Your are under Arrest- How to protect your self from police harassment

Your are under Arrest- How to protect your self from police harassment?

Introduction:

Your are under Arrest [it sounds like a movie dialogue] ,most people have no idea what it means in real sense. Normally people get nervous or panicky, once, they see the policeman near their door steps, don’t know how to react to the situation. The tempers run high in entire family, once unexpected guest in police uniform lands in your house in the name of arrest or search or enquiry .The on-lookers and neighbhors gather to watch the entire drama. Everyone starts raising their eyebrows, its time to hold your nerve and act wisely. The police has unlimited power to arrest in cognizable offences without permission of magistrate and police can also detain any suspected person as preventive or precautionary measure. One should know rights under our legal system and constitutional protection accorded to accused persons.It may be the case of false implication or harassment by corrupt police man. It’s time to act prudently. Police also behaves with brutality while arresting a person or during law& order enforcement.

The Constitution of India, The Criminal Procedure Code, 1973, and The Indian Evidence Act, 1872, expressly provided special safeguards to accused persons during investigation, enquiry or trial of an offence and also prevent the misuse of powers by state machinery like police. The article 19-22 of Indian Constitution guarantees the rights of the accused and the Art. 20 and 21 (Constitution of India) provide the basis for Human Rights of an accused under the Indian Criminal Jurisprudence. 

The Supreme Court of India and High Courts has power to issues writs under Article 32&Article 226 of Indian Constitution to prevent the abuse of fundamental rights.  


Joginder Kumar v. State of U.P. (1994)and D.K. Basu(1997) are landmark judgements in India pertaining to arrest. In Maneka Gandhi case ,Hon’ble Supreme Court of India opined that every individual have right to just, fair and impartial trail[1] and dignity of individual is respected under constitutional laws. 


The Article 21 of the Indian Constitution asserts the importance of due process. It says:  “no person shall be deprived of his life or personal liberty except according to procedure established by law”.

What is arrest?

Arrest means apprehending a person by legal authority resulting his deprivation of his/her liberty[2].

When a person can be arrested?

• Securing a person who is suspect of crime or trial of crime
• Preventive or precautionary measure to stop committing a crime
• For obtaining correct name &address[if person refuses to give address]
• If person obstruct police man on duty, while discharging duties.
• Taking person under custody, who has escaped from police or prison?

Who can arrest?

• A police officer may arrest a person without warrant [cognizable offences or apprehension of committing a crime or preventive measure for public order  or other purposes],
•  Police officer in charge of police station may arrest a person as preventive measure without warrant
•  A private person
•  Any magistrate may arrest a person without warrant

Arrest &Powers of Police 

• A person can be arrested with or with out warrant from magistrate
• Power to use force, there is resistance or evades arrest. 
• Power to search place acting under warrant power. 
• Power to arrest &pursue such person any place in India 
• Power to seek assistance of any person for arrest or preventing the escape of person. 
• Power to re-arrest escapee

Some of important rights of accused persons.

The constitutional protection of accused starts the movement a formal accusation is made or an First Information Report [FIR] registered against person, before or after commencement of proceeding against person.

1.Right to know the grounds of Arrest& police can not resort to arrest without probable cause.

2.Right against arbitrary arrest[3]  

3.Right to consult legal practitioner& have him during questioning.[Article 22][4]-Right to free legal assistance [5][6][7]

4.Double Jeopardy[8] :No person shall be convicted for same offence more than once& no one should be compelled to witness against himself[9]-Article 20

Doctrine of autrefois  convict or autrefois acquit[offence must be same involving same ingredients ]

5.Right to be medically examined[10].

6.Right to remain silence[remember anything you say ,it can be used against you, caution to be  silent is not unconstitutional ][11]

7.Accused should not detained beyond period of 24 &should be produced before magistrate within 24 hrs[12]

8.Right to speedy trial 

9.Right to bail [not a absolute right]

10.Right to confront witnesses[13]

11.Prohibition against unreasonable search &seizure 

12.Right to Appeal against Conviction [14]

13.Male police should not arrest accused women& no arrest of  accused women during night hours.

14.Women accused should be placed in separate cell .when under police custody.

15.Right to compensation for illegal detention[15]

16.Its illegal to imprison insane person[16]

17.Right to claim compensation for police excesses &fundamental rights violation

   [17][18]

 

18.No torture in prisons –right to seek compensation[19]

19.A punishment which is too cruel or torture some is unconstitutional[20]

20.Inordinate delay in trial is unconstitutional[21]

21.Right to pre -trial release on personal bond ,where is no risk of absconding[22]  

22.Right against custodial violence[23]& Compensation for custodial death, custodial death is one of worst crime in a civilsed  society [24]

23.Right against handcuffing[25] ;

 

24.Unreasonable Delay in execution is unconstitutional[26]

25.Right against handcuffing[27]. 

Supreme Court of India guidelines in D.K Basu vs. State of West Bengal [28]

The Hon'ble Supreme Court of India in "D.K. Basu v. State of West Bengal   laid down the following guideline:

1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

2.That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

3.A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

4.The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

5. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

6.An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

7.The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/ her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer affecting the arrest and a copy provided to the arrestee.

8.The arrestee should be subjected to medical examination every 48 hours during his detention in custody by a trained doctor on the panel of approved doctors appointed by the Director of Health Services of the concerned State or Union Territory. The Director of Health Services should prepare such a panel for all Tehsils and Districts, as well. 

Police Brutality &Human Rights abuse : 




According to Jerome Herbert Skolnick,”in dealing largely with disorderly elements of the society, some people working in law enforcement may gradually develop an attitude or sense of authority over society, particularly under traditional reaction-based policing models; in some cases the police believe that they are above the law”

The landmark Supreme Court case on handcuffing is Prem Shankar Shukla v. Delhi Administration (1980). In this case, the validity of certain clauses of the Punjab Police Rules, which made handcuffing mandatory during arrest, was challenged. In his opinion, Justice Krishna Iyer eloquently stated:  “The guaranty of human dignity which forms a part of our constitutional culture . . . spring[s] into action when we realize that to manacle man is more than to mortify him, it is to de-humanise him and, therefore, to violate his very person- hood too often using the mask of dangerousness and security.”[29]

Police brutality and uncivilised behavior includes 

1.False arrest,

2.False &unlawful detention,

3.Intimidation,

4.Corruption  

5.Excessive use of force,

6.Unnecessary/unwanted  use of force ,

7.Unnecessary surveillance,

8.Vulgarly abusive words

9.Calling first name ,racial &caste abuse [calling person by caste name &abusing on religious identity&regional identity,

10.Abusive treatment of female by male police[unwanted touching or pushing /touching private parts /pulling dress ] including sexual abuse

11.Frisking of female by male police, unneccsssary frisking people without any reasonable cause.

12.Unnecessary lath charge[beating on private /sensitive parts ,endangering life]

13.Hurling back stones in retaliation  to violent protest,

14.Excessive use of teargas shells jeopardizing the health of people,

15.Sudden &un-provoke firing without any warning [with out following due procedure &with out permission of lawful authority ]

16.killing unarmed innocents with out any provocation,

International Human Rights Instruments& Torture Convention :

Article 5 of the Universal Declaration of Human Rights (UDHR), Article 7 of the International Covenant on Civil and Political Rights (ICCPR), and forms the basis for the Convention against Torture (CAT). The ICCPR also contains the related right of ““[a]ll persons deprived of their liberty [to] be treated with humanity and with respect for the inherent dignity of the human person.” These international instruments are all binding on India:[30]
 

The UDHR is considered part of customary international law and the Indian Government has ratified the International Covenant on Civil and Political Rights [ICCPR] on 10 April 1979 and signed the Convention against Torture on 14 October 1997.

UN Instrument on Treatment of Prisoners:

The Standard Minimum Rules for the Treatment of Prisoners, adopted by the United Nations in 1955, addresses restraints in Sections 33-34. According to the Rules, instruments of restraints can never be used for punitive purposes, or for longer than is strictly necessary. Although the Rules do allow the use of restraints during transfer to prevent escape.[31]

European Union[32] &Accused persons:

The right to an effective remedy and to a fair trial , presumption of innocence and a right of defence are laid down in The Charter of Fundamental Rights of the EU and The European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR).

•  Rights to a fair trial& Right to legal assistance : 

• Article 6 of the ECHR' (which protects the right to a fair trial) applies to the pre-trial stage of criminal proceedings:
  

• A suspect must be able to benefit from the assistance of a lawyer already at the initial stages of police interrogation and as soon as he is deprived of his liberty, irrespective of any interrogation.

• Protection against ill-treatment in custody& prevent intimidation, including threats and abuse, notably by police in the crucial period immediately following arrest.
  

• Family members and employers to be informed of the detention

• Detained person is a non-national, it is appropriate for the consular authorities of the person's home state to be informed.

• Foreign suspects and defendants are an easily identifiable vulnerable group who sometimes need additional protection such as is offered by the Vienna Convention on Consular Relations (VCCR)

New Initiatives of E.U:

2011, the Commission will be presenting draft legislation covering these rights.The draft Directive proposes that a suspect can see a lawyer before the first police interview.It covers:

• what activities a lawyer can carry out on behalf of his client;
• confidentiality;
• waiver/mandatory defence;
• notification of the custody to the detainees relatives and consular authorities; and
• legal representation in European Arrest Warrant (EAW) cases.

Miranda Rights &US protection of Accused: 

The Miranda warning[33] (also referred to as Miranda rights) is a warning that is required to be given by police in the United States to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to inform them about their constitutional rights. In Miranda v. Arizona[34], the Supreme Court of the United States held that an elicited incriminating statement by a suspect will not constitute admissible evidence unless the suspect was informed of the right to decline to make self-incriminatory statements and the right to legal counsel (hence the so-called "Miranda rights"), and makes a knowing, intelligent and voluntary waiver of those rights.

In 2010, In Berghuis v. Thompkins[35] case, the United States Supreme Court declared that criminal defendants who have been read the Miranda rights (and who have indicated they understand them and have not already waived them), must explicitly state during or before an interrogation begins that they wish to be silent and not speak to police in order for that protection against self-incrimination to apply. If they speak to police about the incident before invoking the Miranda right to remain silent, or afterwards at any point during the interrogation or detention, the words they speak may be used against them if they have not stated they do not want to speak to police.

Conclusion: 


The Hon'ble Supreme Court of India cautioned the police for  indiscriminate use of arrest , preventive custody ,use of force during agitations and also  warned custodial death &extra -judicial killing [fake encounters]

V.R Krishna Iyer. J, delivering the judgement of Nandini Sathpathy v. P L Dani[36] held that the prohibitive sweep of Art 20 (3) goes back to the stage of police interrogation- not commencing in court only.

The words used for such subversion have always been "law and order", "Public Order" and "security of State" As Noam Chomsky described, these are powerful semantic tools, which define and justify themselves.[37]

---

[1] Maneka Gandhi  v. Union of India. AIR 1978 SC 597

[2] R.V Kelkar :Lectures on Criminal procedure code ; 4th Edition 2006,EBC.

[3] Joginder Kumar Vs State Of UP , 1994 AIR 1349 1994 SCC (4) 260

[4] Article 22 of Part-III of  Indian constitution

[5] Hussainara Khatoon & Ors. V. Home Secretary, Bihar, Patna, (1980) 1 SCC 98

[6] Khatri[II] v state of Bihar[1981]1SCC627

[7] Khatri v state of Bihar,AIR 1981SC 928

[8] Makbool v state of Bombay,[1953]SCR 730;AIR 1953 SC 325:56 Bom LR 13

[9] Dastagiri v state of Madras ,AIR 1960 SC 756,;palani.[in re ]AIR 1955 Mad 495;56Cri LJ 1197

[10] Sheela Barse v State of Maharashtra,[1983]2 SCC 96 ,1983 Cri LJ 642

[11] Sampath Kumar V Enforcement Directorate ,Madras ,AIR 1998 SC 16;(1997) 8 SCC 358.

[12] .Article 22[1] &Sec 303 ,State of Bombay v. Kathi Kalu, AIR 1961 SC 1808:

[13] Section 138 of Indian evidence act, 1872, Section 33 of Indian evidence Act tells when witness is unavailable at trial, a testimonial statement of the witness maybe dispensed by issuing commission

[14] Section 374 of the Criminal Procedure Code, 1973

[15] Meera V state of Tamil Nadu ,[1991]Cri LJ 2395

[16] Veenu v state of Bihar ,AIR 1983 SC 339

[17] People’s Union for Democratic Rights v Police Commissioner ,[1989]4SCC 730 under Article 32

[18] Bhim Singh V state of Jammu &Kashmir,1986 Cri LJ 

[19] Sheela Barse v state of Maharashtra,AIR 1983 SC 378

[20] Inderjeet V State of Uttar Pradesh ,AIR 1979 SC 1867

[21] Rudul Shah v state of Bihar AIR 1983 SC 1086

[22] Supra 3

[23] Supra 17

[24] D.K Basu v ,AIR 1997 SC 610,(1997) 1SCC, 416

[25] A person is arrested based on a warrant of arrest that is issued by a Magistrate, the police shall not handcuff the said person unless the Magistrate has ordered handcuffing-Citizens for Democracy v State of Assam, (1995) 3 SCC 743,

[26] Sher Singh v state of Punjab ,AIR 1983 SC 465

[27] Prem Shankar Shukla v. Delhi Administration (1980

[28] Supra 22

[29] http://www.hrdc.net/sahrdc/hrfeatures/HRF63.htm

[30] ibid

[31] ibid

[32] http://ec.europa.eu/index_en.htm

[33] http://en.wikipedia.org/wiki/Miranda_warning

[34] 384 US 436.

[35] 560 U.S. (2010) (docket 08-1470)

[36] AIR 1978 SC 1025

[37] http://www.pucl.org/Topics/Law/2003/malimath.htm

Bigamy Laws in India - Frequently Asked Questions

Bigamy Laws in India-Frequently Asked Questions:

Introduction: 

The polygamy is banned in most countries. In most countries, the second marriage is considered legally null and void, and prior consent from a prior spouse makes no difference to the validity of the second marriage. 

In India, There was no bar in customary Hindu Law to a man entering second marriage. However, the customary law was codified by the enactment of the Hindu Marriage Act in 1956, which declared  a second marriage ‘void ‘during the subsistence of the first one.

In India, bigamy is an offence against marriage and it is also criminal offence under Indian Penal laws. The bigamy law applicable to Hindus, Jains, Buddhists ,Sikhs,Parsis,Christians [except Muslims]. Bigamy is one of the ground to seek divorce under Hindu Marriage Act 1955.The second wife is entitlement for maintenance ,she is not entitle for property  rights. In August 2009, the Law Commission of India  recommended that  bigamy should be made  a cognizable offence. 

The Law  Commission of India said in its 227th report to the government “Muslim law on bigamy is gravely faulty and conflicts with true Islamic law in letter and spirit,'',  the unanimous view of chairman Justice A R Lakshmanan and members Tahir Mahmood and B A Agrawal. “Bigamy is not very common among Muslims and cases of men having more than one wife at a time are few and far between” said commission.

The practice of second wife more prevalent in Hindus in India as per statistics and some people regard it as status symbol, The Tamil Nadu C.M ,M Karunanidhi is good example of bigamous marriage. 

Indian Penal code 1860, Section 494. 

Marrying again during lifetime of husband or wife: Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Exception-This section does not extend to any person whose marriage with such husband or wife has been declare void by a Court of competent jurisdiction ,nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

Frequently Asked Questions:

What is Bigamy?

A person commits bigamy when he/she:

• When  husband or wife living,
• marries ,but  such marriage is void,
• by reason of its taking place during the life of husband or wife.
• When is Bigamy offence ?

Bigamy is an offence  provided first husband or wife is alive. Section 5 of the Hindu Marriage Act, 1955, clearly states that a marriage could be valid only if neither of the party has a living spouse at the time of marriage. Section 11 of the Act declares second marriage to be null and void.

Bigamy shall not apply if: 

• the first husband or wife is dead, or
• the first marriage has been declared void by the Court of competent jurisdiction, or
• the first marriage has been dissolved by divorce, or
• the first spouse has been absent or not heard of continually for a space of seven years. The party marrying must inform the person with whom he or she marries of this fact.

Religious Conversion for contacting second is also bigamy?

In Sarla Mudgal v. Union of India (1995 AIR 1531 SC), the Supreme Court held that a man who has adopted Islam and renounced Hindu religion, marries again without taking divorce from the first wife, then such marriage is not legal. The person shall be punished for committing bigamy under section 494 of Indian Penal Code (IPC).

Where to file complaint under Bigamy law-section 494?
The person aggrieved can file a case of bigamy either in court or at the police station. The father of an aggrieved wife can also make a complaint under section 494/495 of the Indian Penal Code. A petition for declaring the second marriage as void can be filed by the parties of second marriage and not the first spouse.

Proof not required for for lodging complaints under Bigamy law

The Supreme Court has held that  while lodging a criminal complaint it is not necessary for the aggrieved party to prove that marriage ceremonies were performed as it is for the trial court to decide the veracity of the allegations
If person hides first marriage and contacts second marriage ?

Complaint for cheating can be filed under section 415 of IPC in case the person hides the fact of first marriage.

What is Punishment under the Act?

Bigamy is a non-cognizable offence. It is bailable and compoundable with the permission of court if the offence is committed under section 494 of the IPC. The punishment for bigamy is imprisonment, which may extend till 7 years or fine or both. In case the person charged of bigamy has performed the second marriage by hiding the fact of first marriage, then he shall be punished with imprisonment of up to 10 years or fine or both. Such offence under section 495 is not compoundable. 

Attending 2nd marriage is abetting bigamy?

"It is a settled law that mere participation in the second marriage would not ipso-facto make the relatives or the participants liable for abetment to bigamy since abetment connotes an active suggestion or support to the commission of the crime.” ruled Delhi High Court.

In India ,Catholics could face bigamy charges after annulment, remarriage?

Catholics in India who remarry after the Church annuls a prior union could still face bigamy charges under the country’s laws.

Whether applicable to Schedule tribes?

This penal provision will not apply if the offender is a member of the Schedule Tribes.

Registration of Marriage compulsory?

In order to stop second marriages and child marriages ,the registration of marriages is made compulsory as directions of Supreme Court 
Bigamy &Hindu Law of Succession ?

As per  Hindu code, only the first wife is a legal heir of the husband while the second wife is not entitled to any share in the ancestral estate and, if the husband has died without leaving a will, even in his self-acquired property. Once the second marriage is declared null and void, the wife concerned cannot even claim maintenance as a matter of right. The high court of Bombay at Goa has held that the first wife is entitled to half the share while the share of the second wife in the property of the husband is 1/8th. While ruling that a second wife marrying in good faith has a share in the estate of her husband. The court ruled that in such cases the first wife gets half the share, the second wife is entitled to 1/8th of the share and the remaining 3/8th is to be shared among the children from both marriages.

Can children born out of wedlock  can inherit father ancestral property?

The Supreme Court has ruled that children born out of wedlock have the right to inherit their father’s ancestral property.In  Revanasiddappa vs Mallikarjun case ,  Justices G.S. Singhvi and A.K. Ganguly ruled that children from a second wife had rights to their father’s ancestral property.

What is an live in relationship& applicability of bigamy laws?

The supreme court of India in Kushboo case virtually equated Live –in relationship to marital relationship. In another case ,the supreme court also said Children born out of live-in are not illegitimate.  “The live-in- relationship if continued for such a long time, cannot be termed in as "walk in and walk out" relationship and there is a presumption of marriage between them ..”Supreme Court in 2004 in the Rameshchandra Daga vs Rameshwari Daga case ,where the maintenance rights of women in “informal relationships or invalid marriages” were upheld.These cases virtually encourage relationship outside-marriage,this created confusion in the minds of people. 

The law of bigamy is not applicable to live- in relationship as there is no legally contacted marriage. In order to prove 

offence of bigamy ,there should ample evidence to prove they have contacted second marriage without nullifying the first marriage.

The Section 489 A  of Indian Penal Code ,1860,its  applicability  to second wife?

The section 498 A of IPC is not applicable to second wife ,if first wife is alive ..

Hence ,these some of frequently asked questions about law governing the offence of "Bigamy". 

Muslim Divorce Law -Muslim Women in India

Muslim Divorce Law &Muslim Women in India:

The sources of the Islamic faith are the Koran, or Qur'an ("the reading"),which is the holy book of Islam, and the Prophetic Traditions (the sunna). In Islam, man is the servant of God (al-abd). By surrendering (Islam) to the will of God he finds salvation and worldly peace. Man is also the most important of God's creatures, his viceregent (kalifah) on Earth.

Introduction to Islamic Jurisprudence :

The Islam was founded by Prophet Mohamed [Quraysh tribe],who lived between 571- 632 Ad ,he received message of god 'Wahi' in his fortieth year, first believed by Khadija and followed by Waraqa[blind scholar].

On his death in 632 the Prophet left no clear message as to how leadership of the Muslim community should devolve after him. After the death of Prophet ,Abu Baker ,his father –in-law was elected successor,[seat of preacher] to the great prophet.

This election lead to great schism between Sunnis and Shias, which lead to development of different schools of Islamic  jurisprudence.Shias means ‘partisan’[partisans of House of Ali] "faction of Ali", or "party of Ali",Shia Muslims further believe that Ali, Muhammad's cousin and son-in-law, was the first of the Twelve Imams and was the rightful successor to Muhammad and thus reject the legitimacy of the first three caliphs. shias assert that Ali should have been made first caliphs[perfect man:al-insan al-kamil) after death of prophet and regard the first three usurpers[illegitimate or controversial]

Whereas, Sunnis recognize four legitimate caliphal successors to Muhammad ; Abu Bakr , 'Umar , 'Uthman ibn 'Affan and 'Ali ibn Abi Talib , who are collectively referred to among Sunnis as the "Rightly Guided Caliphs" (al-khulafa' al rashidun).

The Schools of Islamic Jurisprudence :

The different schools and sub –schools of Muslim Laws may be broadly divided

Sunni :.The word "Sunni" comes from the term Sunnah, which refers to the sayings and actions of Muhammad that are recorded in hadiths (collections of narrations regarding Muhammad).Followers of Sunni Islam consider Sahih al-Bukhari and Sahih Muslim to be the authentic hadiths. The Muslim usage of this term refers to the sayings and living habits of Muhammad. In its full form, this branch of Islam is referred to as "Ahlus-Sunnah Wa Al-Jama'ah" (literally, "People of the Tradition and the Congregation"). Anyone claiming to follow the Sunnah and can show that they have no action or belief against the Prophetic Sunnah can consider him or herself to be a Sunni Muslim. However, it should be noted that Shi'a Muslims also hold that they follow the Sunnah. The majority of Indian Sunnis are followers of the Hanifi division. Sunni Islam is practiced by the majority (90 percent) of Muslims, with large communities in western Asia, the Indian subcontinent, the Caucasus, Central Asia, China, and Southeast Asia. After the breakup of the Islamic Mughal empire and the imposition of British rule in India in the nineteenth century, Sunni theologians and intellectuals in India adopted the reform ideals emerging from the Arab lands, believing that religious revivalism could help their communities confront British colonialism.

Hanafi: During 8 th century Hanifa founded this school, most famous school of sunni law ,favoured by Abbasid Caliphs ,its doctrine spread far and wide.Abu Hanifa earned the appellation ‘The Great Imam’.[Abu Yosuf &Imam Ash-shaybani were his celebrated pupils].The home of school is Iraq.This doctrine spread to Asia and Indian sub continent.

Fatawa-I-Alamgiri collected during Aurangzeb time contained the doctrine of Hanafi School and this was translated by Bailee [Bailee digest].The doctrine of Hanafi school were elaborated in the Hedaya.This book was translated from Arabic into Persian and then from Persian into English under East India Company by Hamilton.

Maliki: This School was founded by Malik-Ibn-Anas [Medina] during 8th century –popularize Izmaa as source of law and leaned towards jurisprudence based on Koran and Hadis, spread over Medina to Egypt ,central Africa ,West Africa ,spain and Eastern Arabian Coast.

Shafei :This school was founded by Mohd .Ash Shafei [767-820 Ad] - popularize Qiyas as source of law, spread over Egypt ,Hejaz,south Arabia and east Africa. There very few Shafeis in India,it has large number in Indonesia ,Malaysia and South East Asia.

Hanbali:This school was founded by Ahmad Hanbali [Baghdad] preferred and popularize Usul based on tradition,Hanbali perfected the doctrine of Usul based on Hadis.Two Hanbali scholars Taymiyya and Jawayza wrote Siyasa & Sharia. Hanbali mostly found in Syria and Palestine.

Wahabi Movement started by Mohd.Wahabi in Saudi Arabia during 18th century ,introduced a puritan attitude and all innovations based on Qiyas and Rai.

In India there is a sect known as Ghair Muqqalad who do not strictly follow any school ,who are akin to Wahabis .

In medieval period, descendants of various Mongol armies that invaded and conquered, Iran and South Asia under Genghis Khan and Babar were called Mughals. The term was also used for later immigrants from Iran. There are also a number of other tribal groupings who claim Mughal ancestry.

Shia :This school owes its origin to Imam Jafar –as Sadiq [765 AD],6th Imam of Imamias , Called "faction of Ali", or "party of Ali".

there are differences between shias and sunni jurisprudence ,shias do not accept any tradition attributed to the prophet unless it comes from household of the prophet[ahl-i-bait]


Imamia shias are divided into akbari and Usuli ;

Akbari: accept ijmaa

Usuli: Izmaa generally not accepted

The significant proportion of Shia population are in Syria, Lebanon, Kuwait, Pakistan, India, Afghanistan, Saudi Arabia, south Turkey.Shia are minority in number in India, but Indian sources like Times of India and DNA reported Indian Shiite population in mid 2005-2006 between 25% to 31% of entire Muslim population of India which accounts them in numbers between 40,000,000 to 50,000,000 of 157,000,000 Indian Muslim population

There is no certainty as to when the shia community first established itself in South Asia. As per historical evidences and the genealogy maintained by the Sayyids who migrated to India from Middle East the history of Shia Islam traces long back around 1000 years. The Nawabs of Awadh and Hyder Ali & Tipu Sultan of Mysore, who were rulers in India, were also Shia Muslims and other prominent dynasty like Bahmani Sultanate (1347–1527 AD) Sharqi Dynasty, Berar Sultanate, Qutb Shahi dynasty, Adil Shahi dynasty , Najafi Nawabs of Bengal, Nawab of Rampur, Hyderabad State Nizam rulers.

In the Shiites, there are subdivisions of chishti, suhravardi, shatari, quadiri, nakhsabandi etc

Emergence of Islamic Divorce Law :

During Pre-Islamic period, the divorce was easy and frequent occurrence,this tendency influenced Islamic Law also. The husband has been given an absolute power to divorce his wife without cause. Even divorce given fit of anger is valid. The single pronouncement is sufficient for completion of divorce with out any religious ceremony as Islamic Law. The husband has to pay maintenance up to iddat period [3 months]

The prophet Mohammad disliked the power husband to pronounce the unilateral divorce with out assigning any reasons.The Prophet Mohammed “with Allah ,the most detestable of all things permitted is divorce”.

He was of view that divorce should be given in extreme and intolerable circumstances.He favoured matter should be referred to two arbitrators.He sternly warned his followers that, they will face curse of god divorcing wife capriciously &divorce shake the throne of God.

Al-Ghazali remarked that divorce in Islam is not trouble the wife but only in case of extreme circumstances , necessity and on just or reasonable grounds, divorce is permissible.

Divorce in Muslim Law may be classified into

1.At the instance of Husband: Talak Ahsaan,Talak Hasan ,Talak –ul-biddat[T.talak]

2.Mutual consent :Kula ,Mubarat

3.At the instance of Wife : DM Act,1939,Lian[false adultery charge] ,Tafweez Impotence of husband

Divorce can also divided into Judicial and Non Judicial divorce

I. Non –Judicial divorce

II.Judicial Divorce [Divorce under Dissolution of Muslim marriage Act,1939.

I.Non –Judicial includes

1. Talaq

Three modes:

•Ahsan[Single pronouncement made during tuhr]

•Hasan[three pronouncement during successive tuhr,no intercourse taking place any of three tuhr ]

•Talaq–ul-biddat- Triple talak ,three pronouncement popular in among sunnis having introduced during Omayad Dynasty ,not recognized by Shia Law, Talak –ul biddat divorce good in law ,though bad in theology, prevalent in India ],former two modes husband has time to reconsider ,later is irrevocable. 

2.Illa-where husband abstain from intercourse with wife for four months, marriage is dissolved with same legal results as if irrevocable divorce pronounced by the husband 

3.Zihar-If husband [sane mind&adult]compares his wife to his mother or other with in prohibited relationship ,wife has right to refuse herself to him until he has perform penance, default, wife has right to apply divorce.

4.Talaq –e-tafweez-The doctrine of tafweez or delegation of power is husband himself ,repudiate his wife or delegate this power of repudiating her to third party ,or even his wife is called ‘Tafweez’

5.Kula-Means redemption literally means ‘Lay down’ laying down by a husnabd of his right and his authority ,a divorce with the consent and at the instance of wife .

6.Mubarat-Mutual consent ,it signifies a mutual discharge of from the marriage claims [no such provision exists in Hindu Law before enactment of HM act]

Dower is check mate? : If husband wants divorce his wife ,he has to pay huge dower, the dower indirectly act as check mate to indiscriminate divorce.

II.Judicial Divorce 

Before 1939, there was no law for women for seeking divorce and more over, no such provision exists in Hanafi School of Islamic thought.

The dissolution of Muslim Marriage Act,1939-was enacted to provide relief to aggrieved women [especially cruelty] and remove doubts as to effect of the renunciation of Islam by married women on her marriage. This law is applicable to all schools of Islam. 

Before commencement of this act ,a Muslim wife to obtain divorce on impotence of husband ,she has to prove she was not aware of his impotence at the time of marriage and further the court had to adjourn the suit for one year to ascertain if the husband could regain his manhood. Under the act of 1939 both provisons have been removed.

In Fazal Mohammad V Ummatur Rahim ,it was held that this act does not abrogate the general principles of Mohammadan Law. Therefore, it is very clear ,it must be shown that the husband was under a legal duty to provide such maintenance .
Grounds for Decree for Dissolution of Muslim Marriage under Section 2:

A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:

1.Whereabouts of Husband not known :
 

The whereabouts of the husband have not been known for a period of four years. But said divorce degree will not effective for a period of six months ,if the husband appears either in person or authorized agent with in that period.

Notice to be served on heirs of the husband, when the husband’s whereabouts are not known :

In a suit to which clause (i) of Section 2 applies--

1. The names and addresses of the persons who would have been the heirs of the husband under Muslim law if he had died on the date of the filing of the plaint shall be stated in the plaint.

2. Notice of the suit shall be served on such persons, and

3. Such persons shall have the right to be heard in the suit;

Provide that paternal uncle and the broker of the husband, if any, shall be cited as party even if he or they are not heirs.

2.Neglected Wife for two years :

The husband has neglected or has failed to provide for her maintenance for a period of two years. In Manak V Mt .Mul Khan “failure to maintain need not be willful, even if failure to provide for her maintenance is due to poverty, failing health, loss of work, imprisonment or any other cause ,the wife would be entitled to divorce” 

3. Imprisonment of Husband for seven or more years :

The husband has been sentenced to imprisonment for a period of seven years or upwards;

4. Failed to perform Marital Obligation for three years:

The husband has failed to perform , without reasonable cause , his marital obligations for a period of three years;

5. Impotent :

The husband has impotency at the time of the marriage and continues to be so;

6. Insane &Venereal Disease for two years or more 

The husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;

7.Repudiating Marriage after attaining age of 18 years:

she,having been given in marriage by her father or other guardianbefore she attained the age of fifteen years., repudiated the marriagebefore attaining the age of eighteen years;Provide that the marriage has not been consummated;

8. Cruelty:


The husband treats her with cruelty

•Habitually assaults her or makes her life miserable by cruelty of conduct does not amount to physical ill-treatment

• Associates with women of evil repute or leads an infamous life,

• Attempts to force her to lead an immoral life

•Disposes of her property or prevents her exercising her legal rights over it,

•Obstructs her in the observance of her religious profession or practice,

•If he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran

9. Any other ground under Shariate :

On any other ground which is recognised as valid for the dissolution of marriages under Muslim law;

Provide that—

a. No decree shall be passed on the ground (iii) until the sentence has become final;

b. a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfied the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and

c. before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.

Effect of conversion to another faith :

The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage,Provided that after such renunciation, or conversion, the woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in Section 2 :

Provided further that the provisions of this Section shall not apply to a woman converted to Islam from some other faith who re-embraces her former faith.

Right to dower not to be affected :

Nothing contained in this Act shall affect any right which a married woman may have under Muslim law to her dower or any part thereof on the dissolution of her marriage.

a Muslim wife can bring a suit for divorce against her husband on the ground that her husband has charged her with adultery falsely under section 2(ix) of the act.

The position of Muslim women in Asia varies according to several regional and political factors.

References /Texts :

1.Standard texts and Islamic commentaries

2.Ahmed, Laila. (1992) Women and Gender in Islam. New Haven, CT: Yale University Press.

3.Lapidus, Ira. (1991) A History of Islamic Societies. Cambridge, U.K.: Cambridge University Press.

4.Madan, T., ed. (1976) Muslim Communities of South Asia. New Delhi: Vikas Publishing House.

5.Wikimedia web resources
6.GCV Subba Rao.Family Law in India.