Marriage and the law (Muslim): India
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Conjugal rights
...of Muslim women
From the archives of The Times of India 2010
HC relief for Muslim woman seeking conjugal rights
Swati Deshpande | TNN
Mumbai: It may have taken a 26-year-old woman to pave the way for other Muslim women to voice and seek their conjugal rights. Offering hope to scores of Muslim women separated or shunned by their husbands, the Bombay HC recently directed the family court to hear afresh the petition of a young woman seeking to restore her right to companionship and sexual relations within her marriage.
Zeenat Khan fought for almost a year in the family court at Bandra for her right to get back together with her husband of five years, only to have the door slammed on her face. The family court judge offered no reasoning or explanations, except that Mohammedan law does not allow a wife to make such an application.
Zeenat had married Ahmed, a Mahim resident, on December 30, 2005. Within a year, she had a baby boy. But she says Ahmed only visited her once at the hospital to ‘‘see the baby’s face’’ and then began demanding Rs 5 lakh but did not take her back home. His family too did not allow her to ‘‘enter the house.’’ She reported the ‘‘threats he gave to the police and in April 2009 finally approached the family court for a legal way out of her marital trouble. Zeenat moved the HC in February to challenge the ‘‘illegal and arbitrary order of the family court on the grounds that Islamic law scholars have written that a wife governed by Mohammedan law too is entitled to seek restitution of conjugal rights in court.’’ She relied on an authoritative book by Dr Tahir Mahmood, a former law commission member.
‘Maintenance’ for Muslim wives
Difference between Muslim and Hindu laws
‘No maintenance to Muslim woman under Hindu law’, July 11, 2018: The Times of India
Madhya Pradesh high court has ruled that maintenance under Hindu Marriage Act is substantive right of a wife but under Muslim law, a woman has the right to sue her husband for maintenance only if he neglects or refuses to maintain her without any lawful cause.
Justice Vandana Kasrekar overturned the order of a lower court, which had allowed application of a Muslim woman for interim maintenance under Section 24 of Hindu Marriage Act.
Referring to a Bombay HC order in the case of Shabbir Ahamed Sheikh, Kasrekar said a woman can sue for maintenance under Muslim law only if her husband neglects her or refuses to maintain her, while in Hindu Marriage Act it’s the “substantive right of a woman, which her status as wife automatically bestows on her”.
Marriage age: Muslims
15, if has attained puberty
Muslim girl can marry at 15 if she attains puberty: Delhi high court
PTI | Jun 5, 2012, 08.08PM IST
NEW DELHI: Ruling that a Muslim girl can marry as per her choice at the age of 15 years if she has attained puberty, the Delhi high court has held the marriage of a minor girl valid and allowed her to stay in her matrimonial house.
"This court notes that according to Mohammedan Law a girl can marry without the consent of her parents once she attains the age of puberty and she has the right to reside with her husband even if she is below the age of 18....," a bench of justices S Ravindra Bhat and S P Garg said.
Citing various Supreme Court judgements on the issue of minor Muslim girls' marriage, the bench said "In view of the above judgments, it is clear that a Muslim girl who has attained puberty i.e. 15 years can marry and such a marriage would not be a void marriage. However, she has the option of treating the marriage as voidable, at the time of her attaining the age of majority, i.e 18 years."
Accepting the 16-year-old girl's plea to allow her to stay in her matrimonial home, the bench has disposed of a habeas corpus petition filed by the girl's mother alleging that her daughter was kidnapped by a youth and forced into marriage in April last year.
The bench accepted the girl's statement she had left her parental home of her own will to marry the man of her choice and her husband should not be booked on the charge of kidnapping.
Meanwhile, to ascertain the girl's well being, the court has directed the couple and in-laws to appear before the Child Welfare Committee once in every six months till the girl attains majority.
"The Committee shall take necessary steps, including obtaining the necessary undertaking from the man(husband) in this regard. Subject to completion of these steps, the girl be allowed to live in her matrimonial home," the bench said.
The girl has been currently residing in Nirmal Chhaya, a government sponsored home for rehabilitation of poor and elderly women.
According to the habeas corpus petition filed by the girl's mother, after abducting the girl who had Rs 1.5 lakh on March 13, 2011, the man had telephoned her threatening to kidnap her other daughter if any legal action was taken against him.
The petitioner claimed that on March 19 last year she had also approached the Deputy Commissioner of Police and requested him to rescue her minor daughter from illegal detention.
As per the petition, on April 14, 2011 an FIR was registered with Gokalpuri police station in northeast Delhi alleging that the man had kidnapped her daughter.
The mother said police had not taken any action, forcing her to approach the high court.
During the hearing of her plea, the court had issued notice to police and subsequently police had produced the girl saying she had voluntarily gone with the man and married him.
Since then they have been staying as husband and wife, the police told the court.
On April 18, 2012 the girl had also told the court that she did not wish to go back to her parents and wanted to stay with her husband.
Meanwhile, she was kept in Nirmal Chhaya after her production before the Child Welfare Committee, which has stated that the girl was 15 years, 10 months and 23 days.
Punjab and Haryana HC: 2021
Ajay Sura, February 10, 2021: The Times of India
Muslim law allows minor girls to marry on reaching puberty: HC
Chandigarh:
Relying on the literature on Muslim marriages and various judgments by courts, the Punjab and Haryana high court has held that a Muslim girl who is less than18 years old and has attained puberty is at liberty to marry anyone as per Muslim personal law, reports Ajay Sura. Referring to Article195 from the book “Principles of Mohammedan Law” by Sir Dinshah Fardunji Mulla, the HC observed that a Muslim girl, on attaining the age of puberty, was competent to enter into a contract of marriage with a person of her choice.
Explaining “capacity for marriage” under Muslim Personal Law, Article 195 from Mulla’s book says, “Every Mohomedan (Muslim) of sound mind, who has attained puberty, may enter into a contract of marriage. Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians. A marriage of a Mohomedan who is (of) sound mind and has attained puberty is void if it is brought about without his consent.” According to the book, “Puberty is presumed, in the absence of evidence, on completion of the age of 15 years.”
Justice Alka Sarin passed this order while hearing a petition filed by a Muslim couple from Punjab. In this case, the petitioners — a 36-year-old man and a 17-yearold girl — had solemnised their marriage on January 21, 2021 as per Muslim ceremonies. It was the first marriage for both. They had sought directions for protection of life and liberty from their relatives, who are against the relationship.
The petitioners also contended that a Muslim boy or Muslim girl who has attained puberty is at liberty to marry anyone he or she likes and the guardian has no right to interfere.
After hearing their contentions, the judge observed that a Muslim girl is governed by Muslim Personal Law. The petitioners cannot be deprived of the fundamental rights provided by the Constitution merely because they have married against the wishes of their family members, the HC said. It directed the Mohali SSP to take appropriate action on their representation regarding protection of their lives and liberty.
Minors: Can marry, but can't sign agreement
The Gujarat HC has given legal sanction to the marriage of a minor Muslim girl who had eloped with her 21-year-old lover, citing an earlier judgment enabling a Muslim girl to marry when she reaches puberty .
But the couple's union has been jeopardised by their desperate attempt to fortify their case. Apart from solemnising their nikah, the couple had also signed a livein relationship “contract“.This bid to secure double protection has put in trouble all who helped the couple. So while the youth got the HC's protection when the girl's father alleged abduction, the court now has directed the police to investigate charges against the youth after the girl's father moved the HC demanding action against those involved in the preparation and notarising of the contract. The girl's father has contended that a minor cannot legally enter into any agreement.
Jainulabedin Ganji and the girl from Jamnagar eloped on November 9. The girl's father lodged a complaint against Ganji for abducting the girl. Ganji moved the HC to have the charges quashed on the grounds that an HC order permits a Muslim girl to marry , if she so chooses, when she reaches puberty .
On November 22, Justice J B Pardiwala directed police not to arrest the youth but allowed investigation.
To be doubly sure, the couple had sent a copy of their live-in relationship agreement to the girl's family which was accompanied by a notarised affidavit. Following this, the girl's father moved HC, which ordered a fresh probe.
Puberty, age of, and girl’s right to marry
April 22, 2018: The Times of India
“It cannot be ignored that the victim is a Muslim and as per Muslim law she attained the age of puberty at the age of 14 years and she got married after attaining the age of puberty,” a court said and acquitted the man accused of raping her.
On November 29, 2013, the girl’s father lodged a missing complaint with the police saying he suspected that his daughter, aged a little over 17 years, had been kidnapped by the accused, who was a resident of the same locality.
The contradiction before the court of Additional Sessions Judge Amit Kumar was that on December 6, 2013 the girl, along with the accused, went to a police station and showed photos of their marriage. Her date of birth was found to be July 30, 1996 and therefore she was a minor. She told police that she willingly went to Jammu with the accused and got married to him. She also refused to undergo medical tests. She was then sent to a shelter home for girls.
On April 21, 2014, however, a totally contrary complaint was received by the police when the girl claimed she was “abducted, raped and poisoned”. She claimed that the accused used a sedative-laced handkerchief to abduct her, then forcefully confined her in Jammu at his aunt’s house to rape her. She also claimed that the wedding pictures were clicked by the accused to misdirect the police.
“The accused kept me there for three days and raped me. I was in pain at that time. I requested the accused and his aunt to take me back to my parental home but they threatened to kill me,” her statement said.
The accused, on the other hand, said, “he was falsely implicated in the case at the instance of the girl’s parents as he was from a different religion”.
The court, however, opined that though she was a minor, she had “attained the age of discretion”. “The victim admittedly did not raise any alarm in the entire journey from Delhi to Jammu and from Jammu to Delhi. which shows that she went to Jammu of her own will and was neither forced nor enticed nor she was made unconscious by the accused,” the court observed. Calling her an “unreliable witness”, the court said she made these allegations after more than four months in April, 2014.
B
Ajay Sura, Dec 26, 2021: The Times of India
CHANDIGARH: Accepting the plea of a 17-year-old Muslim girl who got married to a Hindu boy against the wishes of her family and relatives, the Punjab and Haryana HC ordered the police to protect the couple. The court also made it clear that a Muslim girl on attaining puberty is at liberty to marry anyone she likes and the guardian has no right to interfere if the match is equal.
“The law is clear that the marriage of a Muslim girl is governed by the Muslim Personal Law. As per Article 195 from the book, ‘Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’, Petitioner No.1 (girl) being 17 years of age, is competent to enter into a contract of marriage with a person of her choice. Petitioner No. 2 (her partner) is stated to be about 33 years old. Thus, Petitioner No. 1 is of marriageable age as envisaged by Muslim Personal Law,” observed Justice Harnaresh Singh Gill.
Justice Gill observed, “The court cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed. Merely because the petitioners have got married against the wishes of their family members, they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution.”
The counsel for the petitioner contended that under Muslim law puberty and majority are one and the same, and that there is a presumption that a person attains majority at the age of 15 years. The counsel also contended that a Muslim boy or Muslim girl who attains puberty is at liberty to marry anyone he or she likes and their guardian has no right to interfere.
He said Article 195 from the book ‘Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla’ defines capacity for marriage — every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage.
Marriage annulment
Wilful denial of sex, including on first night
Denying sex to spouse on first night ground for marriage annulment: Delhi high court
PTI | Mar 24, 2012, 08.24PM IST
NEW DELHI: Wilful denial of sex, including that on the first night after wedding, by either of the spouse amounts to cruelty and can be a ground for dissolution of the marriage, the Delhi high court has ruled.
Justice Kailash Gambhir gave the verdict, upholding the lower court's decree of divorce to a man having a "sex-starved marriage" as his wife refused to have sexual intercourse with him on the wedding night and making him long for it for the subsequent five months, left her matrimonial home.
"In the present case, the testimony of the husband that the wife was never responsive and was like a dead wood when he had sexual intercourse with her remained unrebutted.
"It is not that the husband had sex with his wife only about 10-15 times from the date of his marriage within a period of five months, but the wife's cruel act of denying sex to the husband especially on the very first night and then not to actively participate in it even for the said limited period for which no contrary suggestion was given by the wife," the court said.
It cited various Supreme Court judgements on the issue and said "it is evident that wilful denial of sexual intercourse without reasonable cause would amount to cruelty."
Referring to the apex court's observation that "sex is the foundation of marriage and marriage without sex is an anathema," Justice Gambhir said, "Marriage without sex will be an insipid relation."
Re-conversion to wife’s original faith ground for dissolution
Wife can claim dissolution of marriage upon renunciation of Islam: HC
Saeed Khan,TNN | Oct 18, 2014 The Times of India
AHMEDABAD : A non-Muslim woman who converted to Islam for marriage can seek divorce from her Muslim husband only on basis of re-conversion to her original faith, said Gujarat high court.
The HC further said that such divorce petition cannot be turned down by family court without conducting proper trial because section 4 of the Dissolution of Muslim Marriage Act does not come in between.
According to case details, Vadodara-based Christian girl Shinu married a Muslim boy Javed Mansuri in February 2003 by entering into Nikah as per the Muslim marriage laws. Shinu complained of ill-treatment from her husband and renounced Islam and re-converted to Christianity in March 2012. Immediately, she moved a family court and sought divorce decree on the ground that her husband was not maintaining her as well as her renunciation of Islam leaves her Nikah null and void. The husband also moved the court questioning her re-conversion and asserting that section 4 of the law prohibits the automatic dissolution of marriage.
In August 2013, a family court in Vadodara rejected Shinu's application saying that she had alleged cruelty but not sought dissolution of marriage on any of the grounds of section 2 of the Act - desertion and non-maintenance of wife. The court held that section 4 of the Act - which prohibits automatic dissolution of marriage at woman's renunciation of Islam - would not apply in this case because Shinu was a Christian, who became a Muslim and then re-embraced her original faith.
The rejection from family court brought Shinu to the high court, which cancelled lower court's order and sent the matter back for adjudication after recording evidence. The HC said that Shinu had to establish at any rate establish necessary facts by supplying evidence that she was a Christian first and now she has renounced Islam. She then will have to show legal fall out of her re-conversion. She does not have to seek divorce by raising the ground of desertion and husband's default in maintaining her.
