10 Feb 2023 4:25 AM GMT
LiveLaw brings to you a compilation of important judgments on Muslim Personal Law from the year 2022.Allahabad High CourtDivorced Muslim Woman Can Claim Maintenance From Husband U/S 125 CrPC As Long As She Doesn't Remarry: Allahabad High CourtCase title - Razia v. State of U.P. [CRIMINAL REVISION DEFECTIVE No. - 475 of 2008]Case Citation: 2022 LiveLaw (All) 179Reiterating the law laid down in...
LiveLaw brings to you a compilation of important judgments on Muslim Personal Law from the year 2022.
Allahabad High Court
Divorced Muslim Woman Can Claim Maintenance From Husband U/S 125 CrPC As Long As She Doesn't Remarry: Allahabad High Court
Case title - Razia v. State of U.P. [CRIMINAL REVISION DEFECTIVE No. - 475 of 2008]
Case Citation: 2022 LiveLaw (All) 179
Reiterating the law laid down in the case of Shabana Bano vs. Imran Khan, the Allahabad High Court has observed that a divorced Muslim woman shall be entitled to claim maintenance from her husband under Section 125 Cr.P.C. even after the expiry of the period of iddat as long as she does not remarry.
The Bench of Justice Karunesh Singh Pawar observed thus while allowing a revision plea filed against the judgment and order passed by the Additional Sessions Judge, Pratapgarh in May 2008, modifying the order of trial Court passed in January 2007.
Muslim Man Can't Marry Another Woman As Per Quran If He Isn't Capable Of Fostering First Wife, Children: Allahabad High Court
Case title - Azizurrahman v. Hamidunnisha @ Sharifunnisha [FIRST APPEAL No. - 700 of 2022]
Case Citation: 2022 LiveLaw (AB) 463
Stressing that as per the mandate of the Holy Quran, bigamy is not sanctified unless a man can do justice to orphans, the Allahabad High Court has observed that a Muslim man has to prevent himself to perform a second marriage if he is not capable of fostering his wife and children.
"The religious mandate of Sura 4 Ayat 3 (of Quran) is binding on all Muslim men which specifically mandates all Muslim men to deal justly with orphans and then they can marry women of their choice two or three or four but if a Muslim man fears that he will not be able to deal justly with them then only one. If a Muslim man is not capable of fostering his wife and children then as per the above mandate of the Holy Quran, he cannot marry the other woman," the Bench of Justice Surya Prakash Kesarwani and Justice Rajendra Kumar-IV observed.
Bombay High Court
Dissolution Of Marriage By Mutual Consent Permissible Under Muslim Personal Law: Bombay High Court
Case Title: Shaikh Taslim Shaikh Hakim vs The State Of Maharashtra And Another
Citation: 2022 LiveLaw (Bom) 121
Observing that a family court can dissolve the marriage of a Muslim couple by mutual consent under the Muslim Personal Law, the Bombay High Court quashed criminal proceeding against the husband based on the couple's amicable settlement in the Family Court petition.
The court noted that under Section 2 of the Muslim Personal Law (Shariat) Act 1937 all property, marriage, dissolution of marriage including mubaraat, maintenance, dower, guardianship gifts, trusts and trust properties concerning Muslims is governed by the Act.
Moreover, the Family Court was empowered to adjudicate a suit regarding validity of a marriage or a person's matrimonial status under section 7 (1)(b) of the Family Courts Act, the bench said.
Branding A Child As "Illegitimate" In Itself Amounts To Harassment: Bombay High Court
Case Title: Sudeep Suhas Kulkarni and Anr. v. Abbas Bahadur Dhanani
Citation: 2022 LiveLaw (Bom) 491
The Bombay High Court granted guardianship of a minor to her biological parents reiterating that welfare of the minor should be the paramount factor and it cannot be subordinated to the personal law of the minor.
Justice Manish Pitale observed that the parents’ plea cannot be rejected merely because Muslim law indicates that a child born outside marriage has no right to inheritance or descent.
Commenting on the usage of the term ‘illegitimate’ for such children, the court said, “for no fault of the child, it is branded illegitimate for the world at large, which in itself amounts to harassment to the child.”
Jammu & Kashmir & Ladakh High Court
Sec 125 CrPC | Muslim Husband Cannot Avoid His Liability To Maintain Unless Divorce Is Validly Pronounced And Properly Communicated : J&K&L High Court
Case Title: Mohammad Ali Bhat Vs Shafeeqa Bano & Ors
Citation : 2022 LiveLaw (JKL) 137
The Jammu and Kashmir and Ladakh High Court held that for a Muslim husband to avoid his liability to maintain his wife on the ground that he has divorced his wife, has not only to show that the divorce is validly pronounced in accordance with Muslim law but he has also to show that the said divorce has been communicated to the wife.
"It is clear that for a Muslim husband to avoid his liability to maintain his wife on the ground that he has divorced his wife, has not only to show that the divorce is validly pronounced in accordance with Muslim law but he has also to show that the said divorce has been communicated to the wife,", Justice Sanjay Dhar observed.
Jharkhand High Court
Muslim Woman Can Marry Person Of Her Choice After Attaining 15 Yrs Of Age: Jharkhand High Court Reiterates
Case Title: Md. Sonu @ Sonu v. The State of Jharkhand & Ors.
Citation: 2022 LiveLaw (Jha) 94
The Jharkhand High Court has held that there is a presumption under Muslim law that people attain puberty at the age of '15 years' and upon attaining the same, they are at liberty to marry persons of their choice without any interference of their guardians.
Kerala High Court
Magistrate Can Decide Validity Of Talaq In Wife's Petition Under DV Act If Husband Disputes Their Marital Status: Kerala High Court
Case Title: Shameena Siddique & Anr. v. M. Abubekhar Siddiq & Ors.
Citation: 2022 LiveLaw (Ker) 200
The High Court has ruled that a Magistrate is empowered to decide the pela of talaq raised by the husband in his wife's petition filed under the Domestic Violence Act if he disputes their marital status on that ground. Justice Kauser Edappagath thereby allowed a criminal revision petition holding that the finding of the appellate court that the Magistrate has no power to decide the validity of the talaq is wrong and only to be set aside.
Wife's Right To Maintenance U/S 125 CrPC Not Extinguished By Muslim Women Protection Act: Kerala High Court Reiterates
Case Title: Mujeeb Rahiman v. Thasleena & Anr.
Citation: 2022 LiveLaw (Ker) 218
In a significant judgment, the Court has reiterated that a divorced Muslim woman can seek maintenance under Section 125 of CrPC until she obtains relief under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act while adding that an order passed under Section 125 shall continue to remain in force until the amount payable under Section 3 of the Act is paid. It was also held that the wife cannot be allowed to circumvent the provisions of the Act by refusing the offer made by the husband to make the payment under Section 3 without any valid reason.
Muslim Law | Partition Deed Executed By Mother On Behalf Of Minor Children Acting As Their Guardian Not Valid: Kerala High Court
Case Title: C Abdul Aziz & Ors. v Chembukandy Safiya & Ors.
Citation: 2022 LiveLaw (Ker) 332
The Kerala High Court observed that a partition deed executed by a Muslim mother on behalf of her minor children acting as their guardian is not valid going by the precedents of the Supreme Court. The Division Bench of Justice P. B Suresh Kumar and Justice C.S Sudha observed that while there was nothing in the personal law prohibiting the same, it was bound by the precedents of the Supreme Court which have established that the Muslim mother cannot be the guardian of her minor child's person or property except for movable property.
Muslims Of All Sects Entitled To Offer Prayers In Any Mosque, Bury Their Dead In Public Burial Grounds: Kerala High Court
Case Title: Elappully Erancheri Jama-Ath Palli & Anr v. Mohammed Haneef & Ors.
Citation: 2022 LiveLaw (Ker) 358
The Kerala High Court ruled that every Muslim has the right to offer prayers in any mosque or bury their dead bodies in a public khabarsthan and that this cannot be obstructed merely because they belong to a different sect. A Division Bench of Justice S.V. Bhatti and Justice Basant Balaji was dealing with a petition filed by a wakf arguing that since some of its members had changed to a different sect, they were not entitled to offer prayers and buried their dead bodies in its property.
Talaq/Bigamy-Courts Have No Role In Restraining Parties From Invoking Their Personal Law Remedies: Kerala High Court
Case Title: Anuvarudeen v. Sabina
Citation: 2022 LiveLaw(Ker) 450
The Kerala High Court, while setting aside two orders restraining a Muslim man from invoking irrevocable Talaq and from conducting a second marriage, held that the Courts have no role in restraining the parties from invoking their personal law remedies as otherwise, it would be violative of their rights protected under Article 25 of the Constitution of India.
Division Bench consisting of Justice A. Muhamed Mustaque and Justice Sophy Thomas observed that the Court have no role in restraining the parties from invoking their personal law remedies as otherwise, it would be an encroachment of their constitutionally protected right.
Islamic Law Recognizes Muslim Woman's Right To Demand Divorce, Husband's Consent Not Essential: Kerala High Court
Case Title: XXXXX v. XXXXX
Citation: 2022 LiveLaw (Ker) 559
Observing that Islamic law recognises a Muslim woman's right to demand termination of marriage, the Kerala High Court has ruled that the will of the wife cannot be "related to the will of the husband" who may not be agreeing to the divorce.
Dismissing a review petition against a judgment wherein the court had recognized a Muslim woman's right to resort to Khula, the division bench of Justice A. Muhamed Mustaque and Justice C. S. Dias said: "In the absence of any mechanism in the country to recognize the termination of marriage at the instance of the wife when the husband refuses to give consent, the court can simply hold that khula can be invoked without the conjunction of the husband"
The court at the outset of the 59-page judgment said:
"This is a typical review portraying that Muslim women are subordinate to the will of their male counterparts. This review does not look innocuous at the instance of the appellant, but rather appears to have been fashioned and supported by clergies and the hegemonic masculinity of the Muslim community who are unable to digest the declaration of the right of Muslim women to resort to the extra-judicial divorce of khula, unilaterally".
Court Shall Not Surrender To Opinions Of Islamic Clergy Who Have No Legal Training: Kerala High Court
The Kerala High Court has said that Islamic clergy, who have no legal training or knowledge in legal sciences, cannot be relied upon by the court to decide on a point of law relating to the personal law applicable to the Muslim community.
"Ordinary scholars and the Islamic clergy, who have no formal legal training find it difficult to deduce Islamic law from its sources," said the division bench consisting of Justice A. Muhamed Mustaque and Justice C. S. Dias, while dismissing a revision petition challenging its decision on interpretation of Khula.
The bench said the courts are manned by trained legal minds and "shall not surrender" to the opinions of Islamic clergy, who has no legal training on the point of law.
Muslim Marriages Not Excluded From POCSO Act, Physical Relationship With Minor An Offence Irrespective Of Validity Of Marriage: Kerala High Court
Case Title: Khaledur Rahman v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 600
The Kerala High Court has ruled that a marriage between Muslims under personal law is not excluded from the sweep of the POCSO Act.
Justice Bechu Kurain Thomas said if one of the parties to the marriage is a minor, irrespective of the validity or otherwise of the marriage, offences under the POCSO Act will apply.
The court disagreed with the view taken by the Punjab and Haryana High Court in Javed v. State of Haryana (2022 LiveLaw (PH) 276); by Delhi High Court in Fija and Another v. State Govt. of NCT of Delhi and Others (2022 LiveLaw (Del) 793) and by Karnataka High Court in Mohammad Waseem Ahamad v. State (2022 LiveLaw (Kar) 436). "With respect to the learned Judges, I am unable to agree to the proposition laid down in those decisions that an offence under the POCSO Act will not get attracted against a Muslim marrying a minor," Justice Thomas said.
Parties' Standard Of Living 'Very High': Kerala HC Upholds ₹31.6 Lakh Compensation U/S 3 Muslim Women (Protection Of Rights On Divorce) Act
Case Title: Suhadath K.K. v. Shihab K.B. & Anr.
Citation: 2022 LiveLaw (Ker) 606
The Kerala High Court upheld the Magistrate Court's order granting an amount of Rs. 31,68,000/- as maintenance to a divorced woman under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
Single Judge Bench of Justice Kauser Edappagath observed that the parties hail from financially strong backgrounds and have a "very high" standard of living. It reiterated, "It is trite that the court while fixing the reasonable and fair provision of maintenance to be paid to a divorced woman shall keep in view the status of parties, capacity of the former husband to pay maintenance and also other attendant circumstances. The amount so fixed must be enough to take care of the future needs of a woman in the prevailing socio-economic...It has come out in evidence that both the petitioner and the 1st respondent are hailing from very financially well settled families and their standard of living was very high."
Punjab & Haryana High Court
Muslim Girl Over 15 Yrs Of Age Can Enter Into Marriage With Person Of Her Choice: Punjab & Haryana High Court
Case title - Gulam Deen and another v. State of Punjab and others
Citation : 2022 LiveLaw (PH) 157
The Punjab And Haryana High Court last week granted protection to a Muslim Girl (16 Year Old) who married a Muslim boy (21 year old) while noting that she is of Marriageable Age under Muslim Personal Law.
Minor Muslim Girl Over 15 Yrs Of Age Free To Marry Person Of Her Choice, Marriage Not Void Under Child Marriage Prohibition Act: P&H High Court
Case Title: Javed v. State of Haryana and Others
Citation: 2022 LiveLaw (PH) 276
The Punjab and Haryana High Court has reiterated that Muslim female aged 15 years and above can marry a person of her choice on her own willingness and consent, and such a marriage would not be void in terms of Section 12 of the Prohibition of Child Marriage Act 2006.