Category Archives: Family Law – II

Differences Between Fiqh And Shariah?

Differences Between Fiqh And Shariah?

Fiqh and Shariah are related and they are both aspects of Islamic Law. However, there are significant differences.
1. Shariah is broad and general. Fiqh focuses on narrow and specific issues.
2. Souce of Shariah is Quran and SUnnah. Source of Fiqh is Shariah.
3. Shariah cannot be changed. But Fiqh can change.
EXPLANATION: the Shariah comes strictly from the Quran and Sunnah. That is, it comes from Allah and His Messenger Therefore, the Shariah does not change But Fiqh can change based on new information
There should be no waivering when it comes to the Shariah. It is from Allah. Most Muslims utilize some aspect of the Shariah everyday, either consciously or unconsciously.


What Is Shariah ?

What Is Shariah ?

1. Shariah is a complete code of Islamic law which belongs to the rights and duties of muslim. It regulates the life of the people.
2. It is not a list of rules but rather a set of principles on aspects of life, including marriage, divorce, finance and rituals such as fasting and prayer.
3. The word “Sharia” literally means “clear path to be followed”
4. Islamic scholars interpret Shariah in different ways, and Muslims around the world vary in their practice of it.
5. The Islamic Shariah derived from 4 sources:
• Quran.
• Sunnah
• Ijma
• Qyas
As you can see, the Shariah comes strictly from the Quran and Sunnah. That is, it comes from Allah and His Messenger Therefore, the Shariah does not change. Whatever Allah and and His Messenger have made permissible according to the Shariah will always be permissible. And whatever they have made forbidden will always be forbidden.
Allah has made polygamy and acceptable form of marriage in Islam. So it will always be permissible and no one can change that. For anyone to say we must forbid polygamy because it is outdated and abuses women is wrong. And any Muslim who espouses this view is being sinful.
Conversely, Allah has made Riba (interest) forbidden. So it will always be forbidden and no one can change that. For anyone to make it permissible because it is accepted in modern finance is wrong. And any Muslim who espouses this view is being sinful.

The purpose of the Shariah is to protect five important aspects of Islamic society:

  • To protect the religion – Examples are the punishment for Ridda (leaving Islam) and the prohibition on Muslim woman marrying non-Muslim men.
  • To protect individual dignity – Examples are the establishment of Zakah (charity) and the prohibition of Riba (interest and usury).
  • To protect life – Examples are the punishment for murder, the establishment of Qisas (retribution for murder), and prohibition of suicide.
  • To protect the family – Examples are rules of marriage, prohibition of fornication and homosexuality, and the punishment for adultery and extra-marital sex.
  • To protect property – Examples are the punishment for theft, and the rules of Islamic business.

What is fiqh (Islamic Jurisprudence) ?

What is fiqh  (Islamic Jurisprudence) ?

1. The word fiqh is an Arabic term meaning “true/deep understanding” or “full comprehension”.The word faqih means a person of knowledge and understanding.
2. But in Islamic terms fiqh is described as the human attempt to understand divine law (shariah). as revealed in the Quran and the Sunnah and implemented by the rulings (fatwa) of jurists.
3. Thus Fiqh is making rulings and judgements from evidence found in the Shariah, that is, the Quran and Sunnah, and from consensus of Islamic scholars.
4. Fiqh expands and developes Shariah through interpretation (ijtihad) of the Quran and Sunnah by Islamic jurists (ulama) and is implemented by the rulings (fatwa) of jurists on questions presented to them. Thus, whereas sharia is considered immutable and infallible by Muslims, fiqh is considered fallible and changeable
5. But Fiqh does not override Shariah. Fiqh is used to create laws for matters not specifically addressed by the Shariah.
6. Fiqh is a Islamic jurisprudence; i.e., the science of ascertaining the precise terms of the Shariah, or Islamic law. The collective sources of Muslim jurisprudence are known as uṣūl al-fiqh.
7. Fiqh deals with the observance of rituals, morals and social legislation in Islam. Fiqh is a section of Islamic law which deals with acts of Muslim, that includes both worship and daily life actions. Islamic jurisprudence or fiqh illustrates Islamic Law for Acts of Worship such as Prayer, Zakat, Fasting, Hajj, and Purification.
8. Conclusion: Fiqh is a huge collection of juristic opinions that were given by various jurist from multiple schools of thought, in regards to the application of Shariah to their real-life situations.
9. The historian Ibn Khaldun describes fiqh as “knowledge of the rules of God which concern the actions of persons who own themselves connected to obey the law respecting what is required (wajib), sinful (haraam), recommended (mandūb), disapproved (makrūh) or neutral (mubah)”.This definition is consistent amongst the jurists.
10. In Modern Standard Arabic, fiqh has come to mean jurisprudence in general, be it Islamic or secular.
11. In the modern era, there are four prominent schools (madhhab) of fiqh within Sunni practice, plus two (or three) within Shia practice. A person trained in fiqh is known as a faqīh (plural fuqaha).


Minor and Guardianship under Muslim Law

minor is supposed to have no capacity to protect his or her own interests. Law therefore, requires that some adult person must safeguard the minor’s person or property and do everything on his or her behalf because such a minor is legally incompetent. A person who is authorised under the law to protect the person or property of a minor, is called a guardian. Under   Muslim law guardians are required for the purpose of marriage, for the protecting the minor’s person and for protecting the minor’s property.

Guardianship of a minor person means an overall supervision of the minor’s personality. It means care and welfare of the child including the liability to maintain it. It is more than simply custody of the child upon a certain age. Under Muslim law, is called HIZANAT. They are sometime taken to mean the same thing .But under Muslim law, these two aspects of the guardianship are different and are governed by the different laws. The guardianship of a child means overall supervision of the child during its minority. Father or his executer or in his absence, the paternal grandfather, being the natural guardian, are in charge of the minor’s person. On the other hand ‘custody of the child’ simply means a physical possession (custody) of the child upon a certain age. Although mother is not the natural guardian of the child under Muslim law, but she has a right to the custody of the child, till the child attains a specific age. But the father or the paternal grandfather has a control over the minor during the whole period of the minority. Tahir Mohmood states that:

Guardianship of a person in relation to a child belongs primarily to its father, the mother’s being only a pre-emptive right to keep the father away for a legally prescribed period only from a particular aspect of the guardianship of person, namely, the custody and physical upbringing of the child’’.

It may be said therefore, that mother has a right to the custody of her child for some time, because except her, no one can handle and nurse a child during its infancy. But her custody of the child is subject to the supervision of the father who, as a legal guardian, is under an obligation to provide means for the upbringing of child.

In this paper we will understand the different possibilities and move of our legal system for every circumstances arising regarding guardianship under Muslim law.

Types of Guardianship

Muslim law recognise following kind of guardianship:

  1. Natural or legal guardian.
  2. Testamentary guardian.
  3. Guardian appointed by courts or statutory guardian, and
  4. De-facto guardian

Natural or legal guardian: Natural guardian is a person who has a legal right to control and supervise the activities of a child. Father is recognized as the natural guardian of his child under all the Schools of Muslim law. The father’s right to act as guardian of a minor is an independent right, and is given to him under the substantive law of Islam. Natural guardian is also called dejure or legal guardian. As stated above, only father is the legal guardian of his child. But in the absence of father, the father’s executor may also act as a legal guardian. Executor is a person who is appointed by the father or grandfather to act as a guardian of his minor child on his behalf. In the absence of the father or his executor, paternal grandfather or paternal grandfather’s executor acts as a legal guardian. Thus, the nature guardian of a minor, in order of priority, are as under:

  1. Father
  2. Executor of father
  3. Paternal grandfather
  4. Executor of Paternal grandfather

Under Muslim law in the absence of any of the above mentioned persons, nobody else is recognized as the natural guardian of a minor.

Shia Law: In the absence of father only paternal grandfather may act as a legal guardian .In the presence of paternal grandfather, the father’s executor has no right to act as legal guardian of a child.

Testamentary Guardians:  Testamentary guardian is a person who is appointed as guardian of a minor under a will. Only father or, in his absence, paternal grandfather has right to appoint a testamentary guardian. No special formality is required for the appointment of a testamentary guardian, but, as obvious, such a person should be competent to act as a guardian. A non-Muslim and a female may also be appointed as a testamentary guardian.

Shia Law: A non- Muslim cannot be appointed as testamentary guardian.

Guardians appointed by Court: In the absence of a natural and testamentary guardian, the court is empowered to appoint a guardian for the purpose of the minor’s person or property or for both. The appointment of guardian by court is governed by the Guardianship and Wards Act, 1890 which is applicable to all the Indians irrespective of their religion. Such guardians are also called Statutory Guardian. It may be noted that no provision has been made under this act for the guardianship for the marriage. The result is that except the guardian for marriage, the guardian for a Muslim minor’s person or property may be appointed by the court of law. In case of conflict between Muslim personal law & Guardianship & wards act, provisions of acts prevail over the provisions of Muslim personal laws.

The courts are empowered to appoint the guardians for a minor upon an application. Such application may made by any of the following persons:

  1. any person desirous of being or claiming to be the guardian of the minor, or
  2. any relative or friend of the minor, or
  3. The collector of the district in which the minor generally resides

If the court is satisfied that it is for welfare of the minor that an order should be made, then it may make an order –

  1. Appointing a guardian of minor’s person, or both ,or
  2. Declaring a person to be such a guardian.

Sec. 17 (2) of the act says about the various grounds for deciding the guardianship like: sex, age of the minor, capacity of the proposed guardian etc.

In Smt. Farzanabai v. Ayub Dadamiya, the Bombay high court observed that under Guardians and Wards act, the personal law of the parties is a factor which is to be kept in mind by the court subject to the interest of the minor.

De-facto guardians:  A de-facto guardian is a person who is neither a legal guardian nor a testamentary guardian or statutory guardian, but has himself assumed the custody and care of a child.  According to Tyabji a de-facto guardian means an unauthorised person who, as a matter of fact, has custody of the person of a minor or his property.De facto guardian is a person having no authority for the guardianship but under the circumstances has taken the responsibility to act as the guardian of a minor.


Describe the sources of Muslim Law in detail.

Muslim Law in India means, “that portion of Islamic Civil Law which is applied to Muslims as a Personal Law. It consists of the injunctions of Quran of the traditions introduced by practice of the Prophet of the common opinion of the jurists of the analogical deductions of these three Qiyas. Muslim mean who believes in Islam and Islam means, “submission to the will of God.” A person born as Muslim continues to be a Muslim until he renounces Islam after attaining majority. Any person who professes the Mohemadan religion is Muslim that he acknowledges that, there is one God and the Mohamed is his prophet.

Queen Empress v/s Ramzan and Abraham v/s Abraham:  It was held that a person may be a Muslim by birth or by conversion.  If one the parents of child are Muslim the child is deemed as Muslim.  If Parents turned to some other religion the child is Mohemadan.

The following are the sources of Muslim Law:-

Primary Sources

  1. QURAN :  The Quran is the primary source of Muslim Law in point of time as well as in importance. Quran is the first source of Muslim Law. The Islamic religion and Islamic society owes its birth to the word of Quran. It is the paramount source of Muslim Law in point of Important because it contains the very words of God and it is the foundation upon which the very structure of Islam rests.  Quran regulates individual, social, secular and spiritual life of Muslims. It contains the very words of God as communicated to Prophet Mohammad through angel Gabriel. The Quran has now been codified. Quran is devided into 114 chapter and 6666 Ayats.
  2. Sunnat or Ahadis:  Sunnat has three classes :
  3.           Sunnat-ul-fail: This is being done by Prophet himself.
  4.           Sunnat-ul-qual: Which Prophet enjoyed by words.

    III.          Sunnat-ul-tuqrir:  Things done in his presence without his disapproval.

Ahadis has also three classes:

  1.           Ahadis-i-muturatir: Traditions are of public & Universal property &  held as absolutely authentic.
  2.           Ahadis-i-mashorora: Though known to a majority of people do not possess the character of universal propriety.

III.          Ahadis-e wahid: which depend on isolated individuals?

          When Quran is silent on any one of the subject and then that problem is solved by Ahadis and Sunnat.  But while giving the solution to a problem it must be kept in mind that solution is not adverse to the basics of Quran.  Thus such type of acts which the Prophet himself did or supported it, they came to be known as Adades and Sumat.

  1. IJMAA:- It is third important source of Muslim Law. The origin of IJMAA although Quran, Sunnat and Ahades had developed as the source of Muslim Law. It takes place when new problem stated arising with the development of society which were not possible to be solved by Quran. The principle of IJMAA based upon the text, “That God will not allow His people to agree on an error and whatever Muslims hold to be good is good before God.”

Kinds of IJMAA: -i) IJMAA of Jurists. ii) IJMAA of companions of the Prophet:- It is universally accepted. iii) IJMAA of People:- This kind of IJMAA has not much importance.   

  1. The Qiyas (Analogical deduction):-It is originated source of Muslim Law, when any problem or question could not be solved by Quran, Sunnat, Ahades and Ijmaa.  Qiyas in the light of Holy Quran which says that spend out of your good things because as you dislike taking back bad things others also may dislike.” In such situations the problem are being solved by comparative study of the above three sources.
  2. i)It is the last primary source.
  3. ii)Qiyas means reasoning by analogy.

iii)        Qiyas does not purport to create new law but merely to apply old established principles to the new circumstances.

  1. iv)Hanbals shias & shafis do not accept Qiyas.

          While solving problem through Qiyas it has to be considered that such things shall not be adverse to basics of Quran, sunnat, ahades and Ijmma.

Secondary Sources

  1. Urf or Custom:  Custom never recognised as source of Muslim Law but sometimes referred as supplementing the law. Muslim Law includes many rules of pre-Islamic customary law, which have been embodied in it by express or implied recognition.

Requirements of a valid custom:- i) Custom must be territorial. ii) it must be existing from memorable time i.e. ancient. iii) It must be continuous and certain and invariable.  iv) Custom should not oppose the public policies.  V)Custom must not in contravention of Quran & IJMAA.

Smt. Bibi v/s Smt. Ramkali-1982: It was held that the customs of case and sub case acquire it to be proved for their validity that they are ancient, definite and earnable.

  1. Judicial Decisions:- These includes the decisions of Privy Council, the Supreme Court & High Courts of India, Judges explain what law is. These decisions are regarded as precedents for future cases. It becomes a source of Law.Hammeera Bibee v/s Zubaida Bibi: In India interest on loan is not allowed, but in this case the Privy Council allowed interest on the amount unpaid dower.
  2. Legislation:– In India Muslims are also governed by various legislation passed either by Parliament or by state legislature e.g.:-i) Guardian & Wards Act, 1890. ii) The Shariat Act, 1937. iii) Muslim Woman Protection of Right & Divorce Act, 1986. iv) The Mussalman Waqf Act, 1923. V) The Dissolution of Muslim Marriage Act, 1939.

Justice, Equity & Good Conscience:  It is also regarded as one of source.

  1. a)Abu Hanifa: Expounded principle that rule of law based on analogy. These principles are “Isihsan” or Jruistic equity. b) Maliki:- Ibn-Anasproposes the use of Istiah e. seeking peace or amending & he followed it up by distinct method of juristic interpretation known as Istidal. However the main sources are Quran, Ahadis and Ijmaa.
  2. Discuss the various Schools of Muslim Law and point out their differences.

INTRODUCTION:-There are two main schools of Muslim Law the Sunni and the Shia.  In India the majority of the Muslims are of Sunnis and hence it is presumed that the parties to a suit are Sunnis unless proved otherwise.

Shia law has been applied to Shia since the decision of the Privy Council in Rajah Deedar Hossein v/s Ranee Zuhor-oon-Nissa-1841. The division between the Sunnis and the Shias originated in the dispute concerning the question of Imamat or the spiritual Leadership of Islam.

Schools of Muslim Law:- After the death of Prophet the question arose who would be his successor. On this point the Muslim community was divided into two factions. The Shias advocatd that the office should go by the right of succession and thus Imamat i.e. headship should be confined to Prophet’s own family as his prophet. Whereas on the other hand the Sunnis advocated the principle of election by the Jamat and chose out their Imam by means of votes.

                      The majority of Muslims suggested that there should be election to choose successor of the Prophet. This group was led by the youngest wife of the Prophet. Thus the difference between the two lies in political events.

Mohammadans

1 Sunni                                      2 Shia                              3 Motazila

1.1 Hanafis            2.1 Ithna-Asharia or Imamia   (2.1.1) Akhbari (2.1.2) Usuli

1.2 Malikis             2.2 Ismailiyas—(2.2.1) Khoja (2.2.2)  Bohra

1.3 Shafeis             2.3 Zaidais

1.4 Hanbalis

Sunni Sub-Schools:

(i)         Hanafi: This school is the most famous school of Sunni Law. Abu Hanifa was the founder of this school, he recognised Qiyas, urf, Ijma.

(ii)       Maliki: It was founded by Malik, leaned more upon traditions. He was not different from Hanifa’s.

(iii)     Shafei: Imam Shafie was the founder of this school. He was the founder of doctrine of Qiyas based upon Quran, Ahadis or Ijma.

(iv)     Hanbali:– It was founded by Ibn Hanbal who stressed on traditions and allowed very narrow margin to the doctrine of analogy.

SHIA SUB SCHOOLS: –

  1. I)Athana Asharia School:- This school is very orthodox. The supporter of this school is the followers of twelve Imams and regards them.
  2. II)Ismailia School: – The sixth Imam Jafar-us-Sadiq had two sons 1. Ismail and 2.Musa-ul-kazim. The followers of this school called Ismailas.

III)     Zaidia School:-Zaid who was the son of fourth Imam, Imam Ali ashgar was the founder of this school.

CONCLUSION:-   Where it is not alleged not shown that the parties are shias, there is a presumption that they are sunnies, to which sect the great majority of mohammedans of this country belong. Shia law is also the law of the land. In india  shia law has been applied to shia since the decision of the privy council.

                 


A Muslim marriage is a civil contract. Discuss the nature of the Muslim marriage.

Marriage i.e. nikah meant different forms of sex relationship between man and a woman established on certain terms. In ancient age women were treated as chattels and were not given any right of inheritance and were absolutely dependent.  It was Prophet Mohammad who brought about a complete change in the position of women. The improvement was vast and striking and their position is now unique as regards their legal status. After marriage woman does not lose her individuality and she remains a distinct member of the community. Under the Muslim Law marriage is considered as Civil Contract. The contract of marriage gives no power to anyone over her person or property beyond what the law defines. Woman remains the absolute owner of individual rights even after marriage.

DEFINITION OF MARRIAGE (NIKAH):-Marriage (nikah) literally means the union of sexes and in law this term means, ‘marriage’. Marriage has been defined to be a contract for the purpose of legalising sexual intercourse and procreation of children.”

In Hedaya, it is defined as, “Nikah in its primitive sense means carnal conjunction.” Some have said that, “it signifies conjunction generally and finally in the language of law it implies a particular contract used for the purpose of legalising generation.” The Prophet of Islam is reported to have said, “That Marriage is my sunna and those who do not follow this way of life are not my followers.”

Thus marriage according to Muslim Law is a contract for the purpose of legalising sexual intercourse and the procreation of legitimating of children and the regulation of social life in the interest of the society.

NATURE OF MUSLIM MARRIAGE:- There are divergence of opinion with regard to the nature of Muslim marriage.  Some jurists are of the opinion that Muslim marriage is purely a civil contract while others say that it is a religious sacrament in nature.  In order to better appreciate the nature of Muslim marriage it would be proper to consider it in its different notions.

                    Muslim marriage by some writers and jurists is treated as a mere civil contract and not a sacrament.  This observation seems to be based on the fact that marriage under Muslim Law has similar characteristics as a contract.  For example:-

  1. i)A marriage requires proposal (Ijab) from one party ad acceptance (Qubul) from the other so it is the contract. Moreover there can be no marriage without free consent and such consent should not be obtained by means of coercion, fraud or undue influence.
  2. ii)Similar as in the case of contract, entered into by a guardian on attaining majority so can a marriage contract in Muslim Law, be set aside by a minor on attaining the age of puberty.

iii)            The parties of the Muslim marriage may enter into any ante-nuptial or post-nuptial agreement which is enforceable by law, provided that it is reasonable and not opposed to the policy of Islam. Same is in the case of a Contract.

  1. iv)The terms of a marriage contract may also be altered within legal limits to suit individual cases.
  2. v)Although discouraged both by the holy Quran and Hadith, yet like any other contract, there is also provision for the breach of marriage contract.
  3. vi)In the leading case of Abdul Qadir v/s Salima-1886, it emphasise the contractual aspect and analogy of Muslim Marriage contract with contract of sale.

CONCLUSION:- Thus marriage according to Muslim Law is a contract for the purpose of legalising sexual intercourse and the procreation of legitimating of children and the regulation of social life in the interest of the society. However it is further viewed that marriage is not purely a civil contract but a religious sacrament too. Though sacramental nature of marriage is considered as an orthodox view but it is also supported by the judiciary in the leading  case of Anis Begum v/s Mohammad Istafa-1933,in the case Sulaiman has tried to put a more balanced view of the Muslim marriage by holding it both civil contract and a religious sacrament.


Who is a Minor under Muslim Law?

Under Muslim law, the age of majority is regulated by two system:

  • The Classical Muslim Law:

Under classic Muslim law a person is said to be minor if he or she has not attained the age of puberty. The age of puberty is   15 years. But, as already discussed, fifteen year is the age of majority only for marriage, dower and divorce. Thus for purpose of marriage, dower   and divorce, a Muslim who has not attained the age of puberty is minor.

  • Statutory law:

Statutory rules which regulates the age of majority of the Muslim, are given below:For purpose other than marriage, dower and divorce, the age of majority is governed by the Indian Majority Act, 1875. Under this Act the age of majority is eighteen years. A Muslim who has not attained the age of eighteen years, is a minor in respect of all the matters except marriage, dower and divorce.

Where a Muslim is within the supervision of a guardian appointed by the court of law, or is a Muslim whose property has been under the supervision of the Court of Wards, the age of majority for such Muslims is Twenty-one years. Therefore, except in matter of marriage, dower and divorce, a Muslim who is in the supervision of a guardian appointed by the court or is under protection of Court of Law, remains a minor so long as he or she not attained the age of twenty one years.

Conclusion

For purpose of marriage, dower and divorce, a Muslim become adult after attaining the age of puberty. But for filling a suit in a court of law, the minimum age is eighteen years even if the suit may relate to marriage, dower and divorce. A minor can’t file any suit relating to his marriage without the ‘next friend’.


Define Dower. What are its kinds? Discuss the nature and legal significance of Dower in Muslim Law.

According to K.P.Sexena, “Dower is a sum of money or any property promised by the husband to be paid o delivered to the wife as a mark of respect for the surrender of her person after the marriage contract but generally said to be consideration for marriage.”

DEFINITION:-Dower or mehr is a sum that becomes payable by the husband to the wife on marriage either by agreement between the parties or by the operation of law. It may either be prompt or deferred. According to Wilson, “dower is a consideration for the surrender of person by the wife.  It is the technical Anglo Mohammedan term for its equivalent ‘Mehr’ in Arabic. According to Amir Ali, “Dower is a consideration which belongs absolutely to the wife.” Mulla said, “Dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage.”

KINDS OF DOWER: – Dower may be divided into two kinds:-

1.Specified dower: -This kind of dower is further divided into a) Prompt dower b) deferred dower.

2.Customary Dower.

  1. i)SPECIFIED DOWER: – If the amount of dower is stated in the marriage contract, it is called the specified dower. Dower is settled by the parties to the marriage either before the marriage or at the time of the marriage or even after the marriage. If the parties to the marriage attained the age of puberty and are of sound mind they are competent to settle themselves the amount of dower. Guardian can settle the amount of dower provided that at the time of settlement of dower the boy is still minor or lunatic. Specified dower is again sub divided into:-

Prompt dower: – It is payable immediately after marriage on demand. Ameer Ali, a wife can refuse to enter into conjugal domicile of husband until the payment of the prompt dower. 2. Prompt dower does not become deferred after consummation of marriage. 3. It is only on the payment of the prompt dower the husband entitled to enforce the conjugal rights.4. Prompt dower is payable on demand.

Deferred dower:-It is payable on dissolution of marriage either by death or divorce. 2. The wife is not entitled to demand payment of deferred dower. 3. The widow may relinquish her dower at the time of her husband’s funeral by the recital of a formula. 4. The interest of the wife in the deferred dower is a vested one and not a contingent one.

  1. Customary Dover:-When the amount of the dower is not fixed in the marriage contract or even if the marriage has been contracted on the condition that she should not claim any dower, the wife is entitled to proper dower. The amount of proper dower is settled by female members of the father’s family such as her father’s sisters.

Determination of Proper Dower: – the proper dower is regulated with reference to the following factors:-

  1. i) Personal qualification of wife, her age, beauty, fortune, understanding and virtue.

Ii) Social position of her father’s family.

Iii) Dower given to her female paternal relations.

  1. IV) Economic condition of her husband.
  2. v) Circumstances of the time.

There is no limit to the maximum amount of proper dower under the Sunni Law but under theshia law the proper dower should not exceed the 500 dhirams.  This amount was fixed in the

Marriage of Fatima the Prophet daughter. In the shia Muslims it is therefore considered a point of

Honour not stipulate for a sum higher than the sum of dower fixed by the Prophet for his

Daughter Fatima.

Legal Significance of Dower in Muslim Law :-The following are the legal significance of Dower in Muslim Law:-

  1. The reason of its significance lies in the protection that it imparts to the wife against the arbitrary exercise of the power of divorce by the husband.
  2. Dower is a right of the wife is fundamental feature of marriage contract and has a pivotal place in the domestic relation affecting the mutual rights.
  3. According to Muslim Law on the dissolution of marriage the wife can claim her dower money. It may be higher or it may be low depends upon on the source of income of the husband.
  4. Legislature has given the power to make law providing that, the court will not be bound to award the amount of dower according to marriage deed (Sec. Of Oudh Law Act.1876). but only such sum as shall be reasonable with reference to the means of husband and the Iddat of the wife as held in a case of Adul Rehman v/s Inayati Bibi-1931.
  5.  Another Significance of Dower is to place a check on the capricious use of divorce on the part of husband.
  6. To impose an obligation on the husband as a mark of respect of the wife.
  7. To provide for her subsistence after the dissolution of her marriage so that she may not become helpless after the death of the husband or termination of marriage by divorce.