FAMILY LAW of Muslims, Parsis and Christians of India (Mumbai University Academic Council accepted ‘Administrative Law’ by Mr. I.A. Saiyed as Reference – Book for LL.B. Degree Course on recommendations of Board of Studies in Law – See Circular No. UG/214 of 2011 of University of Mumbai.)

By I.A. SAIYED Advocate, Notary and Law Professor

Foreword by

ISO 9001:2015 CERTIFIED © AUTHOR No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording and/or otherwise without the prior written permission of the author and the publisher. First Edition : 1991 Reprint : 2001 Second Revised Edition : 2004 Reprint : 2006, 2008 Third Revised Edition : 2010 Reprint : 2015, 2016, 2017 Fourth Revised Edition : 2019

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FOREWORD TO THE THIRD EDITION

The Dictionary meaning of the word Family is “a brotherhood of Persons or Nations United by Political or Religious Ties.” If one looks at the word from this broad perspective, then the need for Laws, Rules, Regulations to preserve and foster the ties is better appreciated. For the survival of the family as an Institution, it is necessary to regulate the functioning of the same. It is incumbent, then, to define and set out the Mutual Rights and Obligations. Ultimately, the fraternity and brotherhood of those within the Institution helps them in interacting with others. The Constitution of India while recognising and guaranteeing freedom of religion envisages this spirit so that there is not only respect for each other, but there is “Unity in Diversity.” If the Constitutional Goal as set out in the Preamble to the same is to be achieved and fulfilled, then it is necessary that the basic Foundation of the Family as an Institution is strengthened and the Nation progresses as a whole. Ultimately, laws assist in removing disparities and inequalities and creating an equitable and just society. Laws relating to family aim at ending all discrimination and treating men, women and children alike. Therefore, it is imperative that such laws are known to all. They ought to be publicised widely so that the best of all religions comes to the fore. This also helps in removing deficiencies and shortfalls within them while fostering brotherhood and respect for all religions. Further, some myths, misconceptions and misunderstandings are also eliminated in such process. This compilation assists in informing and educating on the aspects of marriage, divorce and succession in three prominent religions. That the compilation is comprehensive and complete is apparent from the fact that the Author had to reprint it in 2001 after its first publication in 1999. The second Revised Edition came in 2004. This is the third attempt and now the author has incorporated important developments including modifications and changes, if any. The Author needs to be commended for this effort. If a strong, independent, socialist, democratic and secular Republic is the need of the hour, then such publications create the right atmosphere. It is useful to all, including lawyers and students of law. I wish the book all success and once again congratulate the Author.

(Justice S.C. Dharmadhikari) Justice (Smt.) Nishita Mhatre 4, Matru Smriti, 13th Road, Khar (W), Mumbai - 400 052. Tel.: 2648 17 14

FOREWORD TO THE SECOND EDITION

Mr. Saiyed has undertaken an enormous task of compiling the marriage and divorce laws applicable to Muslims, Parsis and Christians in India. The book also includes the Indian Succession Act. The author has, in his inimitable style, explained the provisions of the law. The latest case law has been discussed.

The book should prove to be a boon for all students of law.

21st April, 2003 (Nishita Mhatre) Justice R.J. KOCHAR

FOREWORD TO THE FIRST EDITION

Mr. Imtiaz A. Saiyed, a friend for mine and a learned friend of others in the profession, doesn’t appear to believe in the planning of his family of books, though personally he has neatly planned his family. His creativity in the field of book-writing has continued incessantly. I had an opportunity to read his earlier three books on the law subjects. This is the fourth book which he is handed over to me and other class of readers, i.e., the law students and law practitioners, as also to those who have interest to know about the Personal laws. I have gone through this compendium of the eight enactments of personal laws governing the minorities in our country, i.e., the followers of Islam, Parsis and Christians. This compilation of the personal laws of the aforesaid three minority communities will instantaneously facilitate the students as well as lawyers while comparing the different topics or subjects under different enactments governing the minorities. The author who is also a practising lawyer and a law teacher, having found the practical difficulties of the students as well as the law practitioners in the court of law to get all the enactments at a time whenever needed and whenever issues are required to be compared with each other for final dissection and analysis of the law points, has rendered a yeomen service to all the concerned in this field. This is the advantage of an author who is also a law teacher as well as a law practitioner, as he knows where the shoe pinches at the time of teaching and practising. Many a times, some enactments are not readily available when required. This book will completely satisfy the momentary and important needs of the students, teachers and lawyers. Even the common man who has curiosity to know what are the provisions in the personal laws of the different communities can enrich himself by going through these pages. In his commentary, the Author has tried to simplify the provisions of the Mohammedan Law by giving proper explanations and also the case law. The reading of his lucid commentary of the Mohammed in Law definitely gives an impression of his own objectivity. He has, in simple language, explained the various complicated topics of the personal law governing the Muslims of this country. He has also taken equal pains to deal with the other personal laws and their respective topics such as Marriage, Divorce, Succession, Guardianship, etc. According to me, this book will be of immense help to the law students as well as the law practitioners. It would also be of tremendous use to the Judges and common people who will find all the personal laws of the minority communities, together at one united place which the Author has created. I hope, like in this book, all the communities in this country get together and bel united and the least they can do is to co-exist peacefully and to prosper in their own interest which will also be in the national interest.

(R.J. KOCHAR) Judge Mumbai Bombay High Court 25.12.1998 PREFACE TO THE FOURTH EDITION

With immense pleasure, I put in the hands of my readers the Fourth Edition of my new Compendium of Family Law of Muslims, Parsis and Christians of India. I first thank my readers for they have well received my earlier edition of this Compendium. The classic historic judgment of the Hon’ble Supreme Court of India on Triple Tallaq has given immediate cause to me to revise this Compendium. The ruling has also unfolded the need of Uniform Civil Code and I have failed not in writing on it in this edition of my Compendium. I know it is most difficult for anyone to spare time for writing a foreword. But the Hon’ble Mr. Justice M.S. Karnik of the Hon’ble High Court of Judicature at Bombay without any hesitation agreed to give foreword and that too in shortest period of time. I thank him for his gracious act of giving foreword to my Compendium of Family Law of Muslims, Parsis and Christians of India. I thank Mr. N.M. Rajadhyksha, the Principal of New Law College, Mumbai for, without his inspiration, my Compendium would not have seen the light of the day. Professor Ajit J. Kenjale, Advocate practicing in Bombay High Court, childlike, was always with me to help me in my time of real difficulties. So also Learned Advocates practicing in the Bombay High Court, Mr. Satyajeet H. Joshi and Mr. Sandeep V. Mahadik were giving unstinted help to me unfailingly. I have no words to express my thanks, but I thank them all very much for their help and assistance to me. Ms. Ayesha Saiyed, a Law Student of Swami Vivekanand Law College, Mumbai ventured to take up the proof reading work and completed it in record time. I thank her for invaluable contribution in publication of this Compendium. I cannot forget the entire team of Himalaya Publishing House Pvt. Ltd. because, without them, it would have been impossible to bring out this book and publish it so successfully. I thank the entire team. I welcome the criticism from my readers because it guides me to raise the standard of this book.

Mumbai 25th December, 2018 I.A. Saiyed PREFACE TO THE FIRST EDITION

The University of Mumbai has newly introduced the FAMILY LAW – I subject in the First Year LL.B. Course. It includes, the Mohammedan Law (other than Property Law), the Christian Marriages Act, The Indian Divorce Act, the Parsi Marriage and Divorce Act and the Indian Succession Act (up to Section 166 only). This, FAMILY LAW, book is designed especially for the First Year LL.B. students of Mumbai University but, I am sure, it should also be quite useful to the students of other universities and the junior advocates. The busy senior advocates and the judges should also find it useful as this book gives exactly what they need, the Bare Act, a brief discussion and the Case Laws. I am very much grateful to Mr. Justice R.J. KOCHAR of the Hon’ble High Court of Judicature at Mumbai for readily agreeing to write a FOREWORD to this book and for his having done so — before the period of limitation. Indeed, I am also thankful to my friend Prof. G.H. HAMLANI, Advocate, High Court, because without him, this book would not have seen the light of the day. I will be failing in my duty if I fail to thank my friend, H.M. SOLKAR, Advocate, High Court who has given his help in searching case laws. No doubt, the Himalaya Publishing House Pvt. Ltd. also deserve a basketful of thanks and I do offer them without any reservation. Last but not the least, I am also thankful to my readers. I have taken utmost care to see that no mistakes and discrepancies are left out. But still if there be any, I offer my regrets. I will be grateful if the mistakes, discrepancies and/ or any suggestions are sent to me for it will help me in improving the next Edition, undoubtedly, if there be any. I know that only criticism helps in improving and I am eagerly awaiting the criticism of this book.

Mumbai I.A. Saiyed 25-12-1998 CONTENTS

CASE LAWS (xi) – (xix)

BOOK-1 MUSLIM LAW (COMMENTARY) 1-101 1. Introduction 3-29 2. Marriage — Nikah 30-45 3. Mahar — Dowar 46-49 4. Dissolution of Marriage 50-80 5. Maintenance 81-88 6. Paternity 89-91 7. Guardianship/Custody 92-101

BOOK-2 BARE ACTS 103-129 1. The Maharashtra Regulation of Marriage Bureaus and Registration of Marriages Act, 1998 (Maharashtra Act No. XX of 1999) 105-110 2. Shariat Act — The Muslim Personal Law (Shariat) Application Act, 1937, Act No. XXVI of 1937 [7th October 1937] 111-112 3. The Dissolution of Muslim Marriages Act, 1939 Act VIII of 1939 113-114 4. Maintenance Act — The Muslim Women (Protection of Rights on Divorce) Act, 1986 115-117 5. The Family Courts (Court) Rules, 1988 by Bombay High Court and The Maharashtra Family Court Rules, 1987 118-127 6. The Kazis Act, 1880 (Act No. 12 of 1880) – An Act for the Appointment of Persons to the Office of Kazi [9th July, 1880) 128-129

BOOK-3 THE PARSI MARRIAGE AND DIVORCE ACT, 1936 (COMMENTARY) 131-194 1. Parsi Marriages 133-139 2. Dissolution of Parsi Marriage 140-176 3. Alimony under Parsi Law 177-184 4. Custody of Children under Parsi Law 185-188 5. Parsi Matrimonial Courts 189-194

BOOK-4 BARE ACT: THE PARSI MARRIAGE AND DIVORCE ACT, 1936 195-209 The Parsi Marriage and Divorce Act, 1936 (Bare Act) 197-209 BOOK-5 COMMENTARY ON CHRISTIAN MARRIAGE ACT, 1872 211-222 Commentary on Christian Marriage Act 213-222

BOOK-6 BARE ACT: THE INDIAN CHRISTIAN MARRIAGE ACT, 1872 223-243 The Indian Christian Marriage Act, 1872 [18th July 1872] Bare Act 225-243

BOOK-7 INDIAN DIVORCE ACT (COMMENTARY) 245-278 1. Introduction 247-251 2. Dissolution of Christian Marriage 252-262 3. Alimony under Christian Law 263-268 4. Custody of Children of Christians 269-273 5. Practice and Procedure under Indian Divorce Act 274-278

BOOK-8 BARE ACT: THE DIVORCE ACT, 1869 279-291 The Divorce Act, 1869 281-291

BOOK-9 INDIAN SUCCESSION ACT, 1925 (COMMENTARY) 293-361 1. Introduction 295-300 2. Domicile 301-305 3. Inheritance (For other than Parsis) 306-317 4. Law of Inheritance for Parsis 318-322 5. Testamentary Succession 323-361

BOOK-10 THE INDIAN SUCCESSION ACT, 1925 (BARE ACT UPTO SECTIONS 166) 363-411 The Indian Succession Act, 1925 (Bare Act Upto Sections 166) 365-411

SUBJECT INDEX 413-421

GLOSSARY 422-432 CASE LAWS

A A vs. B, 1982 (1) Bom. C.R. 236 165 A vs. B, AIR 1993 Bom. 61 148 A vs. B, AIR 2001 Ker. 71 262 A vs. H 1992 Mh L.J. 791 165 (2003) 2 SCC 45 329 14 M.I.A. 309 71 (1966) 68 Bom LR 794 134 (1970) 74 Cal. W.N. 51 185 AIR 1961 Pat 87 29 AIR 1976 Bom. 246 184 AIR 1964 Bom. 124 184 A.I.R. 1985 S.C. 935 941 185 A.I.R. 1982 SC 1276 176 AIR 1957 SC 176 160 AIR 1951 Bom. 40 134 AIR 1945 Bom. 537 (542) 134 A.I.R. 1974 Cal 111 185 Abdul Kadir vs. Salim (1886) 8 All. 149 (154-55) 42 Abdul vs Provider AIR 1954 Mad 95 11 Abdul Kalam vs. Akhtari Bibi, AIR 1988 Orissa 279 40 Abdul Rahim (Dr) Undre vs. Smt. Padma, AIR 1982 Bom. 341 67 Abdul Razzak vs Aga Mohammed, 1893 (21) I. A. 56-64 7 Abdul vs. Provider V, AIR 1954 Mad. 96 11 Ahmed Suleman vs. Bai Fatima (1930) 55 Bom. L.R. 1372 93 Ahmedabad Women’s Action Group vs. Union of India, (1997) 3 SCC 573 266 Alka Bakre vs. Bhasker, AIR 1991 Bom 164 177 Allahdiya vs. Kammon Mai, PLD 1957 9 WP Lah. 651 35 Amal Lyngdoh vs. U. Jabin Pakem, AIR 1987 Gau. 69 165 Amir Ahmed vs. Mir Nizam Ali, A.I.R. 1952 Hyd. 120 99 Anand Giri vs. Mst. Baugh, AIR 1955 J&K 1 29 Anees Begum vs. Mohammed Istafa, (1933) 55All 743 44 Anil Bhardwaj vs. Smt. Nimalesh, AIR 1987 Del. 111. 166, 176 Anil Kek vs. Sharada Rige (2008) SCC695 340 Ashok Hurra vs. Rupa B. Zaveri, AIR 1997 SC 1226 171 Ashok Kumar Singh vs. VI Addl. Sessions Judge, AIR 1996 SC 333 167 Ashok Kumar vs. Smt. Santosh Sharma, AIR 1987 Del. 52 167 Ashrafali vs. Mohammedali, (1945) 48 Bom. L.R. 642 28 Atulkumar Natwarlal Kadakia vs. Jyoti Kadakia, (1998) 9 SCC 279 187 Avinash P. Srivastav vs. Chanra Mohini, AIR 1964 All 486 166 Aziz Banu vs. Ibrahim, AIR 1925 All. 720 29 (xii)

B Babu Ram vs. Kamta Devi, AIR 1990 J & K1 176 Bafatun vs. Bilaithkhanum (1903) 30 Cal. 683 (686) 11 Baldevraj vs. Urmila Kumari, AIR, 1979 SC 879 160 Balkrishna Ramchandra Kadam vs. Sangeeta Kadam, AIR 1997 SC 356 187 Banoo Jal Daruwala, AIR 1964 Bom. 124 184 Banu Kutubuddin Vamanwala vs. Kutubuddin Vamanwala, 1995(2) Mh. L.J. 56 84 Banu vs. Kamluddion Suleman, 1955(2) Mah. L.J. 56 80 Befatoon vs. Zuhur Shah, AIR 1952 MB 30 80 Begam Sabana alias Saira Banu vs. H.M. Abdul Gafoor, AIR 1987 SC 1103 87 Begum Noor Banu vs. Dy. Custodian General of Evacuee Property, AIR 1965 SC 1937 27 Behram Khan vs. Akhtar Begum, P.L.D. 1952 (W.P.) Lah. 542 70 Beigan vs. Beigan (1956) 2 All. E.R. 630 161 Bhagwan Datt vs. Kamla Devi, 1975 SCC (Cr.) 563 264 Bharti vs. Vassantrao, 1987 Mh. L.J. 873 172 Bijay K. Prasad vs. Ranjana (1999) 9 SCC 544 188,269,271 Bimalchandra Kumar Chatterjee vs. Dipa Chatterjee, (2001) 8 SCC 5 272 Binapanikar Chowdhury vs. Satyabrata Basu (2006) SCC 442 299 Bipin Chandra vs. Prabhavati, AIR 1957 SC 176 176 Bipinchandra Jaisingh Bhai Shah vs. Prabhavati, AIR 1957 S.C. 176 161 Bourial vs. Kaushaliya AIR 1970 Raj 83 135 Brij Mohanlal Arora vs. Girdharilal Marucha AIR 78 S.C. 1202 327 Buffman Bibi vs. Abdul Salim, AIR 1950 Calcutta 304 53 Bull vs. Bull, (1953) All. E.R. 601 160 C Chand Narain Gautam vs. Smt. Saroj, AIR 1975 Raj. 88 153 Chaturvedi vs. Gita Bai (2008) 2 SCC 316: AIR 20008 SC 530 184 Chilton vs. Chilton, (1952) ALL E.R. 1322 264 Clarence vs. Raichelal, AIR 1964 Mys 67 172 Corbett vs. Corbett (1970) 2 All E.R. 33 216 D D.P. Joshi vs. the State of Madhya Bharat (1955) I. SCR 1215 302 D.S.Nakara vs Union of India, AIR 1983 SC 130 23 Dagdu Chotu vs. Rahim Bi Dagdu, 2002 (3) Mh. L.J. 602 59,60,67,95 Damyanti Hemant Matani vs Virren Bhgwandas, (2016) 16 SCC 543 84,96,183 Daniel Latif vs. Union of India, (2001) II D.M.C. 714 84 Darshan Presad vs. Civil Judge, Gorakhpur 1992 AIR S.C. 96 151 Dastane (Dustane) vs. Dastane (1975) 2 SCC 326 165, 168 Dawn Lyngdoh vs. U.Kardring Roy Sad, AIR 1986 Gau. 42 254 Dayawanti vs. Raj Singh, (1982) 1 DMC 129 168 Deepak Bakshi vs. Anita Meriene Faria, AIR 1985 P&H 111 165,262 Deepika vs. Naresh Chandra, AIR 2000 All 148 166 Dhanvanti Joshi vs Madhav Unde, (1998) 1 SCC 112 87,96,183 Dilshad Mosa vs. Mustafa, AIR 1986 JK 80 80 Dr. Abdul Rahim vs. Smt. Padma, AIR 1982 Bom. 341 29,79 Dr. Sunil Sharma vs. Dr. Madhurlata, AIR 2000 MP 26 166 Durgaprasad vs. Debicharan A.I.R. 79 S.C. 145 333 (xiii)

F Farida Banu Shahabuddin Kadri vs. S.M. Kadri, 1993(1) Mah. L.J. 252 85 G G. Packia Raj vs. P. Subbammal, AIR 1971 Mad. 319 251 Gaya vs. Bhagwati, AIR. 60 MP 212 154,161 Ghulam Shakina vs. Fakir Sher, AIR 1950 Lah. 45 44 Gin Dar vs. (Mst) Raji, AIR 1961 J&K 31 29 Githa Hariharan vs. Reserve Bank of India, AIR 1999 SC 1149 270 Gobardhandas Jasda Mai Devi, I.L.R. 18 Cal. 252 251 Goods of Hope Brown 1949 W.N. 148 334 Gorkha Chand vs. Praveen Kumar AIR 1952 SC 231 45 Gouhari Begum vs. Najma Begum (1960) I.S.C.R. 597 95 GVN Kameshwara Rao vs. G. Jabilli, AIR 2002 SC 576 262 H H.R. Radhakrishan vs. Dhanalaxmi AIR 1975 Mad. 333 154,161 H.V. Nirmala & Anr. vs R. Sharmila & Ors., (2018) 3 SCC 303 334 Habit Rehman vs. Altaf Ali, AIR 1922 P.C. 159 91 Hafijabi Suleman Darwajkar vs. Suleman Md. Darwajkar, 1996(1) Mah. L.J. 485 85 Haji Mohammed Sayeed vs. Ab. Giffar AIR 1955 All. 668 229 Hari vs. Meena, 2000 (1) Mh. L.J.398 153 Harishankar Singhania vs. Gaur Hari (2006) 4 SCC 658:AIR 2008 SC 2480 187,272 Harmohan vs. Kamla A.I.R. 1979 Ori. 51 135 Harshita Bhasin vs State of WB, (2017) 2 SCC 377 87,97,184 Harvinder Singh vs. Charnjit (Mrs), 2000 (1) Mh. L. J. 429 166 Hazare Barderi vs. Lokesh Dutta (2006) 13 SCC 278 340 Himanshu vs. Tapati, AIR 1995 Cal 110 153 Hori Lal vs. State of U.P., (1971) 1 SSC 8 169 Huber Ahmed vs. Jai Nankeen Prasad, AIR 1960 Pat. 147 49 I Immabandi vs. Mutsaddi (1918) 45 I.A. 73 97,99 Imperial Bank of India vs. Bibi Sayeedin, AIR 1960 Pat. 132 99 In Re Dr. Govanni Maroo Mussu, 1983 Mh. L.J. 607 188 Independent Though vs Union of India, AIR 2017 SC 4904 36 Indira Sarma vs V.K.V.Sarma, (2013) 15 SCC 755 24 Indubai vs. Kautik, 1982 (DMC) 167 Irfan Ahmed vs. Mumtaz [1998(3)] Mah. L.J. 583 94,101,188 Isk Chandra Palkar vs. Nyamotbi, 1980 Mah. L.J. 287 88 Itwari vs. Asgari, AIR 1960, All. 684 29,44,45 J J.L. Nanda vs. Veena Nanda AIR 1988 SC 407 164,164 Jagan Nath vs. State of U.P., 1974 Cr. L.J. 1239 169 Jagbir Singh vs. Birpal Kaur (2007) 2 SCC 564: AIR 2007 SC 2083 192 Jagdish Singh vs. Madhuvi & Co., (2008) 10 SCC 49 78,166 Jaishree Mohan vs. Mohan Govind, 1987 Mh. L.J. 160 167,168 Jama Darmiam vs. Amir Hussain A.I.R. 1957 Pat. 213 99 Jasmeet Kaut vs Navtej Singh, (2018) 4 SCC 295 87,96,183 (xiv)

Jaswant Kaur vs. Amrit Kaur AIR 77 S.C. 74 333 Jauakrishna Panigrahi vs. Surekha, AIR 1996 AP 19 166 Jeban vs. Jitendra AIR 49 P.C. 64 337 Jia Lal Abrol vs. Sarla Devi AIR 1978 J & K 69 165 Jibans vs. Abinash Chandra (1939) 2 Cal. 12 71 Jitendra Arota vs Sukrite Arota, (2017) 3 SCC 726 86,95 Jiwan Khan vs. Habib, (1933) 14 Lahore 518 6 Jogender Singh vs. Pushpa, AIR 1969 P & H 397 172 Jogindra Kaur vs. Shivaharan Singh, AIR 1965 J & K 95 152 Jorden Diengdeh vs. S.S. Chopra, 1985 (3) SCC 62 AIR SC 1985 80 Jyothi Pai vs. P.N. Pratapkumar, AIR 1987 Kant. 24 152 K K. Kumar Raju vs. K.Umamaheshwari, AIR 1995 AP 222 262 K. R. Manjunath vs. Veen, AIR 1999 Kant 64 168 K. Verankutty vs. Pathammakutty AIR 1956 Mad. 514 29 K.J. vs. K. AIR 1952 Ng. 395 172 K.S. Palanisami vs Hindu Community in General & Citizens of Gobichettipalayam, (2017) 13 SCC 15 336 K.Y.P. Siddique vs. Amina, AIR 1996 Ker. 140 164 Ka. Amal Lyngdoh vs. U. Jobin Pakem, AIR 1987 Gau. 69 262 Kalpana vs. Shripati Rao, 1983 (2) Bom. C. R. 375 167 Kamal Ali Abu Baker vs. Vemgati Marakkar, AIR 1970 Ker. 277 45 Kanthy Balvendram vs. S. Harry, AIR 1954 Mad 316 145 Kapore Chand vs. Sadrunnisa 1950 S.C.R. 747 48 Kedar Pandey vs. Narayan Bikram Shah AIR 1966 SC 160 302 Kedar vs. Suprama A.I.R. 1963 Pat 311 135 Khatkhate Kumal vs. Pakkath, AIR, 1965 Kar. 200 29 Khoo Hooileong vs. Khoo Hean Kwee (1926) A.C. 529 41 Khorshed Behram Rustomjee vs. Behram Nowrojee Rustomjee, 1980 Mah. L.J. 770 88 Khurshid vs. Mehboob Sahib 1966 Mah. L.J. 1047 101,175 Khwaja Md Khan vs. Nawab Hussaini Begam (1910) 37, I.A. 152 43 Kiran vs. Sharad Datt, J.T. 2000 (1) SC 532 187 Kistamma vs. Dr. H.T. Vira Reddy, (1971) 3 SCC 968 188 Kjhwaja Ali vs. Fatimabai, 1987 D.M.C. 374 88 Kulbhusan Kumar vs. Smt. Raj Kumari, (1970) 3 SCC 129 268 Kumar V. Jahagirdar vs. Chethana Ramatheertha, (2004) 2 SCC 688 94 Kusum Lata vs. Kampta, AIR 1965 All 280 166 Kuwar Sain vs. State, AIR 1976 Delhi 11 328 L Lachman Kriplani vs. Meena Mota, AIR 1964 SC 40 176 Lakshmi Dhar vs. Sachin Dhar, 70 Cal. W.N. 1001 216 Lalit Mohan vs. Khukkun Lal 24 I.A. 76 337 Lily Thomas vs. Union of India (2000) Supp. S.C.R. 464: AIR 2000 SC 1650 45,257 Lokeshwari Shrinivas Rao, AIR 200 AP 451 167 Long vs. Long (1955) A.C. 402 161 Lopaz vs. Lopaz ILR 12 Cal 706 216 (xv)

M M. K. Malhotra vs. Kirti, AIR 1987 Del. 226 167 M.P. Gangadharan vs. St. of Kerala (2008) 6 SCC 162: AIR 2008 SC2360 187,272 Madan Mohan vs. Sarla Kohli, AIR 1967 Pun 397 185 Maharaja Nadar vs. Muthukani Ammal, AIR 1986 Mad 346 167 Maharshi Avadhesh vs. Union of India, (1994) 1 Supp. SCC713 256 Manilal Singh vs. Nirmala, AIR 1999 Del. 156 268 Manjali Bibi vs. Noor Hasan 1991 (2) SCC 731 80 Manjula Bora vs. Dilip Bora, 1979 Mah. L.J. 523 101,188 Manoj Anslem Rebeiro vs Candace Elezabeth, (2017) 11 SCC 493 87,97,184 Mary Browne vs. A. N. Browne, AIR 1937 Oudh 52 165 Mary Kurian vs. T.T. Joseph, AIR 1980 Ker. 131 149,251 Matadin vs. Ahmed Ali (1911) 39 I.A. 49 79 Mathew Oommen vs. Suseela (2006) 1 SCC 579: AIR 2006 SC 786 299 Mausami Moitza Ganguli vs. Jayanti Ganguli (2008) 7 SCC. 673: AIR 2008 SC 2262 272 Md. Ismai vs Abdul Rashid AIR 1956 ll 1 (FB) 29 Meenakshi vs. Atul Mehta, AIR 2000 HP 73 167 Meera vs Jacib, AIR 1987 SC 317 268 Mehbubunnissa Begum vs. Mohd Yusuf, AIR 1950 Hyd. 41 90 Michel vs. Bombay State. 56 Bom 729 302 Minakshi Dhar vs. Biresh Ranjan, AIR 1987 Gau. 90 168 Mir Mohammad Bahaddin vs. Mujee-Bu-Nisa Begum, AIR 1952, Madras 280 94 Mir Wahid Ali Kadumiya vs. Rashidbeg Kodumiya, AIR 1950 Bom. 22 49 Mirchumal vs. Devi Bai, AIR 1977 Raj. 113 153,161,162 Mirchunal vs. Devi A.I.R. 1977 Raj 114 154 Mohammad Alladad vs. Mohammad Ismail (1999) 10 All 289 90 Mohammad Amin vs. Vakil Ahmed (1952) S.C.R. 1133 99 Mohammad Ejaz vs. Muhammad Iftekar (1932) 59 I.A. 92 99 Mohammed Ahmed Khan vs. Shah Banu, (1985) 2 SCC 556 83 Mohammed Ibrahim vs. Gulam Ahmed, 1 Bom. L.R. 236 97 Mohammed Jamaluddin Haq vs. Zuber Ahmed, AIR 1981 Pat. 345 49 Mohammed Shafi vs. Shamim Banu, AIR 1979 Bom 156 101,188 Mohanalal vs Nandlal, (2018) 5 SCC 459 334 Mohd. Hasnim vs. Aminabai, AIR 1952 Hyd. 3 49 Mohd. Shamsuddin vs Noor jahan Begum, AIR 1955 Hyd. 144 80 Mohinder Kaur vs. Bikkarsingh A.I.R. 1930 P & H 248 160 Mohinder vs. Sushila, AIR 1965 SC 384 160 Mohini vs. Virender Kumar (1977) 3 SCC 513 272 Monikiya Devi vs. Pabitra Swaisingh (1990) 2 DMC 302 (Orissa) 221 Moonshee Bazlul Reheem vs. Lateefutunnisa, 1861 (8) Moo. I.A. 379 54 Moonshee Buzloor Rahim vs. Shamsoonnissa Begum, (1867) 11 MLA 551 44 Mr. P. vs. Mrs. P. 1988 Mh. L.J. 419 166,167 Mrs. Iris vs. Dr. Autar Singh Paintal, AIR 1988 Del. 121 168 Mst. Halim vs. Munir, AIR 1971, Pat. 385 49 Mst. Jani vs. Mohin Khan, AIR 1970 J&K 155 45 Mst. Johra Khatun vs. Alnina Bibi (1957) 62 Cal. W. N. 357 100 MT vs. JT (1976) ABJ 1195 218 (xvi)

Muhammed Ibrahim vs. Gulam Ahmed 1864 H.C.R. 236 11 Musa Ali Khan vs. Nazir Ahmed (P.L.D.) 1952 (W.F.) Peshwar 1 99 N Nandkumar & Anr vs State of Kerala, AIR 2018 SC 2254 24,25 Narantakath vs. Parakkal (1922) 45 Madras 986 6 Narayan Vendu vs. Punjabrao AIR 1958 Bom. 296 28 Nasiruddin Shah vs. Mst. Amtul Mughni Begum (1874) Lah. 565 48 Navneetlal vs. Golul, AIR 76 S.C. 794 336 Nemi Kumar Bhosh vs. Smt. Mita, AIR 1986 Cal 150 166 Nirmal Changer vs. Saratmoni I.L.R. 25 Cal. 911 329 Nirmal vs. Manohar 1991 Mh. L.J.267 166 Nizamuddin vs. Huseni AIR (196) M.P. 212 36,80 Noor Saba Khatun vs. Mohammed Kasim, AIR 1977 SC 380 88 Noreen Judith Sandhurst vs. Raymond Bernard Sandhurst AIR 1982 Karn. 102 254 O Om Prakash vs. Rajani, AIR 1988 Del. 107 166,167 P P. Krishnamma vs. A Mahadeva Iyer, (1973) Mh. L.J. 344 268 P.L. Sayal vs. Sarla Rani, AIR 1961 Pun 125 165 P.S. Kher vs. Kamal Nainjit Kaur, 1982 DMC 23 166 Packia Raj vs. P. Subbammal, AIR 1991 Mad. 319 261 Padmaja Sharma vs. Ratan Lal, AIR 2000 SC 1398 188 Palmira vs. Cruz, 1992 Mh. L.J.1048 101,272 Pannalal Bansilal Patil vs. State of AP, AIR 1996 SC 1023 256 Paras Ram vs. Kamlesh, 1982 (1) DMC 84 167,168 Parmeshwar vs. Sarnathamol AIR 1969 Mad 124 216 Peti Bewa vs. Laxmidhar, 1985 Cr. L.J. 1124 264 Pragati Varghese vs. Crysil George Verghese, AIR 1994 Bom. 349 253 Pramila vs. Rameshwar, 1995 Supp (4) 614 184 Pramila Khosla vs. Rajnish Kumar Khosla AIR 1979 Del. 78 149,256,261 Pramila vs. Vijay, AIR 2000 Raj 362 167 Praveen Mehta vs. Inderjeet Mehta, AIR 2002 SC 2582 262 Prem vs. Daya Ram, AIR 1965 HP 15 153 Previnben vs. Suresh Bhai AIR 1975 Guj 69 151,153,154,164 Promod Kumar vs. Daisy Bai, AIR 1965 MP 151 172 Punjabrao vs. D.P. Meshram AIR 1965 SC 1179 28 Purvi Mukesh Gada vs Mukesh Popatlal Gada, (2017) 8 SCC 819 86,96,183 Puthalate Chathu vs. Nambukkudi Jayashree, AIR 1990 Ker 306 176 R R. Balasubramanian vs. Vijayalakshmi AIR 1999 SC 3070 (1999) 7 SCC 311 167,187 R. Lakshmi vs. K. Saraswathi, (1996) 6 SCC 371 175 R. vs. Clarke, (1949) 2 All. E.R. 440 255 R. vs. Muller, (1954) 2 W.R. 138 255 R.P. Suchdev vs. The State AIR 1986 Del. 178 299 Radhabai vs. Bombay State AIR 1955 Bom. 439 302 Raghunath vs. Deputy Collector of Bombay 32 Bom L.R. 129 337 (xvii)

Raj Rani vs. Sukh Raj, 1982 (2) DMC 200 168 Raja Bajram vs. Thakurani AIR 53 SC 7 337 Rajam Revankar vs. Shobha Rajan, AIR 1995 Bom. 246 165,166 Ram Devi vs. Hussan Lal, AIR 1988 P & H 165 166 Rama vs. Mohinder, AIR 1996 P & H 98 167 Ramchandra Hiralal vs. Hilda AIR 1964 S.C. 1323 339 Rameshchandra Kaushal vs. Veen Kaushal, AIR 1978 SC 1807 264 Ramzan Momin vs. Dashrath Raut, AIR 1953 Cal. 138 28 Rashid Ahmad vs. Anissa Khatun, AIR 1932 P.C. 25 91 Rashid Ahmed vs. Anis Khan, (1931) 591, A.21 76 Ratnaprabhabai vs. Sheshrao 74 Bom. L.R. 434 152 Ravindra Kaur vs. Hitender Singh, J.T. (2000) 1 SC 543 187 Re. Yajna Purush Dasji AIR 1966 SC 1189 297 Rekha vs. Deepak Jagmohan, AIR 1999 Bom. 291 168 Renu Sanjai Singh, AIR 2000 All 201 167 Reynold Rajamani vs. Union of India, AIR 1982 SC 1261 256, 262 Richika Abbi vs State, AIR 2016 SC 351 86,96,182 Rishikesh Sharma vs. Saroj (2007) SCC 263 164 Robba Khannum vs. Khodadad Bomanji Irani, (1946) 48 Bom. L.R 864 71 Romila vs. Jaidev, 2000 (3) Mh. L.J. 468 (Full Bench) 187, 272 Rose vs. Rose, (1952) All. E. R. 311 268 Rosy Jacob vs. Chakramukkai, AIR 1973 SC 2090 269,273 S S. Garg vs. K.M. Marg, AIR 1978 177 S. Hanumantha Rao vs. Smt. Ranandri, (1999) 3 SSC 620: AIR 1999 SC 1318 164,166,161 S. Jaykumar vs. S. Krishnan, AIR 1995 Ker.139 153 S. Rehan Fatima vs. Sayed Badinuddin, AIR 1984 AP 1 101 S.K. Chowdhary vs. Satirani, AIR 1969 Cal. 573 160 S.R. Batra & Anr. Vs. Taruna Batra, 2007 SCC 169 27 Sabera Begum vs. G.M. Ansari 1971 Bom. C.R. 10 45 Sadhusingh vs. Gurdwara Sahib Narikar (2006) 8 SCC 75: AIR 2006 SC 3282 339 Sahabuddin Imbisi vs. K.P. Ahmed AIR 1997 Kar. 206 & AIR 1961 Pat.87 29 Saidunnisa vs. Rukayabibi, 1913 ILR All. 448 100 Saifuddin Sadab vs. State of Bombay AIR 1962 SC 858 29 Saju vs. Maksud, 45 Cal. W.N. 122 68 Sakina Banu vs. Gulam Mustafa, AIR 1971 Bom. 166 45,80 Samir Ghosh vs. Jaya Ghosh, (2007) 4 SSC 511 80,163 Samraj Nadgar vs. Ahrahm Nadchi, AIR 1970 Mad. 434 254 Samsunisa vs. Mr. Abdul Munai, 1940 I.L.R. (1) Cal. 97 68 Sanat Kumar Agarwal vs. Nandini (1990) 1 SCC 475 176 Sanjay Kumar Sinha vs Asha Kumari, (2018) 5 SCC 333 86,96,183 Sankarappa vs. Aasumma AIR 1964 Mys. 247 135 Santa Bai Sona Barathe vs. Gautam Vishnu 1994(2) Mah. L.J. 1879 101 Santana vs. Schindra AIR 1990 Cal 367 166 Sarita Sharma vs. Sushil Sharma, AIR 2000 SC 1019: (2000) 3 SCC 14 188 Sarla Mudgal (Smt.) President, Kalyani vs. Union of India (1995) 3 SCC 435 71,265,257 Satyaadevi vs. Ajab Singh, AIR 1973 Raj. 20 152 (xviii)

Satyabala Dasi vs. Sudha Ranee Dasi 1931 Cal. 580 299 Savitri Mulchand vs. Mulchand, AIR 1982 Del 52 167 Savitri Pandey vs. Prem Chandra Pandey (2002) 2 SCC 73: AIR 2002 SC 591 44,175,176,278 Secretary, T.N. Wakf Board vs. Syed Fatima Nachi, AIR 1996 SC 2423 83 Seema vs. Ashwini Kumar, (2008) 1 SCC 180 137,221 Seema vs. Ashwini Kumar. (2006) 2 SCC 578: AIR 2006 SC 1158 71,79,137 Shah Banu’s case – AIR 1985 SC 954 88,83 Shahabuddin Imbisis vs. K.P.A Ahmad AIR 1997 Ker. 206 29 Shahzada Qayam vs. Fakhar Jahan, A.I.R. (1953) Hyd. 6 43 Shaik Salma vs. Shaik Mohammed Abdul, AIR 1961 AP. 428 49 Shaikh Fazlur vs. Aisa, (1929) 8 Patna 690 59 Shaikh Mobin vs. State of Mah., 1955(2) Mah. L.J. 810 80 Shail Kumari Devi vs. Krishna Bhywan (2008) 9 SCC 632: AIR 2008 SC 3006 184 Shailja vs Khobbanna, (2018) 12 SCC 199 86,96,183 Shamim Ara vs. State of U.P. (2002) 7 SCC 518 59,67,75,80,88 Shanti vs. Ramesh, 1971 A.L.J. 63 154,161 Sharely Thomas vs. Johny, AIR 2002 Ker. 280 262 Shayara Bano vs Union of India, (2017) 9 SCC 1 22,55,60,66,67, 68,75 Sheila B. Das vs. P.R. Sugasree (2006) 3 SCC 621: AIR 2006 SC 1343 272 Shobha Rani Madhukar Reddy, 1988 (1) SCC 105: AIR 1988 SC 121 164 Sir Dinshaw Patel V. Jamshetji Bhai (1909) I. I.L.R. 25 134 Siraj Sahabji Mujawar vs. Roshan Siraj, 1992(1) Mah. L.J. 500 85 Sitabai vs. Ramchandra A.I.R. 1958 Bom. 116 135 Skinner vs. Orde, 1871 (14) M.I.A. 309 7,71 Skinner vs. Skinner 1897 (25) I.A. 34 71 Smt. Chanchal Kumari vs. Kewal Krishna, AIR 1977 Cal. 213 144 Smt. Purbi Banerjee vs. Basudeo Mukherjee, AIR 1969 Cal 293 173 Smt. Urmila Devi vs. Deepak Kumar AIR 2000 MP 32 166 Sony Gerry vs Gerru Douglas, (2018) 2 SCC 197 87,96,97,183 State vs. Narayandas Mangilal Dayme AIR 1958 Bom. 68 302 Sudha vs. Rajkumar, 1997 (2) Mh. L.J. 250 101,268 Sugrabi vs. V.D. Mohd. AIR 1988 Ker 30 101 Sujata Uday Patil vs. Uday Madhav Patil (2006) 13 SCC 272 139 Sujeet vs. Raj Kumar, AIR 1967 Pun. 522 159 Sukhendu Das vs Rita Mukherjee, (2017) 9 SCC 632 22,26,165 Sulekha Sinha Mahapatra vs. Nabendu Sengupta, AIR 1989 NOC 205 166 Sunil K. Mirachandani vs. Reena S. Mirachandani, AIR 2000 Bom 66 149 Surbhi vs. Sanja, AIR 2000 MP 139 167 Surender vs. Gurdip A.I.R. 1973 P & H 134 154,161 Suresh Prabhu vs. Ravindra Kumar, 1995 Supp (3) SCC 440: AIR 1995 SC 217 184 Sureshtha Devi vs. Om Prakash, (1991) 2 SCC 25: AIR 1992 SC 1904 171 Swapna Chakravarti vs. Viplay, AIR 1999 MP 64 168 Swarajya Lakshmi vs. Dr. G.G. Padma Rao, (1974) 1 SCC 58 257 Swati Anil Sakpal vs. State, AIR 2007 Bom. 177 29 Swati vs. Revindra, 2000 (2) Mh. L.J. 557 167 Syed Mohammed Kabhai vs. Mohammed Munafi AIR 1976 SC 1569 29 Syed Shah Gulam Gaus Mohouddin vs. Syed Shah Ahmed, AIR 1971 SC 2184 101 (xix)

(Saroj) Rani vs. Sudershan Kumar, (1984) 4 SCC 90 152 Shantibai Sona Barathe vs. Gautam Vishnu, 994(2) Mh. L. J. 1879 101 T (Thrity) Hoshie Dolikuka vs. Hoshiam, (1982), 2 SCC 544 272 T. Sriniwasan vs. T. Baralakshmi, (1998) 3 SCC 112 153,187 T.N. Taneja vs. Bhajamlal, 1988 SCC Cr. 546 187 Taj Bi vs. Mowla Khan (191) 41 Bom. L.R. 485 39 Talkeshwari Devi vs. Ram Ravi, AIR 1972 SC 639 355 Tapan Kumar Kundu vs. Biva Kundu, AIR 1988 Cal. 223 167 Tirath Kumar vs. Kirpal Singh AIR 1964 Punj 28 161 Trimbak N. Bhagwat vs. Kumudini, 1966 Mh. L.J. 83 165,167, 176 U Umar Hayath Khan vs. Mahboobunisa 1975 MLJ (Cr.) 570 264 Umri Bai vs. Chittar, AIR 1966 MP 25 165 V V. Bhagat vs. D Bhagat, (1964) 1 SSC 337 165 Veena James vs. Kewad Krishna James, AIR 1982 Pun. 470 215,217 Vimal Ladhkani vs. Chandra Prakash, AIR 1996 MP 86 166 Vincent Joseph Konath vs. Jacintha Angela Vincent Konath, AIR 1994 Bom. 20 149,251,261 Vinod Arora vs. Manju, (1982) 1 DMC 352 171 Vinod vs. Mangala, 1981 Bom. C.R. 962 257 Vivek Singh vs Romani Singh, (2017) 4 SCC 573 84,95,98,182 W Welch vs. Phillips 1 Moo P.C. 299 333 Whethereby vs. Whetherby (1947) of AII. E.R. 563) 154,164 Z Zahid Ali Imdad Ali vs. Smt. Fahmida Begum 1988(4) Bom. C.R. 3667 85 Zohra Bibi vs. Mohammed Sadak AIR 1951 Mad. 997 99 Zynad Bi vs. Mohammad Ghouse, AIR 1952 Madras 284 94



BOOK 1

MUSLIM LAW (COMMENTARY)

1

1

INTRODUCTION

SYNOPSIS 1. Mohammedian or Mohammedan – Misnomer 2. Application of Muslim Law 3. Principles of Interpretation 4. Who is Muslim? 5. Various Sects of Muslims A. Origin of Islam B. Divide of Islamic World — Shia-Sunni C. Shia-Sunni — Generally 6. Muslims — How Divided? 7. Schools of Thoughts A. Shia Schools of Thought (a) Zayadi Sects (b) Ishna Asharis (c) Ismailis — Seveners (i) Khojas (ii) Bohris B. Sunni Schools of Thoughts (a) Hanafi School (b) Memons (c) Malaki School (d) Shafee School (e) Hambali School 8. What is Law? A. Ge neral ly (a) Shariat (b) Shariat Fiqh Distinction (c) Fiqh

3 4 FAMILY LAW

(i) Generally (ii) The Classical Theory of Fiqh (iii) The Modern Theory of Fiqh B. Source of Law (a) First Source of Law — Quran (b) Second Source of Law — Sunna (c) Third Source of Law (d) Fourth Source of Law (e) Other Source of Law (i) Isti-Hasan (ii) Isti-Salah (iii) Ijtehad (iv) Taqlid (v) Fatwa 9. Uniform Civil Code Case Laws

1. MOHAMMEDIAN OR MOHAMMEDAN – MISNOMER

The term ‘Mohammedian’ or ‘Mohammedan’ is understood to have been put to use by Christians on analogy that followers of Christ are Christians and, therefore, followers of Mohammed are Mohammedian or Mohammedan. Reality is that Christians follow Christ because Christ is the God or Son of God. Therefore, no fault can be found in calling the followers of Christ as Christians. But Mohammed is neither God nor the Son of God because it is clearly said in Quran.1 1. Huwa Allah-u-Ahad = He is the God, the One (only) and; 2. Lam-u-Lid, Wa Lam-you-Lad = He begets not and not was He begotten. In view of this Quranic Injunction, it cannot be said that Mohammed is God or Son of God. Then who Mohammed is the only question to be answered. Answer is that God (Allah) chose Mohammed as His Rasool or Messenger or Postman to deliver His messages to People. Therefore, followers of Message of God are not the followers of Messanger2 (Mohammed). As such, by no analogical deduction, it can be said that the followers of Messages are the followers of Messenger3 (Mohammed) to term them as Mohammedian or Mohammedan. So, the use of the terms Mohammedian or Mohammedan is incorrect and misnomer. The term used for the followers of Messages (of Allah) is Muslim. The word ‘Muslim’ is derived from the word ‘Islam’, which in its turn, is derived from the word ‘Salam’ (Safety). In its technical application, the term Islam means submission to the WILL of God. The term Muslim is a noun of the term Islam and means the one who adopts the faith of Islam. Thus, the Prophet Muhammad having not propounded any law of his own creation, it would be very erroneous to say that there is any law laid down by Muhammad to be called as Mohammedan Law. Hence, the use of the terminology ‘Mohammedan Law’ is a misnomer. The terminology ‘Mohammedan Law’, however, is a useful expression so far as India is concerned because, in India, not the whole of the Islamic law, but only a certain part of it, is applied to

1. Part 30, Verse 112 2. Rasool in Arabic. 3. Rasool in Arabic. INTRODUCTION 5

Muslims, Mohammedan Law, in India, can be said to mean: that portion of Islamic Civil Law which relates to (i) Inheritance/succession, (ii) Wills, (iii) Gifts, (iv) Wakfs (v) Marriage, (vi) Dower, (vii) Divorce, (viii) Paternity, Guardianship and (ix) Maintenance which is applicable to Muslims in India. From amongst these, only the Personal Law of Muslims, namely:(a) Marriage, (b) Dower, (c) Divorce, (d) Paternity, Guardianship and (e) Maintenance is discussed in this Book.

2. APPLICATION OF MUSLIM LAW

Muslim Law was applied to Muslims in British India as a matter of policy, which was the result of the adoption of a tradition inherited from the Mughal rulers. The earliest trace of acceptance of this policy is to be found in the Charter of George II, granted in 1753. In Warren Hasting’s plan for the administration of justice (proposed and adopted in 1772), when the East India Company took over the management of their territories in India it was provided in that Plan that Maulvis and Pundits should attend the Courts to expound the law and to assist the Courts in administration of justice. Later on, by Section 27 of the Regulation of 1780, it was laid down that in all suits of inheritance, marriage and caste and other religious usages, the laws of the Quran with respect to Mohammedans and those of the Shastras with respect to Hindus shall be invariably adhered to. By that provision Maulvis gave out conflicting traditions of Prophet Mohammad. There also came to be enacted various enactments having limited applications to the respective princely States to avoid conflicting opinions of Maulvis. These, enactments then came to be made applicable to Muslims in India. It may expressly be noted here that in India Muslim Law is partly codified and partly un-codified. To be exact and precise, it may be noted that in India, codified Muslim Law includes The Kazi/Quazis Act, 1880, The Muslim Personal Law (Shariat) Act, 1937, The Dissolution of Muslim Marriages Act, 1939, The Muslim Women (Protection of Rights on Divorce) Act, 1986 and The Wakf Act, 1995. The rest is un-codified Muslim Law although there is no reason or justification for the same.

3. PRINCIPLES OF INTERPRETATIONS

It was observed4 that in India there is presumption that o parties are Sunnis to which the great majority of Muslims belong. The general position, however, can be summarized as follows: 1. Where both the parties to a suit are Muslims and belong to the same school, the Muslim Law of that school will apply. 2. Where the parties to a suit differ in religion or do not belong to the same school of Muslim Law, the Law of the Defendant will apply. 3. Where a person, in good faith, changes his religion, or his school, ordinarily, the personal law changes with immediate effect from the time of such conversion. 4. Where a person who is convert to a new faith or has changed his school, the law of succession applicable to the estate will be the law of the region or the school which he professed at the time of his death. It must be borne in mind that in India, a Judge cannot decide a case contrary to the law laid down by the Honorable Supreme Court of India or the Honorable High Court to which he is subordinate. It should also be borne in mind that Muslim Law is applicable only when a person is a Muslim. As such, it is imperative to know as to who is Muslim.

4. Bafatun vs. Bilaithkhanum (1903) 30 Cal 683 (686). 6 FAMILY LAW

4. WHO IS MUSLIM?

The question is: Who is a Muslim? The answer is: Any person who professes the religion of Islam is a Muslim. The requirements to profess Islam are: (1) Belief in unity of God (Allah) and (2) the acceptance of prophetic character of Muhammad. To say it in Arabic LA5-ILAHA6 ILLA7-ALLAH8, MUHAMMAD UR RASOOL ALLAH (There is) no any God except The God and Muhammad is His (God’s) messenger This is an indispensable minimum belief. A belief in excess of this is redundancy for the purposes of law. Although, strictly according to Islam, there may be many other requirements for calling one to be a true Muslim but the Courts have not accepted them as the requirements of Muslim. Because, the courts are not concerned with the peculiarities in beliefs like offering of number of prayers, manner and method of offering prayers, believing or not believing the first three Caliphs etc. Therefore, so long as the minimum belief exists, it must be held that person is a Muslim. Testing on this measure rod, we find that despite peculiarities in beliefs, certain communities like Bohras, Khojas, Shiites (Shias) are treated as Muslims. In one landmark case9 it was contended that Shias (Shia) who use abusive language against the first three Caliphs, are not true Muslims and should not be allowed to pray in a Sunni Mosque. It was held: first of all, a mosque belongs neither to Sunnis nor to Shias. Secondly, as Shias accept the belief in one God and prophetic character of Muhammad, they come within the pale of Islam and hence they are very much Muslims. In another landmark case10 a Moplah husband became an Ahmedia. Moplahs are strict Muslims whereas Ahmedias are not. Hence, when the husband became Ahmedia, it was taken as if he had renounced Islam. According to Islam, change in religion would severe marital tie. The woman, under these circumstances, married another man. Thereupon, it became a matter of public importance to the Muslim community; some holding that there was no bigamy whereas the Ahmedias always claiming to be Muslims, asserted that this was a clear case of bigamy. On prosecuting wife for bigamy, the lower court held that conversion (to the Ahmedia faith being considered by generality of Muslims as an act of Apotasy) has the effect of severing the martial tie and hence the second marriage by wife was not bigamy. The High Court then held that conversion to Ahmedism is not an act of apostasy on the part of a Muslim and therefore the second marriage by the woman was a bigamy on her part. For our purposes, the paramount question is: Would peculiarities in belief in any sect, take away that sect from the fold of Islam? The answer provided by the High Court is that it does not. The ruling of the Court in that case shows that in order to find out whether one is a Muslim or not, the only test that is to be applied is: Belief in Unity of God and Acceptance of the Prophetic Character of Muhammad. It is not necessary that a person should be born Muslim, it is sufficient if he is a Muslim by profession. Thus we have Muslims

By birth By conversion

5. La = No. 6. Ela-ha = a God/any God. 7. Illa = Except. 8. Allah = Al (the) + Ilaha = God = the God. 9. Jiwan Khan vs. Habib (1933) 14 Lahore 518. 10. Narantakath vs. Parakkal (1922) 45 Madras 986. INTRODUCTION 7

If a person is born Muslim, presumption is that he is a Muslim until he renounces Islam. Indeed, mere adoption of some Hindu forms of worship would not tantamount to renunciation of Islam. Therefore, if a person is Muslim by birth, what is most important is unequivocal renunciation of Islam. According to strict Islamic law, if one of the parents (either mother (female) or father (male) is Muslim, the child is treated as Muslim. However, in India, child is presumed to belong to the religion of his father. Therefore, in India, even if mother is Muslim child is not treated as Muslim. When a person is not Muslim, he can still be a Muslim by embracing the religion of Islam. He will be a convert Muslim in contradistinction to Muslim by birth. When a person accepts a Religion in which he is not born, the process of accepting the Religion (in which he is not born) is termed as “Conversion” whereas, the process of a person going out of his own religion is termed as “Apotasy”. As is shown in the Table above, one can be Muslim by conversion. But surely and certainly, ‘Conversion’ must be bonafide and must not be malafide or colourable. In other words, change in religion must not be for some other purpose or for ulterior motive. If change in religion is not for change in “heart” or “belief ” but it is pretended one, such a change in religion is not legal, valid but “fraud in Law”. One Helan, Christian woman, had married, according to Christian rites, to George who was married to a Christian woman. After death of George, Helan cohabited with John Thomas who was a married man. In order to legalize their union, John and Helan went through the ceremony of conversion to Islam. The Privy Council held11 that such a marriage was of doubtful validity and fraud on law. In another case, it was held12 that a formal profession of Islam is sufficient unless conversion is pretended. In other words, conversion must not be colourable and not a fraud in law. The formal conversion must be known to public at large. Therefore, conversion is always a Question-of-Fact and will have to be decided on the facts of that particular case.

5. VARIOUS SECTS OF MUSLIMS

A. Origin of Islam B. Divide of Islamic World — Shia-Sunni C. Shia-Sunni — Generally A. Origin of Islam According to Quran, Islam is a religion, which has existed since the beginning of mankind. It is, however, corrupted from time to time, as people forget the rue faith. God, in His infinite mercy, sends to people Rasul (lit. messenger) so that he points out the way and warn people. Such Rasuls (messengers), earlier to Mohammed, were many including Abraham, Ismail, Moses and Jesus, the son of Mother Mary. So also was Mohammed, the son of Abdullah, the messenger of God, came to revive the true faith — submission to the Will of God. B. Divide of Islamic World Shia-Sunni The question of leadership came up immediately on demise of the Prophet of Islam, as it was necessary to have a leader (Iman-Caliph) or successor of the Prophet to assume leadership (Imamat-Caliphate) of Muslim Common Wealth. Hashamis, kinsmen of the Prophet always maintained that the Prophet had indicated Ali (son-in-law and also his kinsman) as his successor and by right also he could be the spiritual head. Thus, according to them, Ali was the only rightful and legitimate Iman (leader) of Muslim Common Wealth. Whereas, Koreshies say that the Prophet had not nominated any one as his successor and hence the leader (Caliph) will have to be appointed by

11. Skinner vs Orde, 1871 (14) M.I.A. 309. 12. Abdul Razzak vs Aga Mohammed, 1893 (21) I.A. 56-64. 8 FAMILY LAW proceeding to election for the leader of Muslim Common Wealth. The faction, which adhered to Ali, is known as Shia, a term derived from the phrase, Shiat-E-Ali (faction or adherent to Ali). Whereas the faction, which believed in appointing the leader of Muslim Common Wealth, by election is called as Sunni, a term derived from the phrases, Ahlus Sunn-at Wal Jamat (people of tradition and assembly). the unhappy events then divided the Islamic world into two, Shia and Sunni. Abu Bakar was elected to the office of Caliph by votes of Koreshies to become the First Caliph of Muslim Common World. Abu Bakar after two years nominated Omar as his successor and thus Omar became the Second Caliph. Omar reigned successfully for more than 10 years and died of a wound he received from a Persian slave. After Omar, Usman became the bird Caliph and finally, after about 24 years, Ali became the Fourth Caliph. However, Shias do not give recognition to first three caliphs and always maintain that Ali is the only legitimate leader after the demise of the Prophet of Islam. In any case, it is worth noting that Sunnis too accept Ali as their Caliph and it is not that they do not pay reverence to Ali. Be it as it is, the fact remains that today the Islamic world is divided into two, Shia and Sunni. C. Shia and Sunni Generally Before entering into the thicket of Shia-Sunni, it may clearly be noted that Shia use the term ‘Iman’ whereas Sunni use the term Kalipha (Caliph) for the English Word Leader – Khilaf = Imamt = Leadership. What is necessary for the present is to notice that the term “Iman” has to be understood in broader percept to denote the phenomenon when it had become necessary to have a successor or the leader, a ‘Temporal Ruler’ or a ‘Religious Chief or a Leader by Divine Right.’ The divergence in constructing the term “Iman” has divided Muslims into two, Shia and Sunni. Shia (Adherents of Ali) take the meaning of the term “Iman” as ‘leader by divine right’ and take Imamat (leadership) as hereditary. Therefore, according to Shias, since Ali is from the ‘House of Mohammed’, he alone has the divine right to be their “Imam” and so his successors too are the “Imams.” Shia are thus the adherents of Ali and, therefore, they are identified as “Shiat-e Ali” — Turning to Sunni, it may be stated that Sunnis (Ahuls Sunnat wal Jamat — People of Assembly) take the meaning of the term “Imam” as ‘the temporal leader’ and hence they believe that whenever it is so necessary, they can elect or select, their “Imam” from amongst them. Shias and Sunnis, as such, are so sharply divided that it is essential that we notice the differences in them.  The followers of Ali or the Shiat-e-Ali (Faction of Ali) then came to be called as Shias. Shias accept only those traditions which come through Ali, Sunnis accept in entirety, the traditions and perceptions of Prophet, which supplement the Quranic injunctions and treat them almost equal in authority in them.  Imam is the leader by divine right because he is the successor of the Prophet or rather the descendant of Ali. Therefore, he is the final interpreter of Law on the earth. In appropriate cases, Iman can even legislate, Imam is more of a temporal ruler than a religious chief is. As such, in religious matters, he has to simply follow the path of Shariat.  Shias repudiate entirely the authority of “Jamat” or the universality of people. As such, the Jamat cannot elect the spiritual Chief. If he is found unfit, he may be deprived of his Imamat.  According to Shias, the oral precepts of the Prophet are supplementary to the Quranic injunctions and their binding effect depends upon the degree of harmony between the Quranic ordinances and oral precepts of the Prophet. After Turkish Revolution in 1924, the system of Caliphate is abolished.  Shias reject not only the decisions but also the traditions, which do not come through Ali or the immediate successors of Ali who had seen the Prophet. Accept the authority of the Quran. INTRODUCTION 9

 Imam is the descendant of Ali. According to Zaydis, a human being. According to Khojas, he is Hazir Imam. After 4th century of Hijara, there is no Mujtahid and hence the doctrine of Ijtehad is strictly constrained. Taqlid has come to be accepted by not the Qiyas and Ijmas, Taqlid (Law of Precedent), Qiyas (Law of Analogical deductions) and Ijma (agreement of juris-consults) are widely accepted.  Accept the authority of the Quran.

6. MUSLIMS — HOW DIVIDED?

MUSLIM

Sunni Shia

Hanans Shafis Malaki Hambli Zayadis Ishna Ismailis Others Ashari Seveners

Memons Others Western Eastern Bohras Khojas Aga Khanis

Katchhis Halai Dawoodi Bohras Suleimani Bohras

7. SCHOOLS OF THOUGHTS (SCHOOLS OF LAW)

A. Shia Schools of Thought (a) Zayadi Sects (b) Ishna Asharis (c) Ismailis – Seveners (i) Khojas (ii) Bohris B. Sunni Schools of Thoughts (a) Hanafi School (b) Memons (c) Malaki School (d) Shafee School (e) Hambali School A. Shia Schools of Thoughts (a) Zayad Sect: After Ali also, amongst, Shia, there arose the difference of opinion in respect of Imam. One of the sects that emerged out powerful was the follower of Zayd, called as Zaydis. According to Zaydis, Imam is a mere human being. Zaydis are found mostly in Yemen and North Persia. 10 FAMILY LAW

(b) Ishna Ashari Sect: Strangely in India, the term Shia is applied to Ishna (also spelt as Ithna) Ashari School of Shia and hardly to any other Ishna Asharis are the followers of the 12th Imam. Their Imam partakes the Divine Essence. He is Ghayab (vanished) and Muntazar (awaited). He id deathless and will appear at the pre-ordained time. Most of the Shias belong to Ishna Ashari School and generally they are in Persia and princely states of India like Lucknow, Murshidabad, Deccan etc. (c) Ismailis-Seveners: Imam Ismail was the Seventh and hence his followers, in India, are also called as the Seveners. Ismailis consist of two main groups, Eastern Ismailis, Khojas and Western Ismailis, Bohras who are further sub-divided as Dawoodi and Sulemani. (i) Khojas: The word Khoja (Khuwaja) means the honourable person. The Khojas were originally Hindus of the trading class from Sind and Kutch-Sindh. The Sindh and Kutch was conquered early by the Muslims and the trading communities were converted to Islam. The conversion on large scale was mainly due to the efforts and personality of Pir Sadruddin who lived in Kutch, Kathiawar. According to majority belief. Pir Sadruddin was a missionary sent by Shah Islam, one of the ancestors of His Highness, the Aga Khan who is the head of the community in all religious matters and is called the Hazar Imam. Hazar (present-living) Imam is the descendant of the Prophet and is therefore entitled to absolute reverence; he is the final interpreter of the religion. The original faith of Khojas was a hybrid between Hinduism and Islam. Gradually, the community has come more and more under the influence of Islam; even the original Ismailis have been attracted by the simpler form of the faith and some of them have formed themselves into two groups. The larger of these professes the Shiite Ishna Ashari faith, the smaller has adopted the Hanafi school. Therefore, the Khojas now consist of three groups: (i) followers of Aga Khan (ii) Shiite Ishna Ashari faith and (iii) the Hanafi School of Sunnite law. The legal position of Khojas may be summed up as follows: Prior to 1937: They were governed by the Hindu Law of inheritance and succession which they had retained by custom. They were, however, not governed by the Hindu Law of joint family or partition and in all other respects governed by Muslim Law. After the Shariat Act, 1937: As to the intestate succession, they are governed by Muslim law but as to testamentary succession, they retained their customary law and hence they can will away the whole of their property. However, making or revocation of Khoja WILL be on the principles of Muslim Law because even though they can WILL away the whole property, as per the customary law, they are governed by Muslim Law. As such, Khoja will be construed in accordance with the principles of Muslim Law. (ii) Bohris: The word Bohra means a ‘merchant’. They are trading community doing business in all parts of the world but they are mostly established in Western India. They are divided into Daudis, Sulaimanis and in some other smaller branches. But as a group, they are called Western Ismailis to distinguish them from the Eastern Ismailis, the Khojas. They got separated from the other groups during the Fatimid regime. The present religious head Mullaji Saheb of the Daudi Bohras is called as Dai-E-Mutalaq. The Dai is an assistant of Imam, the final religious head; but as the Imam is Mastur (hidden from sight) the Dai has large powers of interpreting religion. A peculiar belief of the community is that the Imam must always exist and he must e assisted by the assistant. As the Imam is in seclusion, the Dai is entitled to the equal reverence or oath of allegiance. The Sulaimanis have their own religious heads but, in essentials, their beliefs are almost identical. However, they are Sunnite by persuasion whereas, the Daudi Bohars are more skin to Malki rather than Shiite Ithan Ashari School. INTRODUCTION 11

B. Sunni Schools of Thoughts (a) Hanafi School: The Hanafi School is named after its founder Imam (Caliph) Abu Hanifa (699-767 A.D. = 80-150 A.H.) It is oldest and supposedly the most liberal of the four schools. The special characteristic of this school is reliance on the principles of Qiyas - Analogical deductions. Abu Hanifa employed Qiyas more because the science of Hadis had not developed fully by that time and no recognized collections were available. In essence, his system does not differ from the others. It would be interesting to know that Imam Abu Hanifa had a pupil, a founder of Shia School Imam Jafar-as-Sadiq but as he was also a pupil of Abu Abdulla and Hamid bin Suleman. Abu Hanifa left very few written books but he was fortunate to have his two celebrated pupils. Abu Yusuf, Chief Kazi/Quazi of Baghdad under Khalifa Haroon-al-Rasheed and Mohammed Shybani who left written work dealing with Abu Hanifa’s unwritten work. Two very authoritative texts of this school, are the Fatwa-E-Alamgiri (because Emperor Aurangzeb was an orthodox Hanafi Sunni Muslim) and the Hidaya originally written by Burhanuddin of Marghinani, a small town place in Russian Turkistan to the east of Bukhara. It was translated by Hamilton. These two books were translated early in the last century and were well known in the British Courts. The Hanafi School is also known as Kufa School. In fact, the vast majority of Muslims of the world taken in aggregate belong to Hanafi School. It is the dominant school in India, Pakistan, Asia Minor, Palestine and Cyprus. In Egypt, while the majority are Shafis, the State Code is Hanafi. In India, the Hanafi school was introduced by the Mughal Emperors who were Central Asian Turks who are mostly Hanafis. The Court observed13 that in India presumption is that the parties are Sunni Hanafi. A Hanafi may freely become Shafi and vice versa. So also Hanafi Kazi/Quazi may adopt, under certain circumstances, a rule of Shafi. It was laid down14 that a Hanafi woman on attaining majority can select a husband without reference to her father. but a Shafi woman cannot. But she can convert herself to Hanafi and can do so. (b) Memons: The Memon is perhaps a corruption of a term Maumin means a believer. The Memons are divided into two groups — Kutchhi Memons and Halai Memons. The Memons like the Khojas are coverts from Hindu trading community, the Lohanas from Kathiawar Kutchh. The Kutchhi Memons had until 1938 retained their own customary law which was identical with Hindu Law. After the Kutchhi Memons Act, 1938, they are governed entirely by the Hanafi Law. The Kutchhi Memons Act, 1938 was replaced by the Kutchhi Memons Act, 1942 however, legal position remains that they are governed entirely by Hanafi Law in all matters. Similarly, Halai Memons too are governed by the Hanafi Law. It was held15 that Kutchi Memons are governed by Muslim Law in all matters of succession. (c) Malaki School: The Malaki School is named after is founder Malik Ibne Anas [713-795 A.D.-90-179 A.H.] Malik Ibne Anas was inhabitant of Madina and so the school founded by him is known as Madina School (whereas Hanafi School is known as Kufa School). Malik gave a ruling that an oath of allegiance given under duress (to the Abbasids of Madina) has no binding force. Therefore, Abbasids of Madina looked upon him with wrath. But later on, he was forgiven. Although he was taught by a teacher who emphasised independent exercise of reason in interpretation, Malik leaned towards jurisprudence based on Koran and Hadis. He followed the Hadis of Prophet and when traditions conflicted, Malik depended on Ijma of Medinese Mujtehids (Muslim scholars from Madina) for the solution Therefore, the learned modern critic Schachit has observed that Malik’s tendency to consistent systematic reasoning is secondary to his dependence of prevalent usage by tradition. His reasoning is inspired by practical expediency and the tendency to Islamize. The teaching of Malik spread from Madina to Morocco, Upper Egypt, Central and Western Africa, Algeria and Spain. We, in India, have no Malikis.

13. Bafatun vs. Bilaiiti Khanum, I.L.R. (1903) 330 Cal. 683. 14. Mohammed Ibrahim vs. Gulam Ahmed, 1 Bom. L.R. 236. 15. Abdul vs. Provider V, AIR 1954 Mad 96. 12 FAMILY LAW

(d) Shafee School: The Shafee School is named after its founder Mohammad Ibne Idris As- Shafi (760-820 A.D. — 150-204 A.H.). He lived, a part of his life, at Baghdad and the rest in Cairo. He was a pupil of Imam Malik and also of Abu Hanifa. Modern critics place Imam Shafi very high above Malik and also Abu Hanifa. Modern critics place Imam Shafi very high as a Jurist. He is one of the greatest jurists of Islam and the creator of Classical Theory of Islamic Jurisprudence. He was foremost in methodology of law and jurisprudence. He was foremost in methodology of law and jurisprudence. He was responsible for the doctrine of Qiyas. He established Ijma as a source of law. The doctrine of Shafi schools spread to Egypt, hejas, South Arabia, East Africa and India. Konkanis of Mumbai/Maharashtra and Moplahs of Malbar are Shafis. (e) Hambali School: The Hambali school is named after its founder Ahmed Ibne-e-Hambal (780-855 A.D. = 164-241 A.H.) from Baghdad. He was a pupil of Imam Shafi but was an orthodox traditionalist. He was such a puritan that he rejected everything which was opposed to Traditions (Sunnas of Prophet Muhammad). Imam Ibne-e-Hambal, one day, wanted to eat watermelon. But before eating, he reverted to Quran and Hadis and he found no guidelines for eating watermelon and therefore, he did not eat it. Hambal being the traditionalist did not accept doctrine of Ijtehad. He perfected the doctrine of Usool and collected 80,000 of Ahadis (plural of Hadis). The Wahabis are Humbalis localised mostly in the centre of Arabia and are nowhere else to be found. In India, there is a sect known as Ghair Muqqallad who do not follow any school and who are akin to Wahabis; compelling the Muslim communities to give up their customary rights which are contrary to Islamic Law, to merge into the general Islamic community and to be governed exclusively by the laws of Shariat.

8. WHAT IS LAW?

A. Generally (a) Shariat (b) Shariat-Fiqh Distinction (c) Fiqh (i) Generally (ii) The Classical Theory of Fiqh (iii) The Modern Theory of Fiqh B. Source of Law (i) First Source of Law — Quran (ii) Second Source of Law — Sunna (iii) Third Source of Law (iv) Fourth Source of Law (v) Other Sources of Law (a) Isti-Hasan (b) Isti-Salah (c) Ijtehad (d) Taqlid (e) Fatwa INTRODUCTION 13

A. Generally Before we proceed to learn the Islamic notion of law let us first understand, in general, the meaning of the term “Law”. We may be compelled to act in accordance with certain principles because (i) God or (ii) the king or (iii) the Assembly (of wise men) or (iv) the Leaders of the Community or (v) Social Customs desire us to do so, for the good of the people in general. Dharma, as defined by Hindu Lawyers, implies a course of conduct which is approved by God. Then, what is the Islamic notion of Law? (a) Shariat: There is a doctrine or theory in Islam known as “Ilmul Yaqin’ (certitude). According to this theory, what is good (Husna-beautiful) must be done and what is evil (Qubh- Ugly) must not be done; and that is law. What is good (Husna) and what is bad (Qubh) has to be answered with reference to Quran and Sunna. Thus, Quran and Sunna are the principle roots of Islamic Law. If there is nothing either in Quran or in Sunna to answer a particular question which is to be answered, we have to follow the dictates of our reasoning in accordance with certain definite principles. These principles constitute the basis of Canon Law or Shariat as Muslim Doctors understand it. It must always be borne in mind that the ‘Islamic Law’ is not the result of legislative activity but a science developed by juristic thought. Further while Shariat means the Islamic Law, the Shariat Act means the enactment passed in 1937 whereby the Law of Islam (i.e., Shariat) is restored to Muslim residing in India. The word Shariat literally means the road to watering place, the path to be followed. As technical term it means the Canon Law of Islam or the Doctrine od Duties or the Totality of Allah’s Commandments. Each one of such commandment is called ‘Hukm’ (Pl, Ahkam). Shariat, the totality of Allah’s commandments and it embraces I it all human actions and for this reason Shariat is not the Law in the modern sense. The Law, in the modern sense of the term, under the Islamic Law is known as Fiqh. (b) Shariat — Fiqh Distinction: The distinction between Shariat and Fiqh is undoubtedly narrow and very often Muslim Doctors themselves have used the terms synonymously. However, it can be safely said that the Shariat is a wider circle and embraces in its compass all human actions. Fiqh is the narrower one and deals with legal acts. Shariaat reminds us of ‘ilm’ (i.e., one may be ‘alim’) but unless he possesses independent judgement, i.e., capacity to decide correct and binding rule of law, one cannot be a Fakih (jurist or a person skilled in law). Therefore, Fiqh means knowledge (ilm) plus independent judgement. Fiqh is the term used for the Law as a Science. Whereas term Shariat is used for the Law as divinely ordained path. The path of Shariat is laid down by God and his Prophet, the edifice of Fiqh is erected by human endeavour. In the Fiqh, an action is either, legal or illegal – permissible or impermissible. In the Shariat, there are various grades of approval or disapproval. According to Shariat religious injunctions are of five kinds. 1. Farz — Strictly enjoined like 5 times prayers. 2. Haram — Strictly prohibited like taking wine. 3. Mandub/Wajib — Advised to do prayer on Ed. 4. Makruh — Advised not to do, not eating certain type of fish. 5. Jayaz — Law is indifferent, like traveling by Air. From the above, it is now easier to comprehend the distinction between the Shariat and Fiqh. It is as under: 14 FAMILY LAW

Shariat Fiqh

1. Wider circle covering all human 1. Narrower circle and deals with legal acts. actions legal, moral etc. 2. Reminds us of revelations through 2. The ilm is the basis of approval of any Quran and Hadis. legal act 3. It is of divinely origin. 3. It is manmade. 4. Totality of Allah’s Commandments 4. Deals with only those Commandments which deal with legality of the human acts 5. Law as divinely ordained path 5. Law as a science,

(c) Fiqh (i) Generally: Literally it means ‘intelligence’. It is a name given to the whole Science of Jurisprudence or it is the science of Islamic Law of one’s rights and obligations derived from the Quran, Sunna, Ijma, Qiyas. It must also be pointed out that the Fiqh has been divided into two viz. Usul and Furu. The Usul literally means roots of law and the Furu means branches of law. The Usul deal with principles of law and may be linked to our modern Jurisprudence. While the Furu deals with the law as it is actually applicable in the Courts of Law. FIQH

Furu (branches) Usul (root) Deals with particular injunctions and may Deals with interpretation and may be be called as Sustantative Law — called as Jurisprudence or legal theory law as applied in the Courts of Law. There are two theories — Classical and the Modern. The Classical theory of Fiqh gives prime importance to the religious and ethical teachings of Quran and the Prophet. Whereas the Modern Theory of Fiqu goes to the very root of the law and pays little regard to the ethical and spiritual norms. Thus the modern theory of Fiqh has the scientific value. A careful study of both the theories, for a modern critical student of law, is, therefore, very essential. (ii) The Classical Theory of Fiqh: Abu Hanifi’s definition of Fiqh stresses the moral aspect while most of Islamic authorities define in terms of its basic constituents. According to classical theory, Fiqh is the knowledge of one’s Rights and Obligations derived from (1) Quran, (2) Sunna of the Prophet or (3) the consensus of opinion among the learned (i.e., Ijma) or (4) analogical deductions (i.e., Qiyas). The classical view is founded on the oft-quoted tradition of Muaz (Muadth). The Prophet sent Muaz, one of his companions, as Governor of a Province — Yeman and also appointed him as the Chief Justice, the distributor of Justice in Yemen. Prophet is reported to have asked him: According to what shall thou judge? He is reported to have replied: According to the scriptures of God. And if thou findest nought therein? According to the Traditions of the Messenger of God. And if thou fondest naught therein? Then I shall interpret with my reason. INTRODUCTION 15

And thereupon the Prophet is reported to have said: Praise be to God who has favoured the Messenger. His Messenger is willing to approve the appointment. This is an important tradition (Hadith) which emphasizes the principle that the exercise of independent judgement, within certain limits, is not only permissible but praiseworthy. A noteworthy feature of this Hadis is that the Quran is given pre-eminence and next come the practice of the Prophet. Although consensus is not mentioned specifically, it prepares the way for it. And if all these sources (Quran, Sunna and Consensus) fail then the opinion of distinguished persons (Qiyas) may also have the force of Law. (iii) The Modern Theory of Fiqh: In the last century, Ignaz Goldzihar began the scientific criticism of the Hadis Literature and he may be said to be the originator of the Modern Theory of Fiqh. According to him, the Prophet of Islam did not create a new system of law; he took the existing Sunna (prevalent usages) and modified it in two ways. First by direct revelations, that is the ordinances of the Quran and second by his own teachings and traditions (Hadith/Hadis). Modern research tends to show that a major portion of the traditions (Hadis) attributed to Prophet is apocryphal. Goldzihar has shown that the great majority of traditions even in the classical collections do not belong to time to which they claim to belong. Therefore, according to Goldzihar, Hadis may thus be one of the two things (1) a form advocated by the Prophet in opposition to the prevalent usages or (2) practice put forward by certain jurists to support their own theoretical views. Thus, it can be said that the spirit to law, in Islam, is religious and ethical but the contents are based upon pre-Islamic customs and usages. The matter is non-Islamic but the spirit is Islamic.

Classical Theory of Fiqh Modern Theory of Fiqh 1. Classical theory is founded on 1. Modern theory was propounded by tradition of Muaz. Jgnaz Goldzihar 2. Gives more competence to 2. Pays little regard to ethical and Spiritual Quran, Hadis and moral aspects. norms. 3. Knowledge of one’s right and 3. Has the scientific value and contents is of obligation derived from Quran Law are based on pre-Islamic customs and Sunna and usages.

Having thus considered the Modern theory and the Classical theory of Fiqh, we now turn to the different sources of law, viz. Quran, Sunna, Ijma, Qiyas, etc. B. Sources of Law (i) First Source of Law: Quran According to classical theory, the Quran is the first source of law. Its importance is religious an spiritual, no less than the law, A verse (Ayat) of the Quran is always held of paramount authority. The Quran although resembles a code, in that it derives all its authority from itself, yet it does not in any portion of it, profess to be a code complete in itself. The Quran was revealed to Prophet through Gabriel in fragments, during the period of 22 years (609 A.D. to 632 A.D. after Christ). Either God would send message or Prophet would put his queries and would in turn get a reply in the form of message. All these messages (Verses — Ayats) were memorised by the Prophet (he was illiterate and did not know reading and writing) and then by his followers. His followers also had put down the memorised verses (messages) on Date-tree or palm tree leaves, white stones and even on their breasts. Abu Baker who succeeded Prophet sought for the Quran and collected it for the first time. The compilation work was finally completed by Usman, the Third Caliph and he put them in book form, the Quran. All the transcripts now existing are from Usman’s edition and 16 FAMILY LAW since then there has been no alteration. Probably no other work in the world has remained for centuries so pure a text. There are 6000 verses (Ayats) set out in the Quran in order of revelations. 200 of them deal with law and only 80 of them deal with personal law. It is alleged by Shias that Usman has suppressed the revelations about Ali. (ii) Second source of Law: Sunna (Traditions of Prophet) According to classical theory of Fiqh, the second source of law is sunna or the traditions of practice of the Prophet. The principles laid down in Quran found their way in the hands of the Prophet. The Prophet lived strictly in accordance with the injunctions of the Quran and his was the Model Behaviour. Practices, precedents and traditions of Prophet Muhammad are known as Sunna. The terms Sunna and Hadis must be distinguished and understood. Hadis is the narration of a particular occurrence in the life of the Prophet of Islam whose was Model Behaviour. The rule of law deduced from the Hadis is called as Sunna. the word Sunna in Pre-Islamic time, was used for an ancient and continuous usage, well established in the community. Later, after the advent of Islam, the term was, however, used to mean the practice, precedents and traditions of Prophet Muhammad. Sunnas are classified in three groups (1) Sunnatul-fil, what the Prophet did (2) Sunnatul- taqrif - the Action - conduct done in presence of Prophet with his approval or rather without his disapproval and (3) Sunnatul-qual — the Prophet enjoined expressly by words. Ahdis (plural of Hadis) are not written down or noted anywhere. There are many collections of Hadis. The authoritative collections are those of Tirmidhi, Bukhari, Muslim, Samin and Sasai. Although modern research tend to show that a large number of traditions (Hadis) ascribed to the prophet are of late origin and therefore not free from doubt, nevertheless, their importance, in law, is never minimized. It may also be well remembered that Shias give no credence to a Hadis which does not come from the House of Ali. (iii) Third Source of Law: Ijma (Agreement and Juris-Consults) According to the classical theory of Fiqh, the third source of law is Ijma. Failing the Quran and direct precedents or practice of the Prophet himself, the best guide to the law was the consensus of his companions. Muslim Doctors (Faqihs) define Ijma as agreement of jurists amongst the followers of Muhammad in a particular age on a question of law. In Ijma, opinions of Juris- consult coincide. Although the Muslim legists (Doctors) give it the third place, the modern critics consider it to be the most important. A tradition summarises the principle: ‘My community will never agree upon error.’ Rules deduced on the basis of Ijma have varying degree of sanctity in different schools. But all schools agree that where there is a valid agreement amongst juris-consults (Fakih), no divergence can be allowed. In other words, once Ijma (Agreement of Juris-consults) is established it cannot be repealed. The Ijma of companions of prophet rank first. The next in order are the Ijma wherein jurists agreed and others did not dissent. The agreement of Juris- Consults on a new point come third in order and last ill them come the Ijma on which earlier there was disagreement amongst juris-consults. Hanafis regard as a fundamental source whereas Shafis give second place. Malakis place Ijma of scholars of Madina above others. (iv) Fourth Source of Law: Qiyas (Analogical Deductions) The Fourth Source of law, according to the classical theory of Fiqh, is Qiyas. Qiyas means analogical deductions. Qiyas does not lay down a new principle but it is a kind of permissible exigency. Qiyas is a weak kind of Ijtehad. The term ‘rai’ and ‘qiyas’ are often misconstrued, individual reasoning ill general is called ‘rai’ opinion. Y\’11en rai (opinion) is directed towards achieving systematic consistency or decision it is called Qiyas. Hambalis oppose the Quiyas so also Shias (because, according to them, only Imams can change he law). Shafis also regard Ijtehad and Quiyas as contradictory of their views. INTRODUCTION 17

(v) Other Sources of Law In addition to the above main Sources of Law, we find that the law is occasionally supplemented by other principles also. The following can be summarized. (a) Isti Hasan — Jurisic preference — Equity (b) Isti Salah — Public interest (c) Ijtehad — Exercising one’s own reasoning to deduce rule of law (Shariat) (d) Taqlid — Law of Precedents (e) Fatwas — Decisions of Muslim Judges. (a) Isti Hasan — Jurisic preference — Equity Imam Abu Hanifa adopted the principle of Isti Hasan for the relief from absolute dependence on analogical reasoning. Isti Hasan literally means liberal construction or juristic preference or what we call today as law of equity. This term was used to express liberty of laying down such rule as may be necessary and the special circumstances may require. The objection taken against it is that it left an almost uncontrolled discretion in the exposition of the law. (b) Isti Salah— Public interest Imam Malik who will be presently mentioned as the founder of a school of Sunni law, also felt the necessity of surer test for the development of law on right lines than the use of analogy. He approved the introduction of Isti Salah (public interest) in preference to Isti Hasan. He laid down that ordinarily, analogy was used to expand law but if it appears that a rule indicated by analogy is opposed to general utility then Isti Salah (principles of public interest) should be resorted to. Under this system, rule of law pointed out by analogy could not be set aside either: (i) on the opinion of the individual expert of the law of (ii) with reference merely to the circumstances of particular case: it could be disregarded only if it would be harmful to the public in general. (c) Ijtehad — Exercising one’s own reasoning to deduce rule of law (Shariat) When Quran and Hadis did not disclose the precise line to follow, Ijtehad came to be born. Ijtehad means independent judgement or considered opinions of individuals or exercising one’s own reasoning to deduce a rule of Shariat. As a method of reasoning in law, Ijtehad of prophet tersely has gained almost equal footing with the first four founders of the law. In deducing Ijtehad, Quran and Hadis cannot be over looked but exigency of time and public interest were also to be borne in mind. Where a legal principle is silent, Ijtehad can be used with advantage. But Ijtehad was the privilege of great scholars or Mujtahids. The authority of the Mujtahids (great scholars) based not on his holding any office in the State but is derived purely from the learning and reputation of the individuals. The qualifications of the Mujtahids consists of a complete knowledge of Quran i.e., he should know the sacred text by heart and should be able to say when and where each verse was revealed and he should also have a perfect knowledge of all the traditions (Sunna- Hadis) and all the branches of the science of law. He should, besides, be a man of austere piety. In short, the qualifications required are such that so far as the Sunni Law is concerned, after the death of Ibne Hanbal (856 after Christ) there have been no recognised Mujtahids. With the end of Mujtahids, the doors of Ijtehad no longer remained open. This is known as the closure of the golden gate of Ijtehad — Bad Al Injtehad.

(d) Taqlid — Law of Precedents After Ijtehad or rather on the closure of the Gates of Ijtehad, a parallel doctrine of Taqlid (Law of precedents) came to be in existence. Under Taqlid (literally, imitation) means following opinions of another person without knowledge o the Authority or the authority for such opinion. a Muslim had to follow the Law; every Muslim in the street could not be learned in the rules of Shariat, being 18 FAMILY LAW ignorant, he was asked to follow the opinions of those who knew better. Those who knew better (Ulemas) were denied independence of judgement in any vital matter. Hence, the vicious circle of Taqlid (imitation - Law of Precedents). (e) Fatwas — Decisions of Muslim Judges As already aforesaid, the Law sent down by Allah by direct revelations is recorded in Quran and what is sent down by him is recorded in Sunna/Sunnat of Prophet of Islam. Even the King has no authority to make law and therefore, the Muslim Kings called upon the Muslim scholars to guide them in the matter of Law. The opinions tendered by Muslim Jurists to King were accepted by King of enforce the Law in the territory of his kingdom. Therefore, the opinions of Muslim Jurists were always held in high regard. With the advent of time, even the ordinary Muslims would turn to such jurist and ask for his opinion. Such opinion of Muslim Jurist is referred to as Fatwas. In India, during the Seventeenth Century A.D. when Mughal Emperor Aurangazeb came in power, he appointed Shaykh Nizam Burhanpuri and four others to prepare a compilations of Fatwas. Accordingly, they sent questionnaire various juris-consults and Muftis. Their Replies are the collection of Fatwas, popularly known as Fatwa-e-Alamigir. However, Fatwas are not source of law.

9. UNIFORM CIVIL CODE

1. Introduction At the outset, the two terms, “Civil” and “Code” appearing in “Uniform Civil Code” need to be comprehended. The term “Civil” relates to “Civil Law” in contradistinction to Criminal Law – because Criminal Law, all over India, is same, similar and uniform for all Citizens of all religions. The ‘Civil Law’ expression is of wider import and includes all Civil Laws of all specialization, like Labour Laws, Taxation Laws, Land Laws, Criminal Laws, Family Laws, etc. Therefore, for narrowing down the wider import of ‘Civil Law, the word “Law” is replaced by word ‘Code’ – to say – ‘Civil Code’ instead of ‘Civil Law’. But use of ‘Code’ gives wrong impression that it is the ‘Procedure’ of Civil Law because, generally, ‘Code’ is used for ‘procedure’. The statement (that ‘Code’ is used for ‘procedure) is fortified from the fact that procedural law is referred to as: (1) the ‘Code of Civil Procedure’ and (2) the ‘Code of Criminal Procedure’ for the procedure to be followed in Civil Courts and Criminal Courts respectively. Before going further, it is necessary to clarify that there is Substantive Law as well as Procedural Law. The “Substantive Law” is the Law from which all ‘legal rights’ flow to claim remedy under the Law. The Law relating to “Procedure to be followed” for enforcing Substantive Law is called as the ‘Procedural Law’. The Substantive Law is always very strictly adhered to or followed, the ‘Procedural Law’ is not; unless it is in the nature of “Substantive Law”. Coming back to expression Civil Code, it can be said that expression ‘Civil Code’ is not the Procedural Law but the ‘Substantive Law’ of Marriage, Divorce, Custody of Children and so on. In other words, ‘Uniform Civil Code’ means the same or similar or uniform Law of Marriage, Divorce, Custody of Children or Family Law or Personal Law for all Citizens of India whether they are Hindus, Muslims, Christians or Parsis.

2. Constitutional Duty Having comprehended the expression ‘Uniform Civil Code’, it can now be said that, after independence, on 26th November, 1949, India gave to itself the “Constitution”. The Written Constitution of India invests ‘Powers’ in Parliament to make-and-unmake any law for the country. The Constitution, under Article 44, has laid down the Directive Principles of the State Policy to endeavor to frame Uniform Civil Code – for all Citizens and throughout the territory of India. But the Parliament failed to perform its constitutional duty by not framing the Uniform Civil Code. Therefore, the Hon’ble Shri K.M. Munshi, in the Constituent Assembly, in Parliamentary Proceedings, said: “if Uniform Civil INTRODUCTION 19

Code is not framed now then it will never be framed”. The prophesy of Hon’ble Shri K.M. Munshi has come true and till date, India has not framed the Uniform Civil Code. The reason for not framing Uniform Civil Code, in short, can be that the phrase (Uniform Civil Code) has in it the three confrontations; (1) Political, (2) Social and (3) Religious. Political: The Nation is divided into two parties; one in favour of and one against the framing of Uniform Civil Code. Both have to play with the ‘Doll’ of Divide-and-Rule Policy to win the next Election. The ‘Doll’ to play with, in India, is the ‘Dividing of Hindus and Muslims’. Both Political Parties (one in Power and one in Opposition) play with this Doll to win the next election. Resultant is that India fails to perform its Mandatory Constitutional Duty. Social: No doubt, there is unity of God inasmuch as, according to Hindus, God is One and also, according to Muslims, God is One. Yet, socially, it is most difficult, if not impossible, to bring them on one common platform. Religious: The Constitution of India gives all powers to Parliament to make-unmake any and every Law. But any Law made by Parliament has to keep religious activities intact/unbroken so that all Religions are treated equally. The aforesaid three confrontations (Politically, Socially and Religiously) are the hurdles in framing the Uniform Civil Code and the bitter truths. But the sweet truth is that there is ‘Uniformity in Diversity’ in Religions and Personal Laws. The same can be noticed from the following: A. The Uniformity in ‘Diversity of Religions’. Religion of Hindus: Generally, the scholars appear to have accepted that the word “Hindu” is derived from the river Sindhu otherwise known as Indus which flows from Punjab. The Persians pronounced this word as Hindu and named their Aryan brethren as Hindus. Those who are in India are Indians, the same way, those who lived on bank of Sindhu are Hindu but not those who follow any particular religion. Then what is Hindu religion? Indeed, it is difficult to define or even adequately describe the Hindu religion. Whatever it may be, but, surely and certainly, it is an admitted fact that it is the oldest religion which started to develop from 500 BCE. Further, it is admitted that Hindu Texts, “Shruti” (Heard) and “Smriti” (Remembered) discuss: (a) theology, (b) philosophy, (c) mythology, and so on, and the Hindu “ Trimurti ” (f=eqfrZ)16 is the Only One God. Thus, Hindus believe in devotion to a Single God. But, then, in Vedic times, Indra, Varuna, Vayu and Agni came to be worshiped as God. Later on, Brahma, Vishnu and Mahesh came to be added. In the course of time, Rama and Krishna came to be added. Gradually, different philosophic concepts held sway in different sects and in different sections of the Hindu community and, as such, a large number of Gods came to be added. As a result, today, the Hindus present the spectacle of a very large number of Gods. But, truly, it is rather overgeneralization to say that Hindu Religion is Polytheism. The Hon’ble Supreme Court of India also declined to accept17 that Hindu religion is Polytheism – in other words, Hindu religion is Monotheism. Though the term ‘Hindu’ is not defined anywhere but, surely and certainly, Jains, Buddhists and Sikhs are included in the term ‘Hindu’; may be – perhaps and in all probability – because these religions are offshoots of Hinduism as they all are idolaters and, in some respect, they flow from orthodox Hinduism. Therefore, they are governed by Codifying Statutes of 1956, namely, (1) Hindu Marriage Act, (2) The Hindu Succession Act, (3) Hindu Minority and Guardianship Act and (4) Hindu Adoption and Maintenance Act. Whatever, it may be but, even according to Buddhists, Jains and Sikhs, God is One as can be seen from the following.

16. Hindu-Trinity consists of: (i) Brahma, the Creator, (ii) Vishnu, the Preserver and (iii) Shiva, the Destroyer, who has " Trimurti " (f=eqfrZ – three forms). 17. Shashtri Yagnapurushdasji vs. Muldas Bhundardas Vaishya, AIR 1966 SC 1119. 20 FAMILY LAW

Religion of Jains: The word “Jain” is derived from Sanskrit word Jina – Conqueror. One who conquers all inner passions like attachment, desire, anger, pride greed, etc. is called as Jaina. The three main principles of Jainism are ‘Ahimsa’ (non-violence), ‘Anekantavada’ (non-absolutism or dictatorship) and ‘Aparigraha’ (non-possessiveness). Jains trace their history through a succession of 24 teachers starting from Rishabhdeva and concluding with Mahavir. Therefore, it is more necessary to take notice of the fact that even according to Jains, Bhagwan Mahavir is the only God. Religion of Buddhists: Buddhism originated from India in 4th and 6th Centuries BCE. It is believed that Siddharth (Buddha) was born to King Suddhodana and Queen Maya. Siddhartha (Buddha) grew up in Kapila-Vastu, a place in the plains of modern Nepal-India border. Buddha spent his life in today’s Bihar-UP. He reached enlightenment and gave his first sermon (in India) at Dhamek Stupa. Buddhism is a religion that encompasses a variety of traditions, beliefs and spiritual practices, based on teachings of the Buddha. Therefore, if one independently checks the ideology, philosophy and teaching of Buddhism, one will quickly reach to the conclusion that Bhagwan Buddha is the only God. Religion of Sikhs: The word “Seekh” means Learner. Sikhism originates from Punjab region of Indian Subcontinent during 15th Century. The fundamental beliefs are enshrined in the “Guru- Granth-Sahib”. The religion is based on the teachings of Guru Nanak, the 1st Guru. Sikhs believe that: (1) for feeling presence of God, meditation (Simran) on the words of Guru-Ganth-Sahib through Kirtann and Jam Japo is essential and necessary, and (2) to have control on Five Thieves, namely, Lust, Rage, Greed, Attachment and Conceit/Pride. Sikhism is monotheistic religion and believes that God is omnipresent and that he is Va hi gu r u [means – God is Nirakar (shapeless), Akaal (timeless) and Alakh (invisible to physical eyes)]. All it means is that Sikhs believe in faith and meditation in the name of One Creator – One God. Religion of Muslims: Muslims believe that, with the first human being (Adam and Eve who came from heaven to earth) came the religion of Islam. The term Islam is derived from the word “Salam” (Safety) and word “Muslim” is a noun of the term Islam and means one who is on the ‘road of safety leading to God’. It is believed (by Muslims) that, with the advent of time, people lost their ways and were not on the ‘road of safety leading to God’. Therefore, God sent many Rasools = Messengers (including Noah, Abraham, Moses, Jesus and lastly, Mohammed) to bring people to ‘road of safety leading to God’. The God sent messages (verbally) to Muhammad through angel Gabriel (Jibril) to bring people to ‘road of safety leading to God’. Those messages (sent by God to bring people to road of safety) are recorded in the Quran. All it means that Muslims believe: “(there is) No God except the – God and Mohammed is Messenger of the – God” – in Arabic – La18ilaha19illa20Al21+ilaha18, Mohammed ur Rasool Allah.” Long and short of it, Muslims believe in Unity of God. Religion of Christians: Christianity is an Abrahamic Religion that began in the mid-first century. The Modern-world Scholars virtually agree that Jesus was a Galilean Jew. He was conceived by Holy Spirit and born of a virgin, named as Mary. Jesus is the person of the Trinity = Threesome: (a) Father, (b) Holy Spirit and (c) Son. First and third person of the Trinity is the Jesus. Jesus began his own ministry, preaching his message orally. But then Jewish Authorities arrested Jesus, tried him and, at the end, Pontius Pilate ordered him to be crucified only to rise thereafter. His followers have become the Christians. Recapping it, Christians believe in unity of God.

18. La=No, 19. Ilaha=(any) God. 20. Illa=Except. 21. Al=the