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SHORT QUESITONS
1: OPTION OF PUBERTY?
A: This is also termed “Khyar-ul-Bulugh”. When a marriage of a minor has been contracted by any guardian other than the father or father’s father the minor has the option to repudiate marriage on attaining puberty. This is called the option of puberty.
Such an option can only be exercised by the wife, if she files a substantive, suit under the Act; it cannot be exercised by her in a suit by her husband for restitution of conjugal rights or in any other proceedings. (AIR 1960 M P 212.
In the case of a girl married during minority, she is entitled to a dissolution of her marriage if she proves the following facts:
1. That she was given in marriage by her father or other guardian.
2. That the marriage took place before she attained the age of 15.
3. That she repudiated the marriage before she attained the age of 18.
4. That the marriage has not been consummated.
Consummation of marriage before the age of puberty does not deprive the wife of her option.
Under the Dissolution of Muslim Marriages Act, 1939, she can repudiate the marriage before years provided the marriage had not been consummated.
In case of male the right continues until he ratifies the marriage either expressly or impliedly by payment of dower or co-habitation.
2: What is DISTANT KINDRED?
A: This is a kind of inheritance under sunni Law. Distant Kindred are all those relations by blood who are neither shares nor residuaries.
3: What is KHULLAH?
A: This is a kind of Divorce. A divorce by Khula is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. Failure on the part of the wife to pay the consideration for the divorce does not invalidate the divorce, though the husband may sue the wife for it.
4: WHAT IS IDDAT?
A: In Islamic law when a marriage is dissolved by death or divorce, the woman is prohibited from marrying within a specified time. This period is called Iddat. Marriage contracted during the period of iddat is not void but irregular.
DURATION OF IDDAT:
1. In case of widow 4 moths and 10 days.
2. In case of pregnant woman till her delivery.
INCIDENTS OF IDDAT:
1. Wife has a right to claim maintenance under certain cases during this period.
2. the parties have a right to inheritance in certain cases.
3. The wife becomes entitled to debarred dower and if the prompt one has not been paid it becomes immediately payable.
5: What is MUTA MARRIAGE?
A: The Shia Law recognizes two kinds of marriage, namely (i) permanent (ii) muta or temporary.
SUNNI LAW: The Sunni Law does not recognize muta marriage at all.
A Shia of the male sex may contract a muta marriage with a woman professing the Islamic, Christian or Jewish religion, or even with a woman who is free-worshipper, but not with a woman following any other religion. But a Shia woman may not contract a muta marriage with a non Muslim.
ESSENTIALS OF THE VALIDITY: It is essential to the validity of muta marriage that (i) the period of co-habitation should be fixed, and this may be a day, a month, a year or a term of years, and that (ii) some dower should be specified.
A muta marriage is dissolved ipso facto by the expiry of the term. No right of divorce is recognized in the case of a muta marriage, but the husband may at his will put an end to the contract of marriage by ‘making a gift of the term’ to the wife even before the expiration of the fixed term.
EFFECT OF MUTA MARRIAGE:
1. A Muta marriage does not create mutual rights of inheritance between the parties, but children conceived during its existence are legitimate and capable of inheriting from both parents.
2. If a Muta marriage is not consummated, the woman is entitled to half the dower. But in case the marriage is consummated, she is entitled to full dower.
3. the woman in Muta marriage is not entitled to maintenance.
LEGAL INGREDIENT: Muta is a temporary union, and recognized among the Shias and never among Sunnis. Divorce is not recognized in Muta. There is no minimum time for duration of Muta marriage, and no limit as the number of muta wives. The husband is not bound to provide residence to wife.
6: What is MUBARAT?
A: A mubaraat divorce, like Khula, is a dissolution of marriage by agreement, but there is a difference between the origin of the two. When the aversion is on the side of the wife and she desires a separation, the transaction is called khula. When the aversion is mutual and both the sides desire a separation, the transaction is called mubaraat. The offer in a mubaraat divorce may proceed from the wife, or it may proceed from the husband, but once it is accepted, the dissolution is complete, and it operates as a talak-I-bain as in the case of khula.
7: MAINTENANCE OF WIFE?
A: Maintenance of wife is the primary duty of every husband. To a Muslim wife the right is guaranteed under the Personal Law.
When the husband is incapable of consummating the marriage as in the cases of minority or fro any other cause, the wife is entitled to maintenance. If the minor has no property his father is bound to maintain her.
The wife does not lose her right to receive maintenance if she refuses access to her husband on some lawful ground, e.g., if she does so for payment of her promote dower. The wife’s right to maintenance ceases on the death of her husband. The widow has no right to receive maintenance whether she be pregnant or not but not so when a woman is observing iddat for a divorce.
Under the Hanfi Law if the wife renounces Islam, her right to maintenance is lost and does not revive by her subsequent return to Islam but under the Shia Law it revives by her subsequent return to Islam.
The rights of a Muslim wife enumerated above were in addition to the provisions of Section 488 of the Code of Criminal Procedure which is now omitted by the Federal Law (Revision and Declaration) Ordinance, XXVIII of 1981.
The husband is bound to maintain her if she fulfills the following conditions.
1. She has attained puberty i.e., the age at which she can render to the husband his conjugal rights.
2. She places or offers to place herself in his powers so as to allow free access to herself at all lawful times and obeys all his lawful commands.
MAINTENANCE DURING IDDAT:
1. If the husband has divorced her after the consummation of marriage, she is entitled to maintenance during the period of Iddat.
2. If she is divorced without the consummation of marriage, she is entitled to maintenance until she is informed of the divorce.
3. A widow is not entitled to maintenance during the period of Iddat consequent, upon her husband’s death.
8: CONDITIONAL GIFT?
A: A gift which is made subject to a condition is called a conditional gift. If the condition is such which derogates from the completeness of the grant, the condition is void and the gift will take effect as if there were no condition.
ILLUSTRATIONS:
1. A makes a gift of his house to B to take effect on B’s marrying C. the Gift is void.
2. A gift by a Shia Muslim to A for life and in the event of death of A without leaving a male issue, to B, is as regards, B a contingent gift and therefore void.
4. X makes a gift of promissory notes to Y on condition that Y should return a fourth part to X after a month. Here the condition relates to the return of part of the corpus and therefore derogates from the completeness of the grant. The condition is therefore void and Y takes the notes absolutely.
9: What is MUSHA?
A: Musha is an undivided share in property either movable or immovable. A valid gift may be made of an undivided share (Mushaa) in property which is not capable of division. A gift of an undivided share (Mushaa) in property which is capable of division is irregular (Fasid), but not void (Batil). However the irregular gift can be rendered valid by subsequent portion and delivery to the donee of the share given to him.
A gift of an undivided share (Mushaa), through it be share in property capable of division, is valid from the moment of the gift, even if the share is not divided off and delivered to the donee, in the following cases:
1. Where the gift is made by one co-heir to another.
2. Where the gift is of a share in Zamindari or Taluka.
3. Where the gift is of a share in free hold property in a large commercial town.
4. Where the gift is of shares in land company.
10: What is IMPRICATION/LIAN?
A: This is a kind of Divorce. The wife is entitled to sue for a decree on the ground that her husband has falsely charged her with adultery. If the charge is proved to be false, she is entitled to a decree of dissolution of the marriage.
