Islamicpersonallaw-160507144700 2

Islamic personal law
Q. What are the sources of Islamic law. discuss their importance briefly.
1. Introduction:
Islamic is the complete code of life. under Islamic law the term law includes the moral law and legal
enactments. according to Islam ultimate source of any authority is God alone.
2. Sources of Islamic law:
I. Quran:
Quran is the first and primary source of law. Quran is not a legal code in the modern sence. the legislative
part of Quran is the model illustration for future legislation and does not constituted a legal code by itself.
Importance:
As primary source of law, Quran has vital importance. it lays down a way of life which regulates the
relationship of man with man and his relationship with God. the law of inheritance, marriage, divorce
theft, adultery and provisions of war and peace are meant for regulating the ties of man with the fellow
beings.
II. Sunnah:
Second of Islamic law is Sunnah. the Sunnah is closely linked with Quran it comprises.
(i) All words counsels of the Prophet.
(ii) Actions, words and daily practices of the holy Prophet.
(iii) Silence implying a tacit approbation his part of any individual act committed by his disciplines.
Importance:
Sunnah has great importance after the Quran. it describes the functions of the Holy Prophet (P.B.U.H)
namely, announcing of the revelation before people. giving them guidance.
III. Ijma:
Ijma is an important source of law. it is the agreement of the jurists among the followers of Muhammad
(P.B.U.H) in a particular age on a particular question.
(i) Basis of Ijma:
Ijma may be based on.
(a) Quran.
(b) Sunnah.
(c) Analogy.
(ii) Kinds of Ijma:
(i) Express (ii) Qawli
(iii) Tacit (iv) Sakuti
(iii) Importance:
Ijma as a source of law has great importance. it helps in interpretaion of laws according to the changing
needs of times and new legislation can be made through its process.
IV. Qiyas:
Qiyas is an extension of law from the origibal text to which the process is applied to a particular case by
means of common illat or effective cause, which cannot be ascertained merely by interpretation of the
language of the text.
(i) Kinds:
(a) Qiyas jali.
(b) Qiyas khafi.
(ii) Importance:
The function of Qiyas is to extend the law of the text to cases not falling within the purview of its terms
Noman khan Page 1

and not to establish a new rule of law.
V. Opinions of Muslim jurists:
Opinions of Muslim jurists are also secondary source of Islam law.
VI. Nature of laws lays down:
The Holy Quran is a code of conduct laying down the fundamental principles and not the detailed
provisions so in case of ambiguity reference should be made to the Sunnah.
VII. Naska:
Nask is also secondary source of Islamic laws. it is tent of Quran and tradition which have either been
totally abrogated or there application limited or modified by the subsequent text.
VIII. Muslalah Musrsala:
Muslalah Mursala means when nothing becomes clear in law after giving reasons then the course which is
to be adopted according to Islamic spirit for instance. taxation for the defence of the country.
IX. Ijthead:
Ijthehad is one of the dependent source of Islamic law. if a matter is not resolved expressly in Quran. and
Sunah and by way of Ijman the jurist must not leave the mater unresolved rather he should strive hard to
find out the solution under the light of Quran and Sunnah.
X. Municipal law:
Municipal laws of the state also source of Islamic law provided that these are not contrary to Islamic
concepts. it includes.
(i) Customs.
(ii) Judicial precedents.
(iii) Legislation.
(iv) Equality.
XI. Istehsan:
Istehsan means preference of one over another considering the former good. when a rule of law deduced
by analog is either in conflict with Ijma or is likely to causes inconvenience to its narrowness. the hanfis
jurists refuse to follow it and give preference to rule, which in his opinion would better advance the
welfare of man and the interest of justice.
(i) Kinds:
(a) Istihsan-e-Qiyasi.
(b) Istihsan-e-Zarurat.
(c) Istihsan-e-Ijma.
(ii) Importance:
Islamic legal system is not a rigid one rather it is much flexible to be adopted according to the changing
circumstances and needs of the society. the principle of Isthsan provides an opportunity to Muslim jurists
to interpret the law according to the spirit of and true intention of Islam.
XIII. Istidlal:
Istidlal means inferring from a thing. it is the name for a distinct method of juristic rationation, not falling
within the scope of interpretation or analogy.
(i) Kinds:
(i) Expression of connection existing between two proposition.
(ii) Isthab-ul-hal.
(iii) Authority of previous revealed law.
(ii) Importance:
Noman khan Page 2

Istidlal as secondary source of law has importance in law making.
XIV. Taqlid:
Taqlid negates the concept of Ijtihad and infact it is just revels of it, Taqlid means to follow the opinion of
learned. it is the discussion on the historical development of Islamic jurisprudence.
4. Conclusion:
To conclude I can say, that, the Quran is the basic and primary source of Islamic jurisprudence and laws.
the basis sources of Islamic laws are Quran and Sunnah. their authority is unchanged in all the times
Qiyas and Ijma are considered to be an authoritative source of law being subservient to the Quran and
Sunnah. all the sources have importance in Islamic jurisprudence and law making.
Write a detailed note on Quran as a primary source of Islamic law. (1999)(2001)
1. Introduction:
The Holy Quran is the of book consisting of those direct revelations which were made consisting of those
direct revelations which were made to the Holy Prophet Hazrat Muhammad 9Peace Be Upon Him). it is
in the very words of Allah Almighty. Quran is the primary source of law. it is first in the order of primary
source of law. it is first search for a hukm is to be in the Quran and the jurist should not move to the next
source unless the search in the Quran has been completed.
2. Meaning and definition of Holy Quran:
I.Meaning:
Quran is derived from the Arabic word Qura, a which means "to read"
II. Definition:
Many jurists have attempted to define Holy Quran., but they maintain that the purpose of definition is not
to grasp the nature of the Quran.
Definition by Al-Bazdawi:
"The Quran is the book revealed the messenger of Allah, Muhammad (Peace Be Upon Him) as written in
the masahif and transmitted to us from him through an authentic contionuous narration without doubt."
3. Revelation of the Holy Quran:
Holy Quran is a book of Allah which is revealed to Holy Prophet (Peace Be Upon Him). the first
revelation came to the Holy Prophet (Peace Be Upon Him)
where he was forty years of age. following verses of Surah-Al-Alaq were revealed to him.
"Read in the name of the lord, who creat the man from a clot."
"Read! and it thy lord the most Bountiful. who teacheh by the pen teacheth man that which he knew not."
(Al-Alaq: 1-5)
4. Attributes of the Holy Quran:
There are 55 alternative names or attributes of the Holy Quran e. g Al-Kitab, Al-Noor etc.
5. Quran as source of law:
The Holy Quran is a complete code of creed and morals as well as of the laws based thereupon. the Quran
seeks to guide man in all walks of life, spiritual temporal, individual and collective Quran says.
"And we have revealed the scripture unto the only that thou may explain unto them that werein they
differ, and (as) a guidance and a mercy for people who believe. (16:64)
"These are the limits of Allah (hadud Allah) so de not go near them." (2:187)
I. Division of verses of Holy Quran:
The Holy Quran is divided into 30 division called Ajza or Paras and into 114 chapters called Surrah.
which consists of 6666 verses. these verses divided in three sections or portions.
Noman khan Page 3

(i) First portion:

First portion deals with religion and its duties e. g, belief in one Allah, day of judgement etc.
(ii) Second portion:
Second portion deals with Quranic ethics.
(iii) Third portion:
Third portion is related with Munamalat. it regulates the relationship of individuals among themselves,
with states etc. it deals with sales and purchase, lease and mortgages, evidence, torts and contracts etc.
II. Ahkam in the Holy Quran:
Two main categories of Hukm have been classified by the Muslim jurists.
(i) Hukam Taklifi.
(ii) Hukm Wadi.
(i) Hukm Taklifi:
The aim of the hukm Taqlifi is to create an obligation for the commission or omission of an act.
(ii) Hukm Wadi:
The aim of the hukm wadi is to either inform a subject that certain thing is a cause of condition for or
obstacle to a hukm or is to explain the relationship that exists between two rules or to provide criterion for
judging whether an act performed is valid or not.
III. Category of laws revealed:
Most of the verses contaning rules of law were revealed with reference to cases which arose during the
lifetime of the Holy Prophet (P. B. U. H). these may be categorized as under.
(i) Abrogating verses:
Verses which repeal or abrogate objectionable customs like usury gambling and unlimited polygamy.
(ii) Verses affecting social reforms:
Verse which affects social reforms such as by raising the legal status of woman, setting the question of
succession and inheritance on equitable basis.
(iii) Verse providing rights:
Verse providing protection for the rights of minors and other persons under disability.
(iv) Pena verses:
Verses providing principles of punishment for the purpose of securing place and order.
(v) Legal verses:
These are the verses proving constitutional and administrative matters.
These verous principally occur in the madni Surahs.
6. Constitutional statute of Quran:
Quran is the constitutional book for Islamic states it id the supreme law of the land it clear comprehensive
and complete constitution. neither it can be amended nor abrogated. however interpertation of Quran as
constitution permitted.
7. Position in Pakistan:
Pakistan is an Islamic state and since the creation of Pakistan, attempts have been made at different times
to modify the existing laws in the light of Quran and Sunnah.
Article 227 of constitution of Pakistan 1973, runs as follows.
'All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy
Quran and Sunnah."
8. Conclusion:
To conclude, I can say that Holy Quran is the first primary source of Islamic law. all other sources derive
Noman khan Page 4

their validity from the Holy Quran which is in the direct words of Allah Almighty who is complete
sovereign over the entire universe, but it is to be noted that it is not a book of law. it is a book of guidance
for the mankind, so it does not contain a detailed corpus of legislation.
Discuss the importance of Sunnah as a source of Islamic Law. (2002)(2003)
1. Introduction:
Sunnah is the second primary source of Islamic law. if the Mujtahid does not find a text in the Quran for a
case he has to settle, he has recourse to the Sunnah for the derivation of the Hukms. there is a special
bond between Quran and Sunnah which must not be served as Sunnah is the explanation of the Holy
Quran.
2. Meaning of Sunnah:
I. Literal meaning:
The word Sunnah stands for the
"Well known path" or the "Well-trodden path which is followed again and again.
II. Technical meaning:
"What was transmitted from the messenger of Allah (P. B. U. H) of his words, act and 9tacit) approvals."
3. Kinds of Sunnah:
Following are the kinds of Sunnah.
(i) According to its of nature.
(ii) According to its written record.
I. According to its nature:
According to its nature, Sunnah is of following types.
(i) Sunnah al Qawliah:
It is saying or narration of the Holy Prophet (P. B. U. H) through which he intended the laying down of
the law or the explanation of the Ahkam.
Example:
(i) "La darar Wa-la dirar"
(No injury is to be caused and none is to be borne)
(ii) Sunnah Al Filiyah:
It is defined as the deeds and practices of the Holy Prophet (P. B. U. H) having a legal content like his
prayers facts etc.
(iii) Sunnah Taqritiyah:
It is defined as the commission of certain acts, by wondor deed. if something was done in a particular way
and Holy Prophet (P. B. U. H) maintained silence without expressing disproval to it, his silence in such a
case is called Taqir or Tacit approval and is considered a Sunnah.
II. According to its written record:
Sunnah may also be classified according to its entire written record, that is Ahadith.
(A) Division of Ahadith:
With respect to its narration, Ahadith are divided into two types.
(i) Hadith Muttasil.
(ii) Hadith Mursal.
(i) Hadith Muttasil:
The Ahadith whose chain of narration is complete. these are the ones in which the narrator are mentioned
from the beginning of the sand upto the Holy Prophet (P. B. U .H) and no narrator is missing.
Noman khan Page 5

Types of Hadith Muttasil:

It is one that is related by such a large number of people that thier agreement to falsehood cannot be
conceived. twatur is of two.
Twatyr Lafzi:
When all the narrators agree about the words as well as meaning the hadith is called Twatur Lafzi. for
example. following Hadith is Twatur Lafiz."He who attributes falsehood to me should person his abode in
the fire."
Twatur Manawi (Meaning)
It is a hadith which conveys the same meaning even it the words are not exactly the same.
(b) Hadith Mashhur:
The mashhur tradition is one the number of whose reporters do no reach the level of twatur in the first
generation. thus if one or two companions related the tradition form the prophet but in the next generation
the generation of tabium, a very large number related form them and so on till the end of the chain when
the traditions were compiled the such a tradition is called mashhur.
(c) Hadith Ahad:
The hadith ahad or the Khabar Wahid is reported by one or two persons from the beginning of its chain
upto its end when all traditions were recorded.
(ii) Hadith Mursal:
Hadith Mursal is one that is not continuous and one one more names of the narrators are missing from the
chain of narration the jurists disagreed about the employment of a Mursal hadith as proof for a Hukm.
4. Sunnah as a source of law:
Allah Almighty has delegated legislative powers to the Holy Prophet (P. B. U. H). the Quran from time
and again makes the Prophetic Sunnah as obligatory on the Muslims the reason why Sunnah is treated as
a source of law is based on the argument that Sunnah of Holy Prophet (P. B.U.H) was also revealed on
him.
"And came to you from God the light (Prophet) and the book." (Surah Al-Maida 15)
"And remeber what is read in your houses out the Quran and the Hikam (Sunnah) (Surah-Al-Ahzaab 34)
The authority of the Sunnah as a source of law is derived from the Quran. following Quran verses throws
light on the importance of Sunnah.
"If ye differ in anything among yourselves, refer it to the Allah and his Holy Prophet (P.B.U.H)." 9Surah-
Al-Nisa 59)
"And he does not speak of his own desire all is revealed on him". (Sura-Al-Nahal)
"He who obyes the Holy Prophet (P.B.U.H) obeys. (Surah Al Nisa: 80)
II. Legislative function of Sunnah:
Sunnah is the second primary source of law. the jurists must recourse to the Quran first for the search of
the Hukm and should not move to the Sunnah unless the search in the Quran has been completed. more
often than not, it is not possible for the jurist to understand the meaning of the text of the Quran from the
derivation of the ahkams, unless he has recourse to the explanation and commentary of the Quran which
is sunnah itself.
(i) Qualification for Sunnah as a source of law:
It is not every Sunnah that is a source of law. to qualify Sunnah as a source of law, it is necessary that the
acts must have a legal content. the purpose of the saying or acts of the Holy Prophet (P.B.U.H) should be
the laying down of the law or its elaboration.
(ii) Original law-making by Sunnah:
Noman khan Page 6

Where some Hukm is not mentioned in the Quran and Holy Prophet (P.B.U.H) decides it according to its
own wisdom, it becomes a source of original law making.
(iii) Legislative function of Sunnah with respect to Holy Quran or relationship btween Quran and
Suuna:
Quran laid down the basic principles and Sunnah explains these principles. the legislative function of
Sunnah with respect to the Holy Quran or the relationship between Quran and Sunnah can be discussed as
under.
(a) Specification of General Rule:
The Ahkams in the Quran is in general, undetermined. form the Sunnah restricts or qualifies theses
ahkams.
Example:
Quran says that "for the male two shares of the female the Sunnah explains that the murderer will not
inherit.
(b) Elaboration of Ahkams:
The Ahkams in Quran are general in unelaborated form. the Sunnah elaborates these Ahkams.
Example:
Quran order prayer, Sunnah provied for timing, number and rak' as of prayers.
(c) Analogy on the basis of rule in Quran:
The Sunnah may add supplement the legal provision of the Quran.
Example:
Quran prohibits marriage of two sisters with one man Sunnah prohibits it with maternal or paternal aunt.
(d) Lainkage of case with well known principle:
Sunnah links a case with the well-known principle mentioned in the Holy Quran.
Example:
Quran has permitted all good things and has commanded the avoidance of khabaith. the Sunnah has liked
with the Khabaith the consumption of animals with molars and birds with claws.
(e) General principles laid down by Sunnah:
Some times Sunnah lays down a genera principle.
Example:
Sunnah lays down the principle.
"No injury is to be caused or borne."
Quran mentions a number of cases in which injury to others has been prohibited.
(f) Explanation of the implicit:
The Quranic injunctions are sometimes implicit and the Sunnah makes it explicit by providing the details.
Example:
Quran provides that the hands of each theif are to be cut. the Sunnah restricts this to the thief who steals
wealth equivalent to the Nisab and from the protective custody.
5. Difference between Sunnah and Hadith:
Hadith is the noun derived from the word "Hadatha" which means a tale or verbal communication of any
kind. in legal sence Hadith means saying of Holy Prophet (P.B.U.H) which must be practiced. Sunnah
and Hadith means one and the same thing, yet there are few differences between these two terms.
(i) As to meaning:
Hadith means saying off Holy Prophet (P.B.U.H).
Sunnah refers to every saying of Holy Prophet (P.B.U.H) and to every act which he did or performed and
Noman khan Page 7

every act which was permitted to be done by him.
(ii) Scope:
Sunnah is bigger in scope.
Hadith is narrow in scope as it refers to only the sayings of Holy Prophet (P.B.U.H).
(iii) As to element:
Sunnah is a complete term which has three elements.
Hadith is one element of Sunnah.
(iv) As to Activity:
Hadith consisted in some sort of activity. there must be saying of the Holy Prophet. (P.B.U.H)
In Sunnah, there may be no activity. it may be that act of Holy Prophet (P.B.U.H) where he kept quite in
case he saw people doing a particular thing.
(v) As to collection:
Hadith have been collected and compiled in a proper form.
Collection of Sunnah was never made and it is out of collection.
6. Conclusion:
To conclude, I can say, that Sunnah is the second primary source of Islamic law. it is interlinked with the
Quran insofar as it restricts its general meaning or qualifies its absolute texts or explains its difficult
words.
Ijtehad has got important status in Islamic law. discuss. (19980(2006)
1. Introduction:
Ijtehad is one of the dependent sources of Islamic law. if a matter is not resolved expressly in a Quran
Sunnah and by way of Ijma the jurist must not leave the matter unresolved rather he should strive hard to
find out the solution under right of Quran and Sunnah.
2. Meaning and definition of ijtehad:
I. Meaning of ijtehad:
(i) Literal:
Ijtehad Iiterally means striving expending of maximum effort in the performance of an act.
(ii) Technical:
It is the effort made by Mujtahid in seeking knowledge of the ahkam (rules) of the Shariah through
interpertation.
II. Definition of Ijtehad:
"Ijtehad means the application by a lawyer of all his faculties to the consideration of the authorities of the
law, that is the Quran Traditions and the Ijma with a view to find out what in all probability is the law.
3. Arguments in support of Ijtehad:
I. Quranic verses in support of Ijtehad:
Following Quranic verses are in favour of Ijtehad:
"And we have revealed on you the book which describes everything."
"We have omitted nothing form this book.:
"The ask those who have knowledge, if you yourselves do not know,"
II. Ahadith in suppopt of ijtehad:
Following Ahaditths are also in support of Ijtehad.
"Exercise Ijtehad because God makes the work easy for the person for which he is born in this world."
"When a ruler exercise Ijehad properly in resolving an issue he is to be rewarded by God in dual wayand
Noman khan Page 8

if he is wrong in this conclusion he gets one reward."
4. Function of Mujtahid:
Following are the functions or tasks of the Mujtahid:
(i) To discover the law that is either stated explicitly in the primary sources or is impiled by the texts, that
is literal interpretation.
(ii) To extent the law to new to new cases which are similar to cases mentioned in textual sources.
(iii) To extend the law to new cases which are not covered by the previous methods.
5. Limitations of Ijtehad:
Ijtehad cannot be made in case which are covered by the express words of Quran Hadith or has been
determined by basic Ijma. A jurist cannot exercise Ijtehad on the basic pillars of Islam e.g paying of
Zaket, Prohibiton of Murder etc.
"PLD 1981 FSc 23."
"Ijtehad is permissible only in field where on rule of Injunction form Holy Quran or Sunnah is available."
6. Modes of performing Ijtehad:
A jurist may perform Ijtehad by following the following pattern.
I. Literal constrution:
A jurist first concentrates on literal meaning of the texts and follow the plain meaning rule.
(i) Qiyas:
After the literal construction the jurist may turn to qiyas but must confined to strict types of analogy.
III. Collectively reliance on texts:
After exhausting the first two methods or modes the jurist may rely on all the texts considered
collectively. this means that legal reasoning is undertaken more in line with the spirit of the law and its
purposes rather than the confines of individual texts.
7. Qualifications of Mujtahid:
The word Mujtahid means a person who can make Ijtehad. following are the qualifications of a mujtahid.
I. According to author of Jam Ul Jawami:
According to the Author of Jam'al Jawami following are the qualifications of a mujtahid.
(i) Major:
A mujtahid must be a major i. e. has attained the age of majority so a minor cannot be a mujtahid.
(ii) Sound and rational mind:
He must be of sound mind, possessing the understanding and of sufficient intellectual to grasp the subject.
(iii) Knowledge of grammar:
He must have average knowledge of the Arabic language, grammar and recognized principles of
jurisprudence and sources of law i. e. Quran Sunnah etc.
(iv) Acquaintance with the principles of Shariah:
He must have well versed the main principles of Shariah or the legal code so as to able to ascertain true
intention of the law-giver.
(v) Knowledge of Naskh:
The mujtahid must understands abrogation (Naskh) and identifies the occasions on which rules have been
repealed by law-giver.
(vi) Knowledge to circumstances of Quranic revelations:
A must know the circumstances in which the texts of Holy Quran were revealed or repealed.
II. According to Fakhural Islam:
The great thinker Fakhural Islam enumerates the following conditions.
Noman khan Page 9

(i) Conversant with Islamic Jurisprudence:

A mujtahid must be conversant with the science of Islamic jurisprudence and the rules of law applied is
various departments.
(ii) Knowledge of the Quran:
A mujtahid should have knowledge of Quran together with its meaning both literal and dictionary and he
must be able to interpret its verses.
(iii) Knowledge of the Traditions:
A mujtahid should have knowledge of the traditions as well. he must be fully familiar with the traditions
reported by from the Holy Prophet (P.B.U.H) and able to distinguished between authentic and un-
authentic matwater and Mashhoor traditions. he must be familiar with rules for authenticity leading to the
genuineness of the traditions.
(iv) Acquaintance with the rules of analogical deduction:
A mujtahid must be aware of and full conversant with the rules and methods of analogical deduction.
III. Other qualifications:
Following are also considered as necessary qualifications of mujtahid.
(i) He must have faith and the courage of convocation.
(ii) He must have competence and advanced proficiency in Arabic language.
(iii) A comprehensive understanding of Fiqh, the basic principles and other relevant matters.
(iv) He must understands the different forms of bayan or elaboration of the texts, which is usually
provided by the law-giver himself, and also identifies the occasions on which such bayan is invoked.
(v) A proper understanding of modern development and a reasonable appraisal of contemporary
exigencies.
8. Kinds of Mujtahid:
I. Mujtahidum Fish-Shari:
These are the jurists who have an absolute and independent power of expounding the law e. g. Abu
Hanifa Malik, Shafi etc.
II. Mujtahidum Fil Madhhab:
The jurists having authority to expound the law according to a particular school comes into this category.
the were the disciples of jurists of first rank like Abu Yusuf belongs to Hanafi school. these mujtahids
followed the fundamental principles laid down by their respective masters but not consider themselves
bound to follow the general principles or arguments in particular cases, and they often profounded view
opposed to those of their masters.
III. Mutahidum Fil Masal'l:
These are the jurists who are competent to expound the law on a particular question which had not been
settled by the jurist of first and the second class. the jurist of this rank is at liaberty to lay down the law in
conformity to the principles of his school e. g, Khassaf, Qadi Khan.
IV. Mujtahidum Muqallid:
They are also called Mujahid Muqayyid. they have not any right o deduct the law but their function was
to explain the law and draw inferences. theses mujtahids are divided into four groups.
(i) Ashabu't Takrij.
(ii) Ashabu'i Tarjih.
(iii) Ashabu'i Tashih.
(iv) Asabu'i Shariah.
9. Legal effect of Ijthad:
Noman khan Page 10

The legal effect of Ijtegad is the probability of the conclusion so arrived at being correct but the
possibility of such conclusion being erroneous is not discretionary or presumptive law.
10. Position in Pakistan:
The courts in Pakistan specially Federal Shariat court applies Ijtehaed in its judgment and cases. the
Federal Shariat court provided guideline to the rulers as well public through Ijtehad. the court observes
the basic principles of democracy, freedom, equality, tolerance and social justice as enumerated by Islam.
11. Modern principles of Ijehad:
Modern principles of Ijtehad are as under:
(i) State and social justice.
(ii) New age new laws.
(iii) What is not categorically and unconditionally prohibited is permissible.
(iv) Follow the modern pattern.
(v) The necessity of new Sunnah and new Fiqh.
(vi) Need of revision of Islam.
(vii) Revision and reform of the recess and practices of an early society.
(viii) Istihsan.
12. Importance of Ijtehad in modern world:
Ijtehad is a living source of law. it has become important in the modern times due to the needs of the
present time, such as encomic, social and political change, so that the Muslim socciety and people may
become a powerful force in the modern times. Shah Wali Ullah was the first Muslim thinker to propoued
a theory of cautious exercise of Ijtehad. then it iwas followed by Sir Syed Ahamad Khan and Allama
Mohammad Iqbal. according to Allama Iqbal, Ijtehad can be undertaken not only by an individual jurist
but also by a legislative assembly recognizing the Importance of Ijtehad in the modern times, the Shariah
Qrdinance of 1988. in Pakistan has entrusted the task of making the laws in the country to conforms to the
Quran and Sunnah to the judiciary.
13. Conclusion:
To conclude, I can say, that the importance of Ijtehad lies in the dynamic and flexible spirit of Islam,
which is by the Quran and Sunnah, Islamic law can be interpreted by a mujtahid who may be either an
individual or a legislative assembly. this development will bring about an accommodation between the
prescriptions and injunctions of Islam, on the one hand, and the imperatives of modern life on the other.
Q. Define marriage. what are the essentials of a valid marriage according to Islamic law? (2003)
Q. Define marriage? explain the essential conditions of a lawful marriage. (2000)(2001)(2006/A)
1. Introduction:
Marriage of Nikah is a civil contract, which is made by parties for the sole purpose and object of
benefiting themselves according to Shariat it is a method to legalize the cohabitation of a man and a
woman and issues out of this union are legitimate. under Islamic law, contract of marriage, need not to be
proved through a written document.
2. Meaning of marriage:
Marriage means wedlocks, the mutual relation of the husband and wife. it is a contract for the legalization
of intercourse and procreation of children.
3. Definition of marriage:
Hedeya:
Marriage is defined to be a contract which has for its object the procreation and legalizing of children.
Noman khan Page 11

According to Ameer Ali:

Marriage is an institution ordained for the protection of society, and in order that human being may guard
themselves from foulness and unchastity.
4. Objects of marriage:
Following are objects of a marriage.
(i) Legalization of sexual inter course.
(ii) Procreation of children.
(iii) Preservation of human race.
(iv) Regulation of social life.
5. Nature:
Muhammedan marriage is purely contractual. it is considered a religious duty. it is an act of Ibadat which
is called Sunnat-Muwa-Kkidah.
Hazrat Muhammad (P.B.U.H) says:
If a person is in a position to maintain his wife and pay the amount of dower, he must get himself married.
6. Capacity for marriage:
(i) Every Muslim of sound mined, who has attained puberty may enter into a contract of marriage.
(ii) Lunatics and minors who have not attained puberty may be validity contracted in marriage by their
respective guardians.
(iii) A marriage of a Muslim who is of sound mind and has attained puberty is void, if the is brought
about without his consent.
7. Essentials of marriage:
Following are the essentials of a marriage.
I. Offer (Ijab)
There are must be offer by one party. it is also called Ijab.
II. Acceptance (Qubul)
The offer so made should be accepted by or behalf of the other party. it is called Qubul.
III. Offer and acceptance must be in the same meeting:
The offer and acceptance must both be made at the same meeting. an offer made at another meeting do
not constitute a valid marriage.
IV. Freedom:
The parties contracting marriage should be free persons. marriage with a slave girl is permitted.
V. Consideration:
There must be some consideration in marriage which is dower. the parties are bound to fix amount of
dower at the time of marriage. a marriage without dower is void.
VI. Majority:
The parties contracting marriage should be major. the majority act does not apply on marriage, divorce,
maintenances cases. majority means age of puberty.
VII. Persons of opposite sex:
Persons of opposite sex:
Marriage is a contract between two persons of opposite sex. there is no concept of marriage of same sex
in Islamic personal law.
VIII. Witnesses
(a) In case of Suni marriage:
Either two male or one male and two female witnesses.
Noman khan Page 12

(b) In case of Shia marriage:

No witnesses is necessary.
Qualification of witnesses:
The witness should be
(i) Adult
(ii) Sane
IX. Free consent:
Marriage is only valid under free consent. no person can be compelled by guardian to marry.
8. Legal effects of a valid marriage:
Following are the legal effects of a valid marriage.
(i) Sexual intercourse becomes lawful.
(ii) Issues born out are legitimate.
(iii) The wife becomes entitled to dower
(iv) The wife becomes entitled of maintenance.
(v) The husband can restrain the movements of wife in reasonable manner.
(vi) The wife has to go under period of Iddat in case of.
(a) death of her husband
(b) on the dissolution or divorce of marriage.
(vii) Rules of Affinity come into operation.
(viii) Mutual rights of inheritance are established.
(ix) A woman does not change her status.
9. Number of Wives:
A Muslim husband may have as may as four wives at the same time, but not more. if he marries a fifah
wife when he has already four, such marriage would be irregular.
10. Conclusion:
To conclude I can say that marriage is not a sacrament but a civil contract between two persons of
opposite sex. every Muslim of sound mind and has attained the age of puberty, may enter into contract of
marriage. the main essentials of marriage are proposal, acceptance, witnesses, free consent and
consideration which is called dower.
Q. Define marriage? what do you understand by valid, irregular and void marriage. (2006/S)
1. Introduction:
Marriage means wedlocks, the mutual relation of the husband and wife. it is a contract for the legalization
Hedeya:
Noman khan Page 13

4. Classification of marriage:
Classification of marriage is as under.
(a) Valid.
(b) void.
(c) Irregular.
(a) Valid:
A marriage which conforms in all respects whit the law is called valid marriage.
(b) Void:
A void marriage is one which is unlawful in itself the prohibition against the marriage being perpetual and
absolute. so it is no marriage at all.
(i) Examples:
(i) Marriage without the consent of either party.
(ii) A marriage prohibited on the ground of affinity.
(iii) A marriage prohibited on the ground of consanguinity.
(v) A marriage with the wife of another person.
(c) Irregular:
An irregular marriage is one which is not unlawful in itself, but unlawful for something else. in irregular
marriage irregularity arises from an accidental circumstances.
(i) Examples:
(i) A marriage without witnesses.
(ii) A marriage with a woman observing Iddat.
(iii) A marriage prohibited on ground of difference of religion.
(iv) A marriage with two sister at the same time.
(v) A marriage to a fifth wife.
5. Difference between void and irregular marriage:
I. As to legal position:
Void marriage has no lawful position.
Irregular marriage is not in itself unlawful.
II. As to prohibition:
In void marriage the prohibition is perpetual and absolute.
In irregular marriage prohibition is temporary.
III. As to legitimacy:
In void marriage the children born out of the union are not legitimate.
In irregular marriage the children born out are legitimate.
IV. As to rights and obligations:
In void marriage no civil rights and obligations are arisen.
In irregular marriage if consummation has taken place some rights and obligations are arisen.
V. As to legal effect:
A void marriage has no legal effect.
An irregular marriage has legal effects after consummation.
VI. As to modification:
A void marriage cannot be modified into valid marriage.
An irregular marriage can be modified into valid marriage.
Noman khan Page 14

6. Kinds of marriage under Shia law:

The Shia law only recognizes two kinds of marriage viz, valid and void marriage.
7. Capacity to contract marriage:
(i) Parties must be able to understand the nature of their act.
(ii) The parties must be adult.
(iii) There should be free will of the parties.
(iv) There should be no element of compulsion.
(v) There should be no legal disability.
8. Modes of avoiding irregular marriage:
Following are the modes of avoiding irregular marriage.
(a) By the court:
The court can cancel the marriage if the matter is brought to its notice.
(b) By husband:
The husband can repudiate his wife.
(c) By wife:
The wife can also to avoid the marriage by relinquishment.
9. Conclusion:
To conclude I can say that the marriage is a civil contract. according to Sunnhi law a marriage which is
not valid may be either void or irregular. the Shai law recognized only two kinds of marriage. a void
marriage is not lawful whereas irregular marriage is not unlawful but unlawful for some other reason.
Q. What is marriage? what do you understand by valid, irregular and void marriages? (1999)
1. Introduction:
Marriage means wedlock, the mutual relation of the husband and wife. it is a contract for the legalization
Hedeya:
4. Proof of marriage:
Marriage can be proved by two modes.
(i) By the direct evidence of the witnesses.
(ii) By the written document i. e. documentary evidence.
5. Presumption of marriage:
If there is no direct evidence or documentary evidence such case prolonged and continues living together
as husband and wife shall be presumed as marriage.
6. Classification of marriage:
Noman khan Page 15

Classification of marriage is as under.
(a) Valid.
(b) void.
(c) Irregular.
(a) Valid:
A marriage which conforms in all respects whit the law is called valid marriage.
(b) Void:
A void marriage is one which is unlawful in itself the prohibition against the marriage being perpetual and
absolute. so it is no marriage at all.
(I) Examples:
(i) Marriage without the consent of either party.
(ii) A marriage prohibited on the ground of affinity.
(iii) A marriage prohibited on the ground of consanguinity.
(v) A marriage with the wife of another person.
(c) Irregular:
An irregular marriage is one which is not unlawful in itself, but unlawful for something else. in irregular
marriage irregularity arises from an accidental circumstances.
(II) Legal effect of valid marriage:
Following are the legal effects of valid marriage.
(a) Lawful sexual intercourse:
The sexual inter course becomes lawful.
(b) Mutual rights of inheritance:
Mutual rights of inheritance are established.
(c) Legitimacy of child:
The children born out of the wedlock are legitimate.
(d) Right of maintenance:
The wife becomes entitled for maintenance.
(e) Right of dower:
The wife becomes entitled to dower.
(f) No right of interest in property:
Neither of the spouse acquire any interest in property of the other by reason of marriage.
(g) Observation of iddat:
The wife has to observe the iddat in case of death of her husband or in case of divorce.
(h) Rules of affinity:
The rules of affinity come into operation in case of valid marriage.
(I) Examples:
(i) A marriage without witnesses.
(ii) A marriage with a woman observing Iddat.
(iii) A marriage prohibited on ground of difference of religion.
(iv) A marriage with two sister at the same time.
(v) A marriage to a fifth wife.
(II) Legal effects of void marriage:
Following are the legal effects of void marriage.
(a) No rights and obligation:
Noman khan Page 16

The void marriage creates no right and obligation upon any party.
(b) Illegitimate children:
The children born out of such marriage are illegitimate.
(c) No rights to inheritance:
The death of one them dose not entitle the other to inherit form the deceased.
(III) Legal effect of irregular marriage:
(i) Legal effect where consummation has not taken place:
The irregular marriage has not legal effect if consummation has not taken place.
(ii) Legal effect if consummation has taken place:
If consummation has taken place the irregular marriage has following legal effects.
(a) Legitimacy of children:
The children born out of such marriage are legitimate.
(b) Right of dower:
The wife is entitled of dower.
(c) Observation of iddat:
The wife has to observe the period of iddat.
(d) Right of inheritance:
No right of inheritance is created the husband and wife.
(f) Right of issues:
The issues are entitled to share the inheritance.
7. Conclusion:
To conclude I can say that, the legal effects of three kinds of marriages are different in nature. a void
marriage being illegal is null and void abinitio. an irregular marriage is not unlawful in it self but it has no
any legal effect before consummation.
What are impediments to a valid marriage under Islamic law? (2004)(2005)
1. Introduction:
Marriage is a civil contract between two persons of opposite sex which has for its object the procreation
and the legalizing of children. Islamic personal law lays down some prohibition to a valid marriage on
different grounds. a Muslim can marry a person with whom marriage is allowed under Shariat law. so
there must be complete absence of impediments for a valid marriage.
2. Quranic verses:
Alnisa 22-24.
All others are lawful, provided ye seek them in marriage with gifts from your property, desiring chasity,
not lust, seeing that ye derive benefit from them, give them their dowers at least, as prescribed, but if after
a dower is prescribed, ye mutually agree to vary it, there is no blame on you and God is all knowing.
3. Meaning of impediment:
Impediment to a valid marriage means to stop a person to marry a woman or a woman to marry a man on
the grounds of consanguinity, affinity, or fosterage, on the grounds of consanguinity, affinity, or
fosterage.
4. Kinds of impediment:
I. Permanent:
Perpetual or permanent impediment to a valid marriage arises on account of consanguinity, fosterage and
affinity. in such case impediment is absolute and eternal.
Noman khan Page 17

II. Temporary:
Temporary impediment arises from prohibition in the way of marriage which is not permanent in its
nature and the hindrance is liable to be removed.
5. Various grounds of impediments:
I. Ground of consanguinity:
A man is prohibited from marrying.
(i) His mother or his grandmother.
(ii) His daughter or grand daughter how high soever.
(iii) His sister, whether full, consanguine or uterine.
(iv) His niece or great nice howlosover.
(v) His aunt or great-aunt how high soever.
Effect.:
A marriage prohibited by reasons of consanguinity is void.
II. Ground of affinity:
A man is prohibited form marring:
(i) His wife, s mother or grandmother howhighsoever.
(ii) His wife, s daughter or grand daughter howlosovever.
(iii) His father, s wife or paternal grand father howhighsoever.
(iv) The wife of his son or his son, s or daughter son howlsoever.
Effect:
A marriage prohibited by reason of affinity is void.
III. Ground of fosterage:
A man can not marry to this foster mother or his foster sister and foster mother, s sister all come within
the prohibited degrees.
(i) Exceptions:
A man can marry to
(i) Sister's foster-mother.
(ii) Foster sister's mother.
(iii) Foster son' sister.
(iv) Foster brother's sisters.
Effect:
A marriage with a woman. prohibited by reason of fosterage is void.
IV. Ground of unlawful conjunction:
A Muslim may not have at the same time two wives who are so related to each other by consanguinity,
affinity or fostrage, that if either of them had been a made, they could not have lawfully intermarried, as
for instance, two sisters, or aunt and niece.
Effect:
A marriage with a woman prohibited by reason of unlawful conjunction is irregular.
V. Ground of difference of religion:
A Muslim male may contract a valid marriage not only with a Muslim woman, but also with a Kitabia,
that is, a Jewess or a Christain, but not with an idolatress or a fire worshipper. a marriage, however with
an idolatoress or a fire worshipper is not void but irregular.
VI. Ground of iddat:
A man can not marry a woman observing period of iddat.
Noman khan Page 18

Effect:
A marriage contracted with a Muhammeden lady before the expiry of iddat is irregular.
6. Plurality of husband:
It is unlawful for a wife to have more than one husband at the same time. such marriage under Islamic law
is void.
Legal effect:
(i) A Muslim woman marriage again in the life time of her husband is liable to be punished under
criminal laws of Islam.
(ii) The off-spring of such marriage can not not be acknowledged as legitimate.
7. Conclusion:
To conclude I can say that the marriage among Muslim is not a Sacrament, but purely a civil contract. for
a valid marriage there should be no impediments or disabilities to the marriage. Islamic law imposes
certain restrictions on the right of a person to enter into martial relation with a person of opposite sex.
Define and discuss khula, describe the effects of divorce in detail. (2000)(2002)
1. Introduction:
Khula is a form of divorce which is based on mutual consent of the parties. prior to Islam to Islam the
wife had no right to seek dissolution of marriage. in Khula the wife gives or agrees to give a consideration
to the husband for her release from the marriage tie.
2. Meaning of Khula:
Khula means put off.
3. Definition:
I. General:
Khula is separation by putting and end to matrimonial bond and rights.
II. Case law definition:
Monshee Bazul-ul-Reheem
Vs.
Luteef untoon Nisa- - (1861) 8 M. I. A
A diverse of Khula is a divorce with the consent, and at the consent, and at the instance of the wife in
which she gives or agrees to give a consideration to the husband for her release from the marriage tie.
4. Capacity of Khula:
The parties of Khula must be.
(i) Sound mind.
(ii) Have attained puberty.
5. How Khula is granted:
Khula is granted in two ways.
(a) By mutual agreement.
(b) By order of the court.
6. Essentials of Khula:
(i) Consent of wife:
The wife must show her consent for separation.
(ii) Consideration:
The wife must give or agree to give some consideration in lieu of separation.
(iii) Consent of husband:
Noman khan Page 19

The husband also must give his consent as acceptance of the proposal of his wife.
7. Khula under compulsion:
Under Sunni law:
Under Sunni law Khula under compulsion is valid.
Under Shia law:
Under Shai law Khula under compulsion is not valid.
8. Conditional Khula:
Under Sunni law:
Khula may be conditional or unconditional.
Under Shia law:
Conditional Khula is not allowed.
9. Revocation of Khula by wife:
An offer for khula made by the wife may be retracted by her at any time before the acceptance by the
husband.
10. Time of payment of consideration:
Consideration by the wife is payable immediately after khula has been entered.
11. What may be given as consideration:
Everything which may be given as dower may be given as consideration.
12. An increase in the consideration:
An increase in the consideration:
An increase in the consideration when khula has been entered is not valid.
13. Does appeal lie against decree off khula:
Decree for dissolution of marriage on the ground of khula is not appealable.
14. Effects of divorce:
Following are the legal effects of divorce.
I. Right to contract another marriage :
The wife may marry another person.
II. Period of iddat:
The wife has to observe the period of iddat in the rules of divorce.
Remarriage with the same person:
There is no iddat for marriage with the person with whom marriage has been dissolved by Talaq.
III. Unlawfulness of cohabitation:
The sexual intercourse between the divorced couple is unlawful after the divorce has been irrevocable.
IV. Payment of dower:
If the marriage was consummated:
If the marriage was consummated the wife is entitled to immediate payment of the whole unpaid dower
both prompt and deferred.
If the marriage was not consummated:
If the marriage was not consummated the wife entitled to half of the specified dower.
V. Cessation of mutual rights of inheritance:
If the divorce has become irrevocable the mutual rights of inheritance are ceased.
VI. Remarriage of divorced couple:
Where the husband has repudiated his wife by three pronouncement, it is unlawful for him to remarry
again until she has married another man and the latter has divorced has after actual consummation of the
Noman khan Page 20

marriage.
15.Duty of the court:
Duty of the court while deciding the case of dissolution of marriage on basis of Khula is to find out as to
whether on complaint made by wife against husband that due to unlawful acts unlawfully committed by
her husband she has been constrained to develop deep harted against him and them remained no
possibility to narrow the gulf of harted such marriage could be required to be dissolved on basis of Khula.
16. Conclusion:
To conclude I can say that under Islamic law the wife has right to obtain dissolution of marriage on the
ground of Khula. it is lawful only when there is a dislike on the part of wife. the dissolution of marriage
on the basis of khula is an independent right to woman.
Define Khula, how it is different from divorce.
Q. Can the right of divorce be delegated to a third person. (1998)(2000)

1. Introduction:
Khula is a form of divorce which is based on mutual consent of the parties. prior to Islam to Islam the
wife had no right to seek dissolution of marriage. in Khula the wife gives or agrees to give a consideration
to the husband for her release from the marriage tie.
2. Meaning of Khula:
Khula means put off.
3. Definition:
I. General:
Khula is separation by putting and end to matrimonial bond and rights.
II. Case law definition:
Monshee Bazul-ul-Reheem
Vs.
Luteef untoon Nisa- - (1861) 8 M. I. A
A diverse of Khula is a divorce with the consent, and at the consent, and at the instance of the wife in
which she gives or agrees to give a consideration to the husband for her release from the marriage tie.
4. Divorce:
Divorce is dissolution of the marriage tie of the husband and wife.
Case law
Human Hafeez V/S Shaukat Javid 1993 CLC 855
It was held that Talaq is to be pronounced by husband at his own initiative but Khula is given at the
instance of wife when husband and wife can not maintain limits of God.
5. Difference between Khula and Divorce:
I. As to right:
The right of divorce is exercised by the husband.
The right of khula is exercised by the wife.
II. As to dower:
The wife is entitled for dower in case of divorce.
The wife is not entitled for the payment of downer in case of khula.
III. As to reason:
The husband can divorce without any reason.
IV. As to offer:
Noman khan Page 21

There is no offer to wife by the husband.
There is an offer by the wife to husband for some consideration.
V. As to procedure:
For pronouncement of divorce, the husband has not to follow any procedure.
For khula, the wife has to file a suit in the court.
VI. As to scope:
The scope of the divorce is unlimited.
The scope of khula is limited.
VII. As to return of remuneration:
In divorce husband has not to give back benefits which he has received by his wife.
6. Delegation of divorce:
A husband can delegate his right of pronouncing divorce.
(a) any other person.
(b) his own wife.
7. Effect of delegation:
Delegation of right of divorce does not divorce does not deprive the husband of his own right to give
divorce.
8. Conditions:
(a) Husband should be sound minded.
(b) He should have attained puberty.
9. When delegation can be made:
Delegation of right of pronouncing divorce can be made.
(i) at the time of marriage.
(ii) It can be made after the marriage.
10. Forms of delegation:
It may be
(a) absolute
(b) conditional
11. Nature of delegation:
The delegation of right to pronounce divorce to the wife is irrevocable but to any other person is
revocable.
12. Distinction between Sunni and Shia law of divorce:
(i) As to form:
(i) Under Sunni law Talaq Biddat and Sunnah are acceptable.
(ii) Under Shia law Talaq Biddat has no existance.
(ii) As to Witnesses:
Under Sunni laws at the time of divorce the presence of witnesses are not essential.
Under Shia law presence of two witnesses are essential.
(iii) As to intention:
Under Sunni law mere the words of divorce are enough to effect the divorce.
Under Shia law there must be intention for divorce.
(iv) As to time:
Under Sunni law divorce can be pronounced at once.
Under Shai law until husband is not capable to pronounce divorce, the documentary divorce shall not
Noman khan Page 22

acceptable.
(v) As to compulsion:
Under Sunni law divorce under compulsion is valid.
Under Shia law divorce under compulsion is in valid.
(vi) As to intoxiction:
Under Sunni law divorce under intoxication is valid.
Under Shai law divorce and intoxication is in valid.
13. Conclusion:
To conclude I can say that, the divorce is dissolution of marriage tie of the husband and wife. the Khula is
the recognized form of divorce affected by the act of the parties. the power of pronouncing divorce can be
delegated by the husband.
Q. Enumerate various grounds for the dissolution of marriage under the dissolution of Muslim
marriage act 1939. (1995)
Q. What grounds are available to be Muslim wife for dissolution of marriage discuss.
(1998)(2001)(2006/S)
1. Introduction:
The dissolution of Muslim marriage act 1939 came into force on 17th March, 1939. this act lays down the
circumstances on which a Muslim woman can seek divorce by the court. a woman married under Muslim
law is entitled for obtaining a decree for dissolution of her marriage.
2. Relevant provisions:
Sec 3,4 of the dissolution of Muslim family law ordinance 1939.
3. Grounds for dissolution of marriage:
Following are the grounds for the dissolution of marriage.
I. Absence of the husband:
The wife is entitled to obtain a decree for the dissolution of the marriage if the whereabouts of the
husband have not been known for a period of four years.
Condition:
Decree passed by the court will not take effect for a period of six month from the date of such decree and
if the husband appears, either in person or through an agent within that period and satisfies the court that
the he is prepared to perform his conjugal duties the court shall setaside the decree.
II. Failure to provide maintenance:
Failure to provide maintenance for a period of two years entitles the wife to obtain a decree for the
dissolution of the marriage.
III. Imprisonment:
If the husband has been sentenced to imprisonment for a period of seven years or more, the wife is
entitled for a decree of dissolution of marriage.
Condition:
Decree will be passed only if the sentence has become final.
IV. Impotency:
The wife is entitled to obtain a decree of divorce if the husband was impotent at the time of marriage and
continues to be so.
Condition:
No decree will be passed if the husband satisfies the court within one year that he has ceased to be
Noman khan Page 23

impotent.
V. Insanity:
The wife is entitled to obtain a decree for divorce. if the husband has been insane for a period of two years
or is suffering from leprosy or a virulent mental disease.
VI. Failure to perform marital obligation:
The wife is entitled for a decree of divorce if her husband has failed to perform without reasonable cause
his marital obligations for a period of three years.
VII. Repudiation:
A wife is entitled to obtain a decree for the dissolution of the marriage on the ground that.
(a) She was given in the marriage by her father or guardian before she attained the age of 15 years.
(b) The marriage has been consummated.
(c) She has repudiated the marriage before attaining the age of 18 years.
VIII. Cruelty:
The wife is entitled for a decree of dissolution of marriage if her husband treats her with cruelty.
(i) Types of cruelty"
Following are different types of cruelty.
(a) Habitually assault:
If the husband habitually assaults her or makes her life miserable by cruelty or conduct even if such
conduct dose amount to physical ill treatment.
(b) Association with bad women:
The husband associates with women of evil repute or leads an infamous life.
(c) Immoral life:
The husband attempts to force the wife to lead an immoral life.
(d) Disposition form prope rty:
The husband disposes of her property or prevents her form exercising her legal rights over it.
(e) Obstruction in religious affairs:
The husband obstructs her in the observance of her religious profession of practice.
(f) Inequitable Treatment:
If the husband who has more wives than one and does not treat equitable in accordance with injunction of
Quran.
IX. Any other reasonable ground:
The wife is entitled to a decree on any other reasonable ground.
4. Conclusion:
To conclude i can say that the wife under Muslim marriage act 1939 is entitled to a decree for the divorce
if she has any ground which is valid and recognized under the said act
Q. What are different modes of pronouncement of Talaq? discuss. (2001)

Q. What are different modes of Talaq. (2002)
Q. Define Divorce what are different modes of dissolution of marriage. (2004)(2005)
Q. What are different modes of "Talaq" and consequences. (2006/A)
1. Introduction:
Divorce is one of the mode of dissolution of the marriage tie of the husband and wife. it is the right of the
husband and the wife. it is the right of the husband to dissolve the marriage. divorce is a vexed question in
Islamic law. Talaq or divorce is regarded by Holy Prophet (P. B. U. H) to be the most detestable before
Noman khan Page 24

Allah of all the permitted things for it prevents conjugal happiness and proper up bringing of children.
2. Meaning:
Divorce means dissuasion or rejection.
3. Definition:
I. General definition:
It is the exercise of absolute power of pronouncing unilateral divorce of the husband. when its proceeds
from the husband it is called Talaq.
II. Case's law definition:
AIR 1932 OUDH 34
It is the freedom from the bondage of the marriage.
4. Forms of Divorce:
Under Hanfis:
Under Hanfis Talaq may be either oral or written.
Under Shia:
Oral pronouncement must be coupled with two male witnesses.
5. Capacity for Divorce:
A Muslim of sound mind, who has attained puberty may dissolved his marriage.
6. Who can not pronounce Divorce:
Following persons can not declare or pronounce Talaq.
(i) A minor
(ii) Unsound person.
7. Nature:
A Muslim husband has right to pronounce Talaq without any cause.
8. Divorce under compulsion:
Under Sunni law:
if Divorce is pronounced under compulsion it is valid.
Under Shia law:
The Shia law does not recognize Talaq pronounce under compulsion or intoxication.
9. Ways of Divorce:
Following are the ways of divorce.
(i) By the husband at his will without the intervention of a court.
(ii) By the mutual consent of the husband and the wife without intervention of the court.
(iii) By the court.
10. Modes of dissolution of marriage:
Following are the different modes of the dissolution of the marriage.
(i) Apostasy
(ii) Death of either party.
(iii) Divorce.
(iv) Option of repudiation or puberty.
(v) Cancellation of an irregular marriage.
11. Different kinds of Divorce:
I. Talaq-E-Ahsa:
It consist of a single pronouncement of divorce. it is irrevocable even after the expiration of period of
Iddat.
Noman khan Page 25

II. Talaq-E-Hasan:
It is effected when the husband repudiates his wife during a Tuhr in which he has not had carnal
connection with her, and he repeats the repudiation during the next two Tuhrs. so makes the divorce final
and irrevocable.
III. Talaq-Ul-Biddat:
It consist of
(a) Three pronouncement during a single. Tuhr either in one sentence.
(b) A single pronouncement made during a tuhr clearly indicating an intention irrevocable to dissolve the
marriage.
It becomes irrevocable immediately it is pronounced irrespective of Iddat.
IV.Ila:
If a husband, having attained puberty, Sweras by God not to have Sexual intercourse with his wife for a
period of four months or more or for unspecified period. he is to make Ila.
V. Zihra:
If husband compares his wife to his mother or any other female with in prohibited degree, the wife has
right to refuse- to him until he has performed penance. in default the wife has to right to apply for
inudicial divorce.
VI. Khula:
Khula is separation by putting an end to martrimonial bond and rights. it is that kind of divorce in which
the wife gives of agrees to give a consideration to the husband from her release of the marriage tie.
VII. Mubara'at:
A Mubara'at is a dissolution of the marriage by the agreement. there is mutual desire for separation of the
spouses in this kinds of divorce. the offer in a mubara'at divorce may proceeds from the husband or the
wife.
VIII. Lian:
The wife is entitled for divorce if her husband has falsely charged her with adultery. if the charge is
proved to be false, the marriage will be dissolved.
Appeal:
No appeal can be filed against the decree of the court on this ground i. e. lian.
IX. Divorce in absence:
Divorce can be pronounced in the absence of the wife. it is essential that husband should pronounce the
name of wife. such divorce is valid and called divorce in absence.
X. Contingent divorce:
Divorce:
Divorce may be pronounced so as to take effect on the happening of a future event. such divorce is called
contingent.
12. Legal consequences:
Legal consequence of the divorce are as under:
(i) Sexual intercourse becomes unlawful.
(ii) Iddat becomes incumbent.
(iii) Remarriage between the same parties become impossible until the wife lawfully marry another
person and lawfully divorced by him after the consummation of the marriage.
(iv) Dower become immediately payable.
(v) Right to contract another marriage.
Noman khan Page 26

(vi) Mutual right of inheritance cease.
13. Conclusion:
To conclude I can say that, the divorce is the a mode of dissolution of the marriage. a husband can divorce
her wife without assigning any reason. it is an extra judicial power of the husband to dissolve the
marriage.
Q. What procedure have to be followed/adopted for divorcing a wife under the Muslim Family laws
ordinance 1961 (1999)
1. Introduction:
The Muslim family laws ordinance provides the procedure which has to following for divorcing the wife
by a husband. he can pronounce Talaq in any form.
2. Procedure:
I. Notice:
(a) Notice to the chairman:
The husband shall send a notice to the chairman.
(b) Notice to the wife:
A copy of the notice shall be send to the wife.
(i) Form of notice:
Notice shall be in writing.
(ii) Purpose of notice:
The purpose of notice is to inform about the dissolution of the marriage.
(iii) Time for giving notice:
Notice shall be given at the time when the husband has pronounced divorce.
II. Reconciliation between the parties:
The chairman is required to bring about reconciliation between the parties for this purpose he is to give
notice to the parties to nominate their representatives. however he cannot compel any person to appear
before him.
III. Effectiveness of divorce:
Divorce would not become effective unless and until period of ninety days has elapsed with effect form
the date of receipt of notice of divorce by the chairman of the union council and by the wife.
(i) Essentials:
(a) Notice to the chairman.
(b) Notice to the wife.
(c) Expiry of 90 days.
3. Divorce to pregnant woman:
Divorce to pregnant woman shall be effected by the delivery of the child:
4. Re-marriage of the same parties:
Nothing shall debar a wife whose marriage has been terminated by Talaq effective form remarriage the
same husband without an intervening marriage with a third person unless such termination is for the time
so effective.
5. Revocation of divorce:
The husband can revoke the divorce before the expiry of ninety days.
6. Punishment:
Whoever contravenes the provision shall be punishable with simple imprisonment for a term which may
Noman khan Page 27

extend to one year or with fine which may extend to five thousand rupees or with both.
7. Commencement of iddat:
(i) In case of divorce:
If case of divorce the period of iddat commences form the date of divorce. if the marriage was
consummated.
Woman has not to observe the period of Iddat. if marriage was not consummated. in such case she can
marry immediately after the Divorce.
(ii) In case of death:
The period of iddat commences form the date of death of her husband. she is bound to observe the period
of iddat whether the marriage was consummated or not.
8. Conclusion:
To conclude i can say that divorce is the right of husband to to dissolve the marriage. in order to divorce
the wife, the husband has to follow the procedure in accordance with the rules of Muslim family laws
ordinance 1961.
Q. What changes have been brought about the Muslim family laws ordinance, 1961 regarding
succession, polygamy and divorce. (2004)
Q. What changes have been brought by Muslim family ordinance, 1961 in Islamic law? (2002)
Q. What are salient features of M . F. L. O. (2002) (2005/S)
Q. Give a brief description of the Muslim family law ordinance 1961? (2006/S)
1. Introduction:
The Muslim family laws ordinance came into force on 15th July 1961. it extends to the whole of Pakistan
and applies to all the Muslim citizen of Pakistan wherever they may be. it has brought many changes i.e
restrictions have been imposed on a Muslim male for contracting during the presence of an existing
marriage during the presence of an existing marriage. most of the changes are regarded unislamic.
2. Changes brought by Muslim family law ordinance:
I. Application:
The Muslim family law ordinance apply to the Muslims of Pakistan. it is not applicable to the Muslims of
other countries. the distinction between the Muslims of Pakistan and the Muslims of other countries
which is unislamic.
II. Succession:
Prior to the Muslim family law ordinance grand children had no shares in the property left by the grand
father. but now the sec 4 of the ordinance creating an entitlement to succession in favour of the children
of predeceased son or daughter.
III. Registration of marriage:
According to Sec. 5 of the Muslims family law ordinance make it compulsory that marriage shall be
registered.
IV. Polygamy:
Sec. 6 the Muslims family law ordinance has placed restriction on a husband to contract another marriage
without permission of the arbitration council alongwith the written permission of existing wife or wives.
V. Effectiveness of divorce:
According to sec. 7 divorce to be affective after the expiry of 9 days and that 90 days to be counted form
the date of receipt of its notice to chairman.
3. Conclusion:
Noman khan Page 28

To conclude i can say that the Muslims family law ordinance has brought changes in the basic Islamic
personal law of Islam. it is unislamic and against the article 20 of the constitution of Pakistan.
Q. What is Arbitration council under Muslim family law ordinance 1961. what is its importance
and functions. (2002)
1. Introduction:
The arbitration council is a forum which provied to both the parties settlement for dsipute. so it is a panel
of persons for the settlement of disputes by the parties in dispute.
2. Definition of arbitration council:
Arbitration council means a body consisting of the chairman and representative of each of the parties to a
matter dealt with in this ordinance. provided that where any party fails to nominate a representative within
the prescribed time, the body formed without such representative shall be the arbitration council.
3. Jurisdiction of arbitration council:
The arbitration council has jurisdiction in the following matter.
(i) Application to contract another marriage Sec. 6(2)
(ii) Notice of divorce Sec. 7 (i)
(iii) Application of maintenance Sec. 9
4. Importance:
The arbitration council has vital role in the settlement of the disputes between the parties.
5. Organization:
The arbitration council shall consist of the following person.
(i) Chairman of the union council.
(ii) Representative of each party.
6. Appointment of the chairman:
The union council shall select on of its Muslim competent member.
7. Dis-Qualification:
Following persons can not be appointed chairman.
(i)Non-Muslim.
(ii) Suffering from illness.
(iii) Any other reason which disables him to discharge his functions.
8. Functions of arbitration council:
Following are the functions of the arbitration council.
(i) Permission of marriage:
The arbitration council grant permission to the husband for the second marriage.
(ii) Reconciliation:
The arbitration council bringout the reconciliation between the parties to dispute in divorce matter.
(iii) Dispute relating to maintenance:
The arbitration council adjudication the matter of maintenance.
9. Conclusion:
To conclude I can say that the arbitration council is a salient features of Muslim family law ordinance. it
preserve the sancity of the Muslim family in connection with matters between the husband and wife
Q. Define dower and discuss its importance is Islamic law? describe its various kinds. (2000)
1. Introduction:
The Dower is the financial gain which the wife is entitled to receive from her husband by the virtue of
Noman khan Page 29

marriage. it is also called Mahr. it may be settled before marriage, or at the time of marriage or even after
the marriage. the right of wife to dower becomes complete on the consummation of marriage. the amount
of dower may be increased after the marriage.
2. Definition of dower:
Fatawe-e-Almgiri
It is an obligation imposed by the law on the husband as mark of respect for the wife.
Mulla:
Dower is a sum of money or other property which the wife is entitled to receive from the husband in
consideration of the marriage.
3. Importance of dower in Islamic law:
Dower provide protection to the wife against the arbitrary dower of the husband to pronounce divorce. it
is a mark of respect to the wife and a check on the power of husband to divorce.
4. Capacity to make a contract for dower:
The parties who are sound mind and have attained the age of puberty my enter into the contract of dower.
5. Persons who are entitled to make contract:
Following persons can make contract of dower.
(i) The parties of the marriage.
(ii)Their agents.
(iii) Guardian.
(iv) Agent of guardian.
6. Subject of dower:
(i) Fixed sum of money.
(ii) Any thing in the category of property having value.
(iii) Property must be in existing.
7. Amount of dower:
There is no maximum limit of amount of the dower but the amount can not be less than prescribed by the
law.
8. Fixation of dower:
Dower may be fixed before the marriage at the time of marriage and after the marriage.
9. Confirmation of dower:
The amount of dower becomes confirm.
(i) By consummation of marriage or.
(ii) By a valid retirement khalwat-e-sahira or.
(iii) By the death of either party i. e husband or wife.
10. Kinds of dower:
I. Specified dower:
An amount settled by the parties at the time of marriage or after is called specified downer. it is also
known as Mahr-I-Musamma.
II. Classification of specified dower:
Specified dower may be classified into the following.
(a) Prompt dower:
Prompt dower is payable on demand. it may also be demanded before the consummation of the marriage
the wife may refuse to live with him unless he pays the prompt dower.
(b) Deferred dower:
Noman khan Page 30

Deferred dower is payable on the dissolution of marriage either death or divorce.
II. Unspecified dower:
Where dower has not been settled at the time of the marriage or after is called unspecified dower.
(a) Classification of unspecified dower:
Unspecified dower may be classified into the following.
(b) Proper dower:
Proper dower is fixed with reference to the social status of the wife and her own personal qualification.
Determination of proper dower:
Following facts are taken into consideration while determining the amount of dower.
(i) Local custom of the society.
(ii) Personal skill and qualification of the wife.
(iii) Social position of the husband.
(iv) Social status of father of thee wife.
(v) Amount of dower fixed in case of wife's sisters, paternal aunts and others nearest relatives.
11. Remission of dower:
A wife may remit the dower or any part thereof in favour of the husband or his heirs.
(a) Condition:
Remission must be made with free consent.
12. Conclusion:
To conclude I can say that , the dower is a sum of a money or other property which the wife is entitled to
receive from her husband. it becomes complete on the consummation of the marriage. there is no, limit on
the minimum amount of the dower. the amount dower can be increased after the marriage.
Q. What are prompt and deferred dowers what remedies are available to the wife if dower is not
paid. (1999)(2004)(2006/A)
Q. What are prompt and deferred dowers. what right are given to a wife if dower is not paid. (2001)
1. Introduction:
Fatawe-e-Almgiri
Mulla:
Case law
Majeed Vs Mulmah 1992 CLC 13
It was held that wife's right to get prompt dower from husband an not be defeated on the ground of not
living with her husband or performing Marital obligations.
Noman khan Page 31


The parties who are sound mind and have attained the age of puberty may enter into the contract of
dower.
(a) Prompt dower:
Prompt dower is payable on demand. it may also be demanded before the consummation of the marriage.
(b) Deferred dower:
5. Remedies of wife:
(a) In case of prompt dower:
In case of prompt dower if it is unpaid the wife can refuse to live with the husband and it is a complete
defence in a suit for restitution of coniugal rights by the husband. the wife and after he death her legal
heirs can file suit.
(i) Time period:
(a) Within three years from the date when the demand is made or.
(b) From the date when the marriage was dissolved.
(b) In case of deferred dower:
Deferred dower become due on the dissolution of marriage either by death or divorce. if it is unpaid the
wife or if she dies her legal heirs can file suit.
(i) Time period:
Such suit shall be filed within three years from the date of dissolution of the marriage.
6. Liability of heirs for dower debt:
The heirs of a deceased of husband are not personally liable for the dower debt. proportionate to their
respective shares in the estate.
7. Conclusion:
To conclude I can say that dower is the legal right of the wife. if dower is unpaid the wife is entitled to
sue for the amount of dower. the widow must sue for the whole of her dower and not a part of it.
Define dower. what is the difference between prompt and deferred dower. (2002)
1. Introduction:
Fatawe-e-Almgiri
Mulla:
Noman khan Page 32

The parties who are sound mind and have attained the age of puberty may enter into the contract of
dower.
(a) Prompt dower:
Prompt dower is payable on demand. it may also be demanded before the consummation of the marriage.
(b) Deferred dower:
5. Non payment of prompt dower and restitution of conjugal rights:
The wife may refuse to live with her husband and admit his to sexual intercourse. so long as the prompt
dower is not paid.
6. Difference between prompt and deferred dower:
I. As to payment:
Prompt dower is payable immediately after the marriage.
Deferred dower is payable only after the dissolution of the marriage.
II. As to demand:
Prompt dower is only payable on the demand of the wife.
In deferred dower the wife is not entitled to demand it unless agreed.
III. As to wife's right to realise:
The wife is entitled to realize the prompt dower at any time.
Deferred dower is payable only when it becomes due.
IV. As to conjugal rights:
The right of restitution of conjugal right arises only after its payment.
In deferred dower there is no question restitution of conjugal rights.
7.Conclusion:
To conclude I can say that dower is the legal right of the wife. if dower is unpaid the wife is entitled to
sue for the amount of dower. the widow must sue for the whole of her dower and not a part of it.
Is husband liable to maintain wife?
Q. Whether such liability continuous even after divorce. (2006/A)

1. Introduction:
Under Islamic law husband is duty bound to maintain his wife. the woman in Islam is exempted from any
financial earning liability. she is entitled for maintenance under Islamic law.
2. Definition of maintenance:
Maintenance includes food raiment and lodging.
3. Primary duty of maintenance:
It is the primary duty of husband to maintain her wife. and even if she is residing in house of her father
and her husband does not require her to his own house and cohabit with her there.
Case law
Abdul Satar Vs. Anwar Begum 1992 ALD 506
It was held that wife is entitled to receive maintenance allowance from husband if she had not refused to
live with him without any sufficient reason.
4. Remedies for wife:
(i) Wife may file suit in the family court for maintenance.
(ii) Wife can also file application in the office of chairman of union council.
Noman khan Page 33

5. When wife is not entitled for maintenance:

In the following cases the wife is not entitled for maintenance.
(i) If she become disobedient.
(ii) If she is incapable to perform matrimonial intercourse.
(iii) If she refuses to live with her husband unjustifiably.
(iv) If she has become prostitute.
(v) If she becomes widow.
(vi) If she become able to maintain herself.
(vii) In case of irregular or void marriage.
(viii) Where she has been taken away forcibly by another person.
(ix) In case the fault is on her own part.
(x) If she has been imprisoned.
(xi) Apostasy.
6. Liability of husband after divorce:
After the divorce the wife is entitled to maintenance doing the period of Iddat.
7. Case where wife is not informed about divorce:
If the divorce is not communicated to her. she is entitled for the maintenance until she is informed of the
divorce.
8. Arrears of maintenance:
The arrears of maintenance are recoverable as the arrears of land revenue.
9. Decree of maintenance upto one thousand is not appealable:
Decree of the court of maintenance upto one thousand rupees is non appealable.
10. Conclusion:
To conclude I can say that maintenance means expenses for food lodging health etc., if husband fails or
neglects to maintain her wife she can seek legal remedy and past maintenance can also be claimed and
recoverable as arrears of land revenue.
Q. Define Waqf and discuss its essential. what are the valid objects of a Waqf. (1998)
1. Introduction:
Waqf is an important social institution of Islam. it is a permanent dedication by a Muslim of some
specific property for religious and pious purpose. every Muslim of sound mind may dedicate his property
by way of waqf. it may be made verbally or in writing.
2. Meaning:
Literal means tying up or detention.
3. Definition:
Waqf act 1954
"According to Sec. 3(i) waqf means the permanent dedication by a person professing Islam of any
moveable and immovable property for any purpose recognized by the Muslim law as pious, religious or
charitable."
Abu Hanifa
'Waqf is the detention of a specific thing in the ownership of the waqf or appropriator, and the devoting or
appropritator's of its profits or usufruct in charity on the poor or other good objects."
4. Kinds of waqf:
(a) Private waqf:
Noman khan Page 34

It is waqf which is made for private individual.
(b) Public waqf:
It is dedicated to the public at large. it is made purely for some religious or pious purpose.
(c) Quasi waqf:
It is partly public and partly private.
5. Requisites of a valid waqf:
Following are the requisites of a valid waqf
I. Permanent:
The dedication must be permanent. a waqf which is made for a limited period is not valid.
II. Irrevocable:
Once a valid waqf is made, it cannot be revoked.
III. Unconditional:
If there is a condition for making waqf it will be invalid. the waqf should be unconditional.
IV. Inalienable:
Waqf should be inalienable.
V. Certainty:
Waqf property should be certain. if the object are uncertain the waqf will be void.
VI. Registration:
A waqfnama by which immoveable property of the value of Rs. 100/= or above requres to be registered
under the registration act.
6. Primary rules relating to waqf:
Following are the primary rules relating to waqf.
(i) The subject of the waqf should be dedicated perpetuity.
(ii) All human rights should be diversted there from.
(iii) It should be made non heritable and inalienable.
7. Form of Waqf:
Following may be the form of waqf:
(i) Verbal
(ii) Oral
8. Contingent Waqf:
There should be no element of contingency in waqf. it is essential to the validity of a waqf that the
appropriation should not be made to depend on contingency.
9. Subject of waqf:
Any immovable or moveable, dividable or individable property having certainty of which the waqf is the
owner may be the subject matter of the waqf. a Musha may be the subject of waqf, except waqf for
mosque.
10. Valid object of waqf:
(i) Mosques and for imman to conduct worship therein.
(ii) The distribution of alms to poor.
(iii) Grant to takia.
(iv) Observance of the anniversaries of the waqf and member of his family involving as it does the
feeding of the poors.
(v) Prayer ground.
(vi) Dargahs.
Noman khan Page 35

(vii) Hospitals and dispensaries.
(viii) Construction of free boarding house.
(ix) Eidgah
(x) Reading of Holy Quran in public.
(xi) For making and keeping of Tazias.
(xii) Celebrating the birth the Hazrat Ali Murtaza.
11. Conditions:
(i) The subject of waqf must belong to waqf.
(ii) The objects of a waqf must be indicated with certainty.
(iii) Declaration must be permanent.
(iv) Delivery of possession must be there.
12. Revocations of waqf:
In case of testamentary waqf:
A testamentary waqf time of creating a non-testamentary waqf, the waqif reserves to himself the power of
revoking the waqf, the waqf will be invalid.
In case of non-testamentary waqf:
Where at the time of creating a non-testamentary waqf, the waqif reserved to himself the power of
revoking the waqf, the waqf will be invalid.
13. Waqf during marzul-maut:
A waqf made by will or during marzul maut can not operate upon more than one third of the net assets
without the consent of heirs.
14. Conclusion:
To conclude I can say that the creation of waqf represents dedication of some property, according to
Muslim legal principles meant it in the a way of God. the declaration must be premanent mature. the
objects of waqf must be definite.
Q. Define waqf? how is a waqf completed discuss. (2001)(2003)

Q. What is 'waqf' is completed. who can be appointed as a Mutawalli. (2006/S)
1. Introduction:
Waqf is an important social institution of Islam. it is a permanent dedication by a Muslim of some
specific property for religious and pious purpose. every Muslim of sound mind may dedicate his property
by way of waqf. it may be made verbally or in writing.
2. Meaning:
Literal means tying up or detention.
3. Definition:
Waqf act 1954
"According to Sec. 3(i) waqf means the permanent dedication by a person professing Islam of any
moveable and immovable property for any purpose recognized by the Muslim law as pious, religious or
charitable."
Abu Hanifa
'Waqf is the detention of a specific thing in the ownership of the waqf or appropriator, and the devoting or
appropritator's of its profits or usufruct in charity on the poor or other good objects."
4. Capacity to make waqf:
The person who creates waqf is called waqif. it should have the following qualification.
Noman khan Page 36

(i) Waqif must profess Islam.
(ii) Waqif may be a male or female.
(iii) Waqif must be sound mind.
(iv) Waqif must be the owner of the property.
(v) Waqfi must be of age of the majority.
5. Creation of waqf:
A waqf may be created in the following ways:
(i) By a dedication in which case the waqf comes into existence as soon as it is completely made.
(ii) By means of a will.
(iii) During illness.
(iv) Waqf by user.
6. Completion of waqf:
Under Sunni law:
A waqf is completed by mere declaration of endowment by the owner.
Under Shia law:
A waqf is not completed unless possession of the waqf property is given to either mutawalli or the first
beneficiary.
7. In whose favour can waqf be made:
Following are the person in whose favour property of waqf can be made.
(i) The waqif himself.
(ii) The desenendants of waqif.
(iii) The family of waqif.
(iv) Public
8. Mutawalli:
Mutawalli is the superintendent or Manager of the waqf property.
Case law
Kanib Begum V'S Akbar Jan 1984 SCMR 149
It was held that waqf is not completed unless besides a declaration of waqf a Mutawalli is appointed by
the owner and possession of endowed property is delivered to him.
I. Appointment:
Mutawalli may be appointed by the following.
(b) By the waqif.
(b) By the executor.
(c) By the mutwalli.
(d) By the order of the court.
II. Qualification of mutwalli:
Qualification of mutwalli is as under.
(i) Muhammeden or non-Muhammeden should.
(ii) Sound mind.
(iii) Should be of the age of majority.
9. Waqif as mutawalli:
A waqif may constitute himself the first mutawalli. the transfer of possession in such case is not necessary
to be transferred.
Case law
Noman khan Page 37

Khan Muhammad V/S Luqman 1993 CLC 1552
It was held that no writing is required to make a will valid, and no particular form even of verbal
declaration as long as intention of the testator is sufficiently ascertained.
10. Who can be appointed mutawalli:
Following can be appointed mustawalli.
(ii) Female.
(iii) Non-Muslim.
(iv) Sunni in a Shia waqf and Shia in Sunni waqf.
11. Removal of mutwali:
Mutawali can be removed by the curt from his office on the following grounds.
(i) Corruption.
(ii) Mental disorder.
12. Waqf volid for uncertainty:
The object of waqf must be certain. if there is element of uncertainty in the object of waqf. it will be void.
Case law
Ghulam Shabbir V/S Mst Nur Begum P. L. D. 1977 S 75
It was held that when charitable intention was clearly expressed in the instrument of waqf mere vagueness
or waqf mere vagueness or uncertainty in the instrument can not lead to failure of waqf.
13. Conclusion:
To Conclude I can say that, every Muslim of sound mind can dedicate his property by way of waqf. under
Sunni law a waqf is completed by mere declaration of endowment by the owner but under Shia law
possession must be delivered.
Who may be appointed mutwalli of waqf property? what are his rights and duties. (2005
1. Introduction:
Mutwalli is superintendent of manger of the waqf property. he has no right in waqf property. he looks the
matters of waqf property. he has the same rights of management as an individual. the office trustee is not
transferable.
2. Definition of mutawalli:
Case law Jheana Vs. Chief administator Auqaf Punjab 1992 CLC 2054
It was held that the definition of mutawalli includes a person who for the time being manages waqf
property.
3. Appointment of mutawalli:
Qualification of mutawalli is as under.
(i) By the waqif.
(ii) By the executor.
(iii) By the mutwali.
(iv) By the order of the court.
4. Qualification of mutawalli:
Qualification of mutawalli is as under.
(i) Muhammdan or non Muhammedan.
(ii) Sound mind.
(iii) Should be of the age of majority.
Noman khan Page 38

5. Who can be appointed mutwalli:

Following can be appointed mutawalli.
(ii) His children.
(iii) His descendants.
(iv) Any other person even a female.
(iv) Non-Muslim.
(vi) Sunni in a Shia waqf and Shia in Sunni waqf.
6. Where two or more mutawalli:
Where two or more than two mutawalli are appointed jointly and there is no express or implied direction
pertaining to the succession of mutawalli in such cases the office of mutawalli will pass on the death of
one holder to the survivor.
7. Rights of mutawalli:
1.If there is no provision in wakfnama about for succession of the office of mutawalli he has right to
appoint his successors on his death bed.
2. He has right of remmnuneration.
3. He has right to do any thing that is reasonable for the administration and betterment of the waqf.
4. Mutawalli has right to appoint his successor if wakf deed authorize him to do so.
5. Mutawalli can appoint his successor if wakif and his executor are both dead.
6. Has right to manage the wakf property.
8. Duties of mutawalli:
(i) It is the duty of mutawalli to take care wakf property.
(ii) Mutawalli is duty bound not to sell or mortgage wakf property without the permission of the court.
(iii) He is duty bound not to grant a lease of wakf property not exceeding three years in case of agriculture
property and one year in case of non-agriculture land.
(iv) Mutawalli is duty bound not to increase allowance of officers and servants.
(v) Mutawlli is duty bound not to transfer the office for another.
9. Nature of office of matawalli:
The office of mutawlli is not hereditary under Islamic law. hereditary right is not recognized.
Case law
Abdul Hamid V/S Govt. of West Pakistan 1985 CLC 58.
It was held in this case that as founder of wakf has the power to appoint first mutawalli and to lay down
the the scheme for the succession to the office of mutawalli.
10. Removal of mutawalli:
A mutawalli may be removed by the court.
(i) If he become unfit for the job.
(ii) If he does not perform the religious services.
(iii) If mutawalli become insolvent.
(iv) If he commit misconduct.
(v) If mutawalli commits breach of trust.
11. Conclusion:
To conclude I can say that mutawalli is a person who manage waqf property. the office of the mutawalli is
not hereditary and non transferable. he has rights and duties under law. he can be removed by the court.
on the ground of breach of trust, misconduct insolvency etc. etc
Noman khan Page 39

Q. Define who can make a will? what is the limit placed on the testamentary powers of a person
under the Islamic law. (2003)
Q. Define will. what are the qualification of testator. (2002)
Q. Define will, what are the limitations imposed on the right of will by Islamic law. (2001)(2006/S)
Q. Define will. who can make will? what is the limits place on the testamentary powers of a Muslim
under the Islamic law. (2000)
Q. Define and discuss will. what are its essential ingredient? can will be revoked. (1998)
Q. Define will. are there any restrictions on powers of testator? can a will be revoked. (2005/S)
1. Introduction:
Will is a conferment of right which is to effect after the death of the testator. a Muslim may make his will
either orally or in writing and no formalities are required. a Muslim cannot by will dispose off more than
one third of the surplus of his estate after payment of his funeral expenses and debts. a bequest in future
as well as contingent bequest is void under Islamic law.
2. Meaning:
The term will is form the Arabic word wasiyyat which means endowment with property of any thing after
death.
Baillie:
A will a conferment of rights property in a specific thing or a profit or an advantage or in gravity to take
effect on the death of the testator.
3. Definition of will:
Fatawa alamgiri:
Will is a legal declaration of the intention of a testator with respect to his property which desires to be
carried into effect his death.
4. Who can make will:
Every Muslim of sound mind may dispose of property by will.
5. Qualification of testator:
Testator must be
(a) Major
(b) Sound mind
(c) Possessed with the ownership of property.
6. Persons who cannot make will:
Following persons can not make will.
(a) Minor
(b) Lunatic
(c) Unsound mind
7. Persons in whose favour will can be made:
A will can be lawfully made in favour of the following:
(a) An individual.
(b) An institution.
(a) A non- Muslim.
(d) A minor
(e) An insane.
8. Conditions of a valid will:
Following are the conditions of a valid will:
Noman khan Page 40

(a) Intention to give.
(b) Disposition to take affect after the death of the testator.
(c) Should not effect the legal shares of heirs.
(d) Should not be move than 1/3 of the property.
(f) Strange.
9. Form of will:
A will may be in express words or shows by the conduct of the co-heris. so it may be:
(i) Written
(ii) Oral/ verbal
10. Attestation:
Will should be attested by two or more witnesses.
11. Cases where will is not valid:
In following cases will is not valid
(i) A will in favoyr of legal heir.
(ii) Contingent will
(iii) Will to unborn person.
Exception:
A will may be made to a child womb, provided it is born with in six months form the date of the will.
(iv) A will in future.
(v) A will to a person who causes the death of testator.
12. Essential conditions for execution of will:
For execution of valid will following are two conditions.
(i) Payment of the funeral expenses out of the property of deceased.
(ii) Payment of any debt out of the property of deceased.
13. Nature of appointment of testator:
Appointment f testator may be for.
(i) General purpose. Or
(ii) Special purpose.
14. Parties to a will:
Following are parties to a will:
Legacy:
The property be quested.
Testator:
The person who makes will.
Legatee:
In whose favour the will is made.
15. Essentials:
Following are the essentials to a valid under Islamic law:
(i) Declaration by the testator.
(ii) Testator must be competent to declare.
(iii) The subject of will must be valid.
(iv) It must be within the limit imposed on the testator.
(v) The legatee must be competent to take the property.
(vi) Offer by testator.
Noman khan Page 41

(vii) Acceptance by legatee.
16. Subject of will.
The subjects of a will are as under:
(a) Property being transferred.
(b) Property must be in existence.
17. Limitations:
I. As to persons:
A bequest to an heir is not valid unless the other heir consents to the bequest after the death of the testator.
II. As to property:
A Muslim can not be will dispose of more than one third of his estate which is left after payment of his
funeral expenses and debts.
Exceptions:
Following are exceptions to the limitation.
(i) A bequest of more than one third to a non heirs or upto one third to an heir is valid if consented by
heirs of the deceased.
(ii) If the testator leaves no heir.
18. Revocation of will:
A will is revocable. it can be revoked by the testator at any time before his death.
(i) Mode of revocation:
Following are the modes of revocation of a will.
(a) Express:
Testator may revoke the will in express terms either orally or in writing.
(b) Implied:
Implied is that revocations where the testator does an acts from which revocation may be inferred.
19. Conclusion:
To conclude I can say that a will is the disposition of property which is to take effect at the time of the
person making it. it operates from the time before his death. the subject of will may be any property
capable of being transferred. a will is revocable in its nature.
Q. What is gift. what are the three conditions for the validity of a gift. (1998) (2001)
Q. What is gift? what are the essentials of a gift. (1999)(2002)(2005)
Q. Define 'Hiba' under what circumstances a donor can revoke a Hiba. (2000/S)
1. Introduction:
A gift is a transfer of property made immediately and without any exchange by one person to another and
accepted by or on behalf of another. a Muhmmadan may may dispose of his whole property. the person
who makes gift is called doner and to whom gift is made is called donee.
2. Meaning:
Gift or Hiba means denotion of a thing from which the donee may get benefit.
3. Definition of gift:
Hedaya:
A hiba is a transfer of Tengible property without consideration.
Fyzee:
It is the immediate and unqualified transfer of the corpus of the property without any return.
4. Kinds of gift:
Noman khan Page 42

Following are the kinds of gift.
(i) Hiba
(ii) Hiba bil iwaz.
(iii) Habi-be-Shart ul iwaz.
(iv) A Sadaqah
(v) Areet.
5. Persons who can make gift:
Every Muslim of sound mind and age of majority is entitled to make gift.
Disqualifications:
(i) Minor
(ii) Unsound mind.
6. Extent of doner's power:
A person under Islamic law may dispose of his whole property in favour of a stranger or to any heirs.
7. Persons in whose favour hiba or gift can be made:
A hiba can lawfully be mind in favour of any of the following.
(i) Natural persons.
(ii) Artificial persons.
(iii) Heirs
(iv) Insance persons
(v) Any person
8. Persons in whose favor hiba or gift cannot be made:
Hiba or gift can not be made in favour of the following.
(i) Unborn child.
(ii) Dead person.
Exception:
A widow can make hiba of her dower in favour of her deceased husband.
9. Essentials of a valid gift:
(i) Subject of gift must belong to doner.
(ii) Subject of gift must be in existence.
(iii) Doner must make by his free will.
(iv) Acceptance by donee.
(v) Delivery of possession of the subject matter.
10. Tree conditions for validity of a gift:
Following are the three conditions for validity of a gift.
(i) Declaration
(ii) Acceptance
(iii) Delivery.
I. Declaration:
There should be a declaration of a gift by the doner.
II. Acceptance:
There should be an acceptance of the gift, express or implied by or on behalf of the donee.
III. Delivery:
There should be delivery of possession of the subject of the gift by the donor to the donee.
11. Fift of Mushaa:
Noman khan Page 43

A valid gift may be made of an undivided share in property either moveable or immovable.
Mushaa
Mushaa is an undivided share in property.
Case law:
Ghulam Haider V/S Fteh Ali P. L. D 1993
It was held conditions necessary for validity of disposition of property are majority, understanding,
freedom and ownership of the subject of the disposition.
Case law:
Raj Hussain V/S Fazal Hussain 1972 SCMR 262
Gift become complete on the transfer of possession.
12. Registration of gift:
Registration of deed of gift does not cure the want of delivery of possession. it is an evidence of the
execution.
13. Cases where transfer of possession of gift is not necessary:
Following are the cases when transfer of possession of gift property is not necessary.
(i) No transfer of possession is required when father gifts his property to his minor child.
(ii) No transfer is required when guardian gifts to his ward.
(iii) Where the gift is already in the possession of donee.
(v) Where the property is no rent or lease and by transfer of title deed of such property.
14. Revocation of gift:
The gift can be revoked by the doner in the following way.
(i) Before delivery of the possession.
(ii) After delivery of the possession.
I. Before delivery of the possession:
A gift may be revoked by the doner at any time before delivery of the possession, because before delivery
there is no gift at all.
II. After delivery of the possession:
A doner can even after the delivery of the possession of the property can revoke the gift.
It can be revoked by the followings ways.
(i) With the mutual consent of the parties.
(ii) By a decree of the competent court.
15. Circumstances when gift can not be revoked:
Under following circumstances gift can not be revoked.
(i) Death of the doner.
(ii) Death of the donee.
(iii) Where a gift is made to a person related to the doner with in prohibited degree.
(iv) Gift between spouse.
(v) Increase in value of the gift.
(vi) Destruction of the subject matter of the gift.
(vii) Destruction of the identity of the gift.
(viii) Where doner has received consideration for gift.
(ix) Where the purpose of the gift is Sadqa.
16. Conclusion:
To conclude I can say that, the gift is a contract consisting of a proposal or offer on the part of the doner
Noman khan Page 44

to give a thing and acceptance of it by the donee. so it is a transfer of property immediately and without
any exchange. there must be clear intention by he doner to transfer the possession to the doner for a valid
gift. if can be revoked by the doner.
Define will what is the difference between will and gift. (2002)
1. Introduction:
Will is a conferment of right which is to effect after the death of the testator. where as a gift is the transfer
of property without any exchange. it is made for love and affection.
2. Definition of will:
Baillie:
A will a conferment of rights property in a specific thing or a profit or an advantage or in gravity to take
effect on the death of the testator.
Fatawa alamgiri:
Will is a legal declaration of the intention of a testator with respect to his property which desires to be
carried into effect his death.
3. Essentials of a valid will:
Following are the essentials to a valid will under Islamic law.
(i) Declaration by the testator.
(ii) Testator must be compentent to declare.
(iii) The subject of the will must be valid.
(iv) It must be within limits imposed on the testator.
(v) The legatee must be competent to take the possession of the property.
(vi) Offer by the testator.
(vii) Acceptance by the legatee.
4. Definition of gift:
Hedaya:
A hiba is a transfer of Tengible property without consideration.
Fyzee:
It is the immediate and unqualified transfer of the corpus of the property without any return.
5. Essentials of a valid gift:
(i) Subject of gift must be belong to donor.
(ii) subject of gift must be in existence.
(iii) Done must make by his free will
(iv) Aceptanace by donee
(v) Deliver of the possession of subject matter.
6. Difference between gift and will:
I. As to completion:
Will is aecuted after the death of the testator.
Gift is completed during the life time of the donor.
II. As to condition:
Will is dependent upon a condition i.e. the death of the testator.
Gift is operated immediately.
III. As to revocation:
Will can be revoked at any time before the death of testator.
Noman khan Page 45

Gift after the delivery of the possession is usually irrevocable.
IV. As to limitation:
In will the right of making a will is limited in two ways.
In gift the right of donor to gift is unrestricted.
V. As to existence of subject matter:
It is not necessary that subject matter of the will must be exist at the time of making will.
The subject of gift must be in existence at the time of making gift.
VI. As to delivery of possession:
Delivery of possession is not required in the will.
In a gift there must be delivery of the possession of the property to the donee.
VII. As to doctrine of mushaa:
The doctrine of Mushaa has no application in case of will.
The doctrine of Mushaa is applicable in case of gift.
VIII. As to acceptance:
In will acceptance by the legatee in not necessary.
In gift acceptance by the legatee in necessary.
IX. As to registration:
Registration of will is optional.
Gift must be registered under the registration act.
X. As to insanity:
The subsequent insanity of the testator makes the will void.
Gift after the delivery of the possession is irrevocable on the ground of insanity.
XI. As to consideration:
A will is always without consideration.
In some case there is consideration in gift.
7. Conclusion:
To conclude i can say that the gift is the transfer of property which is made immediately and without any
exchange by one person to another will is dependent upon a condition lies the death of the testator. the
gift and will are two different things under Islamic law.
Q. What is meant by 'Acknowledgement' of paternity in Islamic law? what are valid conditions for
such an acknowledgement. (2003)
Q. Write a detailed note on parentage. (2006/S)
1. Introduction:
Parentage includes paternity and maternity. it is the result of institution of marriage. so parentage id the
legal relationship of parents to their children. the establishment of paternity confers a status of legitimacy
on the child. the child acknowledged must not be offspring of zina i. e. adultery, fornication, incest, or
illicit relation. acknowledgement is a mode to establish paternity.
2. Acknowledgement of paternity:
Muhammadan law recognizes the doctrine of acknowledgement of paterinty where the paternity of a child
i. e. his father can not be proved by proved by establishing a marriage between the parents at the time of
conception of the birth.
3. Application of the doctrine:
The doctrine applies only to cases of uncertainty as to the legitimacy. it can be done only where the
Noman khan Page 46

paternity of the child has not been or can not be proved from any other person, the child is not the off
spring of zina and the circumstance of his birth are such that he could be a legitimate child of his father.
4. Modes of acknowledgement:
Modes of acknowledgement of paternity are as under.
(i) Implied
(ii) Express
5. Capacity for making acknowledgement:
(i) Person who is sound mind.
(ii) Have attained the age of puberty.
6. Conditions of a valid acknowledgement:
I. Ages of the parties:
The ages of the parties must be such that it is possible that they may be father and son. the person who
makes acknowledgement must be at least 12 1/2 year elder than the person acknowledged.
II. Intention:
The acknowledgement must not be merely sonship but if legitimate sonship.
III. Prof of legitimacy:
The child so acknowledged must not be known as the child of another.
IV. Confirmation:
Acknowledgement must be confirmed by the child so acknowledged if he is of adult age.
7. Nature:
The acknowledgement once made and proved cannot be rebutted. so a man who makes acknowledgement
can not rebut it.
8. When acknowledgement is void:
When the mother of the acknowledged child could not be possibly have been the lawful wife of the
acknowledger at any time. when the acknowledge could have been begotten, the acknowledgement will
be void.
9. Effect of acknowledgement:
In the case of the son it produces all the legal effects of natural paternity and vests in the child the right of
inheritance in case of wife, the mother of the acknowledge son as effect of giving her the status of a legal
wife and entitlement of inheritance and maintenance.
10. Rules of presumption as to legitimacy:
Rules of presumption as to legitimacy are as under.
(i) A child born with in less than six months after marriage is illegitimate.
(ii) A child born after six months after the marriage is presumed to be legitimate.
Exception:
(i) If husband accuses her wife of adultery in the court such child would be illegitimate of proof.
(ii) A child born with in 2 years after the termination of marriage is presumed to be legitimate.
11. Establishment of paternity:
Paternity of a child is establishment by marriage between the parents of child.
12. Establishment of legitimacy:
When the paternity of a child is establishment its legitimacy is also established.
Case law
Muhammad Talat Vs Yasmeen Zohra 1992 CLC 1180
It was held that paternity of a child born in lawful wedlock, is presumed to be in the husband and mother
Noman khan Page 47

without any acknowledgement or affirmation of parentage on his part and such child follows the status of
father.
13. Conclusion:
To conclude I can say that, the doctrine of acknowledgement of paternity confers a status of legitimacy on
a child whether a son or a daughter. it is a kind of legal evidence. once the acknowledgement is made the
right to disclaim is lost. the acknowledgement child may be a son or a daughter.
Q. What do you understand by the term guardian as used in guardians and wards act, who can be
appointed as guardian.
(2002/S)
Q. Define guardian enumerate the grounds on which a guardian can be removed. (2003)
Q. Define guardian who can be appointed guardian. how can he be removed. (2004)
Q. Define 'guardian'. how can be appointed. (2005)
1. Introduction:
The right of guardianship of the minor belongs to the father and in his absence to his nominate. where no
one has been nominated than to the grandfather. if he dies the right of guardianship vests in the court.
2. Guardian:
According to guardians and wards act 1890 guardian means a person having the care of the person of a
minor of his property or his person and property.
3. Ward:
Every minor who has a guardian no matter what type of guardian he has i.e the one appointed by the court
under guardians and wards act or one who is self appointed be facto guardian.
4. Persons who can apply for appointment of guardian:
Following person can apply for the appointment of the guardian a minor:
(a) Person who wishes to be appointed or a person claiming to be the guardian of the minor.
(b) Any relative or friend to the minor.
(c) The collector of the district or other local area within which the minor ordinarily resides or which he
has property or.
(d) The collector having authority with respect to the class to which the minor belongs.
5. Contents of the application:
(i) Name age address sex religion of the minor.
(ii) Property of the minor.
(iii) Name and address of person having custody of the minor.
(iv) Whether a guardian of person or property.
(v) Name of the relative of the minor.
(vi) Qualification of proposed guardian.
(vii) Whether any application has been at any time made to any other court with respect to the
guardianship.
(viii) The causes which have led to the making of the application.
(xi) Any other necessary particulars.
6. Kinds of guardian:
(i) Guardian of person.
(ii) Guardian of property.
(iii) Guardian for the marriage.
Noman khan Page 48

7. Who can be guardian of person:

Under hanfie law:
Under hanife law in the case of a son below seven fears of age and of a daughter below the age of puberty
following are the entitle for the custody.
(i) Mother
(ii) Mother, s mother how high-so-ever.
(iii) Father, s mother how high-so-ever.
(iv) Full sister.
(v) Uterine mother.
(vi) Consanguine sister
(vii) Full sister daughter.
(viii) Uterine sister daughters
(ix) Mother father.
(x) Maternal aunts
(xi) Paternal aunts
(xii) Paternal aunts of mother and father.
In the absence of them following female paternal relation shall have entitlement.
(i) Father
(ii) Paternal grand father
(iii) Full brother
(iv) Consanguine brother.
(v) Full brother son
(vi) Consanguine brother,s son
(vii) Full paternal uncle
(viii) Consanguine paternal.
(ix) Full paternal uncle, s son
(x) Consanguine paternal,s son.
In the absence of then following relative shall have entitlement:
(i) Uterine brother
(ii) Uterine brother,s son
(iii) Father, s uterine brother
(iv) Maternal uncle
(v) Mother,s uterine brother
Shire law:
The custody of son below two years of age or of a daughter below seven years of age to the mother and
after the mother the custody of the minor belongs to the father and of being not qualified then to the
grands father how high so ever. the custody of son about two years of age and a daughter above. 7 years
of age belong to the father and in his absence to the true grand father how high-so-ever.
8. Who can be guardian of property:
(i) Natural or legal guardian can be appointed guardian of property.
(ii) Testamentary guardian.
(iii) Court can appoint appoint any person guardian of property in case of absence of natural and
testamentary guardian.
(iv) A person can voluntarily take the charge of the property. he is in other words self appointed guardian
Noman khan Page 49

9. Powers of court to make order as to guardian:

When the court is satisfied that it is for the welfare of a minor that an order should be made.
(i) Appointing a guardian of this person or property or bother.
(ii) Declaring a person to be such guardian the court may make order accordingly.
10. Removal of guardian:
Guardian can be removed on the following grounds:
(i) For abuse of his trust.
(ii) Failure to perform his duties.
(iii) Incapacity to perform the duties.
(iv) For ill treatment or neglect to take proper care of his ward.
(v) Conviction of an offence implying in the opinion of the court defect of character which renders unfit
him to be the guardian of his ward.
(iv) Interest adverse to the faithful performance of court.
(vii) Ceasing to reside within local limits of the jurisdiction of the court.
(viii) Insolvency in case of guardian for property of ward.
(ix) Ceasing by reason of guardian being liable to cease under personal law of the minor.
Modes of removal:
(a) By the application.
(b) By the court by it own motion.
11. Conclusion:
To conclude i can say that the guardian has right to the movement and action of person. guardianship
extends to the custody of the person and power to deal with the property of the ward. a guardian can be
removed form his office under the guardians and wards act.
State the matters to be considered by a court in appointment of a guardian of minor.
1. Introduction:
Welfare of the minor is supreme law. the court can appoint guardian in the absence of the legal guardian
under guardian and wards acts 1890. the court may also on the application of any person interested, or in
its own motion remove a guardian.
2. Guardian:
minor or of his property or of his person and property.
3. Persons who can apply for appointment of guardian:
Following person can apply for the appointment of the guardian of a minor.
(a) Person who wishes to be appointed or a person claiming to be the guardian of the minor.
(b) Any relative or friend of the minor.
(c) The collector of the district or other local area within which the minor ordinarily resides or which he
has property or.
(d) The collector having authority with respect to the class to which the minor belongs.
4. Welfare of minor is supreme law:
Welfare of the minor is the supreme law. the court has always to bear in mind the welfare of the minor
and then proceeding further to appointment of the guardian. the term welfare includes moral. spiritual and
material well being of the minor.
5. Matters to be considered for appointment of guardian:
Noman khan Page 50

Following matters are to be considered for the appointment.
I. Age:
The age of the minor is firstly considered by the court. during tender age of a child he needs the care and
affection of the person interested in him. so where a minor is above 17 years old, there is no use in
pointing a guardian of his person.
II. Sex:
Under guardians and wards act a virgin should not be given in the custody of a male, if there exist no
prohibition to the marriage.
III. Religion:
Under law, child must be presumed to have father's religion. the court must take into consideration this
aspect while appointing the guardian.
IV. Capacity of proposed guardian:
The court must be the capacity, and qualification, of the proposed guardian.
V. Kinship with the minor:
The court must take into consideration the relationship and nearness of kin with the minor.
VI. Wishes of the minor:
The wishes of the minor are also considered by the court wile making the appointment of the guardian.
VII. Personal law of the minor:
The appointment of the guardian should be made in a way that he could not interfere in the personal law
of the minor.
VIII. Wishes of the deceased parents of minor:
The wishes of deceased parent of the minor are also considered by the court.
IX. Character of the proposed guardian:
The court must take into consideration the character of the proposed guardian.
6. Conclusion:
To conclusion I can say that, the welfare of minor is an important factor in appointing the guardian by the
court. the court must take into consideration age, sex, religion, character of guardian, wishes of minor and
his deceased parent at the time of appointment of guardian.
Who are the entitled to guardianship of the person of a minor?
Q. When is the right of female for custody loss under Islamic law. (2000)
1. Introduction:
The right of guardianship of the minor belongs to the father and in his absence to his nominate. where no
one has been nominated then to the grandfather. if he dies the right of guardianship vests in the court.
2. Guardian:
minor or of his property or of his person and property.
3. Ward:
Every minor who has a guardian, no matter what type of guardians he has, i.e the one appointed by the
court under guardians and wards act or one who ia self appointed de facto gurarian.
4. Kinds of guardian:
(i) Guardian of person.
(ii) Guardian of property.
(iii) Guardian for the marriage.
Noman khan Page 51

5. Who can be guardian of person:

Under hanfie law:
Under hanife law in the case of a son below seven fears of age and of a daughter below the age of puberty
following are the entitle for the custody.
(i) Mother
(ii) Mother, s mother how high-so-ever.
(iii) Father, s mother how high-so-ever.
(iv) Full sister.
(v) Uterine mother.
(vi) Consanguine sister
(vii) Full sister daughter.
(viii) Uterine sister daughters
(ix) Mother father.
(x) Maternal aunts
(xi) Paternal aunts
(xii) Paternal aunts of mother and father.
In the absence of them following female paternal relation shall have entitlement.
(i) Father
(ii) Paternal grand father
(iii) Full brother
(iv) Consanguine brother.
(v) Full brother son
(vi) Consanguine brother,s son
(vii) Full paternal uncle
(viii) Consanguine paternal.
(ix) Full paternal uncle, s son
(x) Consanguine paternal,s son.
In the absence of then following relative shall have entitlement:
(i) Uterine brother
(ii) Uterine brother,s son
(iii) Father, s uterine brother
(iv) Maternal uncle
(v) Mother,s uterine brother
Shire law:
The custody of son below two years of age or of a daughter below seven years of age to the mother and
after the mother the custody of the minor belongs to the father and of being not qualified then to the
grands father how high so ever. the custody of son about two years of age and a daughter above. 7 years
of age belong to the father and in his absence to the true grand father how high so ever.
6. Who can be guardian of property:
(i) Natural or legal guardian can be appinoted guardian of property.
(ii) Testamentary guardian.
(iii) Court can appoint appoint any person guardian of property in case of absence of natural and
testamentary guardian.
(iv) A person can voluntarily take the charge of the property. he is in other words self appointed guardian.
Noman khan Page 52

7. Female when disqualified for custody:

A female including the mother, who is otherwise entitled to the custody of a child loses the right of
custody.
(i) If she marries a person not elated to the child within the prohibited degree e. g, to a stranger.
(ii) If she goes and resides, during the subsistence of marriage at a distance from the father's place of
residence, or
(iii) If she is leading an immoral life where she is a prostitute.
(iv) If she neglects to take proper care of the child.
Case law
Juma Khan Vs Gul Ferosho P. L. D 1972 Pesh
It was held that father is the natural guardian and is the natural guardian and is perfectly competent to get
custody of the minor children from the mother after ceases to be their guardian.
8. Conclusion:
To conclude I can say that the guardian has right to the movement and action of person. guardianship
extends to the custody of the person and power to deal with the property of the ward. a guardian can be
removed from his office under the guardians and wards act. although mother has legal right of
guardianship of her minor children but she can loss her right. in circumstanced mentioned in guardian and
wards act.
Divorce
1. Surah Number 65: At-Talâq (Divorce)
Revealed at: Madinah
Total Verses: 12
ALLAH in the name of The Most Affectionate, the Merciful.
1. 'O Prophet! When you people divorce your women, then divorce them at the time of their prescribed
periods
and count the prescribed period, and fear Allah, your Lord. Turn them not out of their houses during
prescribed
period, nor should they themselves go out, unless they are involved in any flagrant indecency; These are
the
limits of Allah, and whoso crossed the limits of Allah, undoubtedly, he did injustice to his own soul. You
know
not that perhaps Allah may send any new commandment after it.
2. Then, when they are about to reach their term, retain them with kindness or part from them with
kindness and
take two just persons as witnesses from among you and set up witness for Allah. By this, he who believes
in
Allah and Last Day is admonished. And he who fears Allah, Allah will make a way for his deliverance.
3. And will provide for him whence he expects not. And he who puts his trust in Allah - He is sufficient
for him.
Verily, Allah is to fulfil His work. Undoubtedly, Allah has kept a measure for every thing.
4. And as to your women who have no hope of menstruation; if you are in doubt, then their prescribed
period is
three months, and for those who have not yet menstruated. And the period of the pregnant women is when
Noman khan Page 53

they give birth to children. And whose fears Allah, Allah will make his work easy.
5. This is the Commandment of Allah that He has sent towards you. And whoso fears Allah, Allah will
put off his
evils and will give him immense reward.
6. Make the women to dwell where you yourselves dwell according to your means, and do not harm them
so as to
straiten them. And if they are pregnant, then give them their maintenance till they give birth to children,
And if
they suckle children for you, give them their wages and consult together reasonably. But if you mutually
disagree then soon he (father) will get another woman for sucking.
"Generally speaking married couples make their best efforts to continue their marital relations in
cordiality and happiness."(1) There are those occasions where it becomes impossible for a couple to
maintain a viable relationship (i.e. neglect, abuse, etc.). In these cases "the Shari'ah takes a very
reasonable view of such an intolerable situation and instead of forcing the couple to stay together...."(2) it
permits a divorce.
There are three kinds of divorce in Islam:
The first is Talaq (by the husband) and the second is Talaq Al-Bida'h (Divorce of Innovation) and Khul'
(by the wife).
Talaq
Talaq has two forms:
1. Talaq ar-Raji': (revocable divorce) which has two types:
Talaq Ahsan: (the most approved divorce). It is meant as a means to heal the breach between a couple
and allow for the soothing of frayed nerves. It has three conditions. The husband must only pronounce
one Talaq. The Talaq must be only pronounced when the wife is in a state of purity. The husband must
abstain from sexual contact with his wife for the 'iddah (the waiting period) which is three months.
Talaq Hasan: (approved). In this form divorce is pronounced in three successive periods. After the first
two the husband has the right to take his wife back if they so desire to reunite but if he pronounces
divorce a third time it becomes irrevocable. The wife must marry another at this time.
2. Talaq al-Bain: (irrevocable divorce). This is a divorce that with three pronouncements in successive
sittings or at the same sitting or before the consummation of the marriage. There is no return allowed
under these circumstances unless the woman has an intervening marriage.
"Talaq is a right available mainly to the husband, but not to the wife. Even though Islam allows divorce,
the Prophet (pbuh) says: 'Of all things that Islam has permitted, divorce is the most hated by Allah.' Hasty
and wanton use of the right of divorce is regarded as most condemnable in Islam." (3)
Surah Al-Baqarah 229: "A divorce is only permissible twice. After that the parties should either hold
together on equitable terms or separate with kindness."
This could be likened to the "three strikes and you're out" policy.
Talaq Al-Bida'h (Divorce of Innovation)
This was a type of divorce that made its appearance after the death of the Prophet (pbuh). It is where the
man pronounces Talaq three times at one sitting or sends it in writing to his wife. This is a sin against the
precepts of the Shari'ah and was severely denounced by the Prophet and Khalif `Umar would whip a
Noman khan Page 54

husband who did such a thing.
Khul'
This a divorce that is instigated by the wife. It is where she applies to a Qadi for divorce.
Surah An-Nisa' 128 : If a wife fears cruelty or desertion on husband's part, there is no blame on them if
they arrange an amicable settlement between themselves; and such settlement is best; even though men's
souls are swayed by greed. But if you practice self-restraint, Allah is well-acquainted with all that you do.
In the case of Khul', the wife must return all or part of the mahr (the dower). A case in point, where the
woman would be allowed to keep the mahr, is what Imam Malik said and that was if a wife was forced by
her husband to enter Khul', she would be entitled to get the mahr back.
The issue of divorce is covered in more detail in the book "Woman in Shari'ah (Islamic Law)" by 'Abdur
Rahman I. Doi.
1. IntroductionDivorce is called in Arabic as Talaq ( ). In its primitive sense the word

The holy Prophet (PBUH) is reported to have said:
“ With Allah, the most detestable of all things permitted is Divorce.”
A.A. Fyzee:
“The reforms of Prophet Muhammad (PBUH) marked a new department in the history of Eastern
legislation. He restrained the power of divorce possessed by the husbands; he gave to the women the right
of obtaining a separation on reasonable grounds; and towards the end of his life he went so far as
practically to forbid its exercise by the men without the intervention of arbiters or a judge.”
Case Law Definition (divorce):
AIR 1932 Oudh 34
It is the freedom from the bondage of the marriage.
2. Classification:a By the death of spouse:

The death of the husband or the wife operates in law as dissolution of marriage. When the wife dies, the
husband may remarry immediately, but the widow has to wait for a certain period before she can remarry.
This period is called idda’.
b Talaq:
The word talaq is usually rendered as repudiation. It comes from a root (tallaqa) which means to release
(an animal) from a tether. In law, it signifies the absolute power that the husband possesses of divorcing
his wife at all times.
The divorce operates from the time of pronouncement of talaq. The presence of the wife is not necessary;
nor need notice be given to her. In Hanafi law, no special form is necessary whereas Ithna’ Ashari law
insist on a strict formula being used.
In Ithna’ Ashari law, the pronouncement of talaq, in the Arabic tongue, must be uttered orally in the
presence and hearing of two male witnesses who are Muslims of approved probity.
3. Types of TalaqThere are two types of Talaq:

i. Talaqu’ s-Sunna (Approved Form)
o Ahsan FormThe ahsan form consists of one single pronouncement in a period of tuhr, followed by
abstinence from sexual intercourse during idda’.
Where the parties have been away from each other for a long time, or where wife is old and beyond the
age of menstruation, the condition of tuhr, is unnecessary.
Noman khan Page 55

A pronouncement of made in the ahsan form is revocable during ‘idda. This period is three months from
the date of the declaration or, if the woman is pregnant, until delivery. The husband may revoke the
divorce at any time during the ‘idda. Such revocation may be by express words or by conduct. The
divorce is revoked under Hanafi as well as Ithna’ Ashari law.
After the expiration of the ‘idda the divorce becomes irrevocable. A Muslim wife, after divorce, is
entitled to maintenance during the ‘idda and so also her child, in certain circumstances.
o Hasan FormThe hasan is also an approved form, but less approved than the first ahsan. It consists of
three successive pronouncements during three consecutive periods of purity (tuhr). Each of these
pronouncements should have been made at a time when no intercourse has taken place during that
particular period of purity.
The husband pronounce talaq on his wife for the first time during a period when wife is free from her
menstrual courses. The husband and wife had not come together during this period of purity. This is the
first talaq.
He resumes cohabitation or revokes this first talaq in this period of purity. Thereafter, in the following
period of purity, at a time when no intercourse has taken place, husband pronounces the second talaq.
This talaq is again revoked by express words or by conduct, and the third period of purity is entered into.
In this period, no intercourse having taken place, husband for the third time pronounces the formula of
divorce.
The third pronouncement operates in law as a final and irrevocable dissolution of the marital tie. The
marriage is dissolved; sexual intercourse becomes unlawful; ‘idda becomes incumbent; remarriage
between the parties becomes impossible unless wife lawfully marries another husband, and that other
husband lawfully divorces here after the marriage has been actually consummated.
The Ithna ‘Ashari and the Fatimid schools, however, do not recognize the remaining two forms and thus
preserve the ancient conventions of the times of the Lawgiver.
The second is a form in which the Holy Prophet (PBUH) tried to put an end to a barbarous pre-Islamic
practice. This practice was to divorce a wife and take her back several times in order to ill-treat her.
ii. Talaqu’l - Bid’a (Disapproved Forms)
Following are the disapproved forms of Talaq.
o The triple declation:In this form three pronouncements are made in a single tuhr, either in one
sentence, e.g. ‘I divorce thee triply or thrice; or in three sentences, ‘ I drivorce thee, I drivorce thee’. Such
a talaq is lawful, although sinful, in Hanafi law; but in Ithna ‘Ashari and the Fatimid laws it is not
permissible. This called at-talaqu’l-ba’in, irrevocable divorce.
o The Single, irrevocable declaration:Another form of the disapproved divorce is a single, irrevocable
pronouncement made either during the period of tuhr or even otherwise. This form is also called at-talaqu
bain and may be given in writing. Such a bill of divorcement comes into operation immediately and
serves the marital tie. This form is not recognized by the Ithna ‘Ashari or the Fatimid school.
o Option of PubertyIf a Muslim minor has been married during minority by a guardian, the minor has
the right on attaining majority to repudiate such marriage.
This is called khiyar al-bulugh, the option of puberty. Such a minor may be given in marriage either by
the father or grandfather or by any other guardian.
In case of a girl married during minority, she is entitled to dissolution of her marriage if she proves the
following facts. According to Dissolution of Muslim Marriages Act of 1939, section 2(vii):
Firstly, that she was given in marriage by her father or other guardian.
Secondly, that the marriage took place before she attained the age of 15.
Noman khan Page 56

Thirdly, that she repudiates the marriage before she attained the age of 18.
Fourthly, that the marriage has not been consummated. Consummation of marriage before the age of
puberty does not deprive the wife of her option.
The right of repudiation is lost first, on consummation. It has been held, however, that a wife’s right is not
determined by mere consummation if she was ignorant of her right according to Tyabji.
Secondly, the right is also lost in the case of a female if on attaining puberty and on being informed of the
right, she does not repudiate the marriage within a reasonable time. By the statute, the wife must exercise
the option before she attains the age of 18.
o Talaq under compulsion or under the influence of intoxicationBy a peculiar rule of Hanafi law, as
distinguished from the Fatimid, Ithna ‘Ashari or Shafe’I law, a divorce pronounced under compulsion or
under the influence of intoxication is valid and effective.
According to A.A. Fyzee:
“The rule appears to be unjust, and should be abolished.”
o Ila’In Ila’ the husband swears not to have intercourse with the wife and abstains for four months or
more. The husband may revoke the oath by resumption of marital life. After the expiry of the period of
four months, in Hanafi law the marriage is dissolved without legal process, but in Itha ‘ Ashari and
Shafi’I law, legal proceedings are necessary.
o ZiharIn Zihar, the husband swears that to him the wife is like ‘the back of his mother’. If he intends to
revoke this declaration, he has to pay money by way of expiation, or fast for a certain period. After the
oath has been taken, the wife has the right to go to the court and obtain divorce or restitution of conjugal
right on expiation.
o Khul’ and Mubara’aThe Fatawa ‘Alamgiri lays down:
“ The woman can release herself form the tie by giving up some property in return in consideration of
which the husband is to give her a khula, and when they have done this a talak ul-bain would take place.”
The word khul’ means leterally ‘to take off clothes’ and thence, ‘to lay down one’s authority over a wife’;
and the word mubara denotes the act of ‘ freeing one another mutually.’
One of the earliest instances raising a case of khul’ is Moonshee Buzul-ul-Reheem v. Luteefut-oon-Nissa,
where their Lordships of the Privy Council says:
“ It appears that by the Muhammad Law divorce may be made in either of thow forms: Talak or khula.”
Form
In Hanafi law, the husband proposes dissolution, and the wife accepts it at the same meeting. The
proposal and acceptance need not be in any particular form. The contract itself dissolves the marriage and
operates as a single talaq-i-bain, and its operation is not postponed until the execution of the khu’-nama.
In Ithna ‘Ashari law, as is to be expected, certain forms are to be strictly followed and witnesses are
required.
In khul’ the wife makes some compensation to the husband or gives up a portion of her mahr; but this is
not absolutely necessary. The Egyptian code of Hanafi Law, Art. 275, based upon the classical
authorities, lays down: ‘ A khul’ repudiation can validly take place before or after consummation by the
wife.
Abu Hanifa holds that, in the absence of agreement, mahr is deemed to be relinquished by the wife both
by khul’ and by mubara’a.
Imam Abu Yusuf lay down that mahr is deemed to relinquish by mubara’a, but not by khul’.
Imam Muhammad holds that mahr is deemed to be relinquished neither by khul’ nor by mubara’a.
Noman khan Page 57

Khul’ and mubara’a operate as a single, irrevocable divorce. Therefore, marital life cannot be resumed by
mere reconciliation; a formal remarriage is necessary.
In either case, ‘idda is incumbent on the wife, and in the absence of agreement.
4. Dissolution by judicial processi Li’an (Mutual Imprecation)
Divorce by mutual imprecation is mentioned in the Quran and is supported by the traditions of the Holy
Prophet (PBUH). It is reported that a man from the Ansar accused his wife of adultery. The Holy Prophet
(PBUH) thereupon asked them both to take an oath; then he ordered them to be separated from each
other.
The procedure of Li’an may be described briefly as follows:
A husband accuses his wife of adultery, but is unable to prove the allegation. The wife in such cases is
entitled to file a suit for dissolution of marriage.
At the hearing of the suit, the husband has two alternatives:
a He may formally retract the charge.
b The husband may, however, not retract and, if he persists in his attitude, he is called upon to make
certain oaths. This is followed by oaths of innocence made by the wife. After these mutual imprecations,
the judge pronounces that the marriage is dissolved.
c No appeal can be filed against the decree of the court on this ground i.e. lian.
5. Judicial Rescissiona Faskh
The word Faskh means annulment or abrogation. Hence it refers to the power of the Muslim Qazi to
annul a marriage on the application of the wife. The law of faskh is founded upon the Quranic injunction.
Abdullah Yusuf:
“The act, applies to every Muslim, to whatever school of law he belongs.”
b The Dissolution of Muslim Marriages Act 1939:Section 2 lays down that even a single ground
mentioned in the
i. Missing HusbandThe wife is entitled to obtain in a decree for the dissolution of her marriage if the
whereabouts of the husbands have not been known for a period of four years; but a decree passed on this
ground will not take effect for a period of six months form the date of such decree, and if the husband
appears either in person or through an authorized agent within that period and satisfies the Court that he is
prepared to perform his conjugal duties, the court must set aside the decree.
ii. Failure of maintainIf the husband has neglected or has failed to provide for the wife’s maintenance
for a period of two years, Section 2(ii) has been the cause of a difference of judicial opinion.
In Fazal Mahmud v. Ummatur Rahim, a Peshawar case, it was held that the section does not abrogate the
general principles of Islamic law; therefore, before a husband can be said to have neglected or failed to
provide maintenance, it must be shown that the husband was under as legal duty to provide such
maintenance.
Where the wife refuses to reside with her husband or fails to discharge her marital obligations, without
any reasonable cause, she can not claim maintenance, and therefore she is not entitled to divorce.
The Singh High Court has taken a different view. In Nur Bibi v. Pir Bux (AIR 1950) Sindh 8., it was laid
down that where a husband has failed to provide maintenance for his wife for a period of two years
immediately preceding the suits, the wife would be entitled to a dissolution of her marriage under section
2(ii) of the Act, in spite of the fact that on account of her conduct in refusing to live with her husband, she
would not have been entitled to enforce any claim for maintenance against the husband in respect of the
period during which the husband has failed to maintain her.
The true rule appears to be:
Noman khan Page 58

o that the failure to maintain under the statute need not be willful; mere inability due to, for instance, to
poverty or even other causes, is sufficient.
o That the wife, willfully refusing to stay with the husband, would be out of court if she proceeded under
the section.
In Shafii law, apart from ‘inability to maintain’, as such, ‘neglect or failure to maintain’ is a good ground
for the wife to dissolve her marriage.
iii. Imprisonment of husband

If the husband is sentenced to imprisonment for a period of seven years or more, no decree can be passed
until the sentence has become final.
iv. Failure to perform marital obligation
If the husband fails to perform without reasonable cause, his marital obligations for a period of three
years.
v. Impotence
It must be proved that the husband was important at the time of marriage, and that he continues to be so;
but before passing a decree on this ground, the court is bound, on application by the husband, but not
otherwise, to make an order requiring the husband to satisfy the court within a period of one year from the
date of such order that he has ceased to be impotent. If the husband satisfied the court, within a year, that
he is no longer impotent, no decree can be passed.
A.A. Fyzee:
“ After this probationary year, if the incapacity of the husband continued, the marriage would be
dissolved.”
The two chief differences are:
Firstly, that the ignorance of the wife regarding the impotency of her husband needs not to be proved. She
can obtain a divorce even if she knew of it.
Secondly, that the adjournment of the case for one year is not essential. It is only on the application of the
husband that an adjournment may be obtained. If no such application is made, the decree dissolving the
marriage can be passed without delay.
Thirdly, under the statute, the onus is thrown on the husband to prove that he is free from the physical
defect of impotence.
vi. Insanity, leprosy, venereal disease
If the husband (i) has been insane for a period of two years, or (ii) is suffering from leprosy or (iii) a
virulent venereal disease.
vii. Cruelty
If the husband treats the wife with cruelty, which means that he:
o habitually assaults her or makes her life miserable by cruelty or bad conduct even if such conduct does
not amount to physical ill treatment.
o Or associates with women of evil repute or leads an infamous life
o Or attempts to force her to lead an immoral life
o Or disposes of her property or prevents her from exercising her practice legal rights over it
o Or obstructs her in the observance of her religious profession or practice
o Of if he, having more wives than one, does not treat her equitably in accordance with the Quranic
injunctions.
These rules may be found in Abdul Rahman’s (Institutes of Mussalman Law) and another book on Fiqh,
Noman khan Page 59

Ruddul-Muhtar.
Incompatibility of temperaments, dislike or ill will, are not sufficient grounds under the Muhammadan
law for obtaining dissolution. In a learned and exhaustive judgment Sayeeda Khanam v, Muhammad
Sami (PLD 1959 (WP) Lahore 113, F.B), Cornelius C.J. discussed this question authoritatively and dealt
with the nature of incompatibility; divorce and khul; meaning of shiqaq, citing iv. 34,35.
In Balqis Fatima v. Najm-ul-Ikram Qureshi (PLD 1959 (WP) Lahore 566) in which the facts were
strongly in favour of the wife, the Maliki view that in a fit case the arbitrator (hakams) had the power to
dissolve the marriage was adopted and the law molded more in consonance with the spirit of the Quran,
as interpreted in modern times.
The wife is entitled to dissolution of marriage on restoration of what she received in consideration of
marriage if the judge apprehends that parties will not observe the limits of God.
viii. Apostasy, Conversion
A Muslim may renounce Islam, and this is known as apostasy (ridda); or a non-Muslim may embrace
Islam and this is called conversion. According to the general principles of Islamic law, a person who
embraces Islam is immediately governed by Islamic law. But a man who renounces Islam suffers greatly
under civil as well as criminal law.
If a Muslim husband who renounces Islam is an apostate and as such his marriage with his Muslim wife is
dissolved ipso facto (by the fact).
According to Syed Ameer Ali, when a Muslim married couple abandon Islam and adopt another faith,
their marriage is not dissolved but remains intact.
ix. Wife renounces Islam

o the mere renunciation of Islam by a Muslim wife does not by itself dissolve her marriage.
o The above rule does not apply to a woman converted to Islam from some other faith who re-embraces
her former faith.
o The act of 1939 gives a remedy, the statute provides that apostasy by itself does not dissolve the
marriage, unless it is that a woman re-embraces her former faith.
x. Wife embraces Islam
o The conversion of a non-Muslim wife to Islam does not ipso facto dissolve her marriage with her
husband, and the ancient procedure of ‘offering Islam’ to the husband and on his refusal obtaining a
dissolution of marriage as laid down in the text.
o It was held inter alia (among other things) that, immediately upon the conversion of Madad Bibi to
Islam, her marriage with her hindu husband was dissolved and her marriage to Baqar Shah was lawful;
wherefore her children by him were legitimate (Faiz Ali Shah v. Ghulam Akbar Shah, PLD 1952, Azad
Jammu and Kashmir, 32).
6. Effects of Dissolutioni. Matrimonial intercourse
After the dissolution is effective, matrimonial intercourse between the parties becomes unlawful.
Nevertheless, the parties may, in certain circumstances, lawfully remarry.
ii. Remarriage, reconciliation.
A divorced couple can not always remarry.
iii. Fresh marriage
where the marriage was consummated, the wife has to wait till the expiration of her ‘idda in order to be
able to remarry. The husband if he has four wives, must wait until the completion of the divorced wife’s
‘idda.
Noman khan Page 60

Where the marriage was not consummated, the parties can remarry immediately, without waiting for the
expiry of the ‘idda.
iv. Dower
If the marriage was consummated, the whole dower is immediately due; if not, half the dower is payable.
v. Maintenance
The husband has to provide maintenance to the wife during ‘idda.
vi. Inheritance
So long as the divorce is revocable one spouse can inherit from the other; but when the divorce becomes
irrevocable, the rights of inheritance terminate inter se.
7. Procedure of Talaq (Divorce)a. Notice

The husband will send notice:
i. to the Chairman
ii. to the wife
b. Form of Notice
Notice shall be in writing.
c. Purpose of Notice
The purpose of notice is to inform about the dissolution of marriage.
d. Time for granting Notice
Notice shall be given at the time when the husband has pronounced divorce.
e. Reconciliation between the parties

The chairman is required to bring about reconciliation between the parties for this purpose he is to give
notice to the parties to nominate their representatives. However, he can not compel any person to appear
before him.
f. Effectiveness of Divorce
Divorce would not become effective unless and until period of ninety days has elapsed with effect from
the date of receipt of notice of divorce by the chairman of the union council and by the wife. The expiry
of 90 days is an essential.
g. Divorce to pregnant woman
Divorce to pregnant woman shall be affected by the delivery of the child.
h. Remarriage of the same parties
Nothing shall debar a wife whose marriage has been terminated by Talaq effective from remarriage the
same husband, without an intervening marriage with a third person, unless such termination is for the
time so effective.
i. Revocation of Divorce
The husband can revoke the divorce before the expiry of ninety days.
j. Punishment
Whoever contravenes the provisions shall be punishable with simple imprisonment for a term which may
extend to one year or with fine which may extend to five thousand rupees or with both.
k. Commencement of Iddat
Iddat means waiting period. The most approved definition of iddat is the term by the completion of which
a new marriage is rendered lawful. The observance of iddat is necessary where cohabitation has taken
place.
Noman khan Page 61

Prof. N.J. Coulson:
“Idda is a period of waiting imposed upon a wife after the termination of her marriage.”
i. In case of divorce
o If consummation of marriage has taken place and the marriage is dissolved by divorce, the duration of
iddat is three courses, or if the woman is pregnant, till delivery.
o Woman has not to observe the period of iddat if marriage was not consummated. In such case, she can
marry immediately after the divorce.
ii. In case of death of husband

o The period of iddat commences from the date of death of her husband. She is bound to observe the
period of iddat for four months and ten days or if the woman is pregnant, till delivery.
o If the marriage was not consummated, iddat has to be observed in the case of death of husband, but not
in the case of divorce.
iii. In case of termination of Muta’
On the expiry of the period, where there has been cohabitation, a short ‘idda of two courses is prescribed;
however, if there has been no consummation, no ‘idda is necessary.
Divorce is of three kinds: the Ahsan, or most laudable, the Hasan, or laudable, and the Bid'a or irregular.
Talaq Ahsan or the most laudable[1] divorce is where the husband repudiates his wife by making one
pronouncement within the term of Tahr (purity. when the woman is not passing through the period of
menses) during which he has not had sexual intercourse with her, and she is left to observe her 'Idda.
Talaq Hasan or laudable divorce is where a husband repudiates[2] an enjoyed wife by three sentences of
divorce, in three Tuhrs
Talaq Bid'a or irregular divorce is where a husband repudiates his wife by three divorces at once.
According to the majority of the jurists, the Talaq holds good, but it is against the spirit of the Shari'ah,
and, therefore, the man who follows this course in divorce is an offender in the eye of Islamic Law.
[1] deserving or worthy of praise; admirable; commendable
[2] Refuse to accept
Dower
1. Introduction:
The dower is the financial gain which the wife is entitled to receive from her husband by the virtue of
marriage. It is also called Mahr. It may be settled before marriage, or at the time of marriage or even after
the marriage. The right of wife to dower becomes complete on the consummation of marriage. The
amount of Dower may be increased after the marriage.
2. DEFINITION OF DOWER
• Fatawa-e-Almgiri
It is an obligation imposed by the law on the husband, as mark of respect for the wife.
• Mulla
Dower is a sum of money or other property which the wife is entitled to receive from the hung and in
Mr justice Mahmood
Noman khan Page 62

Dower, under the Muhammadan law, is some of money or other property promised by the husband to be
paid or delivered to the wife in consideration of the marriage, and even where no dower is expressly fixed
or mentioned at the marriage ceremony, the law confers the right of dower upon the wife. Hedays says:
The payment of dower is enjoined by the law merely as a token of respect for its object (the woman)
3. IMPORTANNCE OF DOWER IN ISLAMIC LAWDower provides protection to the wife against
the Arbitrary dower of the husband to pronounce Divorce. It is a mark of respect to the wife and a check
on the power of husband to divorce.
4. CAPACITY TO MAKE A CONTRACT FOR DOWERThe parties who are sound mind and have
attained the age of puberty may enter into the contract of dower.
5. PERSONS WHO ARE ENTITLED TO MAKE CONTRACTFollowing persons can make contract
of dower.
i. The parties of the marriage.
ii. Their agents.
iii. Guardian
iv. Agent of guardian.
6. SUBJECT OF DOWER
i. Fixed sum of money.
ii. Any thing in the category of property having value.
iii. Property must be in existing.
7. AMOUNT OF DOWERThere is no maximum limit of amount of the dower but the amount can not be
less than prescribed by the law.
The amount of mahr may either be fixed or not; if it is fixed, it cannot be sum less than the minimum laid
down by the law.
o Minimum dower
i. Hanafi law: 10 derhams
ii. Maliki law: 3 dirhams
iii. Shafi’i law: No fixed minimum
iv. Shiite law: No fixed minimum
8. FIXATION OF DOWER:Dower may be fixed before the marriage at the time of Marriage and after
the marriage.
9. CONFIRMATION OF DOWER:The amount of Dower becomes confirm:
i. By consummation of marriage of
ii. By a failed retirement khalwat-e-sahira or
iii. By the death of either party i.e. husband or wife
10. KINDS OF DOWERDower may be either specified or unspecified.
a Specified Dower (al-mahru’l-musamma)
An amount settled by the parties at the time of marriage or after is called specified dower. It is also known
as Mahr-I-Musmma. Usually the mahar is fixed at the time of marriage and the Qazi performing the
ceremony enters the amount in the register; or else there may be a regular contract called Kabin-nama.
In syed sabar Hussain v. Frazand Hussan , a Shiite father had made himself surety for the payment of the
mahar of his minor son. Thereafter he died , and it was held that the estate of the deceased was liable for
the payment of his son’s mahar.
Where the amount has been specified, the husband will be compelled to pay the whole of it, however
Noman khan Page 63

excessive it may seem to the court, having regard to the husband’s means.
There are two kinds of specified dower in Islam:
i. Prompt Dower (Mu’ajjal)
It is derived from a root meaning ‘to hasten, to precede’. Prompt dower is payable immediately on
demand. It may also be demanded before the consummation of the marriage the wife may refuse to live
with him unless he pays the prompt dower.
ii. Deferred Dower (Muw’ajjal)
Deferred dower is payable on the dissolution of marriage either by death or by divorce.
When dower is fixed, it is usual to split it into two equal parts and to stipulate that one shall be paid at
once or on demand, and the other on the deth of the husband or divorce or the happening of some
specified event. But a difficulty arises when it is not settled whether the dower is prompt of deferred.
In Ithna Ashari Law, the presumptions that the whole of the dower is prompt, but in Hanafi law the
position is different. The whole of the dower may be promptly awarded.
b UNSPECIFIED DOWERWhere dower has not been settled at the time of the marriage or after is
called unspecified dower.Unspecified dower may be classified into Proper Dower.
• Proper Dower
Proper dower is fixed with reference to the social status of the wife and her own personal qualification.
• Determination of Proper Dower
Following facts are taken into consideration while determining the amount of dower.
i. Local custom of the society.
ii. Personal skill and qualification of the wife.
iii. Social position of the husband.
iv. Social status of father of the wife.
v. Amount of Dower fixed in case of wife’s sisters, paternal aunts and others nearest elatives.
11. Increase or Decrease of DowerThe husband may at any time after marriage increase the dower.
Likewise, the wife may remit the dower, wholly or partially and a Muslim girl who has attained puberty is
competent to relinquish her mahr, although she may not have attained majority (18 years) within the
meaning of the Indian Majority Act. The rmission of the mahr by a wife is called hibatu’l mahr or hiba-i-
mahr.
It has, however, been held in Karachi that in certain cases remission of dower cannot be upheld. (Shah
bano vs. Iftikhar Muhammad, PLD 1956 (W.P), Kar.363)
12. Enforcement of DowerThe claim of the wife or widow for the unpaid portion of mahr is an
unsecured debt due to her from her husband or his estate, respectively. It ranks ratably with unsecured
debts, and is an actionable claim. During her lifetime the wife can recove the debt herself from the estate
of the wife, including the husband, become entitled to her dower.
If a husband refuses to pay prompt dower, the guardian of a minor wife has the right to refuse to allow her
to be sent to the husband’s house; and similarly, the wife may refuse the husband his conjugal rights,
provided no consummation has taken place. The wife is under Islamic Law entitled to refuse herself to her
husband until the prompt dower is paid; and if in such circumstances she happens to reside apart from
him, the husband is bound to maintain her.
This right of refusing herself is, however, lost on consummation. Thus if the husband files a suit for
restitution of conjugal rights before cohabitation, non-payment of prompt dower is a complete defence;
but after cohabitation, the proper course for the court is to pass a decree for restitution conditional on
Noman khan Page 64

payment of prompt dower. This was laid down in the leading case of Anis Begum v. Muhammad Istafa
Wali Khan.
The non-payment of deferred doer by its very nature cannot confer any such right of refusal on the wife.
The right to enforce payment arises only on death, divorce or the happening of a specified event.
The dower ranks as a debt and the widow is entitled, along with the other creditors of her deceased
husband, to have it satisfied out of his estate. Her right, however, is the tight of an unsecured creditor; she
is not entitled to a charge on the husband’s property, unless there be an agreement. The Supreme Court of
India had laid down (1) that the widow has no priority over other creditors, but (2) that mahr as a debt has
priority over the other heirs, claims. And the heirs of the deceased are not personally liable to pay the
dower; they are liable ratably to the extent of the share of the inheritance which comes to their hands.
13. The widow’s Right of RetentionIslamic law gives to the widow, whose dower has remained unpaid,
a very special right to enforce her demand. This is known as the widow’s right of retention. A widow
lawfully in possession of her deceased husband’s estate is entitled to retain such possession until her
dower debt is satisfied. Her right is not in the nature of a regular charge, mortgage or a lien; it is in
essence a personal right as against heirs and creditors to enforce her right; and it is a right to retain, not to
obtain, possession of her husband’s estate. Once she loses possession of her husband’s estate, she loses
her special right and is in no better position than an unsecured creditor.
The Supreme court of India had laid down that a Muslim widow in possession of her husband’s estate in
lieu of her claims for dower, whether with the consent of the heirs or otherwise, is not entitled to priority
as against his unsecured creditors.
The right of retention does not confer on the widow any title to the property. Her rights are twofold; one,
as heir of the deceased, and two, as widow entitled to her dower and, if necessary, to hold possession
must, therefore, be sharply distinguished from her right as an heir. She has no right to alienate the
property by salt, mortgage, gift or otherwise and if she attempts to do so, she loses her right of retention;
but the widow may assign her right of mahr.
In Maina Bibi v. Chaudhry Vakil Ahmad their Lordships expressed a doubt whether a widow could
transfer the dower debt or the right to retain the estate until the mahr was paid. The Mysore High Court
had decided that the right is both heritable and transferable, and not a lien, and as such, it is not
transferable, Although there is a conflict of opinion, in view of Kapore Chand’s Case, the balance of
authority seems to be in favour of the Patna view.
14. REMISSION OF DOWERA wife may remit the dower or any part thereof in favour of the husband
or his heirs.
• Condition
Remission must be made with free consent.
15. CONCLUSION
To conclude I can say that, the Dower is a sum of money or other property whch the wife is entitled to
receive from her husband. It becomes complete on the consummation of the marriage. There is no, limit
on the minimum amount of the dower. The amount of dower can be increased after the marriage.
MARRIAGE
1. Introduction:
The celebration of the marriage contract is called nikah. Marriage is enjoined upon every Muslim, and
celibacy is frequently condemned by the Holy Prophet Muhammad (SAW). It is related in the Traditions
Noman khan Page 65

that the Holy Prophet (SAW) said, “When the servant of God marries, he perfects half of his religion.”
2. Meaning Of Marriage
Marriage means wedlock’s, the mutual relation of the husband and wife. It is a contract for the
legalization of intercourse and procreation of children.
3. Definition Of Marriage
Hedaya
According to Ameer Ali
A.A. Fyzee
Marriage in Islam is a contract and not a sacrament.
4. Objects Of Marriage
Following are objects of a marriage:
(i) Legalization of Sexual Inter course.
(ii) Procreation of children.
(iii) Preservation of human race.
(iv) Regulation of social life.
5. Nature
Mohammedan marriage is purely contractual. It is considered a religious duty. It is an act of Ibadat which
is called Sunnat-Muwa-kkidah.
Hazrat Muhammad (PBUH) says:
“If a person is in a position to maintain his wife and pay the amount of dower, he must get himself
married.”
6. Capacity For Marriage
(i) Every Muslim of sound mind, who has attained puberty may enter into a contract of marriage.
(ii) Lunatics and minors who have not attained puberty may be validity contracted in marriage by their
respective guardians.
(iii) A marriage of a Muslim who is of sound mind and has attained puberty is void, if it is brought about
without his consent.
7. Essentials Of Marriage
i Offer (Ijab)
There must be offer one party. It is also called Ijab.
ii Acceptance (Qubul)
The offer so made should be accepted by or behalf of the other party. It is called Qubul.
iii Both must be in same Meeting
The offer and acceptance must both be made at the same meeting. An offer made at another meeting do
not constitute a valid marriage.
iv Freedom
The parties contracting marriage should be free persons. Marriage with a slave is permitted.
v Consideration
Noman khan Page 66

There must be some consideration in marriage which is Dower. The parties are bound to fix amount of
dower at the time of marriage. A marriage without dower is void.
vi Majority
The parties contracting marriage should be major. The majority act does not apply on marriage, divorce,
maintenance cases. Majority means age of puberty.
vii Persons of opposite sex
Marriage is a contract between two persons of opposite sex. There is no concept of marriage of same sex
in Islamic personal law.
viii Witnesses
a. In case of Sunni Marriage
Either two male or one male and two female witnesses are necessary.
b. In case of Shia Marriage
No witness is necessary.
c. Qualification of Witness
i He /She should be adult and sane.
ii Free Consent
8. Legal Effects of a valid Marriage
Following are the legal effects of a valid marriage:
i Sexual intercourse becomes lawful.
ii Issues born out are legitimate.
iii The wife becomes entitle of maintenance.
iv The husband can restrain the movements of his wife in a reasonable manner.
v The wife has to go under a period of Iddat in case of
vi Death of her husband.
vii On the dissolution or divorce of marriage
9. Classification of Marriage:
Classification of marriage is as under:
i Valid
ii Void
iii Irregular
i Valid
A marriage which conformes in all respects with the law is called valid marriage.
ii Void
A void marriage is one which is unlawful in itself, the prohibition against the marriage being perpetual
and absolute. So it is no marriage at all.
Examples:
i Marriage without the consent of either party.
ii A marriage prohibited on the ground of affinity.
iii A marriage prohibited on the ground of Fosterage.
iv A marriage prohibited on the ground of consanguinity.
v A marriage with the wife of another person.
iii Irregular
Noman khan Page 67

An irregular marriage is one which is not unlawful in itself, but unlawful for something else. In irregular
marriage, irregularity arises from accidental circumstances.
Examples:
i A marriage without witnesses.
ii A marriage with a woman observing Iddat.
iii A marriage prohibited on ground of difference of religion.
iv A marriage with two sisters at the same time.
v A marriage to a fifth wife.
10. Difference Between Void And Irregular Marriage.

• As to legal position
Void marriages has no lawful position.
Irregular marriage is not in itself unlawful.
• As to prohibition
In void marriage, the prohibition is perpetual and absolute.
Irregular marriage prohibition is temporary.
• As to legitimacy
In void marriage, the children born out of union are not legitimate.
In irregular marriage the children born out are legitimate.
• As to rights and obligations

In void marriage, no civil rights and obligations are arisen.
In irregular marriage, if consummation has taken place some rights and obligations are arisen.
• As to legal effect
A void marriage has no legal effect.
An irregular marriage has legal effects after consummation.
• As to modification
A void marriage can not be modified into valid marriage.
An irregular marriage can be modified into valid marriage.
11. Kinds of Marriage under Shia Law

The Shia Law only recognizes two kinds of marriage i.e. valid and void marriage.
12. Modes Of Avoiding Irregular Marriage

Following are the modes of avoiding irregular marriage.
i By the court
The court can cancel the marriage if the matter is brought to its notice.
ii By husband
The husband can repudiate his wife.
iii By wife
The wife can also avoid the marriage by relinquishment.
Noman khan Page 68

13. Legal Effects Of A Valid Marriage

i The sexual intercourse becomes lawful.
ii Mutual rights of inheritance are established.
iii The children born out of the wedlock are legitimate.
iv The wife becomes entitled for maintenance.
v The wife becomes entitled to Dower.
vi Neither of the spouses acquires any interest in property of the other by reason of marriage.
vii The wife has to observe the Iddat in case of death of her husband or in case of divorce.
The rules of affinity come into operation in case of valid marriage.
Examples:
i A marriage without witnesses
ii A marriage with a woman observing Iddat.
iii A marriage prohibited on ground of difference of religion.
14. Legal Effects Of A Void Marriage

i The sexual intercourse becomes unlawful.
ii The void marriage creates no right and obligation upon any party.
iii The children born out of the wedlock are illegitimate.
iv The wife does not become entitled for maintenance and inheritance.
15. Legal Effects Of An Irregular Marriage

i The irregular marriage has no legal effect if consummation has not taken place.
ii If consummation has taken place, the irregular marriage has following effects:
iii The children born out of such marriage are legitimate.
iv The wife is entitled to dower.
v The wife has to observe the period of Iddat.
vi No right of inheritance is created between the husband and wife.
vii The issues are entitled to share the inheritance.
16. Disabilities:
a. Number Of Wives
A Muslim husband may have as many as four wives at the same time, but not more. If he marries a fifth
wife when he has already four, such marriage would be irregular.
b. Religion:
i Difference of School
Muslims belonging to different schools may intermarry freely with one another, and a mere difference of
a school of law, such as Shiite or Sunnite, Hanafi or Shafii is entirely immaterial.
ii Marriage with Non-Muslim
• According to Tyabji and Baillie, the rule among the Shi’ites is stricter. A Shi’ite, whether male or
female cannot marry a non-Muslim in the nikah form, but he can not contract a mut’a with a kitabiyya.
Noman khan Page 69

• When a Muslim marries a Hindu woman, the marriage is only invalid and does not affect the legitimacy
of the offspring.
• D.F. Mulla is of the view that a Muslim male may not contract a valid marriage with an idolatress or a
fire-worshipper. Such marriage is not void but merely irregular. It was held in Ishan v. Panna Lal (1928).
• The marriage of a Muslim woman with a non-Muslim is only irregular, not void. The marriage of a
Muslim woman with a non-Muslim is declared by the Quran to be batil, void and not merely irregular.
• According to A.A. Fyzee, a Muslim woman can not marry a Christian; such a union would be void.
• According to Ibn Kathir, marriage with an idolatress i.e. pagan woman is prohibited.
c. Foreign Marriage
• It was held in Risk v. Risk (1950) and in one another case Rex. v. Hammersmith (1917) that an
unmarried Muslim may contract a valid marriage with an English woman before a registrar in England.
• A marriage between a Muslim and a non-Muslim woman, celebrated in a foreign country, is valid under
Islamic Law if it is performed in accordance with the lex loci contractus.
d. Relationship
i Consanguinity
This bar is on the ground of blood relationship. A marriage with a woman prohibited by reason of blood
relationship is totally void and the issue illegitimate.
ii Affinity
A man is prohibited from marrying certain relations by affinity. These are:
§ Ascendants or descendants of his wife
§ The wife of any ascendant or descendent. By way of exception, a man may marry the descendent of a
wife with whom the marriage has not been consummated.
iii Fosterage
A man may not, for instance, marry his foster-mother, or her daughter, or his foster-sister. A marriage
forbidden by reason of fosterage is void.
iv Unlawful Conjunction
A man is also forbidden to have two wives at the same time, so related to each other by consanguinity,
affinity or fosterage that they could not have lawfully intermarried with each other if they had been of
different sexes.
Under Hanafi law, generally speaking, disregard of the bar of unlawful conjunction renders the marriage
irregular but not void.
17. Miscellaneous Prohibitions:

The Doctrine of Equality in Marriage (Kafa’a)
The Holy Prophet(PBUH) is reported to have recommended marriage with fit spouses:’ Marry your
equals’. The Hanafis hold that equality (Kafa’a) between the two parties is a necessary condition in
marriage. The following factors must be considered for determining equality:
i Family
ii Islam
iii Profession
iv Freedom
v Good Character
vi Means
Noman khan Page 70

18. Conclusion:
In short, marriage is not a sacrament but a civil contract between two persons of opposite sex. Every
Muslim of sound mind and has attained age of puberty may enter into contract of marriage.
1. MuslimFamily Laws Ordinance, 1961
1. Short title, extent, application and commencement
(1) This Ordinance may be called the Muslim Family Laws Ordinance, 1961.
(2) It extends to whole of Pakistan, and applies to all Muslim citizens of Pakistan, wherever they may be.
(3) It shall come into force on such date as the Federal Government may, by notification in the official
Gazette, appoint in this behalf.
2.Definition
(a) “Arbitration Council” means a body consisting of the Chairman and a representative of each of the
parties to a matter dealt with this Ordinance:
Providedthat where any party fails to nominate a representative within the prescribed time, the body
formed without such representative shall be the Arbitration Council.
(b) “Chairman” means the Chairman of the Union Council or a person appointed by the Federal
Government in the Cantonment areas or by the Provincial Government in other areas or by an Officer
authorised in that behalf by any such Government to discharge the functions of chairman under
Ordinance:
Provided that where the Chairman of the Union Council is a non-Muslim, or he himself wishes to make
an application to the Arbitration Council, or is, owing to illness or any other reason, unable to discharge
the functions of Chairman, the Council shall elect one of its Muslim members as Chairman for the
purposes of this Ordinance.
(c) “Prescribed” means prescribed by rules made under Sch. II.
(d) “Union Council” means the Union Council or the Town or Union Committee constituted under the
Basic Democracies Order, 1959 and having jurisdiction in the matter as prescribed.
(e) “Ward” means a ward within a Union or Town as defined in the aforesaid Order.
3.Ordinance to override other laws, etc.
(1) The provisions of this Ordinance shall have effect notwithstanding any law, custom or usage, and the
registration of Muslim marriages shall take place only in accordance with these provisions.
(2) For the removal of doubt, it is hereby declared that the provisions of the Arbitration Act, 1940 (X of
1940), the Code of Civil Procedure 1908 (Act V of 1908), and any other law regulating the procedure of
Courts shall not apply to any Arbitration Council.
4. Succession.
In the event of death of any son or daughter of the propositus before the opening of succession, the
Noman khan Page 71

children of such son or daughter, if any, living at the time the succession opens, shall per stripes, receive a
share equivalent to the share which such son or daughter, as the case may be, would have received if
alive.
5. Registration of marriage.
(1) Every marriage solemnized under Muslim Law shall be registered in accordance with the provisions
of this Ordinance.
(2) For the purpose of registration of marriage under this Ordinance, the Union Council shall grant
licenses to one or more persons, to be called Nikah Registrars, but in no case shall more than on Nikah
Registrar be licensed for any one Ward.
(3) Every marriage not solemnized by the Nikah Registrar shall, for the purpose of registration under this
Ordinance be reported to him by the person who has solemnized such marriage.
(4). Whoever contravenes the provisions of such-section (3) shall be punishable with simple
imprisonment for a term which may extent to three months, or with fine which may extend to one
thousand rupees, or with both.
(5). The form of nikahnama, the registers to be maintained by Nikah Registrars, the records to be
preserved by Union Councils, the manner in which marriage shall be registered and copies of nikhanama
shall be supplied to parties, and the fees to be charged thereof, shall be such as may be prescribed.
(6) Any person may, on payment of the prescribed fee, if any, inspect at the office of the Union Council
the record preserved under sub-section (5), or obtain a copy of any entry therein.
6. Polygamy.
(1) No man, during the subsistence of an existing marriage, shall except with the previous permission in
writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted
without such permission be registered under this Ordinance.
(2) An application for permission under Sub-section (1) shall be submitted to the Chairman in the
prescribed manner together with the prescribed fee, and shall state reasons for the proposed marriage, and
whether the consent of existing wife or wives has been obtained thereto.
(3) On receipt of the application under Sub-section (3), Chairman shall ask the applicant and his existing
wife or wives each to nominate a representative, and the Arbitration Council so constituted may, if
satisfied that the proposed marriage is necessary and just, grant, subject to such condition if any, as may
be deemed fit, the permission applied for.
(4) In deciding the application the Arbitration Council shall record its reasons for the decision and any
party may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee,
prefer an application for revision, to the Collector concerned and his decision shall be final and shall not
be called in question in any Court.
Noman khan Page 72

(5) Any man who contracts another marriage without the permission of the Arbitration Council shall,
(a) pay immediately the entire amount of the dower whether prompt or deferred, due to the existing wife
or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue; and
(b) on conviction upon complaint be punishable with the simple imprisonment which may extend to one
year, or with fine which may extend to five thousand rupees, or with both.
7.Talaq.
(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in
any form whatsoever, give the chairman a notice in writing of his having done so, and shall supply a copy
thereof to the wife.
(2) Whoever, contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment
for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with
both.
(3) Save as provided in sub-section (5) talaq, unless revoked earlier, expressly or otherwise, shall not be
effective until the expiration of ninety days from day on which notice under sub-section (1) is delivered to
the Chairman.
(4) Within thirty days of the receipt of notice under Sub-section (1), the Chairman shall constitute an
Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the
Arbitration Council shall take all steps necessary to bring about such reconciliation.
(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period
mentioned in Sub-section (3) or the pregnancy, whichever later, ends.
(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under his section
from remarrying the same husband, without an intervening marriage with a third person, unless such
termination is for the third time so effective.
8.Dissolution of marriage otherwise than by talaq.

Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or
where any of the parties to a marriage wishes to dissolves the marriage otherwise than by talaq the
provisions of section 7 shall, mutatis mutandis and so far as applicable, apply.
9.Maintenance.
(1) If any husband fails to maintain his wife adequately, or where there are more wives than one, fails to
maintain them equitably, the wife, or all or any of the wives, may in addition to seeking any other legal
remedy available apply to the Chairman who shall constitute an Arbitration Council to determine the
matter, and the Arbitration Council may issue a certificate specifying the amount which shall be paid as
maintenance by the husband.
Noman khan Page 73

(2) A husband or wife may, in the prescribed manner, within the prescribed period, and on payment of the
prescribed fee, prefer an application for revision of the certificate, to the Collector concerned and his
decision shall be final and shall not be called in question in any Court.
(3) Any amount payable under Sub-section (1) or, (2) if, not paid in the due time, shall be recoverable as
arrears of land revenue.
PUNJAB AMENDMENT
In sub-section (2), the full-stop occurring at the end shall be replaced by a colon and thereafter the
following proviso shall be added, namely:
Provided that the Commissioner of a Division may, on an application made in this behalf and for reasons
to be recorded, transfer an application for revision of the certificate from a Collector to any other
Collector, or to a Director, Local Government, or to an Additional Commissioner in his Division. [Ord. II
of 1975, Section 2].
10. Dower.
Where no details about the mode of payment of dower are specified in the nikahnama or the marriage
contract, the entire amount of the dower shall be presumed to be payable on demand.
11. Power to make rules.

(1) The Government may make rules to carry into effect the purposes of this Ordinance.
(2) In making rules under this section, such Government, may provide that a breach of any of the rules
shall be punishable with simple imprisonment which may extend to one month, or with fine which may
extent to two hundred rupees, or with both.
(3) Rules made under this section shall be published in the official Gazette and shall thereupon have
effect as if enacted in this Ordinance.
12.Amendment of child marriage restraint act, 1929 (xix of 1929). Omitted by Ord. 27 of 1981.
13.Amendment of the dissolution of muslim marriages act, 1939 (viii of 1939). Omitted by Ord. 27 of
1981.
Salient features of Muslim Family Law Ordinance 1961
Background:
After the partition of India in 1947, the legislation relating to Muslim family law introduced in British
India continued to govern personal status. A seven-member Commission on Marriage and Family Laws
was established in 1955 with a remit to consider the personal status laws applicable in the new state and
determine the areas needing reform. The Commission submitted its report in 1956, suggesting a number
of reforms, including, for example, the consideration of all tripletalaqs(except for the third of three) as
single, revocable repudiations. The Muslim Family Laws Ordinance 1961 adopted some of the provisions
of the Report of the Marriage and Family Laws Commission, aiming to reform divorce law and
inheritance law relating to orphaned grandchildren, introduce compulsory marriage registration, place
restrictions on the practice of polygamy, and reform the law relating to dower and maintenance in
marriage and divorce, as well as to amend existing legislation with relation to marriage age
Noman khan Page 74

Succession. (Section 4)
Talaq/ Divorce (Section 7 )
Registration of marriage. (Section 5)
Time Period for effectiveness of divorce: (Section 7)
Union Council Registration Process: (Section 5)
Arbitration Council : (Section 7 )
Marriage Record: (Section 5)
Revocation of Divorce and Remarriage: (Section 7 )
Polygamy. (Section 6)
Maintenance of Wife: (Section 9 )
Permission from first wife : (Section 6)
Dower.( Section 10)
Payment of Dower: (Section 6)
Salient Features:
1. Succession. (Section 4)
In the event of death of any son or daughter of the propositus before the opening of succession, the
children of such son or daughter, if any, living at the time the succession opens, shall per stripes, receive a
share equivalent to the share which such son or daughter, as the case may be, would have received if
alive.
2. Registration of marriage. (Section 5)
Every marriage solemnized under Muslim Law shall be registered.
3. Union Council Registration Process: (Section 5)
For the purpose of registration, the Union Council shall grant licenses to one or more persons, to be called
Nikah Registrars, but in no case shall more than on Nikah Registrar be licensed for any one Ward.
4. Marriage Record: (Section 5)
The form of nikahnama, the registers to be maintained by Nikah Registrars.

This records to be preserved by Union Councils and copies of nikhanama shall be supplied to parties, and
the fees to be charged .
Any person may, on payment of the prescribed fee, if any, inspect at the office of the Union Council the
record preserved under sub-section (5), or obtain a copy of any entry therein.
5 Polygamy. (Section 6)
If a person want to contract a second marriage , while his first marriage is existing , he shall have to
acquire permission from Arbitration Council and marriage without such permission shall not be registered
.
Noman khan Page 75

6 Permission from first wife : (Section 6)

On receipt of the application, Chairman shall ask the applicant and his existing wife or wives each to
nominate a representative, and the Arbitration Council if satisfied that the proposed marriage is necessary
and just, grant, the permission applied for marriage.
7 Payment of Dower: (Section 6)

Any man who contracts another marriage without the permission of the Arbitration Council shall,
pay immediately the entire amount of the dower whether prompt or deferred, due to the existing wife or
wives, which amount, if not so paid, shall be recoverable as arrears of land revenue; and
Incase of conviction upon complaint may be punished with the simple imprisonment which may extend to
one year, or with fine which may extend to five thousand rupees, or with both.
8 Talaq/ Divorce (Section 7 )

Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any
form whatsoever, give the chairman a notice in writing of his having done so, and shall supply a copy
thereof to the wife.
A person fail to do so shall be punishable with simple imprisonment for a term which may extend to one
year, or with fine which may extend to five thousand rupees, or with both.
9 Time Period for effectiveness of divorce: (Section 7)

If the talaq, is not revoked expressly or otherwise, it shall not be effective until the expiration of ninety
days from day on which notice is delivered to the Chairman.
If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period of 90
days or the pregnancy, whichever later, ends.
10 Arbitration Council : (Section 7 )

Within thirty days of the receipt of notice, the Chairman shall constitute an Arbitration Council for the
purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all
steps necessary to bring about such reconciliation.
11 Revocation of Divorce and Remarriage: (Section 7 )

Nothing shall debar a wife whose marriage has been terminated by talaq effective from remarrying the
same husband, without an intervening marriage with a third person, unless such termination is for the
third time so effective.
12 Maintenance of Wife: (Section 9 )

If any husband fails to maintain his wife adequately, or where there are more wives than one, fails to
maintain them equitably, the wife, or all or any of the wives, may in addition to seeking any other legal
remedy available apply to the Chairman who shall constitute an Arbitration Council to determine the
matter.
And the Arbitration Council may issue a certificate specifying the amount which shall be paid as
maintenance by the husband.
Noman khan Page 76

Incase if the money is not paid in the due time, it shall be recoverable as arrears of land revenue.
13 . Dower.( Section 10)

Where no details about the mode of payment of dower are specified in the nikahnama or the marriage
contract, the entire amount of the dower shall be presumed to be payable on demand.
1. The Concept of Divorce under Muslim Law
Firm union of the husband and wife is a necessary condition for a happy family life. Islam therefore,
insists upon the subsistence of a marriage and prescribes that breach of marriage contract should be
avoided. Initially no marriage is contracted to be dissolved but in unfortunate circumstances the
matrimonial contract is broken. One of the ways of such dissolution is by way of divorce . Under Muslim
law the divorce may take place by the act of the parties themselves or by a decree of the court of law.
However in whatever manner the divorce is effected it has not been regarded as a rule of life. In Islam,
divorce is considered as an exception to the status of marriage. The Prophet declared that among the
things which have been permitted by law, divorce is the worst . Divorce being an evil, it must be avoided
as far as possible. But in some occasions this evil becomes a necessity, because when it is impossible for
the parties to the marriage to carry on their union with mutual affection and love then it is better to allow
them to get separated than compel them to live together in an atmosphere of hatred and disaffection. The
basis of divorce in Islamic law is the inability of the spouses to live together rather than any specific cause
(or guilt of a party) on account of which the parties cannot live together. A divorce may be either by the
act of the husband or by the act of the wife. There are several modes of divorce under the Muslim law,
which will be discussed hereafter.
Modes of Divorce:A husband may divorce his wife by repudiating the marriage without giving any
reason. Pronouncement of such words which signify his intention to disown the wife is sufficient.
Generally this done by talaaq. But he may also divorce by Ila, and Zihar which differ from talaaq only in
form, not in substance. A wife cannot divorce her husband of her own accord. She can divorce the
husband only when the husband has delegated such a right to her or under an agreement. Under an
agreement the wife may divorce her husband either by Khula or Mubarat. Before 1939, a Muslim wife
had no right to seek divorce except on the ground of false charges of adultery, insanity or impotency of
the husband. But the Dissolution of Muslim Marriages Act 1939 lays down several other grounds on the
basis of which a Muslim wife may get her divorce decree passed by the order of the court.
There are two categories of divorce under the Muslim law:
1.) Extra judicial divorce, and
2.) Judicial divorce
The category of extra judicial divorce can be further subdivided into three types, namely,
• By husband- talaaq, ila, and zihar.
• By wife- talaaq-i-tafweez, lian.
• By mutual agreement- khula and mubarat.
The second category is the right of the wife to give divorce under the Dissolution of Muslim Marriages
Act 1939.
Talaaq:Talaaq in its primitive sense means dismission. In its literal meaning, it means “setting free”,
“letting loose”, or taking off any “ties or restraint”. In Muslim Law it means freedom from the bondage of
marriage and not from any other bondage. In legal sense it means dissolution of marriage by husband
Noman khan Page 77

using appropriate words. In other words talaaq is repudiation of marriage by the husband in accordance
with the procedure laid down by the law. The following verse is in support of the husband’s authority to
pronounce unilateral divorce is often cited: “Men are maintainers of women, because Allah has made
some of them to excel others and because they spend out of their property (on their maintenance and
dower) . When the husband exercises his right to pronounce divorce, technically this is known as talaaq.
The most remarkable feature of Muslim law of talaaq is that all the schools of the Sunnis and the Shias
recognize it differing only in some details. In Muslim world, so widespread has been the talaaq that even
the Imams practiced it . The absolute power of a Muslim husband of divorcing his wife unilaterally,
without assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and without
recourse to the court, and even in the absence of the wife, is recognized in modern India. All that is
necessary is that the husband should pronounce talaaq; how he does it, when he does it, or in what he does
it is not very essential. In Hannefa v. Pathummal, Khalid, J., termed this as “monstrosity” . Among the
Sunnis, talaaq may be express, implied, contingent constructive or even delegated. The Shias recognize
only the express and the delegated forms of talaaq.
Conditions for a valid talaaq:
1.) Capacity:Every Muslim husband of sound mind, who has attained the age of puberty, is competent to
pronounce talaaq. It is not necessary for him to give any reason for his pronouncement. A husband who is
minor or of unsound mind cannot pronounce it. Talaaq by a minor or of a person of unsound mind is void
and ineffective. However, if a husband is lunatic then talaaq pronounced by him during “lucid interval” is
valid. The guardian cannot pronounce talaaq on behalf of a minor husband. When insane husband has no
guardian, the Qazi or a judge has the right to dissolve the marriage in the interest of such a husband.
2.) Free Consent:Except under Hanafi law, the consent of the husband in pronouncing talaaq must be a
free consent. Under Hanafi law, a talaaq, pronounced under compulsion, coercion, undue influence, fraud
and voluntary intoxication etc., is valid and dissolves the marriage.
Involuntary intoxication:Talaaq pronounced under forced or involuntary intoxication is void even under
the Hanafi law.
Shia law: Under the Shia law (and also under other schools of Sunnis) a talaaq pronounced under
compulsion, coercion, undue influence, fraud, or voluntary intoxication is void and ineffective.
3.) Formalities:According to Sunni law, a talaaq, may be oral or in writing. It may be simply uttered by
the husband or he may write a Talaaqnama. No specific formula or use of any particular word is required
to constitute a valid talaaq. Any expression which clearly indicates the husband’s desire to break the
marriage is sufficient. It need not be made in the presence of the witnesses.
According to Shias, talaaq, must be pronounced orally, except where the husband is unable to speak. If
the husband can speak but gives it in writing, the talaaq, is void under Shia law. Here talaaq must be
pronounced in the presence of two witnesses.
4.) Express words:The words of talaaq must clearly indicate the husband’s intention to dissolve the
marriage. If the pronouncement is not express and is ambiguous then it is absolutely necessary to prove
that the husband clearly intends to dissolve the marriage.
Express Talaaq (by husband):
When clear and unequivocal words, such as “I have divorced thee” are uttered, the divorce is express. The
express talaaq, falls into two categories:
• Talaaq-i-sunnat,
• Talaaq-i-biddat.
Talaaq-i-sunnat has two forms:
Noman khan Page 78

• Talaaq-i-ahasan (Most approved)
• Talaaq-i-hasan (Less approved).
Talaaq-i-sunnat is considered to be in accordance with the dictats of Prophet Mohammad.
The ahasan talaaq:consists of a single pronouncement of divorce made in the period of tuhr (purity,
between two menstruations), or at any time, if the wife is free from menstruation, followed by abstinence
from sexual intercourse during the period if iddat. The requirement that the pronouncement be made
during a period of tuhr applies only to oral divorce and does not apply to talaaq in writing. Similarly, this
requirement is not applicable when the wife has passed the age of menstruation or the parties have been
away from each other for a long time, or when the marriage has not been consummated. The advantage of
this form is that divorce can revoked at any time before the completion of the period of iddat, thus hasty,
thoughtless divorce can be prevented. The revocation may effected expressly or impliedly. Thus, if before
the completion of iddat, the husband resumes cohabitation with his wife or says “I have retained thee” the
divorce is revoked. Resumption of sexual intercourse before the completion of period of iddat also results
in the revocation of divorce. The Raad-ul-Muhtar puts it thus: “It is proper and right to observe this form,
for human nature is apt to be mislead and to lead astray the mind far to perceive faults which may not
exist and to commit mistakes of which one is certain to feel ashamed afterwards”
The hasan talaaq:In this the husband is required to pronounce the formula of talaaq three time during
three successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement of it may be
made after the interval of a month or thirty days between the successive pronouncements. When the last
pronouncement is made, the talaaq, becomes final and irrevocable. It is necessary that each of the three
pronouncements should be made at a time when no intercourse has taken place during the period of tuhr.
Example: W, a wife, is having her period of purity and no sexual intercourse has taken place. At this time,
her husband, H, pronounces talaaq, on her. This is the first pronouncement by express words. Then again,
when she enters the next period of purity, and before he indulges in sexual intercourse, he makes the
second pronouncement. He again revokes it. Again when the wife enters her third period of purity and
before any intercourse takes place H pronounces the third pronouncement. The moment H makes this
third pronouncement, the marriage stands dissolved irrevocably, irrespective of iddat.
Talaaq-i-Biddat:It came into vogue during the second century of Islam. It has two forms: (i) the triple
declaration of talaaq made in a period of purity, either in one sentence or in three, (ii) the other form
constitutes a single irrevocable pronouncement of divorce made in a period of tuhr or even otherwise.
This type of talaaq is not recognized by the Shias. This form of divorce is condemned. It is considered
heretical, because of its irrevocability.
Ila:Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila and
Zihar. They are called constructive divorce. In Ila, the husband takes an oath not to have sexual
intercourse with his wife. Followed by this oath, there is no consummation for a period of four months.
After the expiry of the fourth month, the marriage dissolves irrevocably. But if the husband resumes
cohabitation within four months, Ila is cancelled and the marriage does not dissolve. Under Ithna Asharia
(Shia) School, Ila, does not operate as divorce without order of the court of law. After the expiry of the
fourth month, the wife is simply entitled for a judicial divorce. If there is no cohabitation, even after
expiry of four months, the wife may file a suit for restitution of conjugal rights against the husband.
Zihar:In this mode the husband compares his wife with a woman within his prohibited relationship e.g.,
mother or sister etc. The husband would say that from today the wife is like his mother or sister. After
such a comparison the husband does not cohabit with his wife for a period of four months. Upon the
expiry of the said period Zihar is complete. After the expiry of fourth month the wife has following rights:
Noman khan Page 79

(i) She may go to the court to get a decree of judicial divorce
(ii) She may ask the court to grant the decree of restitution of conjugal rights.
Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife
cannot seek judicial divorce. It can be revoked if:
(i) The husband observes fast for a period of two months, or,
(ii) He provides food at least sixty people, or,
(iii) He frees a slave.
According to Shia law Zihar must be performed in the presence of two witnesses.
Divorce by mutual agreement:
Khula and Mubarat:They are two forms of divorce by mutual consent but in either of them, the wife has
to part with her dower or a part of some other property. A verse in the Holy Quran runs as: “And it not
lawful for you that ye take from women out of that which ye have given them: except (in the case) when
both fear that they may not be able to keep within the limits (imposed by Allah), in that case it is no sin
for either of them if the woman ransom herself.” The word khula, in its original sense means “to draw” or
“dig up” or “to take off” such as taking off one’s clothes or garments. It is said that the spouses are like
clothes to each other and when they take khula each takes off his or her clothes, i.e., they get rid of each
other. In law it is said is said to signify an agreement between the spouses for dissolving a connubial
union in lieu of compensation paid by the wife to her husband out of her property. Although consideration
for Khula is essential, the actual release of the dower or delivery of property constituting the
consideration is not a condition precedent for the validity of the khula. Once the husband gives his
consent, it results in an irrevocable divorce. The husband has no power of cancelling the ‘khul’ on the
ground that the consideration has not been paid. The consideration can be anything, usually it is mahr, the
whole or part of it. But it may be any property though not illusory. In mubarat, the outstanding feature is
that both the parties desire divorce. Thus, the proposal may emanate from either side. In mubarat both, the
husband and the wife, are happy to get rid of each other . Among the Sunnis when the parties to marriage
enter into a mubarat all mutual rights and obligations come to an end . The Shia law is stringent though. It
requires that both the parties must bona fide find the marital relationship to be irksome and cumbersome.
Among the Sunnis no specific form is laid down, but the Shias insist on a proper form. The Shias insist
that the word mubarat should be followed by the word talaaq, otherwise no divorce would result. They
also insist that the pronouncement must be in Arabic unless the parties are incapable of pronouncing the
Arabic words. Intention to dissolve the marriage should be clearly expressed. Among both, Shias and
Sunnis, mubarat is irrevocable. Other requirements are the same as in khula and the wife must undergo
the period of iddat and in both the divorce is essentially an act of the parties, and no intervention by the
court is required.
Divorce by wife:
The divorce by wife can be categorized under three categories:
(i) Talaaq-i-tafweez
(ii) Lian
(iii) By Dissolution of Muslim Marriages Act 1939.
Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim
husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may
delegate the power absolutely or conditionally, temporarily or permanently . A permanent delegation of
power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in
favour of the person to whom the power is delegated, and the purpose of delegation must be clearly
Noman khan Page 80

stated. The power of talaaq may be delegated to his wife and as Faizee observes, “this form of delegated
divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the
intervention of any court and is now beginning to be fairly common in India”. This form of delegated
divorce is usually stipulated in prenuptial agreements. In Md. Khan v. Shahmai , under a prenuptial
agreement, a husband, who was a Khana Damad, undertook to pay certain amount of marriage expenses
incurred by the father-in-law in the event of his leaving the house and conferred a power to pronounce
divorce on his wife. The husband left his father-in-law’s house without paying the amount. The wife
exercised the right and divorced herself. It was held that it was a valid divorce in the exercise of the
power delegated to her. Delegation of power may be made even in the post marriage agreements. Thus
where under an agreement it is stipulated that in the event of the husband failing to pay her maintenance
or taking a second wife, the will have a right of pronouncing divorce on herself, such an agreement is
valid, and such conditions are reasonable and not against public policy . It should be noted that even in
the event of contingency, whether or not the power is to be exercised, depend upon the wife she may
choose to exercise it or she may not. The happening of the event of contingency does not result in
automatic divorce.
Lian:If the husband levels false charges of unchastity or adultery against his wife then this amounts to
character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of
divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the
husband which, if false, would entitle the wife to get the wife to get the decree of divorce on the ground
of Lian. Where a wife hurts the feelings of her husband with her behaviour and the husband hits back an
allegation of infidelity against her, then what the husband says in response to the bad behaviour of the
wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian.
This was held in the case of Nurjahan v. Kazim Ali by the Calcutta High Court.
Dissolution of Muslim Marriages Act 1939:
Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the issue on 17th April
1936. It however became law on 17th March 1939 and thus stood the Dissolution of Muslim Marriages
Act 1939.
Section 2 of the Act runs thereunder:
A woman married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution
of her marriage on any one or more of the following grounds, namely:-
• That the whereabouts of the husband have not been known for a period of four years: if the husband is
missing for a period of four years the wife may file a petition for the dissolution of her marriage. The
husband is deemed to be missing if the wife or any such person, who is expected to have knowledge of
the husband, is unable to locate the husband. Section 3 provides that where a wife files petition for
divorce under this ground, she is required to give the names and addresses of all such persons who would
have been the legal heirs of the husband upon his death. The court issues notices to all such persons
appear before it and to state if they have any knowledge about the missing husband. If nobody knows then
the court passes a decree to this effect which becomes effective only after the expiry of six months. If
before the expiry, the husband reappears, the court shall set aside the decree and the marriage is not
dissolved.
• That the husband has neglected or has failed to provide for her maintenance for a period of two years: it
is a legal obligation of every husband to maintain his wife, and if he fails to do so, the wife may seek
divorce on this ground. A husband may not maintain his wife either because he neglects her or because he
has no means to provide her maintenance. In both the cases the result would be the same. The husband’s
Noman khan Page 81

obligation to maintain his wife is subject to wife’s own performance of matrimonial obligations.
Therefore, if the wife lives separately without any reasonable excuse, she is not entitled to get a judicial
divorce on the ground of husband’s failure to maintain her because her own conduct disentitles her from
maintenance under Muslim law.
• That the husband has been sentenced to imprisonment for a period of seven years or upwards: the wife’s
right of judicial divorce on this ground begins from the date on which the sentence becomes final.
Therefore, the decree can be passed in her favour only after the expiry of the date for appeal by the
husband or after the appeal by the husband has been dismissed by the final court.
• That the husband has failed to perform, without reasonable cause, his marital obligations for a period of
three years: the Act does define ‘marital obligations of the husband’. There are several marital obligations
of the husband under Muslim law. But for the purpose of this clause husband’s failure to perform only
those conjugal obligations may be taken into account which are not included in any of the clauses of
Section 2 of this Act.
• That the husband was impotent at the time of the marriage and continues to be so: for getting a decree of
divorce on this ground, the wife has to prove that the husband was impotent at the time of the marriage
and continues to be impotent till the filing of the suit. Before passing a decree of divorce of divorce on
this ground, the court is bound to give to the husband one year to improve his potency provided he makes
an application for it. If the husband does not give such application, the court shall pass the decree without
delay. In Gul Mohd. Khan v. Hasina the wife filed a suit for dissolution of marriage on the ground of
impotency. The husband made an application before the court seeking an order for proving his potency.
The court allowed him to prove his potency.
• If the husband has been insane for a period of two years or is suffering from leprosy or a virulent veneral
disease: the husband’s insanity must be for two or more years immediately preceding the presentation of
the suit. But this act does not specify that the unsoundness of mind must be curable or incurable. Leprosy
may be white or black or cause the skin to wither away. It may be curable or incurable. Veneral disease is
a disease of the sex organs. The Act provides that this disease must be of incurable nature. It may be of
any duration. Moreover even if this disease has been infected to the husband by the wife herself, she is
entitled to get divorce on this ground.
• That she, having been given in marriage by her father or other guardian before she attained the age of
fifteen years, repudiated the marriage before attaining the age of eighteen years, provided that the
marriage has not been consummated;
• That the husband treats her with cruelty, that is to say,-
(a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not
amount to physical illtreatment, or
(b) Associates with women of ill-repute or leads an infamous life, or
(c) Attempts to force her to lead an immoral life, or
(d) Disposes of her property or prevents her exercising her legal rights over it, or
(e) Obstructs her in the observance of her religious profession or practice, or
(f) If he has more than one wives, does not treat her equitably in accordance with the injunctions of the
Holy Quran.
In Syed Ziauddin v. Parvez Sultana, Parvez Sultana was a science graduate and she wanted to take
admission in a college for medical studies. She needed money for her studies. Syed Ziaudddin promised
to give her money provided she married him. She did. Later she filed for divorce for non-fulfillment of
promise on the part of the husband. The court granted her divorce on the ground of cruelty. Thus we see
Noman khan Page 82

the court’s attitude of attributing a wider meaning to the expression cruelty. In Zubaida Begum v. Sardar
Shah, a case from Lahore High Court, the husband sold the ornaments of the wife with her consent. It was
submitted that the husband’s conduct does not amount to cruelty.
InAboobacker v. Mamu koya, the husband used to compel his wife to put on a sari and see pictures in
cinema. The wife refused to do so because according to her beliefs this was against the Islamic way of
life. She sought divorce on the ground of mental cruelty. The Kerela High Court held that the conduct of
the husband cannot be regarded as cruelty because mere departure from the standards of suffocating
orthodoxy does not constitute un-Islamic behaviour.
In Itwari v. Asghari, the Allahabad High Court observed that Indian Law does not recognize various types
of cruelty such as ‘Muslim cruelty’, ‘Hindu cruelty’ and so on, and that the test of cruelty is based on
universal and humanitarian standards; that is to say, conduct of the husband which would cause such
bodily or mental pain as to endanger the wife’s safety or health.
Irretrievable Breakdown:Divorce on the basis of irretrievable breakdown of marriage has come into
existence in Muslim Law through the judicial interpretation of certain provisions of Muslim law. In 1945
in Umar Bibi v. Md. Din, it was argued that the wife hated her husband so much that she could not
possibly live with him and there was total incompatibility of temperaments. On these grounds the court
refused to grant a decree of divorce. But twenty five years later in Neorbibi v. Pir Bux , again an attempt
was made to grant divorce on the ground of irretrievable breakdown of marriage. This time the court
granted the divorce. Thus in Muslim law of modern India, there are two breakdown grounds for divorce:
(a) non-payment of maintenancy by the husband even if the failure has resulted due to the conduct of the
wife, (b) where there is total irreconcilability between the spouses.
Conclusion:
In contrast to the Western world where divorce was relatively uncommon until modern times, and in
contrast to the low rates of divorce in the modern Middle East, divorce was a common occurrence in the
pre-modern Muslim world. In the medieval Islamic world and the Ottoman Empire, the rate of divorce
was higher than it is today in the modern Middle East. In 15th century Egypt, Al-Sakhawi recorded the
marital history of 500 women, the largest sample on marriage in the Middle Ages, and found that at least
a third of all women in the Mamluk Sultanate of Egypt and Syria married more than once, with many
marrying three or more times. According to Al-Sakhawi, as many as three out of ten marriages in 15th
century Cairo ended in divorce. In the early 20th century, some villages in western Java and the Malay
peninsula had divorce rates as high as 70%.In practice in most of the Muslim world today divorce can be
quite involved as there may be separate secular procedures to follow as well. Usually, assuming her
husband demands a divorce, the divorced wife keeps her mahr, both the original gift and any
supplementary property specified in the marriage contract. She is also given child support until the age of
weaning, at which point the child's custody will be settled by the couple or by the courts. Women's right
to divorce is often extremely limited compared with that of men in the Middle East. While men can
divorce their spouses easily, women face a lot of legal and financial obstacles. For example, in Yemen,
women usually can ask for divorce only when husband's inability to support her life is admitted while
men can divorce at will. However, this contentious area of religious practice and tradition is being
increasingly challenged by those promoting more liberal interpretations of Islam.
**********************
Divorce/ traditions / Sunnah
Noman khan Page 83

Volume 7, Book 63, Number 180:
Narrated Ibn 'Umar:
(Divorcing my wife during her menses) was counted as one legal divorce.
Narrated 'Aisha:
The wife of Rifa'a Al-Qurazi came to Allah's Apostle and said, "O Allah's Apostle! Rifa'a divorced me
irrevocably. After him I married 'Abdur-Rahman bin Az-Zubair Al-Qurazi who proved to be impotent."
Allah's Apostle said to her, "Perhaps you want to return to Rifa'a? Nay (you cannot return to Rifa'a) until
you and 'Abdur-Rahman consummate your marriage."
Narrated 'Aisha:
A man divorced his wife thrice (by expressing his decision to divorce her thrice), then she married
another man who also divorced her. The Prophet was asked if she could legally marry the first husband
(or not). The Prophet replied, "No, she cannot marry the first husband unless the second husband
consummates his marriage with her, just as the first husband had done."
Divorce Tradition
Narrated 'Aisha:
A man divorced his wife and she married another man who proved to be impotent and divorced her. She
could not get her satisfaction from him, and after a while he divorced her. Then she came to the Prophet
and said, "O Allah's Apostle! My first husband divorced me and then I married another man who entered
upon me to consummate his marriage but he proved to be impotent and did not approach me except once
during which he benefited nothing from me. Can I remarry my first husband in this case?" Allah's Apostle
said, "It is unlawful to marry your first husband till the other husband consummates his marriage with
you."
Narrated Abu Huraira:
The Prophet said, "Allah has forgiven my followers the evil thoughts that occur to their minds, as long as
such thoughts are not put into action or uttered." And Qatada said, "If someone divorces his wife just in
his mind, such an unuttered divorce has no effect.:
Narrated Jabir:
A man from the tribe of Bani Aslam came to the Prophet while he was in the mosque and said, "I have
committed illegal sexual intercourse." The Prophet turned his face to the other side. The man turned
towards the side towards which the Prophet had turned his face, and gave four witnesses against himself.
On that the Prophet called him and said, "Are you insane?" (He added), "Are you married?" The man
said, 'Yes." On that the Prophet ordered him to be stoned to the death in the Musalla (a praying place).
When the stones hit him with their sharp edges and he fled, but he was caught at Al-Harra and then killed
Narrated 'Abdullah:
An Ansari man accused his wife (of committing illegal sexual intercourse). The Prophet made both of
them takes the oath of Lian, and separated them from each other (by divorce).
Noman khan Page 84

Noman khan Page 85

Islamicpersonallaw-160507144700 2

Hochgeladen von

Dokumentinformationen

Originalbeschreibung:

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Islamicpersonallaw-160507144700 2

Hochgeladen von

Copyright:

Verfügbare Formate

Islamic personal law

Noman khan Page 1

Noman khan Page 2

Write a detailed note on Quran as a primary source of Islamic law. (1999)(2001)

Noman khan Page 3

(i) First portion:

Noman khan Page 4

Discuss the importance of Sunnah as a source of Islamic Law. (2002)(2003)

Noman khan Page 5

Types of Hadith Muttasil:

Noman khan Page 6

Noman khan Page 7

Ijtehad has got important status in Islamic law. discuss. (19980(2006)

Noman khan Page 8

Noman khan Page 9

(i) Conversant with Islamic Jurisprudence:

Noman khan Page 10

Noman khan Page 11

According to Ameer Ali:

Noman khan Page 12

(b) In case of Shia marriage:

Noman khan Page 13

Noman khan Page 14

6. Kinds of marriage under Shia law:

Noman khan Page 15

Noman khan Page 16

What are impediments to a valid marriage under Islamic law? (2004)(2005)

Noman khan Page 17

Noman khan Page 18

Noman khan Page 19

Noman khan Page 20

Define Khula, how it is different from divorce.

Q. Can the right of divorce be delegated to a third person. (1998)(2000)

Noman khan Page 21

Noman khan Page 22

Noman khan Page 23

Q. What are different modes of pronouncement of Talaq? discuss. (2001)

Noman khan Page 24

Noman khan Page 25

Noman khan Page 26

Noman khan Page 27

Noman khan Page 28

Noman khan Page 29

Noman khan Page 30

Noman khan Page 31

4. Capacity to make a contract for dower:

Noman khan Page 32

Is husband liable to maintain wife?

Q. Whether such liability continuous even after divorce. (2006/A)

Noman khan Page 33

5. When wife is not entitled for maintenance:

Noman khan Page 34

Noman khan Page 35

Q. Define waqf? how is a waqf completed discuss. (2001)(2003)

Noman khan Page 36

Noman khan Page 37

Noman khan Page 38

5. Who can be appointed mutwalli:

Noman khan Page 39

Noman khan Page 40

Noman khan Page 41

Noman khan Page 42