CHANAKYA NATIONAL LAW UNIVERSITY,

Nyaynagar, Mithapur, Patna-800001

Family Law – I

“ORIGIN AND SOURCES OF HINDU LAW”

SUBMITTED TO: SUBMITTED BY:

Mrs. Pooja Srivastava, ABHIMANYU
Teacher Associate Roll no. – 1905
B.A. LL.B. (Hons.), 3rd SEMESTER
2nd Year
 Family Law - I

ACKNOWLEDGEMENT
The researcher take this opportunity to express her profound gratitude and deep regards to her
guide Mrs. Pooja Srivastava for her exemplary guidance, monitoring and constant
encouragement throughout the course of this thesis. The blessing, help and guidance given by
her time to time shall carry the researcher a long way in the journey of life on which the
researcher is about to embark.

The researcher is obliged to staff members of Chanakya National Law University, for the
valuable information provided by them in their respective fields. The researcher is grateful for
their cooperation during the period of her assignment.

THANK YOU,
ABHIMANYU

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DECLARATION

I hereby declare that the work reported in the B.A.LL.B (Hons.) Project Report entitled
“Nikkah: A Social Contract” submitted at Chanakya National Law University, Patna is an
authentic record of my work carried under the supervision of Mrs. Pooja Srivastava. I have not
submitted this work elsewhere for any other degree or diploma. I am fully responsible for the
contents of my project report.

ABHIMANYU
Chanakya National Law University, Patna

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TABLE OF CONTENTS

ACKNOWLEDGEMENT 2

DECLARATION 3

TABLE OF CONTENTS 4

CHAPTER I : INTRODUCTION 6

RESEARCH QUESTIONS 8
HYPOTHESIS 8
AIMS AND OBJECTIVES 8
LIMITATIONS 9
RESEARCH METHODOLOGY 9

CHAPTER II :COMPOSITES OF MARRIAGE IN ISLAM 10

ESSENTIALS OF MARRIAGE 10
VALID MARRIAGE (SAHIH) 10
IRREGULAR MARRIAGE (FASID) 10
VOID MARRIAGE (BATIL) 11
ELEMENTS OF NIKAH:- 11
MAHR 11
WITNESSES 12
LEGAL DISABILITY 12
EXCEPTION- 13
RELATIVE INCAPACITY 13
UNLAWFUL UNION 13
PROHIBITORY INCAPACITY 13
DIRECTORY INCAPACITY 14

CHAPTER III :AIM AND OBJECTIVES OF MUSLIM MARRIAGE 15

AIM OF NIKAH 15
PLEASURE 16
THE OBJECTIVES OF MARRIAGE 16

CHAPTER IV :ASPECT OF MUSLIM MARRIAGE 17

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LEGAL ASPECT: 17
SOCIAL ASPECT: 17
RELIGIOUS ASPECT: 18

CHAPTER V :RIGHTS AND DUTIES UNDER MUSLIM MARRIAGE 20

MUTUAL RIGHTS AND OBLIGATIONS: 20

OBLIGATIONS OF THE HUSBAND 20
OBLIGATIONS OF THE WIFE 20

CHAPTER VI :RELATED INTERPRETATION 21

DIVORCE 21
IDDAT 21
IDDAT AFTER DEATH OF HUSBAND 21
IDDAT AFTER DIVORCE 22
DURATION OF IDDAT 23
IDDAT OF A PREGNANT WIDOW 23
MAINTENANCE DURING IDDAT 23

CHAPTER VII :CONCLUSION 25

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CHAPTER I : INTRODUCTION

Muslim family law represents the aspects of Shariah law (ie Islamic law) that governs marriage,
divorce, maintenance, child custody, and inheritance.1 In Muslim majority countries, codified
Muslim family law is included in personal status law: some countries have retained classical
or traditional interpretations of Islamic law, whilst others have introduced legal reforms and
women’s rights.2 Some diasporic Muslims take the view that part of being faithful to the
religion is to follow the customs of their country of origin, including marriage and divorce, and
thus apply Shariah law in a personal capacity.3 Others argue that there should be one law
applicable to all citizens and that there is no place for Shariah law in India. There are claims
that Muslim women are coerced into using Shariah councils and forced to reconcile with
abusive husbands,4 and that Muslim women concede their civil rights and agree to a weaker
bargaining position on account of Shariah law.6 However, as the practice of Muslim family
law among Muslims exists within the private domestic sphere, there is a lack of documented
evidence of Muslim marriages and divorce cases reported to substantiate such claims.

The Arabic word ‘Nikah’ (marriage) means “the union of sexes” and in law, this means
“marriage”.5 The term ‘Nikah’ has been used for marriage under Muslim law. ‘Nikah’ literally
means “to tie up together”. It implies a particular contract for the purpose of legalizing
generation. Nikah in its primitive sense means carnal conjugation.
In Quran, the word Nikah has been used in both senses of sexual connection and of contract of
marriage. Quran prohibits Nikah with a woman with whom their fathers had Nikah. Quran

1
Abdullahi Ahmed An-Naim (ed) Islamic Family Law in a Changing World: A Global
Resource Book (Zed Books 2002) xi; Nazia Latif, ‘Women, Islam and Human Rights’ (PhD,
Newcastle University 2002) 32.
2
Ibid.
3
Abdullahi Ahmed An-Naim, ‘Compatibility Dialectic: Mediating the Legitimate
Coexistence of Islamic Law and State Law’ (2010) 73 The Modern Law Review 1, 28; Tariq
Ramadan, Western Muslims and the Future of Islam (Oxford University Press 2004) 139
4
Namazie and others, Sharia Law in Britain: A Threat to One Law for All & Equal Rights;
Charlotte Rachael Proudman, Equal and Free? Evidence in Support of Baroness Cox’s
Arbitration and Mediation Services (Equality) Bill (Equal and Free 2012).
5
Dr. S.R. Myneni- Muslim Law, 1st edn. 2009, p.49, Asia Law House, Hyderabad.

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says: “And marry not women whom your fathers married, except what is past: it was shameful
and odious, - an abominable custom indeed”.6
Nikah here means marriage and the last word in the Ayat, Nikah means sexual connection.
Thus forbidden is to a son, a woman with whom his father had indulged in adulterous
intercourse.
“So if a husband divorces his wife (irrevocably), he cannot, after that, re-marry her until after
she has married another husband and he has divorced her. In that case there is no blame on
either of them if they re-unite; provided they feel that they can keep the limits ordained by
Allah, which He makes plain to those who understand”.7

The legal contract between a bride and bridegroom as part of an Islamic marriage; the contract
of Islamic marriage; Islamic marriage in general. Nikah is an Arabic term used for marriage. It
means "contract". The Quran specifically refers to marriage as "mithaqun Ghalithun,". Which
means "a strong agreement".

The original meaning of the work nikah is the physical relationship between man and woman.
It is also used secondarily to refer to the contract of marriage which makes that relationship
lawful.

"A contract that results in the man and woman living with each other and supporting each other
within the limits of what has been laid down for them in terms of rights and obligations."

“Nikah” amongst Muslims has been considered as most pious act. In ‘Raddul-Mukhtar’ it has
been mentioned as “there is no act of devotion that has remained prescribed for us, since the
time of Adam, upon him be peace, up to this moment, and which is to be continued in paradise
except Nikah (or marriage) and Imaan (or faith)”.8
The meaning of marriage is wedlock or the mutual relation of husband and wife or the
institution whereby a man and a woman are joined in a special kind of social and legal
relationship for the purpose of making a family. In Muslim law, Nikah is a contract for the

6
Quran, Sura IV, Ayat 22, The Holy Quran, translated by Abdullah Yusuf Ali, Edn.2004, Ayman Publicatins,
New Delhi.
7
Quran, Sura II, Ayat 230, The Holy Quran, translated by Abdullah Yusuf Ali, Edn.2004, Ayman Publicatins,
New Delhi.
8
Radd-ul-Mukhtar, Vol. 2, at page 280 (Hizri); cited in Dr. Mohammad Nazmi- Mohammadan Law, 2nd edn.
2008, p.32, Central Law Publications, Allahabad.

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legalization of intercourse and the procreation of children. Hence Nikah means union of sexes.
There is also some object behind this union, which confers the status of husband and wife on a
man and woman to marriage and the status of legitimacy on the children born out of such
union.9
The Quranic injunctions regarding marriage are: Marriage is recognized as the basis of society.
Marriage as an institution leads to the uplift of man and is a means for the continuance of the
human race. Spouses are strictly enjoined to honour and love each other. The prophet was
determined to raise the status of woman. He asked people to see their brides before marrying
them; and thought that nobility of character is the best reason for marrying a woman. It is a
contract for the legalization of intercourse and procreation of children10

RESEARCH QUESTIONS
 How Hindu Law emerged or originated?
 How such an old law still followed by millions of people?
 What are the sources of Hindu Law?
 Why many other religious groups are guided by Hindu Law?

HYPOTHESIS
The researcher tends to presume that:
 Hindu Law is a divine law and revealed by Vedas.
 Hindu Law is the oldest law and followed by the majority in India.
 Many other religions formed from the Hindu religion and in India, Hindu Law prevail
on them.

AIMS AND OBJECTIVES

RESEARCHER INTENDS TO-
To critically analyse all the key related to Hindu Law
To study origins and sources of Hindu Law

9
Dr. Nishi Purohit- The Principles of Mohammedan law, 2nd edn. 1998, p.105, Orient Publishing Company,
Allahabad.
10
A.A.A. fyzee-Outlines of Muhammadan Law, 1999 edn. p.90, Oxford University press, New Delhi.

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LIMITATIONS
The present research is confined to a time limit of one month and field work will be confined
to Patna only. The researcher people will contact people related to this project.

RESEARCH METHODOLOGY
For the project research, researcher will rely upon the doctrinal and non-doctrinal methods of
Research.
1. Sampling techniques- The researcher will adopting following convenient purposive
sampling technique
2. Methods of data collection:
a) Observation
b) Interview
c) Questionnaire
3. Source of data
A. Primary sources
a) Reports
B. Secondary sources
a) Newspaper
b) Website
c) Journals

Tools of data collection

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CHAPTER II :COMPOSITES OF MARRIAGE IN ISLAM

Nikah is based on few conditions. When these conditions are fulfilled, then a man and a woman
are proclaimed as husband and wife and can live together and carry on their marital duties.

ESSENTIALS OF MARRIAGE
The essentials of a valid marriage are as follows:-
(i) There should be a proposal made by or on behalf of one of the parties to the marriage, and
an acceptance of the proposal by or on behalf of the other party. A Muslim marriage requires
proposal 'Ijab' from one party and acceptance 'Qubul' from the other side. This must be done in
one sitting.
(ii) The proposal and acceptance must both be expressed at once meeting. The acceptance must
be corresponding to what is being offered. The marriage must be effectively immediate. If the
Wali says I will marry her to you after two months, there is no marriage.
(iii) The parties must be competent. The two parties must be legally competent; i.e. they must
be sane and adult.
(iv) There must be two male or one male & two female witnesses, who must be sane and adult
Mahomedan present & hearing during the marriage proposal and acceptance. (Not needed in
Shia Law)
(v) Neither writing nor any religious ceremony is needed.

Valid Marriage (Sahih)

Under the Muslim law, a valid marriage is that which has been constituted in accordance with
the essential conditioned prescribed earlier. It confers upon the wife; the right of dower,
maintenance and residence, imposes on her obligation to be faithful and obedient to her
husband, admit sexual intercourse with him and observe Iddat.

Irregular Marriage (Fasid)

Those marriages which are outcome of failures on part of parties in non fulfillment of
prerequisites but then also are marriages; to be terminated by one of the party is termed to be
Irregular marriages. They are outcome of-
(a) A marriage without witness (Not under Shia Law)

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(b) Marriage with fifth wife.

(c) Marriage with a women undergoing Iddat.
(d) Marriage with a fire-worshipper.
(e) Marriage outcome of bar of unlawful conjunction.

An irregular marriage has no legal effect before consummation but when consummated give
rise to several rights & obligations.

Void Marriage (Batil)

A marriage which is unlawful from it's beginning. It does not create any civil rights or
obligations between the parties. The offspring of a void marriage is illegitimate. They are
outcome of-
(a) Marriage through forced consent.
(b) Plurality of husband.
(c) Marriage prohibited on the ground of consanguinity.
(d) Marriage prohibited on the ground of affinity.
(e) Marriage prohibited on the ground of fosterage

ELEMENTS OF NIKAH:-

Mahr

Mahr is the consideration for the contract of marriage between the parties. It may be in the
form of money and/or goods given by the Bridegroom to the Bride in consideration for the
marriage. It is an essential element of Muslim marriage and is exclusively reserved for the use
of the female partner. Payment of Mahr could be immediate (prompt), or deferred.

Full Amount of Mahr: Record the total value of the agreed Mahr, e.g., £5,000 in cash, or xyz
weight in gold.
a) Mu'ajjal (Immediate/Prompt): This means the total amount of Mahr payable by the Husband
at the time of signing of marriage contract..
b) Mu'wajjal (Deferred): This means the portion of the Mahr which is payable to the wife at a
specified point in the marriage or at the time of dissolution of the marriage through divorce or

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death of the husband. Any deferred Mahr that remains unpaid at the time of dissolution
becomes a debt against the former husband's assets.

Portion of the Mahr paid at the time of marriage: the amount of money and/or goods received
as Mahr at the time of marriage. This does not include general gifts to the bride from the
bridegroom and/or his family unless these be expressly included in (a) above as part of the
amount of Mahr.

Witnesses
According to Islamic law, a witness should be sane, adult and reliable. This requirement is
gender/faith neutral. Hence, the Muslim Marriage Certificate requires to be witnessed by 'two
adult witnesses of good character'.

# TWO men can be the witness

# ONE man and TWO women can be the witness
# ONLY women can not be the witness
INSANE and MINOR can not be the witness

LEGAL DISABILITY
It means the existence of certain circumstances under which marriage is not permitted. these
Absolute Incapacity.

There is absolute prohibition of marriage in case or relationship of consanguinity. In this case

the situation is such that the relationship has grown up of the person through his/her father or
mother on the ascending side, or through his or her own on the descending side. Marriage
among the persons associated by affinity, such as through the wife it is not permitted. Marriage
with foster mother and other related through such foster mother is also not permitted.

 Consanguinity (qurabat)-it means blood relationships and bars a man from marrying-
Mother or grandmother, Sister, aunt, niece etc.

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 Affinity (mushaarat)-a man is prohibited from marrying- mother-in-law, step-

grandmother, danghter-in-law, step-granddaughter, etc.
 Fosterage (riza)- when a child under the age of two years has been suckled by a woman
other than his or her mother,the woman bocomes his foster mother,a man may not marry
his foster mother or her daughter or foster sister.

A man cannot marry his foster mother, nor foster sister, unless the foster brother and sister
were nursed by the same mother at intervals widely separated. But a man may marry the mother
of his foster sister, or the foster mother of his sister.

Exception-
# Sister's foster mother
# Foster-sister's mother
# Foster-son's sister
# Foster-brother's sister

Relative Incapacity
Relative incapacity springs from case which render the marriage irregular only so long as the
cause which creaes the bar exist,the moment it is removed,the incapacity ends and the marriage
becomes valid and binding.

Unlawful union
 Marrying a fifth wife
 Marrying a woman undergoing iddat
 Marrying a non-Muslim
 Absence of proper witnesses
 Woman going for a second marriage even after the existence of the first marriage.
 Marrying pregnant women
 Marrying during pilgrimage
 Marrying own divorced wife

Prohibitory Incapacity
It arises in the following cases:

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(a) Polyandry- it means the fact of having more than one husband.it is forbidden in the muslim
system and a married women cannot marry second time so long as the first marriage subsists.
(b) Muslim woman marrying a non-muslim- a marriage of a muslim female with a non muslim
male made whether he be Christian or jew or an idolater or a fire worshipper is irregular in
nature under sunni law and void under shia law.

Directory Incapacity
 This may arise out of: Marrying a woman enceinte
 Prohibition of divorce
 Marriage during pilgrimage
 Marriage with a sick man

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CHAPTER III :AIM AND OBJECTIVES OF MUSLIM MARRIAGE

AIM OF NIKAH
Like anything a Muslim does, marriage should only be undertaken after gaining an
understanding of all that Allah has prescribed in terms of rights and obligations as well as
gaining an understanding of the wisdom behind this institution. Nearly all peoples and all
societies practice marriage in some form, just as they practice business (buying and selling).
Umar ibn Al-Khattab used to expel people from the marketplace in Madina who were not
knowledgeable of the fiqh of buying and selling. Likewise, a Muslim should not engage in
something as important as marriage without having understanding of the purpose of marriage
in Islam as well as a comprehensive understanding of the rights and obligations which it brings
about.

One of the principles of Islamic Jurisprudence says that: "The default state of all things is
lawfulness until some evidence shows otherwise." Based on this, if new foods are discovered,
they are considered lawful, unless there is some specific reason or attribute which would make
it forbidden for example if it is causes intoxication. Relations between men and women do not
follow this general principle and in fact are opposite to it. The principle is that: "Relations
between men and women are forbidden until some evidence shows otherwise."

Procreation (Children)
One of the most important purposes of marriage is to continue and increase the population of
the Muslims. Clearly, this goal could be achieved without marriage, but when actions are
undertaken in disobedience to Allah, they do not receive the blessing of Allah and the whole
society is corrupted. The Prophet said: "Marry, for I will outnumber the other nations by you
on Qiyama."
It should be stressed that the goal is not simply to produce any child that will live in the next
generation. It is to produce righteous children who will be obedient to Allah and who will be a
source of reward for their parents after they die. The Prophet will NOT be boasting before the
other nations on the day of Qiyama with children of Muslim parents who left the path of Islam.
Thus it is the responsibility of Muslim parents to seek the means of giving their children the
training and education they need not just to grow, but to succeed as Muslims worshipping and
obeying Allah. This obligation may include migration[1], establishing of Muslim communities

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and schools and other obligations. As the scholars have said in another principle of fiqht:
"That without which an obligation cannot be fulfilled is itself obligatory."

Pleasure
Islam is the religion of the fitrah[2] - the religion which is consistent with the natural instincts
and needs of mankind. It is not like the man-made (of modified) religions which set unnatural
constraints on people whether self-inflicted prohibition of marriage (nuns and monks, etc.),
prohibition of divorce or monogamy. Men are inclined toward women and women are inclined
toward men. Marriage is the institution which fulfills this desire and channels it in ways
pleasing to Allah Most High. Allah mentions this attraction: The love of the desires for women,
sons, has been made attractive to people.
The Messenger of Allah himself made clear that the attraction between the sexes is something
natural and not something to be denied or suppressed - only channelled in the ways pleasing to
Allah Most High, saying: "Women and perfume have been made beloved to me of this world
of yours and my peace of mind is in the prayer."
The desire of men and women for each other is an urge which needs to be fulfilled. If it is left
unfulfilled, it will be a source of discord and disruption in society. For this reason, the Prophet
ordered all men who are capable of meeting the responsibilities of marriage to do it:
"Whichever of you is capable should marry for it will aid him in lowering his gaze and guarding
his body (from sin). As for the one who is not capable, fasting is his protection."

THE OBJECTIVES OF MARRIAGE

1. To provide legal validity to the sexual relationship of husband and wife.
2. To legalize the children. Without a valid contract of marriage, the intercourse between a man
and woman is unlawful.
Marriage legalizes also the children born out of that marriage. Children born out of any union
other than a valid marriage are illegitimate. Legally speaking, Muslim marriage is a civil
contract. Therefore, its legal nature is contractual. Besides being a civil contract, Muslim
marriage is also a social and religious institution11.

11
Dr. R.K. Sinha-Muslim Law, 5th edn. 2003, p.40; Central Law Agency, Allahabad.

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CHAPTER IV :ASPECT OF MUSLIM MARRIAGE

LEGAL ASPECT:
Legally, a Muslim marriage is considered as a contract; because the elements which constitute
a marriage and the manner in which it is completed, is almost similar to that of a civil contract.
The contractual nature of a Muslim marriage is explained on the basis of the following
elements:
1) The parties to the marriage also must be competent.
2) The marriage is not complete without offer, acceptance and free consent of the parties or
guardians.
3) The terms of marriage contract within legal limits may be settled by the parties themselves.
4) Just as there are rules for regulating the rights and duties of the parties upon the breach of a
contract, there are also provisions for respective rights and duties of husband and wife on
divorce or dissolution of marriage.12
Therefore, the nature of Muslim marriage is similar to that of a civil contract. But only on the
basis of the above mentioned contractual elements, it is not correct to define it as purely a civil
contract. In its form, a Muslim marriage may look like a contract; but it is not so in its essence.
As is evident from the following arguments, its social aspect is also very important.

SOCIAL ASPECT:
The social aspect of Nikah should also be studied to understand its real nature. Nikah is a social
institution by which, a definite and dignified status has been conferred upon the women. The
Prophet brought about a reform in the society. No social reform was possible without giving
equal status to the females. Therefore a definite institution or an established law was required
to give equality and freedom to the females. With this object in mind, the Prophet introduced
Nikah through which, the females could be placed on equal footing with males. It is therefore
submitted that Nikah is a well-established social institution which gives to the women, a
separate and dignified status in the society. The social institution may be explained on the basis
of the following arguments:13
1) There is limited polygamy under Muslim law and a person is not allowed to marry more
than four wives at a time.

12
Dr. R.K. Sinha-Muslim Law, 5th edn. 2003, p.41; Central Law Agency, Allahabad.
13
Ibid.

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In civil contracts, one may enter into many contracts at a time as he likes.
2) In every Muslim marriage, dower must be given or promised to be given by the husband to
the wife as a mark of respect towards her.
In civil contracts, the general rule is that, there is no liability to pay consideration if it has not
been specified or referred in the contract.
But in a Muslim marriage, even if the amount of dower has not been specified, the husband
should pay proper dower to his wife as a mark of respect towards her.
3) There is prohibition in the marriage between certain close relatives. A brother cannot marry
his sister. But he can legally enter in to a valid contract with his sister.
4) There are certain circumstances in which the Muslim disapproves the contract of marriage.
For example, a Shia Muslim is not allowed to marry during a religious journey (Haj). Similarly
there are other circumstances which are called the relative prohibitions in marriage.
There are no such prohibitions in the civil contracts. But a marriage during Haj is void under
Shia law.14
Hence it is clear that, marriage among Muslims is not an ordinary contract. It is a powerful
social institution for the uplift of women and promotes the development of a healthy society
free from evils.

RELIGIOUS ASPECT:
Apart from the Legal and Social aspects, Quran, which is a collection of the words of God,
directs every Muslims to marry a suitable woman of his choice. It is therefore a religious duty
of every Muslim to contract a marriage according to the rules of Islam. A person who remains
bachelor without any reasonable excuse disobeys the words of God. Moreover, marriage is also
the tradition (sunnat) of the prophet.15
In Islam, it is believed that marriage is a ‘Sunnat Muwakkidah’. This means that, it is an act of
such a nature that, if a person does it, he gets religious benefits. If he abstains from doing it,
then he commits sin.16
Abdul Rahim observes: “the Muhammadan jurists therefore regard the institution of marriage
as partaking both of the nature of ‘Ibadat’ or devotional act and ‘Muammalat’ or dealings
among men”. The sanctity attached to the institution of marriage in the Islamic system has
neither been comprehended nor sufficiently appreciated by outsiders. In Islam, marriage is

14
Dr. R.K. Sinha- Muslim Law, 5th edn. 2003, p.42; Central Law Agency, Allahabad.
15
Ibid.
16
Aquil Ahmad- Mohammedan Law, 21st edn. 2004, p.108, Central Law Agency, Allahabad.
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recognized as the basis of society. It is a contract but it is also a sacred covenant. Marriage as
an institution leads to the uplift of man and is a means for the continuance of the human race.
The main aim of the institution of marriage is to protect the society from foulness and
unchastity. It has also been said that marriage is so holy a sacrament that in this world, it is an
act of Ibadat or worship, for it preserves mankind free from pollution.17
According to Tyabji: “Marriage brings about a relation based on and arising from a permanent
contract for intercourse and procreation of children between a man and a woman, who are
referred to as ‘parties to one marriage’ and who after being married, become husband and
wife”.18
Thus according to Muslim law, marriage is a contract for the purpose of legalizing sexual
intercourse and the procreation and legitimation of children and the regulation of social life in
the interest of society by creating
i) the rights and duties between the parties themselves, and
ii) between each of them and the children born from the union.

17
Ammer Ali, students 7th edn. p.97; cf: Dr. R.K. Sinha-Muslim Law, 5th edn. 2003, p.108.
18
Tyabji- Muslim Law, 4th edn. pp. 44-45; ibid, p.109.

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CHAPTER V :RIGHTS AND DUTIES UNDER MUSLIM MARRIAGE

MUTUAL RIGHTS AND OBLIGATIONS:

Marriage is a union for life having mutually inclusive benefits and fulfillment for the
contracting parties including the following:
 Preservation of chastity and security of gaze
 Companionship inside and outside home
 Emotional and sexual gratification
 Procreation and raising of any children by mutual consultation
 Agreement to live together in a mutually agreed country and establish their
matrimonial home therein
 Working collectively towards the socio-economic welfare and stability of the family
 Maintaining their individual property rights but contributing to the welfare of the
family according to their capacity
 Maintaining social contacts with family and friends mutually beneficial for the family
 Managing their individual activities/roles inside and outside the home by mutual
consultation

OBLIGATIONS OF THE HUSBAND

In addition to the mutual duties and obligations, the husband undertakes not to:
 abuse his wife/child(ren) verbally, emotionally, physically, or sexually
 desert/be absent from the marital home for more than 60 days unless by mutual
agreement
 withhold economic contribution towards his wife/family
 sexually transmit disease or other transmissible diseases
 misuse /interfere with the wife's property

OBLIGATIONS OF THE WIFE

In addition to the mutual duties and obligations the wife undertakes not to:
 abuse her husband/child(ren) verbally, emotionally, physically, or sexually
 desert/be absent from the marital home for more than 60 days unless by mutual
agreement
 sexually transmit disease or other transmissible diseases
 misuse/interfere with the husband's property
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CHAPTER VI :RELATED INTERPRETATION

DIVORCE
According to Islamic law, marriage is the most sacred commitment in life between two adults
of opposite sex. It attempts to save it wherever possible. As a consequence divorce is regarded
by Allah as the most 'hated thing'. However, breakdown in marriage does take place for a
variety of reasons. If the divorce is initiated by husband he has to pay the woman any Mahr
that remains unpaid. If the divorce is initiated by the wife,and the husband is found to be at
fault by the arbiters she does not lose her Mahr. But if she cannot prove his fault, she has to
return to her husband whatever Mahr amount she has already received. If the wife initiates the
divorce without any grounds, this is called 'khula' and she must return whatever the husband
has given her in consideration for the marriage.

IDDAT
In Islam, iddah or iddat (Arabic: period of waiting) is a period after a divorce, during which a
woman may not marry another man. The period is calculated on the number of menses that a
woman has, usually three. Iddah was intended to ensure that the male parent of any offspring
produced after the cessation of a nikah would be known.

IDDAT AFTER DEATH OF HUSBAND

Qur'an prohibits widows to engage themselves for four (4) lunar months and ten (10) days after
the death of their husbands. This is also to ascertain whether a woman is pregnant or not, since
four and a half months is half the length of a normal pregnancy.

Husbands should make a will in favor of their wives for the provision of one year's residence
and maintenance, unless the wives themselves leave the house or take any other similar step.

The directive of the Qur'an regarding the waiting period of a widow, are as under:
Whoever from amongst you dies and leaves behind wives, the wives will hold themselves [from
marriage] for four months and ten days. Then, when they have expired this period, there is no
blame upon you in whatever they do regarding themselves, according to the recognized
traditions. And God is fully aware of whatever you are doing. And there is no blame upon you

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in proposing [marriage] to these women or in keeping such proposal to yourself - God is aware
that you would mention it to them - but do not make with them any secret commitments, except
that you say a noble word to them. However, do not commit the marriage-contract with them,
until the law has reached its prescribed time.

IDDAT AFTER DIVORCE

Comparing this waiting period with the one prescribed for a divorced woman (i.e. three
menstrual periods of the divorced woman), we see that the waiting period prescribed for a
widow exceeds that, which is prescribed for a divorced woman by at least a month and a half.
It is also clear from the stipulations of the Qur'an that the prescription of the waiting period for
a divorced woman is with the basic purpose of ascertaining her condition with reference to
pregnancy as well as to provide the divorcing couple adequate time to review and, if possible,
to revise their decision. Thus, in view of the increased prescription of waiting period in the case
of a widow, it seems that the waiting period prescribed for a widow entails other purposes,
besides merely ascertaining the woman's position with reference to pregnancy.

The Muslim jurists and thinkers have generally construed this additional purpose entailed in
the prescription of the waiting period for widows to be that of the widow's 'mourning' her
deceased husband. The understanding of the Muslim jurists and thinkers seems to be quite
logical and in consonance with sayings ascribed to the Prophet. However, it seems important
to add that the prescription of a specified 'waiting' or 'mourning' period is for the purpose of
safeguarding the woman against defamation, slander and ill-repute in society. It is specifically
for this purpose that others are directed against making a 'secret' commitment of marriage with
the widow or deciding about the time and place of the marriage-contract, during the prescribed
period. It is reported that Muhammad advised widows to be extra modest in their appearance
and to even refrain from wearing any fragrance, during this period. All these directives and
advice seem to point to the fact that a woman should not only be, but also appear to be in a
state of mourning, so that her social circles do not get a chance to say a negative word about
her.

No other restrictions apply to a widow during her waiting period.

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DURATION OF IDDAT
The Iddat of divorce commences immediately upon the pronouncement of repudiation and in
case of invalid marriage if they are separated voluntarily then from the time of separation but
if the separation is effected by the court then it starts with the issuance of judicial decree. In
case of widowhood the period of Iddat begins with the decease of husband. If the information
of divorce or of her husband's death does not reach the wife until after the expiration of Iddat
period, she is not bound to observe Iddat. The period is considered to have been passed.

Iddat is normally observed in the following manner;

If the marriage is terminated by divorce or in consequence of annulment by the Court, then the
Quran has specifically explained the situation in such words, women who are divorced shall
wait, keeping themselves apart, three (monthly) courses. And it is not lawful for them that they
should conceal that which Allah hath created in their wombs if they are believers in Allah and
the last day. Therefore the divorced woman is bound to observe Iddat for three menstrual cycles
i.e. the period of three complete courses of menstruation.
In the above two cases if the marriage has not been consummated nor any valid retirement has
taken place then after the termination of marriage the woman is not required to observe Iddat.

IDDAT OF A PREGNANT WIDOW

In case of pregnancy, the widow is bound to observe the Iddat for a period whichever is the
longest. i.e. if the child is born before the period of four months and ten days then her Iddat is
not over with the delivery but she will complete the normal specified period of Iddat (four
moths & ten days). If the child is expected to be born after the specified period, then the Iddat
will lost up till the delivery of a child. They consider it binding upon all widows who are
pregnant or non-pregnant, so according to their view the fore mentioned period of four months
and ten days is the minimum obligatory period for a widow.

MAINTENANCE DURING IDDAT

The husband is under obligation to pay for the wife's maintenance during her period of Iddat,
regardless of its duration. Thus, in the following cases the wife is entitled to maintenance during
Iddat:

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 When the marriage is dissolved by repudiation, no matter the repudiation was revocable
or irrevocable, it was perfect or imperfect.
 When the marriage is dissolved by Lien (oath of imprecation) or by Illa (a vow of
continence) or by way of Khula provided she has not renounced her right to
maintenance.
When the husband on attaining puberty, exercises the right of option and dissolves the
marriage.
 When the marriage is dissolved by reason of the inferiority of dower or by reason of
the husband's inequality or his impotency.
 When a wife, who is not subject to menstruation, observing Iddat by months becomes
subject to menstruation before the completion of specified period. She is entitled for
maintenance in the additional period of Iddat because she is obliged to stay in Iddat for
three full monthly courses.
 Widow is not entitled to maintenance even if she is pregnant; almost all the Muslim
jurists have the same opinion in this regard.

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CHAPTER VII :CONCLUSION

After analyzing thoroughly the system of Islamic marriage a reasonable and prudent way of
thinking would always conclude that the Islamic personal law with regards to marriage and
divorce need to be changed a lot so to maintain its status in modern society.

Marriage is a religious duty of every Muslim and it is considered to be a moral safeguard and
a social need. The Prophet has also said Marriage is my tradition whosoever keeps away there
from is not from amongst me.

Unlike Hindu where the marriage is a sacrament, marriages in Muslims have a nature of civil
contract. Marriage is necessary for the legitimization of a child. When the marriage is done in
accordance to the prescribed norms it creates various rights and obligations on both the parties.

It appears that Islamic law of marriage and divorce is not identical to the man made laws which
are changed by man himself moment after moment. It is evident that the position of man and
woman in the social set up of the community, is equal in every respect, but keeping in view the
mindset of both the genders, Islam segregates the rights, duties and functions of both the gender
and then declares their status with regard to family matters.

If it is asked that are man and woman equal in Islamic way of life? There would not be simple
positive or negative way of answer rather, one must scrutinize, examine and inspect closely
and thoroughly their respective rights, duties and functions. And then placing a complete
picture in front, it may be possible to answer the above question. In other societies of the world,
the state of affairs is not in concurrence to Islamic way of life. Those other societies always try
to claim that man and woman are equal in every respect which is not a natural phenomenon.

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