¹ There are four surviving schools of Sunni (Orthodox) Islamic law: Hanafi, Maliki, Shafi, and Hanbali. The majority of the Muslims of the Indian Subcontinent are Hanafis. Shia (Sectarian) Muslims constitute an important minority of the Muslim population of the Subcontinent.

² A judicial divorce might also be obtained by the wife if the husband took an oath of zihar and failed to retract it. Such a procedure is virtually unknown in the Subcontinent. (See: Fyzee, A. A. A., Outlines of Muhammadan Law (Delhi: Oxford University Press, 1974), p. 162.)Google Scholar

³ See: Carroll, Lucy, ‘The Muslim Family Laws Ordinance, 1961: Provisions and Procedures. A Reference Paper for Current Research,’ Contributions to Indian Sociology (NS), 13 (1979): 117–43.CrossRefGoogle Scholar

⁴ See: Suroj Mia v. Abdul Majid (All India Reporter [hereafter abbreviated A.I.R.] 1953 Tripura 6).Google Scholar

⁵ As was clearly, and quite properly, held by the Dacca High Court in Aklima Khatun v. Mahibur Rahman (All Pakistan Legal Decisions [hereafter abbreviated P.L.D.] 1963 Dacca 602). This is the only reported case involving an instance of completely unconditional delegation to a wife of the right to exercise talaq on behalf of her husband that I have found.Google Scholar

⁶ Statutes enacted prior to Partition in 1947 are applicable in the present states of India, Pakistan, and Bangladesh (unless, of course, repealed or amended by the governments of these independent states).Google Scholar

⁷ It is worth mentioning that marriage and divorce are excluded from the provisions of the Indian Majority Act, 1875, by Section 2 which provides: ‘Nothing herein contained shall affect the capacity of any person to act in the following matters, namely, marriage, dower, divorce and adoption.’ Capacity to contract in these matters is determined, in the case of Muslims, by reference to Muslim law; according to Muslim law majority is reached on the attainment of puberty or the completion of fifteen years.Google Scholar (See: Mst. Fatima Khatun v. Fazlal Karim Mea, A.I.R. 1928 Calcutta303.) Further, subject to the exception noted below, contracts relating to marriage and allied matters entered into by guardians on behalf of minors are binding upon the minors and continue to be so after they have come of age.Google Scholar (See: Marfatali Mirja v. Jabedannessa Bibi, A.I.R. 1941 Calcutta657.)Google Scholar The one exception to this general statement concerns the ‘option of puberty,’ which may be exercised in certain circumstances. (See: Carroll, Lucy, ‘Muslim Family Law in South Asia: The Right to Avoid an Arranged Marriage Contracted During Minority,’ Journal of the Indian Law Institute, forthcoming.) However, exercise of the option of puberty annuls the (unconsummated) marriage, which is quite a different thing from accepting the marriage and arguing that the terms of the marriage contract are not binding because of minority at the time of contraction, a contention put forward, and rightly rejected, in the Marfatali Mirja case.Google Scholar

⁸ In this case, however, the Court held that the agreement between the spouses had been executed as a means of compromising a suit for restitution of conjugal rights and the wife's surrender of her defences in that suit constituted sufficient consideration to validate the contract.

⁹ The original document executed at the time of the marriage was not registered and was lost. The document relied upon by the wife was executed and registered about five years after the marriage and one of the arguments raised on behalf of the husband was that such a post-nuptial delegation of talaq was void. The provisions of the Indian Contract Act and the question of consideration were apparently not argued. The Court, quite properly, observed that most of the examples of talaq-i-tafwid found in the classical texts concern post-nuptial delegations and held the agreement and the delegation valid.

¹⁰ Since the wife's pronouncement of talaq under the delegated right to do so, is regarded as, and takes effect as, a pronouncement of divorce by the husband, the wife is not divorcing her husband or repudiating her husband, but divorcing herself, repudiating herself, on behalf of her husband. Thus the expression used in this document, ‘talaq or repudiate your person.’ In Hanafi law a triple talaq is immediately effective and irrevocable.

¹¹ Again this was a post-nuptial agreement and the Subordinate Judge had held that it was, therefore, without consideration and void. He also held that it was void for reason of being a contract in restraint of marriage. These findings have reference to the Indian Contract Act, Sections 25 and 26. The High Court reversed the lower appellate Court on both these points.

¹² This is the situation in India. In Pakistan/Bangladesh non-payment of prompt dower is a legal reason for the wife to refuse to live with her husband even when the marriage has been consummated. (Mst. Rahim Jan v. Muhammad, P.L.D. 1955 Lahore 122.)Google Scholar

¹³ This was the position until 1960 in India and until 1961 in Pakistan/ Bangladesh. In Itwari v. Smt. Asghari (A.I.R. 1960 Allahabad 684) it was held that in the changed social conditions of modern India and ‘in the absence of a cogent explanation’ for his action, the Court will presume that the marrying of a second wife constitutes legal cruelty to the first. ‘Today the importing of a second wife into the household ordinarily means a stinging insult to the first. It leads to the asking of awkward questions [,] the raising of unsympathetic eyebrows [,] and the pointing of derisive fingers at the first wife who is automatically degraded by society.’ In this case the fact that the husband had taken a second wife was held to involve sufficient cruelty toward the first wife as to entitle her to live apart from him and his suit for restitution of conjugal rights was dismissed. In Pakistan and Bangladesh the Muslim Family Laws Ordinance, 1961, provides that a man already married shall not contract a second or subsequent marriage except with the previous permission in writing of the Arbitration Council. A marriage contracted in violation of this provision is nonetheless valid, although a polygamous marriage in these circumstances entitles the previous wife (or wives) to judicial divorce under the Dissolution of Muslim Marriages Act as amended by the Ordinance. It would probably also entitle her to resist her husband's suit for restitution of conjugal rights and to claim separate maintenance if she choose not to pursue her right of suing for divorce. If the polygamous marriage were contracted either before 1961 or with the requisite permission, the Pakistani/Bangladeshi wife would not be entitled to raise a plea of cruelty (as could her Indian sister after the Itwari decision), and the fact that her husband had married a second wife in such circumstances would not, of itself, constitute a legal reason for her to refuse to reside with him. (See: Mst. Resham Bibi v. Muhammad Shafi, P.L.D. 1967 Azad Jammu and Kashmir 32.) Although I am basically concerned in this essay with the law applicable in civil cases, for the sake of completeness it may be noted that since 1949 in India (although not in Pakistan or Bangladesh) the fact that the husband has married another wife or keeps a mistress will constitute a ‘just ground’ for the wife's refusal to live with her husband in the context of procedings for maintenance under the Criminal Procedure Code. (Criminal Procedure Code [Amendment] Act, 1949, section 2; Code of Criminal Procedure, 1974, section 125 (3).)Google Scholar See for example: Mohamed Haneffa v. Mariam Bi, A.I.R. 1969 Madras414. See also: Lucy Carroll, ‘Muslim Family Law in South Asia: Important Decisions Regarding Maintenance for Wives and Ex-Wives’, Islamic C.L.Q., forthcoming.Google Scholar

¹⁴ This statement represents the situation in India to the present day; and in Pakistan/ Bangladesh until 1966. Decisions of the Lahore High Court and the Pakistan Supreme Court in 1966, 1968, and 1972 have re-interpreted the Hanafi law in regard to past maintenance with the result that past maintenance is now recoverable (subject to limitation). These decisions would probably be followed in Bangladesh. (See: Sardar Muhammad v. Mst. Nasima Bibi, P.L.D. 1966 Lahore 703; Rashid Ahmad Khan v. Mst. Nasim Ara, P.L.D. 1968 Lahore 93; and Muhammad Nawaz v. Mst. Khurshid Begum, P.L.D. 1972 Supreme Court 302.) See also: Lucy Carroll, ‘Muslim Family Law in South Asia: Important Decisions Regarding Maintenance for Wives and Ex-Wives’, loc. cit.Google Scholar

¹⁵ However, provision for maintenance following divorce (alimony) can be contracted; see below. Further, it should be noted that the divorced Indian wife in impecunious circumstances and unable to support herself may now claim maintenance under the (new) Code of Criminal Procedure, 1974, section 125. The Indian Supreme Court has recently held that this provision applies to Muslim divorced wives. (Bai Tahira v. Ali Hussain Fissalli Chothia, A.I.R. 1979 Supreme Court 362.) See: Lucy Carroll, ‘Muslim Family Law in South Asia: Important Decisions Regarding Maintenance for Wives and Ex-Wives’, loc. cit.Google Scholar

¹⁶ As a result of the Indian amendment to the Criminal Procedure Code in 1949 and the decision of the Allahabad High Court in 1960 (Itwari v. Smt. Asghari, A.I.R. 1960 Allahabad 684) this statement has somewhat greater relevance to the Pakistani or Bangladeshi wife than to an Indian wife. The advantage to an Indian wife of a stipulation for separate residence and maintenance in her marriage contract would lie, for instance, in the fact that if she left the conjugal residence as a consequence of her husband's remarriage and subsequently sought separate maintenance under the Criminal Procedure Code, she would only be entitled to maintenance either from the date of the Court order or from the date of her application; if she did not institute proceedings immediately, she would forfeit arrears of maintenance. If her claim for separate maintenance were based on the terms of her marriage contract, arrears would be recoverable from the date she left the husband's house.Google Scholar

¹⁷ See below.

¹⁸ The contention that the agreement was void for lack of consideration was also mooted and rejected by the Court: ‘The defendant is bound to maintain his wife during the subsistence of the marriage. So long as the right to maintenance lasts, the contract in question subsists and it cannot be treated as devoid of consideration.’

¹⁹ Compare with the Indian situation, Itwari v. Smt. Asghari (A.I.R. 1960 Allahabad 684), and Mohamed Haneffa v. Mariam Bi (A.I.R. 1969 Madras 414). See above fns 13 and 15.Google Scholar

²⁰ Idda is the period following a divorce during which the husband is obliged to support his ex-wife and the ex-wife is prohibited from remarrying. The period of idda is three months or, if the wife is pregnant at the time of the divorce, until delivery.

²¹ The husband alleged that she had gone on a visit to her parents’ house and that while staying there she had ‘fallen under the influence’ of another man.

²² A similar confusion is to be found in Ahmed Ali v. Sabha Khatun Bibi (P.L.D. 1952 Dacca 385). The terms of the contract in this case read: (1) I shall keep my wife in parda and privacy and teach her all the duties incumbent according to Shariat and guide her in accordance therewith. If I oppress her wrongfully she will be entitled to reside at her father's house and realize a maintenance charge from me at the rate of Rs 7 per month. (2) I shall not contract marriages of any kind whatsoever without the consent of the wife unless she happens to be either barren or perpetually ill. If the said wife be in need of going to or coming back from her father's residence I shall send her there and bring her back at my own expense. (3) If I am to take a remission of any portion of the dower money of the wife, I shall do it in the presence of her near relations. The remission obtained in the absence (of near relations) will not be tenable before law Courts. (4) If I do not give the wife her maintenance for two years [,] three talak-i-bain (irrevocable) will take effect on the wife herself. Although this obviously is an example of a suspended talaq rather than a case of a delegated right of talaq to the wife, and although this sanction is only attached to the fourth stipulation in the contract, the Court interpreted the document as establishing that ‘the husband did give a power to his wife to divorce herself on breach of any of the conditions in the kabinnama [marriage contract].’ On a clear reading of the contract, clause (1) contains an implied stipulation that the husband would not ‘wrongfully oppress’ the wife, enforced by entitling the wife to separate residence and maintenance in such an event. Clause (2) stipulates, inter alia, that the husband will not marry a second wife without the consent of the first wife, unless the first wife prove either barren or chronically ill, but there is no sanction provided to enforce this condition; however, it could possibly be argued that marrying a second wife in contravention of clause (2) would constitute ‘wrongful oppression’ under clause (1) and thus entitle the wife to separate residence and maintenance. Clause (3) concerns the conditions under which a remission of dower can be obtained by the husband, sanctioned by the specification that a remission obtained otherwise will not be tenable in any Court. And clause (4) contains a stipulation as to maintenance, enforced by the suspended talaq which would come automatically into operation in case of a breach of the stipulation. If the husband ‘wrongfully oppressed’ the wife, she would be entitled, under clause (1), to receive maintenance in the house of her father; if this maintenance were not paid for the two years specified in clause (4), the suspended talaq would operate to dissolve the marriage. In any other situation, however, the maintenance referred to in clause (4) would only comprehend maintenance to which the wife was entitled, and which the husband was obliged to pay, under Muslim law. (See below.)

²³ Note, however, the right to collect arrears of maintenance conferred on the Hanafi wife by recent decisions of the Pakistan Courts; see above, fn. 14.

²⁴ Note, however, the recent decision of the Supreme Court of India holding that the provisions of the new Criminal Procedure Code concerning maintenance for a divorced wife unable to support herself apply to Muslim divorcees. See above, fn. 15.

²⁵ The marriage contract contained another clause entitling the wife to separate maintenance in the house of her father if she were ‘wrongfully oppressed’ by her husband. (See above, fn. 22.) If the wife had been able to prove such oppression and that it was for this reason that she had left the house of her husband, the contract would have conferred upon her a legal reason for refusing to live with her husband. However, the wife raised no such contention; indeed, the Court observed that there was ‘no suggestion in this case that she was living apart from her husband because of any ill-treatment.’

²⁶ It may be noted that Section 2(ii) of the Dissolution of Muslim Marriages Act provides that the wife may sue for divorce on the ground ‘that the husband has neglected or has failed to provide for her maintenance for a period of two years.’ This provision has been (generally) interpreted as applying only to a situation where the husband is under a legal obligation to maintain the wife, which he is not if she absents herself from the conjugal domicile without either the husband's permission or a lawful reason. Although I have not found a reported case involving such a situation, I think it is clear that if the marriage contract contained a stipulation entitling the wife to separate maintenance in the event of dissension between the couple or of the husband's marriage with another wife and, such dissension or remarriage having been proved, it was further proved that this maintenance had not been paid for the statutory period of two years, the wife would be entitled to sue for divorce on this ground under the Dissolution of Muslim Marriages Act. The marriage contract would be regarded as giving the wife a legal reason for not residing with her husband and as putting the husband under a legal obligation to pay the separate maintenance. If the wife had not been empowered to dissolve the marriage by talaq-i-tafwid in case of such default, she would be entitled to sue for judicial divorce under the Act.

²⁷ The idda period (see above, fn. 20). The purpose of the idda is to establish whether the wife is pregnant and to prevent confusion of paternity. Note that the divorced Muslim wife in India now has rights to maintenance under the Criminal Procedure Code. (See above, fn. 15.)

²⁸ But the right of separate residence and maintenance in such a contingency could have been contracted. See: Sabed Khan v. Bilatunnissa Bibi (A.I.R. 1919 Calcutta 825), where the contract contained terms allowing the wife to leave her husband's house and reside elsewhere on two contingencies: (1) ill-treatment by the husband or any member of his family; and (2) differences or disagreements with the husband or any member of his family. The contract was upheld and when the husband sued for restitution of conjugal rights, it was held that although he was entitled to his conjugal rights, they would have to be exercised in the house where the wife was residing with her parents and the husband could not compel his wife to rejoin him in his house. In reply to the argument that cruelty of such a degree as to entitle the wife to resist her husband's suit recalling her to the conjugal residence had not been established, the Court observed: ‘But…the defence is based not on cruelty itself but on ill-treatment as a breach of a condition of the kabinnama [marriage contract], which entitled her to leave her husband's house and permitted her to go to her parents.’Google Scholar

²⁹ See: Mst. Jani v. Muhammad Khan, A.I.R. 1970 Jammu and Kashmir 154 and A.I.R. 1971 J. and K. 40; and Muhammad Khan v. Mst. Shahmali, A.I.R. 1972 J. and K. 8.

³⁰ For the Oudh case, see above, pp. 288–289.Google Scholar

³¹ The dower is usually divided into two portions, one (the prompt dower) payable on demand and the second (the deferred dower) payable on termination of the marriage by death or divorce.

³² The Court referred in this context to the stipulations that the husband would do nothing without the permission of his wife and that if he did do anything without her permission, she would be entitled to exercise a delegated right of talaq.

³³ Delhi: Oxford University Press, 1974, 4th edn, pp. 474–6.Google Scholar

³⁴ If it is signed before the ceremony, the marriage itself constitutes ‘consideration’ and there is no possibility of the contract being impugned on grounds of lack of consideration. Further, on general principles of prudence it is advisable to secure the terms of the marriage contract before actually solemnizing the union.

³⁵ There is, however, one case which may indicate that the Indian Courts will come to the position of allowing the Muslim wife judicial dissolution of her marriage on grounds of irreparable breakdown. See: Aboobacker Haji v. Mamu Koya, 1971 Kerala Law Times 663, in which the leading Pakistan case on judicial Khul' is cited.Google Scholar

³⁶ For a discussion of judicial khul' see: Hinchcliffe, Doreen, ‘Divorce in Pakistan: Judicial Reform,’ Journal of Islamic and Comparative Law, II (1968): 13–25;Google Scholarand Carroll, Lucy, ‘The Muslim Family Laws Ordinance,’ pp. 117–43, loc. cit.Google Scholar

³⁷ Provision for alimony was probably not included because of the decision of the Bombay High Court (Bachelor, J.) in the case of Bai Fatima v. Ali Mahomed Aiyeb (see above, p. 288). As noted above, that decision has been strongly dissented from by other Courts of the Subcontinent and I would venture the opinion that the High Court of Bombay would overrule its previous decision if the matter came before it now.Google Scholar

³⁸ At one place Professor Fyzee describes this agreement as ‘an Indian form in common use’; at another place he reports that it ‘is in fairly wide use among certain educated families in Bombay; and… is not well known outside.’ (Outlines, pp. 158 fn., 474.)Google Scholar

³⁹ See the contract in Mst. Sadiqa Begum v. Ata Ullah (A.I.R. 1933 Lahore 885), in which the husband agreed that should he take a second wife, the first wife would be entitled either to exercise the delegated power of talaq or to reside separately and receive a monthly allowance of Rs 75.

⁴⁰ Subject to the right of the Indian divorced wife who is unable to maintain herself to obtain maintenance from her ex-husband under section 125 of the new Code of Criminal Procedure, 1974. See above fn. 15.Google Scholar

⁴¹ The Pakistan Commission on Marriage and Family Laws, 1956, recommended that the Court should be authorized to order a husband to maintain his divorced wife until death or remarriage, because the ‘large number of middle-aged women who are being divorced without rhyme or reason should not be thrown out on the street without a roof over their heads and without any means of sustaining themselves.’ (Report, in The Gazette of Pakistan [Extraordinary], June 20, 1956, p. 1215.) The Muslim Family Laws Ordinance did not implement this recommendation, and may in fact have exacerbated the situation by introducing restrictions on polygamy.Google Scholar

⁴² This Act may be found in The Bengal Code, 2nd edn, 1890, vol. II, pp. 256–65.Google Scholar

⁴³ The Orissa Act is reproduced in Mahmood, Tahir, Family Law Reform in the Muslim World (Bombay: N. M. Tripathi, Ltd 1972), pp. 184–91. I have been unable to locate a copy of the Assam statute; I assume it closely parallels the Orissa Act.Google Scholar

⁴⁴ Note that the area of present-day Bangladesh was included within the region to which the 1876 Act applied; the Act continued in force in Bangladesh until superseded by the Ordinance of 1961 (in regard to registration of marriages) and repealed and replaced by the (Bangladesh) Registration of Muslim Marriages and Divorces Act of 1974.Google Scholar

⁴⁵ See: ‘Form II, Form of Nikahnama,’ reproduced in Ali, Ameer, Muhammadan Law, 7th edn (Lahore: Law Publishing Co., 1976), vol. II, pp. 551–3.Google Scholar

⁴⁶ This provision is curious as I am aware of no manner, under the classical law, in which the husband's right of dissolving the marriage by talaq may legally be curtailed. There is no reported case-law on the matter, but it would seem probable, on analogy with other contractual stipulations protecting the position of the Muslim wife that have been upheld by the South Asian Courts, that a Muslim husband could stipulate in the marriage contract, for instance, that he would not talaq his wife without her consent and that any talaq pronounced without her consent would not be tenable before the Court. It would be extremely interesting to know whether any stipulations under this particular head have been included in marriages registered according to the provisions of the Muslim Family Laws Ordinance.

⁴⁷ It is further customary for a copy of the marriage contract to remain with the wife or her family. Inquiries concerning the contents of such contracts could be included in any survey of a particular community.

⁴⁸ And should anyone undertake such an investigation, I would be most grateful indeed to be informed of the results of their research.