a son’s son shall not inherit if there is a son or daughter, and so forth.

III.) Gifts:

Every sane and major Muslim may dispose of his entire property by gift. A transfer of property constitutes a gift (hiba), if: (1) transfer is made immediately; (2) the transfer is accepted; and (3) no consideration is given.

For a gift to be valid, the donor should divest himself completely of all ownership and control. However, certain conditions exist in respect of deathbed gifts: a gift made by a Muslim during a death-illness cannot take effect beyond a third of the estate nor can it be made in favour of an heir, unless the other heirs give their consent to the gift after the donor’s death.

IV.) Wakfs:

The gift by Muslim for a purpose that is recognised by Islamic law as religious, pious or charitable constitutes a wakf. The dedication of the property has to be permanent as regards the purpose of the wakf, i.e. the wakf must be established in perpetuity. The property of the wakf cannot be alienated by the former owner nor by the administrator of wakf.

A wakf created by will or made in death – illness cannot exceed more than one-third of the estate of the donor, unless the heirs give their consent on the death of the testator.
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stunner bro,can u plz send these notes to my yahoo id,it ll be appreciated.<***********@yahoo.com>

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Are these notes enough for preparation of Muslim Law and Jurisprudence?
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