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FAMILY LAW- I
26. 07. 2022, Tuesday Hindu law Muslim Law bare act. 2018 and 2020 Kusum on family law I Family law is different from personal law? Group of people united together by the bond of marriage(conjugality), blood(consanguinity) and adoption. Burgess and Locke- Family is a group of persons united by ties of marriage, blood or adoption constituting a single household interacting and intercommunicating with each other in their respective social roles of husband and wife, father and mother, son and daughter, brother and sister creating a common cultute. Characteristic of family- 1. Common name or ancestry 2. Common household 3. Limited in size 4. Dependent emotional and economic or social 5. Common property 6. Have roles assigned 7. It is a universal unit Types of family- 1. Based on birth- A. Based on orientation (In which you are born), B. family based on procreation (which you give birth to). 2. Based on marriage- monogamous, polygamous 3. Based on ancestry- matrilineal and patrilineal 4. Based on relation- conjugal, consanguine 5. Based on authority- patriarchal and matriarchal 6. Based on residence- patri local and matri local 7. Based on size- nuclear (2 generations) joint (3 or more generations) and extended. 28.07.2022, Thursday, Day- Joint family is only existing for the Hindu Community and hence it is called a Hindu Joint Family. The legal notion of joint family is only available in Hindu Joint family. In other laws like the tax laws, it is called as a Hindu undivided Family. First question that is concerned with family law: 1. Religion- in order to find by what law are they governed. 2. Age of the parties concerned- in order to find out the competency and majority. 3. Sex of the person concerned- for example if the issue revolves arounds custody of child it should be taken into consideration if the person is the mother or father. Also
as there are different age of marriage for the male and female, it is important to find out the validity of the marriage.
- Marital Status.
- Place of residence/ citizenship- or for example it is regarding it is matter of marriage, it is important to know where was the marriage solemnized. Because there are certain places in India like Pondicherry where the French civil code is still applicable or goa where Portuguese civil code still applicable. This is called lex loci celebrationis. Agnates- if a person is related to you through an entire male line the relation is agnate. Eg. fathers brothers son’s daughter, the person is your agnatic relative. Cognates- if there is any female in the chain of relation the person is your cognatic relative. Eg. Fathers Mothers Brother Son. Even one female is enough to do so. HINDU PERSONAL LAW- Sources of Hindu Law:
- Shrutis- something that is heard. The religion is so old that, the writing was not emerged. These shrutis are also called “Vedas”. It believed that the hrishi during meditation had communication with god and heard what they said and hence shruti. They two categories of vedas- Samhita and Bramha. Samhita has all the theoretical part, and Bramha has the reasoning behind these theories of why should one pray to god. Not a single shruti use the word Hindu they rathe ruse the word “Dharma”. Every house has a person called Grihapati who would lay down rules for the whole family and the one who fulfills his responsibility. This method did not stay intact for a long time. And so social rules emerged as people came into contact with the society. Social rules were divided as- a) Griha-Spiritual and Personal b) Dramhasutras- Civil and Administrative in nature, and hence the king emerged here. All these social rules were followed in conformity to the prevalent customs. Customs in fact gave a long life to these social laws or rules. Not a single shruti or veda state about any one’s right. It just talks about duty and obligation of the king as well as the common individual.
- Smritis- All these rishis after hearing the rules taught them to their disciples. And they were remembered and hence smritis. These people who leant them are Smritikas who were considered as philosophers. Both the Shrutis and Smritis are in unwritten form. For Example
- Manu smruti- by then the brahmnical order was in place. The feature of this smriti was that is relegated women and slaves and animals to a very low level and all of them were at the equal level. It did explain about inheritance laws, contracts, property laws, civil and criminal side of the society.
- Customs a. It is encouraged that laws make some space for customs to breathe. b. In order for a custom to receive protection/essential features: i. Custom must be ancient ii. Reasonable iii. Certain iv. Uniform v. Obligatory vi. Observed continuously w/o interruption vii. Should not be immoral or opposed to public policy c. Community custom/family customs both are valid and can get judicial recognition.
- Judicial decisions (modern source) a.
- Legislations Sr.No .
MITAKSHARA DAYABHAGA
- The basis for the law of inheritance is the principle of propinquity, i.e., nearness in blood relationships. EXCEPTIONS: 1. Exclusion of females 2. Preference of agnates over cognates Based on the principle of religious efficacy or spiritual benefits and therefore, those people who confer more religious benefits on the deceased is preferred to those confer who confer less religious benefit Religious benefits mean offering of oblations or pind-daan.
- Wrt joint family, under mitakshara, the son, grandson and great grandson have a right by birth in the joint family property, having an equal interest with the father. The son, grandson or great- grandson has no such right till the father is alive, i.e., the right to property triggers on death.
- The coparceners have ‘community of interest’ and ‘unity of possession’ (fluctuating interest) The coparceners have specified and ascertained shares in the JFP
- Under the mitakshara system, the doctrine of survivorship applies No such doctrine applies
a. Caste Disabilities Removal Act, 1850- i. Repealed in 2019 ii. A committee was formed by BN Rao to draft the Hindu Code Bill iii. This code was received with furor and conflict as the draft constituted many progressive concepts like absolute property rights and divorce, etc. iv. But it could not be passed owing to the constant revolt. v. Hence 4 smaller piece meal legislations were passed-
- Hindu Marriage Act, 1955
- Hindu Succession Act, 1956
- Hindu Minority and Guardianship Act, 1956
- Hindu Adoption and Maintenance Act, 1956 Code is an exhaustive document on a subject matter which can have an overriding effect on the other existing laws on the same subject. Common connecting link- gave space for customary practices Date- 1. 08. 2022, Monday Case disabilities Removal Act, 1850- to ensure that if any person is converting to any other religion, he won’t be deprived of his right over the property of his family. Primarily towards Hindu and Muslims. Repealed in 2019, but that does not make any change, because it has been amalgamated into different personal law legislation. Committee constituted under the chairmanship of Sir Benegal Narsing Rao, to build a bill that would govern the Hindu personal laws. There was disagreement amongst the members when the time of execution came. It was a progressive document that talked about divorce, and also absolute property rights to women, mitakshara coparcenary that gave daughters the right in property. It did not pass. And so 4 small legislations were passed, in around 6 months.
- Hindu Marriage Act, 1955.
- Hindu Succession Act, 1956.
- Hindu Minority and Guardianship Act, 1956
- The Hindu Adoption and Maintenance Act, 1956 UNIFORM CIVIL CODE (UCC)- Part 4 provision. Difference between code and act? Code is a exhaustive document on a subject matter and no other version of that law can exist. It can have a overriding effect over the other existing laws on the subject. Anything that is codified is a code. All acts are code. Sec. 4, Hindu Marriage Act- this act shall override or dominate over any custom, usage, interpretations, texts etc. Sankar Appa v. Basamma - In this case the court held that, sec. 9 of the CPC and relevant provisions of the specific relief act entitles a married person to institute a suit in order to restrain the other spouse from marrying again. In such situations, sec. 4 of the HMA, does not stand in her way.
- Hindus married under Special Marriage Act- If two Hindus marry under the SMA, then as per sec. 21A they will still be governed by the Hindu Succession Act (not all Hindu laws) and not the Indian Succession Act, this is an exception brought through the amendment of 1976. But this exception is not applicable to non- Hindus. Maneka Gandhi v. Indira Gandhi - Delhi High Court decided the case. Indira Gandhi was a Hindu; her husband was a Parsi. Maneka Gandhi was Sikh. Sanjay Gandhi was married to Maneka through Sikh ceremony. After Sanjay Gandhi’s death, the question was about property, according to ISA, the property goes to wife and children, and according to HSA, the property goes to mother, wife and children. Indira contended that Sanjay was brought up as a Hindu though his father was not. Indira Gandhi won the case because he was brought up as a Hindu. This was how the amendment came. Date- 02.08.2022, Tuesday Who are Hindus? Sec 2 of HMA- applies to a person who is Hindu. Sec. 3- Definition clause S. 4- Overriding effect S.5 – S.8- Under Hindu Marriage Sec. 5- Conditions for a Hindu Marriage: (even if all of the ceremonies are not followed, it cannot be said that the marriage is invalid? This section shall be read with 11, 12, 7, sec. 11 and 12 has to be read with 17 and 18 which has to be read with 494 and 495 Solemnized- performance of an act with the requirement ceremony. It shall be between any two Hindus, that are included in Sec. 2. There is no mention about the sexual orientation about the individuals. But after the reading of the whole act, it hints to a heterosexual type of marriage, due to the usage of the words, husband wife, etc. S. 5 (i)- Neither party shall have a spouse living at the time of marriage. Monogamy. This provision is gender neutral a it talks about ‘neither party’. Also, someone may have a spouse but it has to be dead. Sec. 11- Void marriage. Only the both parties can go to the court. The first wife or husband can go to the court only through the Specific relief act. A void marriage is a civil consequence, that your contract does not have a validity. This section does not apply to marriages that have been done before the commencement of this act. Whereas sec. 12 is applicable before and after as well. Sec. 17 - Punishment of bigamy. This section links the HMA with IPC, as it provides for a punishment. Here there is a difference between HMA and IPC, that IPC is secular or religion neutral. If any section of an act, takes into consideration of some other Act, this is called as referential legislation.
Example- In IPC the punishment for bigamy in 1860 is 7 yrs, in HMA which came in 1955, in 1999, there was amendment in IPC and it was increased for 10 yrs. Now though there is an amendment, the punishment under HMA will still remain 7 yrs, because sec. 17 clearly says, IPC (45 of 1860). So, unless and until there is an amendment in HMA, there will be no change in the punishment though the offence is same. (This is just an example, there has not been any such amendment in 1999, it is still the same) Bhaurao Shankar Lokhande v. State of Maharashtra AIR 1965 SC 1564- Bhaurao was married Indubai in 1952, later he married Kamlabai in 1962. When indubai got to know about this she went to the court, the Bombay HC stated that it is a case of Bigamy. He again appealed to the SC against this decision. He contends that it has to be the first marriage that has to be a valid marriage, the second marriage also has to be a valid marriage, he says that the second marriage is not solemnized as all the ceremonies are not done. So according to Sec. 2 it is required that only one community’s essential ceremony has to be followed. The court said as the second marriage did not have saptapadi which is an essential ceremony of that particular community and hence the second marriage was void, due to which it was not a bigamy. The court noted that the expression “whoever marries” under Sec. 494 of IPC means whoever marries validly. If the marriage is not a valid marriage, it is no marriage in the eyes of law, hence the appellant cannot be held, to have committed the offence under Sec. 494 of the IPC. Date- 04.08.2022, Thursday The subject matter of marriage falls in the concurrent list. Sec. 5(1) there are certain interlinking provisions- s. 7
- S. 11, 17, 494 (IPC) S. Nagalingam v. Sivagami - this person was married to sivagami and then in the subsistence of this marriage he married kasturi. They did not take saptapadi but tied thali around her neck. Sivagami says that the marriage wasn’t valid hence. Nagalingam comes before the SC. Court says that you cannot come up with a blanket thing about s.7, as it also gives place to other customs. The state has already added certain customs to s. 7 under concurrent list which includes thali. And hence the second marriage is valid as well, hence there is bigamy. To invoke s. 494 of IPC it is essential, that the parties enter into a form of marriage which is recognised in their communities and which makes such marriage a void marriage, Bhaurao’s case was not held here because, in his marriage saptapadi was a necessity, which was not in the case of nagalingam.
Additionally, the court concluded that, “All such cases will be brought within the purview of sec. 494 of the IPC.” Keep in mind the year 1955, 1964, 1976 (HMA’ structure was changed), 1999, 2010- these are crucial years for the HMA. S. 5 (1) – Monogamy rule S. 5 (2)- Mental Illness provision- then marriage is voidable as mention in S. 12. A voidable marriage, is one can go to the court to get it nullified, it is at the option of one party. It is valid until nullified. Hence section 5 only says conditions and not ‘valid conditions. S.5 (2) – if neither party is not able give consent for the fact that you were of unsound mind and not for any other reason. The person has been suffering a mental disorder of such a kind and extent as to render you unfit for marriage as well as procreation. The person has been subject to recurrent attack of insanity. This marriage remains a valid marriage unless and until someone goes to the court to get a decree of nullity. Sec. 5(2) has been inserted in 1976. In 1955 it was as lunatic or idiot. But the words were changed in 1976. 9 Date- 08.08.2022, Monday S. 5 (2)- This provision was redrafted in 1976 a) Unsoundness of mined – it should have diluted or vitiated the consent of the person at the time of marriage. b) Though the person is capable of giving a valid consent but suffers from a mental disorder of such a kind or such an extent which renders the person unfit for two purposes only- marriage and procreation (one of them is sufficient). S. 13 gives the definition of mental disorder. (This was added in 1976 as well) c) The person has been subject to recurrent attacks of insanity. (The word epilepsy is removed in 1999) At least one attack of insanity must have happened before the marriage and one after the marriage, if there was no attack before marriage, then the marriage cannot be nullified, it must be recurrent, it may be possible that the person is getting married at a lucid interval. R. Laxmi Narayan v. Santhi AIR 2001 SC 2110- It was 25 days marriage, the husband realised that the wife is weird and did not look normal, and hence approached the court to seek a decree of nullity. The court asked for the instances that show that she is not normal. She would stare without blinking, she refused cohabitation, when she is asked to serve food, she at it all. The court asked him to bring some more instances.
The court noted here that, in order to draw an inference of mental disorder merely from the fact that there was no cohabitation for about a month is neither reasonable nor permissible, to brand the wife as unfit or abnormal the party has to bring about adequate or a strict standard of proof. J. Sudhakar Shenoy v. Vrinda Shenoy AIR 2001 Kar 1 The husband said that the wife is peculiar, applies castor oil thrice a day, she baths thrice a day, she won’t eat at times, she drank the entire milk. The court said that, no minor aberrations like applying castor oil on hair, soiling clothes while eating, not applying sindur cannot amount to mental disorder as envisaged under S. 5(2). S. 5 (4)- the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two. S.11 renders a marriage void if clause 4 is contravened. If clause or 4 or 5 is contrived there is imprisonment of 1 month and a fine which is mentioned in S. 18 S. 3 (g)- degree of prohibited relationships. Date- 12.08.2022, Friday Age of Marriage- S.5 (iii) S. 13 (2)- A woman can take divorce, if she gets married as a minor, the divorce can be taken even if she is above 15 yrs but before 18 yrs. A marriage may be void ab initio- S. 11 A marriage may be voidable- S. 12 A marriage may be divorced- S. 13 A marriage may be valid S. 18(a)- Punishment for contravention of certain conditions for a Hindu Marriage- these conditions also include S. 5 (iii). There was a an amendment to this in 2007 which increased the fine and imprisonment. In 2007 the Prohibition of Child Marriages Act was brought. Why is child marriage not void? According to the Indian Majority Act, a child is a person below 18 years of age. Age of consent is related to sexual intercourse. CEDAW- India has only reserved this upon two grounds i) Marriage Registration- as it is not mandatory in any other act except the SMA ii) Child Marriage- Barring these two, the entire CEDAW has been accepted by India. P. Venkataraman v. State 1977 AP HC- The groom was 13 and the bride was 9 at the time solemnization of marriage. Without putting an end to this marriage, he solemnized a second marriage, the case under S. 494 IPC was registered against him, the AP HC laid down the 5 points of how HMA looks at Child Marriage:
i) whether a marriage contracted by a person with a female of less than 18 years of age could be said to be a valid marriage, and the custody of the said girl to be given to the husband? ii) whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardian ship of her parents? iii) Whether in view of the JJ Act the court has the power to entrust the custody of the minor girl to a person who contracted the marriage with the minor girl and thereby committed an offence punishable under both PCMA and HMA? iv) Whether the principles of Guardians and Wards Act (GWA) and the Hindu minority and guardianship act (HMGA) be imported in case of a minor girl married in contravention to HMA? Court- said that PCMA makes a child marriage expressly voidable that can be annulled by the aggrieved party only. Nobody else is competent to pray for such annulment. The court further noted that HMGA and HMA are statutes in pari materia therefore expression and terms like, ‘Husband’, ‘Wife’, or ‘Contracting Party’ must be understood in the same sense in both the legislations. Finally, the court noted that the legal status of a natural guardian under S. 6(c) shall not arise with respect to the husband unless and until the marriage acquires a complete validity. (All the child marriage contracted after 10th^ Jan 2007 this principle will be applicable) Independent thought v. UOI, 2017 10 SCC 800- Court- said that sexual intercourse with a wife who is below 18 yrs of age would amount to rape under IPC. Secondly, marital rape is an exception under S. 375 of IPC but for a wife below 18 yrs this exception does not hold validity any more. S. 5 v- Sapinda marriage- pinda means body, and sa means parts of the same body, so if one belongs to the same family they cannot get married. S. 3(f)- defines sapinda relationship- (i) “sapinda relationship” with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation; (ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them Date- 18.08.2022, Thursday Difference between prohibited relationship and sapinda relations. In prohibited relationships they are relationships by affinity as well as marriage, but in sapinda relationships its only by blood or adoption, that is consanguine.
The second difference is that in prohibited relationships there is no limit or no. but there is a limit of 3 and 5 in sapinda relationships. Frog-leap sapinda ship. Sec. 8- Registration of Hindu Marriages: Seema v. Ashwini Kumar - Petition before SC, decided in 2006. The court gave detailed directions to all state govt. to draft marriage registration rules and make it compulsory. The court also said, that marriage registration has a lot of benefits, like protection of child marriages, mostly these NRI marriages don’t have a spousal certificate but now it is mandatory. NULLITY- This concept emerged in India. This idea is closely related with capacity. There is an inverse relationship between capacity and nullity. Capacity was later changes to impediments. These impediments are of two types: absolute and conditional. In case of Conditional impediments the marriage cannot be rendered void after the death of the other party. For example unsoundness of mind is a conditional impediment. So you cannot get it nullified after the death of the party. Here is where the term voidable marriage comes. S.11- Void Marriage
- Prospective effect
- Either party can file petition against each other
- decree of the court is not mandatory, the marriage is anyways void
- is strictly connected to S.5, that is if certain grounds of S 5 are not complied with the marriage is void
- the second marriage during the subsistence of the first void marriage, the second marriage is valid, as the first marriage is void.
- in void marriage, it doesn’t make a difference if the party dies, as it is also void. S.12- Voidable Marriage
- Prospective as well as retrospective effect
- it is silent upon who can file the petition, which may also lead to a third party filing a petition.
- until the decree is not given by the court the marriage is valid.
- it involves S. 5 as well as other provisions, there are many grounds for a marriage to be voidable.
- if the second marriage during the subsistence of a first voidable marriage is void. There is a bigamy in this case.
- here if the party dies, the court won’t be giving any decree, and the marriage will be valid.
relief of nullity under S. 12(1)(a). the person may seek for divorce but not nullity in this section. Shevanti v. Bhaurao- MP HC- Where the respondent had under developed ovaries because of which she could not procreate and was considered as medically barren. The court noted that sterility or barrenness is not equated to impotence as the parties were able to consummate the marriage. In several other cases the court noted that the burden of proof of impotence is upon the petitioner. The SC in Yuvraj Digvijay Singhji v. Yuvrani Pratap Kumari has noted that impotence may be categorised as following:
- Physical or mental- mental can be that the person has a trauma attached with sex or is mentally not prepared to go through this act of sexual intercourse. It may also be pathological.
- Impotence may be general or particular. Particular could be relative or specific, for example the case of homosexual if the person is married to a heterosexual.
- Artificial insemination and assisted reproductive techniques- if the wife conceives using artificial means as the husband was sterile, but the husband is not able to perform sexual intercourse the marriage will still be considered as non- consummated. S. 12(1)(b)- the marriage is in contravention of S. 5(ii)- Gurnaam Singh v. Chand Kaur- the court stated that the wife was not suffering from a mental disorder of such a kind and such an extent which will render the marriage and procreation an impossibility as she already had a daughter in this marriage. S. 12(1)(c)- consent vitiated due to force or fraud- gone through certain changes with the onset of PCMA. Fraud can be in respect to the nature of the ceremony or any material facts and circumstances. For force there are no criteria defined. Babui Panmato Kuer v. Ram Agya Singh AIR 1968 Pat HC- The legal issue is- does the misrepresentation about the particulars of a bride groom made by the father to mother of the bride and overheard by the bride, amount to fraud so as to giving to the bride, a ground to seek annulment based on false representation. the court noted that, the impression that was created in the mind of the petitioner had continued even at the time of solemnization of marriage. The father in this case had a duty towards babui of making true disclosure of facts particularly with regard to the age of the proposed bridegroom. In fact, the father had resorted to the active concealment of a fact which was within his knowledge or belief. The section in the HMA, does not require that fraud must have happened “at the time of marriage” or “by the respondent on the petitioner”. Therefore, it is not necessary to prove that the consent was obtained fraudulently at the time of marriage or actively made by the respondent towards the
petitioner. Fraud consists of the following two elements: 1. Suggestion of falsehood (suggestio falsi), and 2) suppression of truth (suppression veri). 59 th^ law commission report, 1974- flimsy grounds cannot be considered as grounds for fraud. Asha Qureshi v. Afaq Qureshi- the marriage was nullified. The court noted that the wife did supress a material fact which is the details of her earlier marriage. the suppression of material fact would amount to fraud, it would be so even under S. 17(4) of the ICA, 1872. However the court noted that it is expected of the partied to do a brief research during marriage and the principle of caveat emptor to apply. S. 12(1)(d)- The respondent was pregnant by another person than the petitioner. Pre-marriage pregnancy of the wife which the petitioner was ignorant about. This provision cannot be invoked if the wife was pregnant before marriage and had aborted the child (this can go under fraud but not under this section). Date- 26.08.2022, Friday P v. K (Bombay HC)- The court noted that second grade prolapse of uterus does amount to a shocking revelation for the husband and concealment of such details makes for a case of nullity under the HMA. Voidable marriages do not held validity from day 1 which is similar to void marriage. the children born out of such marriage are legitimate. MUSLIM PERSONAL LAWS- Source- Quran Qayamat- Day of Judgement Akhirat- life after death Prior to 7th^ Century AD- Pre-Islamic Arabia- region was divided into small tribal parts- the tribal chief would decide the disputes- there was a lot of violence. This period was called Aiyyam-ul-Jahalia- absolute lawlessness. Hence people were ready to welcome change. Islam abrogated a lot of things like Female infanticide, limited polygamy, gave women rights, etc. The Prophet Mohammed was born in Mecca in 571 AD. he was a posthumous child, as a few days before his birth his father died in medina while returning form Syria. He married a women called kadija- had 6 children from marriage- 4 daughters and 2 sons- sons died in infancy. Once while he was meditating, he got a message from an angel called Gabriel- the message he received was called wehi. Only four people believed him- his wife, a blind scholar- waraqa, Abu baqr, and Ali. The first message he heard was at the age of 40. he died at the age of 63 and the last message he received was a few days before his death. Couple of months later, two more people believed him- Umar and Usman. He was met with severe opposition. He moved from Mecca to Medina in 622 AD, this move is called era of Hijirat-
- Ijma- Consensus of the companions of the prophets. When the Quran and the Sunnat could not supply any rule of law for a fresh problem, the jurists unanimously gave their decision and such a decision was termed as Ijma. Not every muslim can constitute an Ijma, you have to a very well read and noted individual. Three kinds of Ijma: i) Ijma of Companions: companions of the prophet- Lived when prophet Mohammad was alive. This is the highest form of Ijma ii) Ijma of Jurists- other than the companions. iii) Ijma of People or masses- this is not widely accepted. In India this type is not accepted. In the first type Ijma has to be unanimous, there has to be a consensus, whereas in the second it is about the majority opinion. Ijma can deal with a fresh piece of law, something which is not dealt with earlier. It also interprets the things in the first two sources, and try not to overrule it and make a fresh piece of law. It cannot amend the Quran or the earlier two sources and cannot disturb the structure. Even the Ijma of Jurists cannot overrule the Ijma of Companions.
- Qiyas (Analogical Deductions)- Only Sunnis recognise this, Shia’s don’t. It means accord and measurement. If the matters which has not been specifically covered by the first three sources, the law may be deduced from what has been already laid down by the three authorities by the process of analogy. Qiyas is the discovery of law, it already exists. SUNNIS: Four Sub-schools; i) Hanafi (majority overall) ii) Maliki iii) Shaffei iv) Hanabali SHIAS: Three Sub-school: i) Ithana Ashari (Majority in Shia) ii) Ismailis iii) Zaidy Other sources/ Modern Sources are: LANDMARK CASES- Abdul Kadir v. Salima- (Upon Muslim marriages) (land mark case), JUSTICE, EQUITY AND GOOD-CONSCIENCE and LEGISLATIONS NATURE AND CONCEPT OF MARRIAGE: It is known as the Nikah. It was in the case of Abdul Kadir v. Salima, that the Judge said that, “The Mohameddan Jurists, regard the institution of marriage as part taking both of the nature of ibaddat or a devotional act and Muamalat or dealing among men.”
Marriage (Nikah) is defined to be a contract which has for its object the procreation and the legalising of children. Fundamentals of an Islamic Marriage:
- There must be a proposal or offer of marriage (Ijab)
- There must be an acceptance (Qubool)
- The Ijab and Qubool must happen at the same time.
- There must be two witnesses at the time of marriage (two adult male sane muslim witnesses, or one adult male sane muslim witness plus two muslim women sane witnesses). For Shia’s witnesses are not required. For Sunni they are a requirement. Absence of Witnesses will make Sunni marriage Fasid or irregular.
- Consideration- Mehar- Given to the muslim bride at the time of marriage, coming from the husband’s marriage. Date- 05.09.2022, Monday Capacity:
- Sound Mind (Rashid)
- Age of Marriage- The person must have hit puberty (Baligh), In absence of evidence puberty is assumed for both boys and girls at 15 years of age.
- Number of wives- A muslim man may have as many as four wives at the same time, if he marries a fifth wife, when he already has four, the marriage is not wife but merely irregular. For Shia it would be void. The number of husbands for a muslim woman- it is not lawful to have more than one husband at the same time, violation of this requirement, renders the muslim woman’s marriage a void marriage and she may be prosecuted for S. 494 (Bigamy) of IPC.
- Marriage with a woman undergoing iddat: If you marry a woman undergoing iddat it will amount to an irregular marriage for Sunni, and void marriage for Shia.
- Religion- A muslim man may contract a valid marriage not only with a muslim woman but also with a kitabia (a woman who belongs to a religion which has been revealed in a book, ex. Jewish, Christianity), but cannot marry an idol or fire worshipper. Violation of this rule, renders the marriage as irregular. For Shia it will be void. A Mohameddan woman cannot marry even a Kitabia, she can only marry a muslim man. Marriage between sects, i.e., Shia and Sunni are valid. For a Shia muslim man he can marry only a Muslim woman, he cannot marry even a Kitabia Woman. Marrying to a kitabia woman is allowed only for a Sunni man. Consequences of Marriage:
- Sahih (Valid): i) The wife has a right to meher, maintenance and residence in his husband’s house ii) Sexual intercourse with the husband is lawful iii) Creates reciprocal rights of inheritance (both husband and wife can inherit each other’s property) iv) Wife has to observe iddat v) Children are legitimate vi) All the prohibited degrees mentioned below are generated
