Islamic Family Law: Dower, Marriage, Paternity, and Guardianship

1. Dower
The dower is the financial gain which the wife is entitled to receive from her husband by the virtue of marriage. It is also called Mahr. It may be settled before marriage, at the time of marriage, or after the marriage. The right of the wife to dower becomes complete on the consummation of marriage. The amount of dower may be increased after the marriage.
2. Definition of dower:

It is an obligation imposed by the law on the husband as a mark of respect for the wife.
Dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage.
3. Importance of dower in Islamic law:
Dower provides protection to the wife against the arbitrary dower of the husband to pronounce divorce. It is a mark of respect to the wife and a check on the power of the husband to divorce.
4. Capacity to make a contract for dower:
The parties who are sound mind and have attained the age of puberty may enter into the contract of dower.
(a) Prompt dower:
Prompt dower is payable on demand. It may also be demanded before the consummation of the marriage. The wife may refuse to live with him unless he pays the prompt dower.
(b) Deferred dower:
Deferred dower is payable on the dissolution of marriage either death or divorce.
5. Non-payment of prompt dower and restitution of conjugal rights:
The wife may refuse to live with her husband and admit his to sexual intercourse. So long as the prompt dower is not paid.
6. Difference between prompt and deferred dower:
I. As to payment:

Prompt dower is payable immediately after the marriage.
Deferred dower is payable only after the dissolution of the marriage.
II. As to demand:
Prompt dower is only payable on the demand of the wife.
In deferred dower, the wife is not entitled to demand it unless agreed.
III. As to wife’s right to realize:
The wife is entitled to realize the prompt dower at any time.
Deferred dower is payable only when it becomes due.
IV. As to conjugal rights:
The right of restitution of conjugal right arises only after its payment.
In deferred dower, there is no question restitution of conjugal rights.
7. Conclusion:
To conclude, I can say that dower is the legal right of the wife. If dower is unpaid, the wife is entitled to sue for the amount of dower. The widow must sue for the whole of her dower and not a part of it of the husband or his heirs. Such a remission is valid though made without consideration.

1. Will and Gift
Will is a conferment of right which is to effect after the death of the testator, whereas a gift is the transfer of property without any exchange. It is made for love and affection.
2. Definition of will:

A will is a conferment of rights property in a specific thing or a profit or an advantage or in gravity to take effect on the death of the testator.
3. Essentials of a valid will:
Following are the essentials to a valid will under Islamic law.
(i) Declaration by the testator.
(ii) Testator must be competent to declare.
(iii) The subject of the will must be valid.
(iv) It must be within limits imposed on the testator.
(v) The legatee must be competent to take the possession of the property.
(vi) Offer by the testator.
(vii) Acceptance by the legatee.
4. Definition of gift:

A hiba is a transfer of tangible property without consideration.
5. Essentials of a valid gift:
(i) Subject of gift must belong to donor.
(ii) Subject of gift must be in existence.
(iii) Done must make by his free will
(iv) Acceptance by donee
(v) Delivery of the possession of the subject matter.
6. Difference between gift and will:
I. As to completion:

Will is executed after the death of the testator.
Gift is completed during the lifetime of the donor.
II. As to condition:
Will is dependent upon a condition, i.e. the death of the testator.
Gift is operated immediately.
III. As to revocation:
Will can be revoked at any time before the death of the testator.
Gift after the delivery of the possession is usually irrevocable.
IV. As to limitation:
In will, the right of making a will is limited in two ways.
In gift, the right of the donor to gift is unrestricted.
V. As to existence of subject matter:
It is not necessary that the subject matter of the will must exist at the time of making the will.
The subject of the gift must be in existence at the time of making the gift.
VI. As to delivery of possession:
Delivery of possession is not required in the will.
In a gift, there must be delivery of the possession of the property to the donee.
VII. As to doctrine of mushaa:
The doctrine of Mushaa has no application in the case of will.
The doctrine of Mushaa is applicable in the case of gift.
VIII. As to acceptance:
In will, acceptance by the legatee is not necessary.
In gift, acceptance by the legatee is necessary.
XI. As to consideration:
A will is always without consideration.
In some cases, there is consideration in gift.
7. Conclusion:
To conclude, I can say that the gift is the transfer of property which is made immediately and without any exchange by one person to another will is dependent upon a condition lies the death of the testator. The gift and will are two different things under Islamic law.

1. Marriage Nikah
Marriage of Nikah is a civil contract, which is made by parties for the sole purpose and object of benefiting themselves according to Shariat it is a method to legalize the cohabitation of a man and a woman and issues out of this union are legitimate. Under Islamic law, the contract of marriage need not to be proved through a written document.
3. Definition of marriage:
Marriage is defined to be a contract which has for its object the procreation and legalizing of children.
4. Objects of marriage:
Following are objects of a marriage.
(i) Legalization of sexual intercourse.
(ii) Procreation of children.
(iii) Preservation of human race.
(iv) Regulation of social life.
5. Nature:
Muhammedan marriage is purely contractual. It is considered a religious duty. It is an act of Ibadat which is called Sunnat-Muwa-Kkidah.
Hazrat Muhammad (P.B.U.H) says:
If a person is in a position to maintain his wife and pay the amount of dower, he must get himself married.
6. Capacity for marriage:
(i) Every Muslim of sound mind, who has attained puberty may enter into a contract of marriage.
(ii) Lunatics and minors who have not attained puberty may be validity contracted in marriage by their respective guardians.
(iii) A marriage of a Muslim who is of sound mind and has attained puberty is void if the is brought about without his consent.
7. Essentials of marriage:
Following are the essentials of a marriage.
I. Offer (Ijab)
There are must be an offer by one party. It is also called Ijab.
II. Acceptance (Qubul)
The offer so made should be accepted by or behalf of the other party. It is called Qubul.
III. Offer and acceptance must be in the same meeting:
The offer and acceptance must both be made at the same meeting. An offer made at another meeting does not constitute a valid marriage.
IV. Freedom:
The parties contracting marriage should be free persons. Marriage with a slave girl is permitted.
V. Consideration:
There must be some consideration in marriage which is dower. The parties are bound to fix the amount of dower at the time of marriage. A marriage without dower is void.
VI. Majority:
The parties contracting marriage should be major. The majority act does not apply to marriage, divorce, maintenance cases. Majority means the age of puberty.
VII. Persons of opposite sex:
Persons of opposite sex:
Marriage is a contract between two persons of the opposite sex. There is no concept of marriage of the same sex in Islamic personal law.
VIII. Witnesses
(a) In the case of Sunni marriage:
Either two males or one male and two female witnesses.
(b) In the case of Shia marriage:

1. Marriage void and irregular
Marriage of Nikah is a civil contract, which is made by parties for the sole purpose and object of benefiting themselves according to Shariat it is a method to legalize the cohabitation of a man and a woman and issues out of this union are legitimate. Under Islamic law, the contract of marriage need not to be proved through a written document.
3. Definition of marriage:

Marriage is defined to be a contract which has for its object the procreation and legalizing of children.
6. Classification of marriage:
Classification of marriage is as under.
(a) Valid.
(b) void.
(c) Irregular.
A marriage which is not valid may be either void or irregular

Void Marriage

A void marriage is one which is unlawful in itself, the prohibition against the marriage being perpetual and absolute. Thus a marriage with a woman prohibited by reason of consanguinity, affinity or fosterage, is void, the prohibition against a marriage with such a woman being perpetual and absolute.

Effective of a void marriage

A void marriage is not marriage at all. It does create any civil rights or obligations between the parties. The offspring of a valid marriage are illegitimate.

Irregular Marriage

An irregular marriage is one which is not unlawful in itself, but unlawful ‘for something else’, as where the prohibition is temporary or relative, or when the irregularity arisen from an accidental circumstance, such as the absence of witnesses. Thus the following marriages are irregular, namely:-
a. A marriage contracted without witnesses;
b. A marriage with a fifth wife by a person having four wives;
c. A marriage with a woman undergoing iddat;
d. A marriage prohibited by reason of difference of religion;
e. A marriage with a woman so related to the wife that if one of them had been a male, they could not have lawfully intermarried.

Effects of an irregular marriage

An irregular marriage can be terminated by either party, either before or after consummation. An irregular marriage has no legal effect before consummation. If consummation has taken place;
1. The wife is entitled to dower, proper or specified, whichever is less;
2. She is bound to observe iddat;
3. The issue of the marriage is legitimate
4. An irregular marriage, though consummated, does not create mutual rights of inheritance between husband and wife.

Shia Law

The Shia law does not recognize the distinction between irregular and void marriage. According to that law, marriage is either valid or void. Marriages that are irregular under the Sunni Law are void under the Shia Law.

1. Sourcea of Islamic  law
Islamic is the complete code of life. under Islamic law the term law includes the moral law and legal enactments. according to Islam ultimate source of any authority is God alone.
2. Sources of Islamic law:
I. Quran
Quran is the first and primary source of law. Quran is not a legal code in the modern sence. the legislative part of Quran is the model illustration for future legislation and does not constituted a legal code by itself.
As primary source of law, Quran has vital importance. it lays down a way of life which regulates the relationship of man with man and his relationship with God. the law of inheritance, marriage, divorce theft, adultery and provisions of war and peace are meant for regulating the ties of man with the fellow beings.
II. Sunnah:
Second of Islamic law is Sunnah. the Sunnah is closely linked with Quran it comprises.
(i) All words counsels of the Prophet.
(ii) Actions, words and daily practices of the holy Prophet.
(iii) Silence implying a tacit approbation his part of any individual act committed by his disciplines.
Sunnah has great importance after the Quran. it describes the functions of the Holy Prophet (P.B.U.H) namely, announcing of the revelation before people. giving them guidance.
III. Ijma:
Ijma is an important source of law. it is the agreement of the jurists among the followers of Muhammad (P.B.U.H) in a particular age on a particular question.
(i) Basis of Ijma:
Ijma may be based on.
(a) Quran.
(b) Sunnah.
(c) Analogy.
(ii) Kinds of Ijma:
(i) Express (ii) Qawli
(iii) Tacit (iv) Sakuti
(iii) Importance:
Ijma as a source of law has great importance. it helps in interpretaion of laws according to the changing needs of times and new legislation can be made through its process.
IV. Qiyas:
Qiyas is an extension of law from the origibal text to which the process is applied to a particular case by means of common illat or effective cause, which cannot be ascertained merely by interpretation of the language of the text.
(i) Kinds:
(a) Qiyas jali. (b) Qiyas khafi.
(ii) Importance:
The function of Qiyas is to extend the law of the text to cases not falling within the purview of its terms and not to establish a new rule of law.
V. Opinions of Muslim jurists:
Opinions of Muslim jurists are also secondary source of Islam law.
VI. Nature of laws lays down:
The Holy Quran is a code of conduct laying down the fundamental principles and not the detailed provisions so in case of ambiguity reference should be made to the Sunnah.

 VII. Naska:
Nask is also secondary source of Islamic laws. it is tent of Quran and tradition which have either been totally abrogated or there application limited or modified by the subsequent text.
VIII. Muslalah Musrsala:
Muslalah Mursala means when nothing becomes clear in law after giving reasons then the course which is to be adopted according to Islamic spirit for instance. taxation for the defence of the country.
IX. Ijthead:
Ijthehad is one of the dependent source of Islamic law. if a matter is not resolved expressly in Quran. and Sunah and by way of Ijman the jurist must not leave the mater unresolved rather he should strive hard to find out the solution under the light of Quran and Sunnah.
X. Municipal law:
Municipal laws of the state also source of Islamic law provided that these are not contrary to Islamic concepts. it includes.
(i) Customs.(ii) Judicial precedents.(iii) Legislation.(iv) Equality.
XI. Istehsan:
Istehsan means preference of one over another considering the former good. when a rule of law deduced by analog is either in conflict with Ijma or is likely to causes inconvenience to its narrowness. the hanfis jurists refuse to follow it and give preference to rule, which in his opinion would better advance the welfare of man and the interest of justice.
(i) Kinds:
(a) Istihsan-e-Qiyasi. (b) Istihsan-e-Zarurat. (c) Istihsan-e-Ijma.
(ii) Importance:
Islamic legal system is not a rigid one rather it is much flexible to be adopted according to the changing circumstances and needs of the society. the principle of Isthsan provides an opportunity to Muslim jurists to interpret the law according to the spirit of and true intention of Islam.
XIII. Istidlal:
Istidlal means inferring from a thing. it is the name for a distinct method of juristic rationation, not falling within the scope of interpretation or analogy.
(i) Kinds:
(i) Expression of connection existing between two proposition.
(ii) Isthab-ul-hal.
(iii) Authority of previous revealed law.
(ii) Importance:
Istidlal as secondary source of law has importance in law making.
XIV. Taqlid:
Taqlid negates the concept of Ijtihad and infact it is just revels of it, Taqlid means to follow the opinion of learned. it is the discussion on the historical development of Islamic jurisprudence.
4. Conclusion:
To conclude I can say, that, the Quran is the basic and primary source of Islamic jurisprudence and laws. the basis sources of Islamic laws are Quran and Sunnah. their authority is unchanged in all the times Qiyas and Ijma are considered to be an authoritative source of law being subservient to the Quran and Sunnah. all the sources have importance in Islamic jurisprudence and law making.

1. Paterinty
Parentage includes paternity and maternity. it is the result of institution of marriage. so parentage id the legal relationship of parents to their children. the establishment of paternity confers a status of legitimacy on the child. the child acknowledged must not be offspring of zina i. e. adultery, fornication, incest, or illicit relation. acknowledgement is a mode to establish paternity.
2. Acknowledgement of paternity:
Muhammadan law recognizes the doctrine of acknowledgement of paterinty where the paternity of a child i. e. his father can not be proved by proved by establishing a marriage between the parents at the time of conception of the birth.
3. Application of the doctrine:
The doctrine applies only to cases of uncertainty as to the legitimacy. it can be done only where the paternity of the child has not been or can not be proved from any other person, the child is not the off spring of zina and the circumstance of his birth are such that he could be a legitimate child of his father.
4. Modes of acknowledgement:
Modes of acknowledgement of paternity are as under.
(i) Implied (ii) Express
5. Capacity for making acknowledgement:
(i) Person who is sound mind. (ii) Have attained the age of puberty.
6. Conditions of a valid acknowledgement:
I. Ages of the parties:

The ages of the parties must be such that it is possible that they may be father and son. the person who makes acknowledgement must be at least 12 1/2 year elder than the person acknowledged.
II. Intention:
The acknowledgement must not be merely sonship but if legitimate sonship.
III. Prof of legitimacy:
The child so acknowledged must not be known as the child of another.
IV. Confirmation:
Acknowledgement must be confirmed by the child so acknowledged if he is of adult age.
7. Nature:
The acknowledgement once made and proved cannot be rebutted. so a man who makes acknowledgement can not rebut it.
8. When acknowledgement is void:
When the mother of the acknowledged child could not be possibly have been the lawful wife of the acknowledger at any time. when the acknowledge could have been begotten, the acknowledgement will be void.
9. Effect of acknowledgement:
In the case of the son it produces all the legal effects of natural paternity and vests in the child the right of inheritance in case of wife, the mother of the acknowledge son as effect of giving her the status of a legal wife and entitlement of inheritance and maintenance.
10. Rules of presumption as to legitimacy:
Rules of presumption as to legitimacy are as under.
(i) A child born with in less than six months after marriage is illegitimate.
(ii) A child born after six months after the marriage is presumed to be legitimate.
11. Establishment of paternity:
Paternity of a child is establishment by marriage between the parents of child.
12. Establishment of legitimacy:
When the paternity of a child is establishment its legitimacy is also established.

1. guardianship of the minor
The right of guardianship of the minor belongs to the father and in his absence to his nominate. where no one has been nominated then to the grandfather. if he dies the right of guardianship vests in the court.
2. Guardian:
According to guardians and wards act 1890 guardian means a person having the care of the person of a minor or of his property or of his person and property.
3. Ward:
Every minor who has a guardian, no matter what type of guardians he has, i.e the one appointed by the court under guardians and wards act or one who ia self appointed de facto gurarian.
4. Kinds of guardian:
(i) Guardian of person. (ii) Guardian of property. (iii) Guardian for the marriage.
5. Who can be guardian of person:
Under hanfie law:
Under hanife law in the case of a son below seven fears of age and of a daughter below the age of puberty following are the entitle for the custody.
(i) Mother
(ii) Mother, s mother how high-so-ever.
(iii) Father, s mother how high-so-ever.
(iv) Full sister.
(v) Uterine mother.
(vi) Consanguine sister
(vii) Full sister daughter.
(viii) Uterine sister daughters
(ix) Mother father.
(x) Maternal aunts
(xi) Paternal aunts
(xii) Paternal aunts of mother and father.
In the absence of them following female paternal relation shall have entitlement.
(i) Father
(ii) Paternal grand father
(iii) Full brother
(iv) Consanguine brother.
(v) Full brother son
(vi) Consanguine brother,s son
(vii) Full paternal uncle
(viii) Consanguine paternal.
(ix) Full paternal uncle, s son
(x) Consanguine paternal,s son.
In the absence of then following relative shall have entitlement:
(i) Uterine brother
(ii) Uterine brother,s son
(iii) Father, s uterine brother
(iv) Maternal uncle
(v) Mother,s uterine brother
Shire law:
The custody of son below two years of age or of a daughter below seven years of age to the mother and after the mother the custody of the minor belongs to the father and of being not qualified then to the grands father how high so ever. the custody of son about two years of age and a daughter above. 7 years of age belong to the father and in his absence to the true grand father how high so ever.

6. Who can be guardian of property:
(i) Natural or legal guardian can be appinoted guardian of property.
(ii) Testamentary guardian.
(iii) Court can appoint appoint any person guardian of property in case of absence of natural and testamentary guardian.
(iv) A person can voluntarily take the charge of the property. he is in other words self appointed guardian.
7. Female when disqualified for custody:
A female including the mother, who is otherwise entitled to the custody of a child loses the right of custody.
(i) If she marries a person not elated to the child within the prohibited degree e. g, to a stranger.
(ii) If she goes and resides, during the subsistence of marriage at a distance from the father’s place of residence, or
(iii) If she is leading an immoral life where she is a prostitute.
(iv) If she neglects to take proper care of the child.
8. Conclusion:
To conclude I can say that the guardian has right to the movement and action of person. guardianship extends to the custody of the person and power to deal with the property of the ward. a guardian can be removed from his office under the guardians and wards act. although mother has legal right of guardianship of her minor children but she can loss her right. in circumstanced mentioned in guardian and wards act.


This is the period of time that a woman that is in the process of officially being separated from her husband legislatively, in which she does not remarry. The iddah period leaves open time for the husband and wife to reconcile and continue on with their marriage, as long as it is done before the period has ended. 

What are the types of woman that has an Iddah Period?

The woman that her husband has passed away.

The woman that her husband is still alive.

What are the iddah periods for these types of woman?

The one who’s husband has passed away;

If she is pregnant her iddah period is until she delivers the child.

If she is not pregnant her iddah period is four months and ten days.

The one who’s husband is alive;

If she is pregnant her iddah period is until she delivers the child.

If she is not pregnant her iddah period is;

If she still has her menstrual cycle, three periods of purifying herself after her menses.

If she no longer has here menses, she must wait a period of three months.

An Important Side Note:

A woman that has been divorced after being married, but before the marriage was consummated, has no iddah period that she must observe.

In Conclusion:

Many of us have been through this situation unfortunately, and we will not be the first or last to do so. What we need to do us begin to educate ourselves, our families, and our communities about the reality of this situation so that we do not continue doing things in opposition of the Quran and Sunnah.