Property right
Property right of Muslim women has two distinct elements, namely the customs of ancient Arabia and the rules laid down by the Quran and Prophet Mohammad. Under the customary law of pre-Islamic Arabia the women in whatever capacity were excluded from inheritance. The Quran made quite a considerable change of the position.
Right of a wife
A wife get one eighth if there is child and one fourth if there is no child from the estate of her husband.
Right of a mother
Mother gets from the estate of her son one sixth when there is child of her son or when there are two or more brothers or sisters or one brother and one sister of her son and one third when there is no child and not more than one brother or sister of her son.
Right of a sister
When the sister is one she gets half where two or more sisters they get two third. When there is one more daughter and sister’s daughters get double.[2]
Marriage
Marriage in Islam is a contract and every Muslim of sound mind who has attained at the age of puberty may enter into a contract of marriage. Puberty is presumed in the absence of evidence. No one can lead in to contract herself during her minority and such marriage would be held to be void.
Allah Diwaya v. Mst Kmmon Mai[3] By this case it is held that if any Muslim marriage to is held before attaining puberty is void. And any consummation having taken place before the minor had attained puberty it had not destroy her right to repudiate the marriage.
In this case it is also briefly discussed that the important requirements of a marriage to avoid the marriage of minor. By the reference of Syed Amir Ali in the 5th edition the second volume of his book on Muhammadan Law[4] while dealing with the question of the capacity to contract a valid marriage says of page 273:
“As a general rule it may be remarked that under the Islamic Law the capacity to contract of a valid marriage rests on the same basis and depends on the same condition as the capacity to enter in to any other contract.
He then enumerates the following conditions: (i) In the first place the parties must be able to understand the nature of their act, if either of them is non compos mentis or is incapable of understanding the nature of the contract it is void, (ii) In the second place they must be adults and , (iii) In the third place they must be acting of their free will and not under compulsion.”
Then he has quoted from Fatawai Alamgiri Volume I page 377:
5“Among the conditions which are requisite for the validity of a contract of marriage are understanding, puberty, and freedom in the contracting parties that whilst the first requisites is essentially necessary for the validity of the marriage as a marriage cannot be contracted by a majnunor a boy without understanding the other two conditions are required only to give operation to the contract as the marriage contracted by a (minor) boy of understanding is dependent for its operation on the consent of his guardian.”
Registration of marriage
Muslim family law ordinance 1961 made the registration of marriage compulsory and enjoyed a kazi on pain and punishment for marrying any one so that the marriage may be registered. Registration of a marriage and signature of the parties in kabinnama are essential for proving marriage. Kabinnama is a form upon which all the information of the parties are written down with signature and witnesses after getting registration it bears evidentiary value of marriage. No amount of oral evidence can cure the deficiency and no amount of oral evidence is sufficient to prove marriage when plaintiff fails to prove the kabinnama according to law.
Khodeja Begum & others v. sadeq sarkar,[5] The fact of the case the plaintiff submitted a kabinnama to prove the marriage. But in that kabinnama there is no signature of the bride this is why it is very material. That the signature of the parties should be present in the copy. And it is most important document of proof of marriage between the petitioner and the opposite party. But the plaintiff-opposite party did not prove the kabinnama.
In this case it is held that the Muslim marriage is a socio religious contract and the signatures of both the parties are very essential to prove the contract of marriage written in form of kabinnama. In such circumstances no amount of oral evidence will be sufficient to prove the marriage.
Dower
Dower is one of the essential parts of a Muslim marriage. Dower is a promise to be paid by husband to wife. Dower is sum of money or other property which wife is entitled to receive from husband in consideration of marriage.
The amount of dower may be fixed either before or at the time of marriage or after marriage. The amount of dower is generally split into two parts “Prompt dower” which is payable immediately on demand by wife. Mahmuda Khatun v. Abu Sayed[6] in this case it is held that a wife under the Mohammedan Law is entitle to have her prompt dower paid to her husband she can refuse to live with her husband and to give her company as long as the prompt dower remains unpaid. And “Deferred dower” Which is payable only on dissolution of marriage by death or divorce.
Divorce
The most common mode of divorce by man prevalent in Bangladesh is Bedai Talak (Irrevocable divorce) which take effect immediately without requirement of communication to wife for its validity The husband pronounces three times that he divorce his wife and with the third pronouncement the talak becomes irrevocable. With the introduction of the Muslim family law ordinance 1961 the position has changed. Section 7 of the ordinance provides that divorce given by the husband shall not take effect until the husband has given notice to the wife.
Divorce notice shall be sent to the chairman of local administrative unit as union parishad and ninety days have to elapse after issuance of the said notice and within the stipulated period the husband can revoke the divorce. The husband is also to give a copy of the said notice to the wife. The chairman on receipt of the notice would constitute arbitration council for effecting a re- conciliation which if successful would render the divorce in-effective. It is an offence not notifies the chairman about xercise of divorce by the husband. The provision of section 7 of the ordinance apply mutatis mutandis in case of divorce exercised by the wife and the divorce does not take effect un less notice thereof is given to the chairman and 90 days have elapsed thereafter.[7]
The husband can delegate his power of divorce unconditionally or with condition and that is called” Talak-e-Tawfecz”. When condition is stipulated the wife can divorce her husband in the happening of that condition. Now the divorce parties can remarry without the formality of the marriage with third party (see 6) Muslim family laws ordinance 1961. .Marriage can be dissolved by agreement between the husband and wife and if may take the force of Khula or Mubarrat. In the Khula the marriage is dissolved by any agreement between the parties for a consideration paid or to be paid by the wife to the husband, it being necessary condition that the desire to separate should come from the wife. Where devisor to separation is mutual, it is said to be Mubarat.
A Muslim female does not have the right to divorce in the way a male has but she could seek judicial divorce on grounds permitted by Muslim law
A wife is entitled to obtain a judicial divorce on neglect to failure of the husband to provide maintenance for two years. But if the wife refuses herself to her husband without any lawful excuse and deserts her husband or otherwise willfully fails to perform her marital duties. She has no right to claim maintenance and cannot obtain a decree for dissolution of marriage one the ground of nonpayment of maintenance.
Maintenance
The Arabic equivalent of “maintenance” is Nafqah which literally means “what a person spend over his family.” In legal sense maintenance signifies and includes three things: i) food, ii) clothing, and iii) lodging. Fatawai Alamgiri vol.1, p.732: maintenance comprehends food , raiment and lodging, though in common parlance if is limited to the first.[8]
Maintenance means and includes all the expenses of the wife provided by the husband as per the terms and condition of the family law. In according to the Muslim law the father is bound to maintain his daughter until she is marriage. But a father is not bound to maintain a daughter who is capable of being maintained out of her own property. A Muslim mother is entitled to maintenance from her son. If she is poor. A Muslim husband is bound to maintain his wife if the wife remains faithful to him and obeys his reasonable orders. If the wife refuse herself to her husband without any lawful excuse and deserts her husband or otherwise willfully fails to perform her marital obligations she has no right to claim maintenance form her husband.
Majiba Khatun Bibi v. Paghalu Mahommad[9] In this case it is held that if the wife refused to go back to her husband’s house without any sufficient cause. Where the husband attempt to take her back. In Ameer Ali’s Mahammadan Law volume II 5th edition 407[10] it has observed follows:
“The right of the wife to maintenance is subject to the condition that she is not refracy tury or dose not refuses to live with her husband without law full cause.”
But if the wife refuses to perform her marital obligation on the alleged of the husband to pay the prompt dower the husband will not be absolved of his liability to maintain his wife.
A Muslim woman in the event of divorce is entitled to maintenance by the husband till the expiry of the period of Iddat. A husband maintains wife to the best of his ability so long the relationship remains good .But if the relationship is estranged the condition of the wife is very difficult.
Guardianship of children
The term “guardian” is define in the Guardians and Wards Act as a minor person having the care of the person of a minor pr of his property, or of both his person and his property and no doubt the individual who has by law the right and duty of disposing of a boy or a girl in marriage may be said to have , for that limited purpose, the care of his or her person.[11]
In Hanafi law mother retains custody until age seven for doys or nine for girls. Mother is entitle only to the custody of the person of her minor child up to certain age according to the sex of the child. But she is not the natural guardian. A mother may lose custody of her children particularly her daughter. If she re-marry a stranger, the father is the legal guardian of his children or if he is dead his executor is the legal guardian of a children. Mohammd sidiq v. Sadiq Safoora[12] In this case it is held that a Muslim father is the legal and the natural guardian of his children until they attain the age of twenty one under the general law of the land, namely, Majority Act 1875. The mother has the right of custody or hizanat up to the age of 7 years in the case of male child and upto the age of puberty in case of female child. Even during this the right of hizanat or custody is to be exercised under the supervision & control of the father who is responsible for the maintenance of the children. The right of hizanat can be lost under certain circumstances.
