B.A. LL.B. (Five Years) Sem 6 Family Law II (Mohammedan Law and Indian Succession Act) 2020 Nov Question Paper with Solutions

Abdul Kadir v. Salima (1886) ILR 8 All 149. A husband sued his wife for restitution of conjugal rights, that is, for an order that she return to live with him. She refused because her prompt dower, the part payable on demand, was unpaid. Mahmood J. said that marriage among Muslims "is not a sacrament, but purely a civil contract". It is usually solemnised with verses from the Quran, but the law prescribes no service peculiar to it. Its "pillars", as of other contracts, are declaration and acceptance (ijab and qubul). The Court held that the husband's suit was maintainable. It upheld a decree for restitution on the condition that he first pay the prompt dower.

To "critically examine" the statement, an answer must test it in both directions. It must show how far marriage works like a contract, and where the comparison fails.

What "civil contract" means here

The phrase makes three claims.

1. Civil: the validity of the marriage does not depend on any religious rite or priest.
2. Contract: the marriage is created by the agreement of the parties, not by a sacred act.
3. Dissoluble: what agreement creates, the law allows to be ended.

4. Dower, the nearest thing to consideration. Mahmood J. described dower (mahr) as money or property promised by the husband "in consideration of the marriage". In that sense it resembles the price or consideration in a contract.

5. Stipulations. Parties to a contract may add terms. So may parties to a Muslim marriage, provided the terms are lawful and not against the nature of marriage. A wife may stipulate that she will live in her parents' town, or that her husband will not take another wife. She may also be given the power to divorce herself on stated events.

Buffatan Bibi v. Sheikh Abdul Salim AIR 1950 Cal 304. Before the marriage the parties signed a kabinnama, a written marriage agreement. The husband agreed to pay ten rupees a month if they disagreed and she lived at her father's house. If he failed to pay for six months in a row, she could divorce herself. Later he sued for restitution, and she said she had validly divorced herself. The Calcutta High Court held that a Muslim husband may delegate his power of divorce to his wife. The condition in the agreement was valid and binding on him. The wife had to prove that the condition had actually been broken. The case was sent back for the evidence on that point. The case shows the contract idea at its strongest: the parties wrote their own exit clause.

2. The law, not the parties, fixes most of the terms. In a commercial contract the parties settle their rights. In a marriage the law attaches the main rights the moment it is made. These are the wife's dower and maintenance, mutual rights of inheritance, the legitimacy of children, and the prohibitions of affinity. The parties cannot contract out of them. A term that the wife will get no maintenance, or that the husband will have no right to inherit, is void.

3. Dower is not true consideration. If dower were the price, a marriage without dower would fail for want of consideration. It does not. The law supplies proper dower where none is fixed. A marriage on the express condition of no dower is still valid, and dower is still due. Abdul Kadir itself says this.

4. No damages for breach. Breach of an ordinary contract gives a claim for damages. A failed marriage gives no such claim. The remedies are of a different kind: dower, maintenance, dissolution and custody.

5. Status, not just obligation. A marriage creates a status that third parties must respect. It makes children legitimate, gives rights of inheritance, and creates prohibitions that bind relatives. A contract binds only its parties.

Shamim Ara v. State of Uttar Pradesh (2002) 7 SCC 518. In a maintenance case the husband pleaded in his written statement that he had divorced his wife years earlier. He gave no evidence of any pronouncement. The Supreme Court held that a bare plea of a past talaq does not dissolve a marriage. The talaq must be proved. The Court also agreed with High Court views that talaq must be for a reasonable cause and preceded by an attempt at reconciliation. The husband's liability to maintain did not end.

Shayara Bano v. Union of India (2017) 9 SCC 1. A Constitution Bench, by a majority of three to two, set aside talaq-e-biddat, the triple talaq pronounced at once. Nariman J., for himself and Lalit J., held it manifestly arbitrary under Article 14. Kurian Joseph J. held that what is wrong in the Quran cannot be right in law. Parliament then passed the Muslim Women (Protection of Rights on Marriage) Act 2019. It makes such a pronouncement void and illegal (section 3) and punishable (section 4).

These decisions show that the "contract" cannot be ended on a whim. Law, equity and the Constitution govern how it ends.

A balanced view

Conclusion. The statement in Abdul Kadir v. Salima is right in what it was meant to say. A Muslim marriage is made by consent and needs no sacrament. It may carry stipulations, and it can be dissolved. Buffatan Bibi shows the parties shaping it by agreement. But it is not an ordinary contract. Dower is due without agreement, the main rights are fixed by law, and there are no damages for breach. Itwari, Shamim Ara and Shayara Bano, with the 2019 Act, show the law controlling how the contract is enforced and ended. The better description is a civil contract that creates a sacred and legal status.