SUBJECT: Family Law- I B.A. LL.B.

(H) S/F, IV SEMESTER,

SUBMITTED BY: ABHISHEK 2nd YEAR, FACULTY OF LAW, JMI
SINGH
CLASS ROLL NO. : 02

STUDENT ID: 20186460

Law and Poverty; Paper Code: BLW-406

B.A. LL.B. (Hons) 4th Semester (2nd Year), 2020

UNIT- I

Question 1- DISCUSS THE JUDICIAL APPROACH OF OUR COURTS REGARDING THE MUSLIM
HUSBAND’S UNILATERAL POWER OF DIVORCE RIGHT FROM THE CASE OF MOONSHEE
BUZLOOR RAHIM V. LATIFATUNNISSA BEGUM TO SHAYARA BANO V. UNION OF INDIA.
REFER TO DECIDED CASES.

Answer-

The law of divorce is one of the most controversial matters among the Muslim scholars from
ancient time. In the pre-Islamic Arabia, husband’s power of divorce was unlimited. They could
divorce their wives at any time, for any reason or without any reason. They could also revoke
their divorce, and divorce again as many times as they preferred. Moreover, they could, if they
were so inclined, swear that they would have no intercourse with their wives, though still living
with them. Therefore, the institution of arbitrary talaq at the sweet –will of the husband exists
since the pre-Islamic days. In those days, there were no restraints whatsoever. The husband was
at liberty to pronounce talaq any number of times and to revoke it by taking the women back and
resuming marital connection. According to Abdur Rahim in pre Islamic Arabia four kind of
divorce is prevalent -Talaq, Ila, Zihar, and Khula. If a woman is divorced by any of the four

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kinds of dissolution of marriage, she can again remarry after period of Iddat. The purpose of
iddat period is to ascertain the paternity of child.

The power of divorce was recognized by the Prophet but he imposed certain restrictions, moral
and legal which constitute some checks on the husband’s powers. Morally, talaq was declared to
be the most detestable before God of all permitted things, according to a hadith. The reforms of
Prophet Mohammad marked a new departure in the history of Eastern legislation. He restrained
the husband’s unlimited power of divorce and gave to the woman, the right of obtaining the
separation on reasonable grounds. The Prophet Mohammad is reported to have said, “if a woman
be prejudiced by a marriage, let it be broken off”. He pronounced “talaq” to be the most
detestable before god of all permitted things for it prevented conjugal happiness and interfered
with the proper bringing up of children. Divorce signifies the dissolution of the marriage tie. A
divorce may be effected by the act of the husband, but in certain special circumstances, also by
wife or by mutual agreement or by the operation of law. A wife cannot divorce her husband of
her own accord. She can divorce the husband only where husband has delegated such right to her
or under an agreement. Under an agreement, a wife may divorce her husband either by Khula or
Mubaraat.

UNILATERAL POWER OF HUSBAND TO DIVORCE HIS WIFE

Under Muslim law, husbands possess power to dissolve his marriage as and when he likes it
necessary. It is an arbitrary act of a Muslim husband who may repudiate his wife at his own
pleasure with or without showing any cause. He can pronounce talaq at any time. It is not
necessary for him to obtain the prior approval of his wife for the dissolution of marriage. The
talaq may be pronounced on mere whim or caprice without any reason. Talaq can be pronounced
by the husband without the intervention of court. The Muslim concept of divorce is that, where it
is impossible for the spouses to live together, they must separate peacefully. The law gives to the
husband, an absolute authority to terminate the marriage by pronouncing talaq; because, the
society is a male dominated.

The Islamic policy has never been to confer an absolute authority of talaq upon a husband to be
misused by him. But unfortunately, the unrestricted right of talaq has been misunderstood and
Islamic guidelines for it have been ignored by the society and the courts of law. The result is that,
there is no legal control over the unfettered right of a Muslim husband to dissolve the marriage

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by uttering few words. However, an indirect check upon this right is the obligation of a husband
to pay the dower upon the dissolution of a marriage.

The courts play an important role in deciding cases related to husbands arbitrary power of
Divorce. We can see it from Moonshee buzloor Rahim to shayara bano, The situation in India
was complex because lack of codified law to govern Muslim marriage, because of this most of
the times women had to face difficulties in getting divorce. This problem was solved by
introducing Muslim Marriage dissolution Act 1939.

Following are the few judicial pronouncements towards the unilateral power of husband to
divorce his wife :-

Moonshee Buzul-ul-Rahim v. Lateef-un-Nissa Begum (1861) in this case the husband

disposes of property of his wife and confine her into a room like a jail and he misbehaved with
his wife . In appeal he said that under muslim law a wife has no right to live separately even the
conduct of the husband is bad. The court said that a divorce by talaq is more arbitrary act of the
husband who may repudiate his wife with or without any cause. This attitude of the court
continued even after the advent of independence.

Moonshee Bazloor Raheem v. Shamsoonissa Begum (1867), in this case the Privy Council
said that matrimonial law of the Muhammadan like that of every ancient community favours the
stronger sex where the husband can dissolve the marital tie at his will.

In Amir-ud-din v. Khatun Bibi (1917) it was held that the talak-ul-biddat or heretical divorce is
good in law, though bad in theology, and it is the most common and prevalent mode of divorce
in this country.

The High Court of Patna in Sheikh Fazlur v. Musammat Aishu (1929) has expressed the
opinion relying on a passage on p. 74 of the Hedaya, that a talak-ul-bidaat effected by a triple
pronouncement is valid even if it is pronounced when the wife is in her menstruation.

Asha Bibi v. Kader Ibrahim, Any impropriety on the husband’s conduct would in no way
affect the legal validity of talaq duly effected by the husband. The judgement on this case
reaffirmed the approach of the courts in the case Ahmed Kasim Molla. It was also stated that for

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pronouncement of talaq, it is essential to have a marital relationship between husband and wife
or the marriage is subsisting between them during the pronouncement of talaq. Hence husband
can divorce his wife during iddat of revocable talaq.

In Mohammad Yusuf commissioner, Quetta Division v. Syed Ali Nawaz Gardezi (1965), on
the 4th December, 1906, the petitioner, who was domiciled in Scotland, married Ghulam
Mohammad Ebrahim, who was a Sunni Mohammadan, domiciled in India, at the General
Registry Office in Edinburgh. In 1912, the petitioner converted to Islam and continued to profess
that religion up to the middle of April 1923. Between 1914 and 1923, Ghulam Mohammad
Ebrahim permanently resided at Secunderabad. On 27th June 1922, Ebrahim pronounced talaq
against the petitioner in accordance with Muslim law at Secunderabad. On 10th April 1923, the
petitioner made a declaration in the District Court at Secunderabad that she was no longer the
wife of Gulam Mohammad Ebrahim. On 24th April 1923, the petitioner was married to the
respondent under the Special Marriage Act, 1872. It was held that, at the time of the marriage,
Ebrahim was domiciled in British India and that in 1912, when the petitioner embraced Islam,
both Ebrahim and the petitioner were domiciled in British India. Since she converted to islam,
Muslim personal law applies. In the circumstances, it was held that, the marriage was dissolved.

In Mohd. Ahmad Khan v. Shah Bano Begum (1985), the Supreme Court again said that
“undoubtedly, the Muslim husband enjoys the privilege of being able to discard his wife
whenever he chooses to do so for reasons good, bad or indifferent even for no reason at all”.

In Masroor Ahmad v. State of NCT Delhi (2008), The court held that, • A triple talaq, even
for Sunni Muslims be regarded as one irrevocable talaq. • If a talaq is pronounced in extreme
anger where the husband has lost control of himself, it would not be effective. • When the talaq
is communicated to the wife, talaq will be considered effective from that date. If it is not
communicated, then it would not take effect. • There should be attempt of reconciliation as
mentioned in Quran either before or after the purported pronouncement of talaq.

In Shamim Ara v. State of U.P., it was said that, the condition precedent for effectiveness of
divorce was the pronouncement of divorce which has to be proved on evidence. The basic rule is
that a Muslim husband under all schools of Muslim law can divorce his wife by his unilateral
action without the intervention of the court. The SC expressed disapproval and disagreement
with the above view. Approving the decision of Guwhati HC which held that talaq must be for a

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reasonable cause and be preceded by attempts of reconciliation by two arbitrators one from each
family, if failed, talaq may be effective. This judgment can be expected to restrain the Muslim
husbands from playing the card of divorce to defeat the wife‘s demand of maintenance.

Shayara Bano v. Union of India (2017), This case was based on the issue of talaq-e-biddat
(instant talaq or triple talaq) and on talaq-e-mughallazh the irrevocable divorce. The wife
approach the court to seek talaq-e-biddat pronounced by her husband is void, further she also
contended that such unilateral abrupt and unilateral form of divorce be declared unconstitutional
arguing that the practice of triple talaq violated the fundamental rights of muslim women on
which the Supreme court held that the practice of instantaneous triple talaq is unconstitutional
and gave the verdict in favour of wife Shayara bano.

CONCLUSION

Divorce is a controversial subject under Muslim law. Before advent of Islam in Arabia, the
husband posses unilateral right of divorce as they can give divorce to their wife for any reason or
without any reason and also they can remarry with the divorced wife again.After advent of Islam
the condition improved as Prophet recognizes this concept and put some social and legal
restriction on divorce to check arbitrary power of the husbands. Even Islamic law provides equal
rights to both husband and wife to dissolve their marriage but due to wrong interoperation of
people the unilateral power were granted to husband. Although It provides some relief to the
women but still these arbitrary practices are going on. The main problem in divorce is for paying
the amount of dower to wife. Also there are many legislation in that regard but are ineffective
due their implementation in society. It is the need of an hour to equalize the concept of divorce
between the husband and wife and for this judiciary should take appropriate steps as held in case
of Shayara bano.

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 UNIT- II

Question 2- WHAT IS THE NATURE AND KINDS OF DOWER? EXPLAIN THE MUSLIM WIDOW’S

RIGHT OF RETENTION OF HER HUSBAND’S PROPERTY IN LIEU OF HER UNPAID DOWER. IS IT

HERITABLE AND TRANSFERABLE? REFER TO DECIDED CASES.

Answer- In Pre-Islamic Arabia, the institution of marriage as we know today was not developed
and sexual relations were in vogue. Two forms of marriage were practiced in pre-islamic Arabia
that is Been from and Baal form. Under ‘Been’ form of marriage wife did not accompany the
husband and she live at own place and husband visited her there. Under this kind of marriage
there is custom to give gift to wife at time of marriage which was known as ‘sadaq’. In Baal form
of marriage wife accompany her husband and used to give her parents certain amount in
consideration for their daughter leaving home and the amount is known as ‘Mahr’ which is
therefore linked as bride price. After advent of Islam in Arabia Prophet regulated the institution
of marriage and a new form of marriage came in to existence that is “Nikah”. One of the
essential parts of Muslim marriage (Nikah) is “dower” paid or promised to be paid by the
husband to the wife. Without Mahr a nikah cannot be said to have been properly solemnized.
Dower money must be paid or fixed before the solemnization of a marriage. Dower must not,
however be confused with “dowry” which consists of presents made by father and other relations
of the bride and Muslim Law does not make any provision for payment of dowry. Dower is the
sum of money or other property which the wife is entitled to receive from the husband in
consideration of marriage. The amount of dower may be fixed either before or at the time of
marriage of after marriage. The amount of dower is generally split into two parts- “prompt
dower” which is payable immediately on demand by the wife and “deferred dower” which is
payable only on dissolution of marriage by death or divorce.

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NATURE OF DOWER

Dower or mahr can be in both cash or kind. The dower of a Muslim wife is debt and the widow
is entitled to receive it along with the other creditor from the estate of deceased husband. The
nature of her debt is unsecured. She is not entitled to a charge on husband’s property unless there
is an agreement, and the heirs of the deceased are not personally liable to pay the dower, they are
liable relatable to the extent of their share in inheritance.

These are few judicial pronouncements on the nature of dower-:

In case of Abdul Qadir v. Salim the question is regarding the liability of husband to pay dower
to the wife. The Privy Council discussed majorly about ‘what is dower’ and held that “dower
under Mohammedan law is the sum of the money or other property promised by husband to be
paid or delivered to the wife in consideration of marriage and even where no dower is expressly
fixed or mentioned at the marriage ceremony the law confer right of dower as a necessary effect
of marriage.

But this decision is criticized by Ameer Ali and he says that dower is not the exchange or
consideration as understood in the technical sense in the contract Act, given by man for entering
into contract but an effect of contract imposed by law on the husband as a token of respect for its
object the women. If the dower were the bride price a post nuptial agreement to pay would be
void for want of consideration but such an agreement is valid and enforceable.

In case of Nasiruddin Shah v. Amtul Mughni Begum it was held that “ the husbands duty to
pay dower flows from tie of marriage similar to his duty of providing maintenance and raiment
and if the latter two cannot be regarded as consideration for marriage and are only given out of
consideration and respect for the wife equally is dower not to be regarded as its consideration as
that term of the art is to understood in English language had it been so the omission to specify
and dower would have affected the validity of marriage”.

In case of Anis Begum v. Mohd. Istefa Ali Khan Justice Suleman held that the marriage can
not be regarded as purely a sale of person by the wife in consideration for the payment of Dower.

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KINDS OF DOWER

We have seen that dower is payable whether the sum has been fixed or not, Ali said: ‘There can
be no marriage without mahr’. Thus, dower may, first of all, be either specified or not specified.
Proper Dower, or to be strictly literal, ‘the dower of the like’. If the dower has been specified,
then the question may be whether it is prompt or deferred.

Thus we have two kinds of dower in Islam:

1. Specified Dower and

2. Unspecified Dower or Proper Dower.

Specified Dower is further be divided into-

(a) Prompt and

(b) Deferred

1) SPECIFIED DOWER (mahr al- aqd)

Usually the mahr is fixed at the time of marriage and the kazi performing the ceremony enters
the amount in the register; or else there may be a regular contract called kabinnama, with
numerous conditions. There are provisions relating to dower under sections 13, 14, 15, 16 and 20
of the Kabinnama [Form-E] according to the Muslim Marriages and Divorces Rule 1975. The
sum may be fixed either at the time of marriage or later, and a father’s contract on behalf of a
minor son is binding on the minor.

Where a father stipulates on behalf of his son, in Hanafi law, the father is not personally liable
for the mahr; but aliter in Ithna ‘Ashari law. In Syed Sabir Husain v. Farzand Hasan, a Shiite
father had made himself surety for the payment of the mahr of his minor son. Thereafter he died,
and it was held that the estate of the deceased was liable for the payment of his son’s mahr.
Accordingly each heir was made responsible for a portion of the wife’s claim in proportion to the
share received by the particular heir on distribution from the estate of the deceased. The heirs

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were, however, liable only to the extent of the assets received by them from the deceased, and
not personally.

Where the amount has been specified, the husband will be compelled to pay the whole of it,
however excessive it may seem to the court, having regard to the husband’s means; but in Oudh,
only a reasonable amount will be decreed, if the court deems the amount to be excessive or
fictitous.

(a) Prompt Dower (Muajjal Maher)

It is payable immediately after marriage on demand. According to Ameer Ali, a wife can refuse
to enter into conjugal domicile of husband until the payment of the prompt dower. The following
point must be noted regarding prompt dower: Prompt dower is payable immediately on the
marriage taking place and it must be paid on demand unless delay is stipulated for or agreed. It
can be realized any time before or after the marriage. The wife may refuse herself to cohabit with
her husband, until the prompt dower is paid. If the wife is minor, her guardian may refuse to
allow her to be sent to the husband’s house till the payment of prompt dower. In such
circumstances, the husband is bound to maintain the wife, although she is residing apart from
him.

It was held in Rehana Khatun v. Iqtider Uddin that the prompt portion of the dower may be
realized by the wife at any time before or after consummation. In the case of Mahadev Lal v.
Bibi Maniran it was decided that prompt dower does not become deferred after consummation
of marriage, and a wife has absolute right to sue for recovery of prompt dower even after
consummation. Dower which is not paid at once may, for that reason, be described as deferred
dower, but if it is postponed until demanded by the wife it is in law prompt dower.

Although prompt dower, according to Muslim law, is payable immediately on demand, yet, in a
large majority of cases it is rarely demanded and is rarely paid, in practice a Muslim husband
generally gives little thought to the question of paying dower to his wife save when there is
domestic disagreement, or when the wife presses for payment upon the husband’s embarking
upon a course of extravagance and indebtedness without making any provision for the lapse of
time since marriage raises no presumption in favour of the payment of dower.

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(b) Deferred dower

It is payable on dissolution of marriage either by death or divorce. According to Ameer Ali

generally in India dower is a penal sum with the object to compel husband to fulfill marriage
contract in its entirety. The following points must be noted regarding deferred dower:

Deferred dower is payable on dissolution of marriage by death or divorce. But if there is any
agreement as to the payment of deferred dower earlier then such an agreement would be valid
and binding. The wife is not entitled to demand payment of deferred dower, but the husband can
treat it as prompt and pay or transfer the property in lieu of it such a transfer will not be void as a
fraudulent preference unless actual insolvency is involved. The widow may relinquish her dower
at the time of her husband’s funereal by the recital of a formula. Such a relinquishment must be a
voluntary act of the widow. The interest of the wife in the deferred dower is a vested one and not
a contingent one. It is not liable to be displaced by the hampering of any event, not even on her
death; as such her heirs can claim the money if she dies.

PROPER DOWER

The obligation to pay dower is a legal responsibility on the part of the husband and is not
dependent upon any contract between the parties; in other words, if marriage, then dower. Where
the dower is specified, any amount, however excessive, may be stipulated for.The customary or
proper dower of a woman is to be fixed with reference to the social position of her father’s
family and her own personal qualifications. The social position of the husband and his means are
of little account. The Hedaya lays down the important rule that her ‘age, beauty, fortune,
understanding and virtue’ must be taken into consideration. Islamic marriage, therefore,
safeguards the rights of a wife and attempts to ensure her an economic status consonant with her
own social standing. Historically speaking, and on the analogy of sale, it is permissible to ask:
‘What have the circumstances of a purchaser to do with the intrinsic value of the thing he buys?’
The answer is that the Indian courts no longer consider marriage as a form of sale or barter, and
do not proceed upon the analogy that dower is the price of consortium.

In fixing the amount of the proper dower, regard is to be had to the amount fixed in the case of
the other female members of the wife’s family. ‘Mahr is an essential incident under the Muslim

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law to the status of marriage; to such an extent that is so that when it is unspecified at the time
the marriage is contracted the law declares that it must be adjudged on definite principles’. The
main consideration is the social position of the bride’s father’s family, and the court will consider
the dowers fixed upon her female paternal relation such as sisters or paternal aunts who are
considered to be her equals.

The Prophet once allowed the marriage of an indigent person for a silver ring; and on another
occasion, merely on the condition that the husband should teach the Koran to his wife. In Hanafi
law, where the specified dower is less than 10 dirhams, the wife is entitled only to the minimum,
namely 10 dirhams, and in Ithna ‘Ashari law, the proper dower can never exceed 500 dirhams,
the dower fixed for the Prophet’s daughter Fatima. Thus, among the Shiites there are three kinds
of mahr:

i. Mahr-e sunat, the dower supported by tradition, i.e. 500 dirhams;

ii. Mahr-e mithl, ‘the dower of the like’, or the dower of an equal, which is the technical
name for proper or unspecified dower; and
iii. Mahr-e musamma, the specified dower.

The Widow’s Right of Retention

Mohammadan law gives to the widow, whose dower has remained unpaid, a very special right to
enforce her demand. This is known as ‘the widow’s right of retention’. A widow lawfully in
possession of her deceased husband’s estate is entitled to retain such possession until her dower
debt is satisfied. Her right is not in the nature of a regular charge, mortgage or a lien; it is in
essence a personal right as against heirs and creditors to enforce her rights; and it is a right to
retain, not to obtain, possession of her husband’s estate. Once she loses possession of her
husband’s estate, she loses her special right and is in no better position than an unsecured
creditor.

The nature of this right was discussed by their lordships of the Privy Council in Maina Bibi v.
Chaudhri Vakil Ahmad. One Muinuddin died in 1890 possessed of immovable property
leaving him surviving his widow Maina Bibi, who entered into possession. In 1902 some of the
heirs filed a suit to recover possession of their share of the property. The widow pleaded that the
estate was a gift to her, or alternatively that she was entitled to possession until her dower was

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paid. In 1903 the trial judge made a decree for possession in favour of the plaintiffs on condition
that the plaintiffs paid a certain sum by way of dower and interest to the widow within six
months. This sum was not paid, however, and the widow remained in possession, in 1907 Maina
Bibi purported to make a gift of the whole of her property to certain persons. The original
plaintiffs challenged this gift and the Privy Council held that the widow had no power to make a
gift of the properties, and could not convey the share of the heirs to the donees. Their lordships,
in discussing the nature of a widow’s right of retention, said that:-

‘the possession of the property being once peaceably and lawfully acquired, the right of the
widow to retain it till her dower-debt is paid is conferred upon her by Mahomedan Law’. They
further said that it is not exactly an lien, nor a mortgage, usufructuary or other.Thus, in essence,
it is a personal right given by Muhammadan law to safeguard the position of the widow.

The Supreme Court has laid down that a Muslim widow in possession of her deceased husband’s
estate in lieu of her claims for dower, whether with the consent of the heirs or otherwise, is not
entitled to priority as against his unsecured creditors.

There is a conflict of opinion whether in order to retain possession the consent, express or
implied, of the husband or his heirs is necessary. Some judges are of opinion that such consent is
necessary; others, that it is not. It is submitted with great respect, that on first principles, having
regard to the nature of the right, the consent of the husband or his heirs is immaterial.
Muhammadan law casts a special obligation on every debtor to pay his debt, and the right of the
widow for her dower is a debt for which the widow has a good safeguard. Thus, the question of
consent appears to be immaterial.

The right to retention does not confer on the widow any title to the property. Her rights are
twofold: one, as heir of the deceased and two, as widow entitled to her dower and, if necessary,
to retain possession of the estate until her mahr has been paid. The right to hold possession must,
therefore, be sharply distinguished from her right as an heir. The widow, in these circumstances,
has the right to have the property administered, her just debts satisfied and her share of the
inheritance ascertained and paid. She has no right to alienate the property by sale, mortgage, gift
or otherwise, and if she attempts to do so, she loses her right of mahr.

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There are two other major questions on which the law is still unsettled. Can the widow transfer
her right of retention? And is this right of retention heritable? In Maina Bibi v. Chaudhri Vakil
Ahmed their lordships expressed a doubt whether a widow could transfer the dower debt or the
right to retain the estate until the mahr was paid. Following that case there has been much
conflict of judicial opinion on the questions as to the heritability and transferability of this right.
The Mysore and Allahabad High Courts have decided that the right is both heritable and
transferable; but the Patna High Court has held that the widow’s is a personal right, and not a
lien, and as such, it is not transferable.

CONCLUSION

After the foregoing discussion, it can be concluded that Under the Muslim Law, Maher (dower)
means money or property which the wife is entitled to receive from the husband in consideration
of the marriage, but the concept of consideration in Muslim marriage is not the same as that of
the civil contract. If a person purchase anything he has to pay price to the owner of the thing but
here husband pay mahr to the wife not to her parents and also a contract becomes void without
consideration but in case of Muslim marriage if dower is not paid promptly then also marriage is
valid. Dower is an obligation imposed upon the husband as a mark of respect for the
wife. Mahr is something in the form of a sum of money or some property which a wife is entitled
to get from her husband and in case of his death from his heirs also. When the amount of dower
is fixed, it is specified dower or otherwise proper dower may be specified before at the time of
and even after marriage. Dower is a debt, though unsecured. The maher is the sole property of
the wife and neither parents nor any other relatives have any right over it. The wife, widow or
divorce has a right to retain in possession of the property of the husband till her dower debt is
satisfied. The right of retention is not a charge on property. The right of dower is heritable and
transferable which in possession of the husband’s property in lieu of her dower debt the widow
or divorcee can neither make alienation of that property nor manage it.

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 UNIT- III

QUESTION 3- DISCUSS THE ‘ACKNOWLEDGEMENT OF PATERNITY’ UNDER MUSLIM LAW AND

ITS CONDITIONS.  ALSO DISCUSS THE OBJECTIONS TO SECTION 112 OF THE INDIAN
EVIDENCE ACT, 1872 SUPERSEDING THE MUSLIM LAW OF PRESUMPTIONS OF LEGITIMACY?

EXPLAIN.

Answer-

Parentage is the relation of parents to their children. Paternity is the legal relation between father
and child.Where the paternity of a child, i.e., its legitimate descent from its father, cannot be
proved by establishing a marriage between its parents at the time of its conception or birth, such
marriage and legitimate descent may be established by “acknowledgement”. This is a special
mode prescribed by Muhammadan law for establishing the legitimacy of a child and the marriage
of its mother. Since a marriage among Muslims may be constituted without any ceremony, the
existence of a marriage in a particular case may be an open question. If no direct proof of such
marriage is available, indirect proof may be relied upon. Acknowledgment of legitimacy of a
child is one of the kinds of indirect proof. Thus, under certain conditions, if a Muslim
acknowledges a child to be his legitimate child, the paternity of that child is established in him.
But the doctrine applies only to cases where the fact of an alleged marriage is an uncertainty.
The Mohomedan law of acknowledgment of paternity could be invoked only when the factum of
marriage or the exact time of marriage had not been proved. The doctrine of acknowledgment is
based on the assumption of a lawful union between the parents of the acknowledged child. This
doctrine, is not applicable where the lawful union between the parents of the child is not possible
as in the case of an adulterous connection. The doctrine is also not applicable where the marriage
necessary to render a child legitimate is disproved. An acknowledgement of paternity need not
be express. Such an acknowledgement may be presumed from the fact that one person has
habitually and openly treated another as his legitimate child. As In Muhammad Azmat v. Lalli
Begum, according to Mahomedan Law the acknowledgement and recognition of children by a
father as his sons gives them the status of sons, capable of being inheriting as legitimate sons.
Such an acknowledgment may either express or implied, in the latter case the inference from the
acts of the father must depend upon the circumstances of each particular case.

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Conditions of valid acknowledgment:

1) Unknown paternity-

(a) Fact or exact time of marriage is not certain—As marriage among Muslims may be
constituted without any ceremonial, direct proof of marriage is not always possible where direct
proof is not available, indirect proof is by way of an acknowledgement of legitimacy in favor of
the child.

(b) Paternity neither proved nor disproved-It is necessary that marriage between the parents
of the acknowledged child must neither be proved nor disproved; it must be in state of not
proved, i.e. capable of being proved or disproved.

2) Intention to confer status of legitimacy- In Habibur Rahman v. Altaf Ali (1921) the Privy
Council held that ―the acknowledgement must not be merely of sonship, but must be made in
such a way that it shows that the acknowledger meant(i.e. intended) to accept the other not only
as his son, buy, as his legitimate son‖. The general principle of the law is that the acknowledging
a child as son indicates accepting him as legitimate son. As held in Fazlun Bibi v. Umda Bibi
(1868) this rule is applicable to Muslim law also. However, a casual acknowledgement would
not confer the status of legitimacy. There must be an express intention to do so.

3) Acknowledger must be 12½ years older than the acknowledged- ― The acknowledger
must be at least 12 ½ year older than acknowledged and this because is the minimum period of
the puberty for a youth; and this limitation is necessary because if the acknowledger has not
attained puberty, the acknowledgement would be falsify obviously.

4) Legal marriage must be possible between the parents of the person acknowledged-The
parents of the acknowledged child must not be in the prohibited degrees of relationships. Such
absolute prohibitions are on the points of (a) Consanguinity, (b) Affinity, (c) Fosterage, and (d)
Polyandry. If the parents are within the relative degrees of prohibition so as to make the marriage
between them as irregular but not void, valid acknowledgement can be made of an issue of such

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a marriage. In Rashid Ahmad v. Anisa Khatun. (1931) the acknowledgement in question was
of a child born to the parents who were remarried after triple divorce. The wife was given triple
divorce and without undergoing a second marriage with another person, the spouse remarried
with each other. Since this marriage was void, valid acknowledgement could not be given to the
child.

5) Person acknowledged must not be offspring of zina- An offspring of zina is one who is
born either: (a) Without marriage or (b) Of a mother who was the married wife of another, or (c)
Of a void marriage. ‘Baillie’ says that “when a man has committed zina with a woman, and she
delivered a son whom he claims, the descent of the son from the man is not established, and
cannot be acknowledged”.

6) Person acknowledged must not be known to be the child of another- The Muslim Law of
acknowledgement relates only to the cases of uncertainty and proceeds on the assumption that
the acknowledged child is not only the offspring of the acknowledger by blood, but also the issue
of lawful union. Thus, where a person is known to be the child of another, valid
acknowledgement cannot be made.

7) Person acknowledged must not repudiate the acknowledgement- It is a condition that

acknowledged child should verify the acknowledgement, because, if the child does not verify, an
impediment is created and the child‘s descent is not established by the mere acknowledgement,
but requires proof. However, if the child is too young, such verification is not essential.

Section 112 of the Indian Evidence Act, 1872 superseding the Muslim law of presumptions
of legitimacy:

There is always difference in opinion among various text book writers and courts on the point of
Muslim law of legitimacy in conveyance with the section 112 of evidence act, we can conclude
that Muslim law should prevail over section 112. The question of legitimacy is a substantive law
question and not to be governed by procedural law. Section 1 of evidence Act says that it applies
to all judicial proceeding in or before any court and this was suggested that its provisions were
not intended to supersede any existing rules except rules governing the substantive rights of the
parties. This section is not applicable to void marriage. However some writers and high courts

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hold a contrary view that a child born after so long a time after termination of marriage cannot be
held to be legitimate as it would be contrary to the course of nature and impossible .

Section112 of the Indian Evidence Act limits for conclusive presumption the period of gestation
to 280 days after the dissolution of marriage to render the child legitimate. Section 112 of the
Evidence Act lays down a conclusive presumption of legitimacy. It provides that a child born
during the continuance of a valid marriage or within 280 days after its dissolution, the mother
remaining unmarried, is conclusively presumed to be legitimate, unless there was no access
when he could have been begotten. In Sibt Muhammad v. Muhammad Hameed the Allahabad
High Court held that to the question whether the Muslim child born within 6 months of the
marriage of his parents was to be considered legitimate, section 112 applied and the child was
legitimate. The Calcutta High Court in Fazilatunnissa v. Kamarunnissa (1904) has laid down
that the doctrine of acknowledgement is an integral part of the Mohammedan law and the
conditions under which it will take effect must be determined with reference to Mohammedan
Jurisprudence rather than the Evidence Act.

The following difficulties arise if section 112 is made to supersede the Muslim law:

1. A child born within 6 months of the marriage is, in the absence of evidence of non-
access, to be deemed to be legitimate under section 112, but according to Muslim law
such a child would be illegitimate. The Muslim jurists have always considered the point
of conception to be very essential even during a valid continuance of wedlock.
2. The establishment of paternity is a portion of the Muslim family law and, though
described for convenience as a legal presumption, forms a branch of substantive law.
Wilson holds the view that the rule in section 112 is really a rule of substantive marriage-
law rather than of evidence and as such has no application to Muslims so far as it
conflicts with the Muslim law rule that a child born within 6 months after the marriage of
its parents is not legitimate." In Allahdad's case, Mahmood, J. dealt with such questions
within the province of Muslim law of inheritance and marriage. Since these matters are
posterior in date than the Evidence Act, they should, according to Wilson and other
writers, prevail in cases of direct conflict.

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COONCLUSION:

Parentage involves some rights and duties, the relation between child and father is called
paternity and the relation between child and mother is called maternity. Where the paternity of a
child, i.e., its legitimate descent from its father, cannot be proved by establishing a marriage
between its parents at the time of its conception or birth, such marriage and legitimate descent
may be established by “acknowledgement”. An acknowledgement of paternity need not be
express. This is a special mode prescribed by Muhammadan law for establishing the legitimacy
of a child and the marriage of its mother. Since a marriage among Muslims may be constituted
without any ceremony, the existence of a marriage in a particular case may be an open question.
Although, this doctrine can only be exercised where the conditions to the acknowledgment of
parentage as discussed above are fulfilled. There is conflict between section 112 of Indian
evidence Act and law of legitimacy under Muslim law. The most important point of conflict
between both the laws is the basis of legitimacy, for Muslim law of inheritance it is the point of
time of conception, and under evidence Act it is birth. As evidence law is a procedural law and
its first section states that it does not apply to a procedural law so it is clear now that Muslim law
of legitimacy will prevail over section 112 of evidence Act.

UNIT- IV

Question No. 4 - (a) When a Muslim testator bequeathes more than 1/3rd of his property
and his legal heirs refuse to give their consent. Discuss the law to be applied both under
Sunni and Shia law in such situations.

(b) What are the essentials of a valid gift? In which cases, delivery of possession is not
necessary? Discuss with the help of examples.
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Answer –

A will under muslim law, could be either oral or written, or even in a gesture form if the
intention is sufficiently manifest but it has also other meanings: it may signify a moral
exhortation, a specific legacy or the capacity of the executor, executorship. A document
embodying the will is called wasiyat-nama. Thus the policy of Muslim law is to permit a man to
give away the whole of his property gift inter vivos, but to prevent him except for one-third of
his estate according to the laws of inheritance. A Will or Testament or Wasiyat has been defined
as “an instrument by which a person makes disposition of his property to take effect after his
death.” Tyabji defines Will as “conferment of right of property in a specific thing or in a profit or
advantage or in a gratuity to take effect on the death of the testator.” Unlike any other disposition
(e.g. sale or gift), the testator exercises full control over the property bequeathed till he is alive,
the legatee or beneficiary under the Will cannot interfere in any manner whatsoever in the
legator's power of enjoyment of the property including its disposal or transfer (in that case the
Will becomes revoked).. The testamentary capacity of a Muslim is cut down by two principal
limitations: as to quantum, he cannot bequeath more than one-third of his net estate; and as to the
legatees, he cannot bequeath to his own heirs. In India the will of a Muslim is governed subject
to the provisions of the Indian Succession Act, 1925. The testator can make a will if he is sane
and rational being. Under Islamic law the age of puberty is 15 years however, under the
provisions of the Majority Act majority for the purpose of making a will is attained at age 18 and
not at 15. A will procured by undue influence, coercion or fraud will not be upheld.

Bequeath of a will more than one-third of the residue is void unless consented by heirs;

Sunni Law:

Rule of Rateable Proportion When a Muslim testator bequeaths more than 1/3rd of his
property and his legal heirs refuse to give their consent, the Hanafi law the bequests abate
rateably. For the purposes of rateable reduction, bequest can be divided into-:

1.) Bequest for pious purposes

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 2.) Bequests for secular purposes.

Bequests for pious purposes are decreased proportionately to bequests for secular purposes
and do not have precedence over it. The main objective of this principle is to reduce the
shares proportionately to bring it down to one-third. Where the legator has left only his or her
spouse, and apart from the spouse there is no other heir, the above rule of only making one
third of the property may become inapplicable. In such cases, the spouse shall take the whole
property. The rule of bequeathable third shall have no application if no heir has survived the
legator.

In the case of Husaini Begum v. Syed Mohammad Mehdi (1927), it was held by the court
of law that bequests of entire property to one heir to the exclusion of other heirs is void and
have no legal parlance according to Muslim law.

In the case of Amina Khatun v. Siddiqur Rahman (1960), in this case it was held that if A
bequeaths a life interest to an heir B, and thereafter the remainder to C, a non-heir, the
bequest to C will fail if the life-estate to B is invalid for want of the consent of heirs. When
the heirs did not give the consent then the remaining part or the rateable reduction will be
done for the pious and secular purposes, for pious purposes the most importantly it will go
for first, Haj, second, charity on fasting and third, building a bridge or an inn.

Under Shia Law

In the Shia law there is no principle of rateable reduction. The rule under this law for a
bequeathable one-third property is if several bequeaths is made the first person would get the
priority until the bequeathable third is exhausted.

Illustration:-

if a testator leaves 1/3 of his estate to A, 1/4 to B and 1/6 to C, and the heirs refuse their consent
to these bequests. Then A will take 1/3 of the estate, and B and C will get nothing; but instead of
1/3, 1/12 had been left to A, then A would take 1/12, and B would take 1/4 , but C who
according to order of priority would get nothing as the legal third is exhausted between A and B.

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The exception is, if the testator gives a will to two different persons here the last one would get
the will.

Thus, it is very clear from the both Hanafi law and Shia law that in Hanafi or Sunni law if there
is no consent of the legal heirs in disposing of more than one-third property then right away it
ceases whereas, in Shia or Ithna Ashari law if there is no consent of the heirs then the testator
could bequeath according to the priority and the last person would get nothing.

(b) What are the essentials of a valid gift? In which cases, delivery of possession is not
necessary? Discuss with the help of examples

A man may lawfully make a gift of his property to another during his lifetime; or he may give it
away to someone after his death by will. The first is called a disposition inter vivos (between
living persons), the second a testamentary disposition (by a will). Muslim law permits both kinds
of transfers. Muslim law allows a man to give away the whole of his property during his lifetime;
but only one-third of it can be bequeathed by will. Under Muslim law gift is termed as hiba.

Essentials of a gift are:

(i). Declaration of the gift by the donor (ijab);

(iii). Acceptance of the gift by the donee (qabul);

(ii). Delivery of possession (qabza);

Where there is no real intention of to make a gift, the gift fails; for example, sham gifts or
benami transactions. In muslim law the gift can be made by word of mouth also. Maniran v.
Mohd Ishaque (1963), in this case it was held that under the Muslim law a gift of immovable
properties can be made verbally without recourse to a written document. Every muslim who have
attained the age of majority can make a valid gift including woman also. A gift can be made to
any person. In case of a minor or lunatic, possession must be handed over to the legal guardian.

Declaration of gift

Declaration does not connote mere rather it shows the real intention if donor behind making
thegift. As Tyabji purports “Where there is no real and bona fide intention to transfer the
ownership of the subject of gift, an alleged gift may be of no effect”. Ameer Ali lays down the

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three conditions to make a gift which is somewhat similar to the above stated requirements. Gifts
without intention may be sham gifts, colourable or benami transactions, etc. A gift made with
intent to defraud the creditors of the donor is voidable at the option of donor. A declaration
purporting to transfer the property in future time or happening of a certain event is void.

Acceptance of the gift

Mere declaration does not contemplate the completion of gift. The gift should be accepted by
the donee. The acceptance of the gift must be by a person competent to accept. Till the A in
favor of the minor is accepted by a person competent to accept the gift, it cannot become valid.
Thus, where the father and grandparents executed gift deed in favor of minor children and one of
the donee who was a minor at the time of the gift, accepted the gift on behalf of her younger
brothers and sisters, it was held she was not competent to accept the gift on behalf of other
minors, and the gift was invalid.

Delivery of Possession

The intention of the donor must be demonstrated by his entire relinquishment of the thing given.
Prophet is reported to have said that a gift is not valid without seisin (possession of land by
freehold). Delivery of possession is an essential characteristic of the Islamic law of gifts likewise
in the case of Mohammad Abdul Ghani v. Fakhr Jahan Begum (1922), the court held that
‘the taking possession of the subject-matter of the gift by the donee, either actually or
constructively, is necessary to complete gift.

When Delivery of Possession is not necessary-

Islamic law of gift binds great significance to delivery of possession especially in case of
immovable property. The following are the situations under which a gift is valid without actual
or constructive delivery of possession:

Donor and donee live jointly in the gifted house: Where the subject-matter of a gift is a house
in which the donor and donee both resides together, any formal delivery of possession is not
necessary to complete the gift. Since the donee is already continuing the possession of the house
in some other capacity, there is no need to give the donee the same possession again in a

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different capacity. In the case of Ibrahim v. Suleman (1884), it wad held that where the donor
and the donee reside in the same house the donor can complete gift without physical transfer of
possession; but there must be the evident manifestation by the donor of an intention to transfer
exclusive possession to the donee. In another case of Humera Bibi v. Najm-un-Nissa (1905), in
this case a muslim lady who had brought up her nephew as her son executed in his favour a deed
of gift of a house in which they were both residing at the time of the gift. The donor never
departed from the house physically, nor was the house formally handed over to the donee, but the
property was transferred and the rents were recovered in his name. It was held that the gift was
valid although there was no physical delivery of possession.

Gift by a husband to wife or vice versa: where a gift of immovable property is made by a
husband to wife or vice versa, no transfer of possession is mandatory. The reason behind this is
that a joint residence is an integral aspect of the relationship of marriage. To perform the
matrimonial obligations, it is necessary the husband and wife must live together.

In Fatima Bibi v. Abdul Rehman (2001), the husband made an oral gift of a house to his wife.
Later, the deed was also registered. The stepson, who lived with his wife in the gifted house,
challenged the validity of the gift on the ground that there was no delivery of possession of the
house. It was held that Oral gift in presence of two persons amounts to the declaration,
mentioning the name of the wife in the registration deed amounts acceptance and mutation in the
name of the wife at the instance of the wife amounts sufficient delivery of possession keeping in
view the relationship between the parties. In another famous case of Amina Bibi v. Khatija Bibi
(1864), a husband had made a gift of certain houses to his wife. He had made over the keys to the
wife, left the house for a few days to show clearly that possession had been delivered, but had
returned afterwards and lived with her until his death. It was held that the gift is valid.

Fatimid law: In case of application of Fatimid law in delivery of possession is not required.

UNIT- V
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Question No. 5 – (a) Differentiate between Sunni and Shia law of inheritance.

Answer –

The Islamic law of inheritance is combination of both customs and rule introduced by Prophet.
Inheritance is concept related to property where leftover property of a deceased Muslim is
heritable. Inheritance deal with passing of property right from person to person on basis of
relationship. The property can be both movable and immovable. Under Muslim law property
consist of both movable and immovable property for inheritance. Inheritance means devolution
of property on heir or heirs upon death of prepositus. Property that is subject matter of
inheritance must be owned by deceased. The property may be ancestral or self acquire and
Muslim law does not grant right of property by birth, means a person has no heir until his death.
If one heir dies the other heir takes his place. There are various ground which led to disqualify
him as a heir like if one heir kill other to get succession in Sunni law he will be disqualified to
inherit property. Muslim law does not provide inheritance right to a illegitimate child but the
mother of illegitimate child can inherit the property on behalf of her child. The Shia and Sunni
Law are two major schools of Islam. Both of the schools follow same tents of Islam but there are
minor difference in law and aspect of life so the law related to the schools are also different.
The Sunni and Shia laws of inheritance are similar as well as distinct in many aspects.

A) Differences between Sunni and Shia law of inheritance

The Shia and Sunni are two major schools of Islam. Both of the school follow same tents of
Islam but there are minor difference in law and aspect of life so the law related to both the
schools are also different. The Sunni and Shia laws of inheritance are similar as well as distinct
in many aspects. The difference between Sunni and Shia law of inheritance are as follows-:

(a) Shia law divides legal heirs into two classes- sharers and residuaries where as Sunni divides
heirs into three categories- sharers, residuaries and distant kindered. Most of those who are
regarded as distant kindred in Sunni law relate to a deceased from his female descendants
(e.g. daughter’s children, son’s daughter’s children) or other female relatives (e.g. mother’s
father, mother’s brother and sister, sister’s children etc.).
(b) Sunni law differentiates between paternal and maternal grandfathers whereas in Shia law
there is no such distinction as Shia law mentions grandfathers from both the sides in class2.

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(c) Sunni law differentiates between paternal and maternal uncles. The paternal uncle will get
the entire estate as he comes under residuary and the maternal uncle comes under distant-
kindered category. But in Shia law no such preference is given to the paternal uncle.
(d) Sunni law differentiates between paternal and maternal grandsons. The maternal grandsons
would not get anything in the presence of paternal grandsons. Shia law provides equality in
terms of maternal and paternal grandsons. Grandsons of son will represent son and will get
twice as the share as the grandsons from daughter’s side as the maternal grandsons represent
daughter but it is not the case in sunni law.
(e) The rule of ‘nearest in degree’ is different under both the laws. In Sunni law the daughter
who is a nearer degree heir cannot exclude the grandson who is of remoter degree whereas in
Shia law the daughter can exclude such a remoter degree grandson. It is because under Shia
law men and women are considered equal in terms of inheritance except the fact that males
get twice the amount as females.

(f) In Sunni law, spouses are not entitled to any benefit under Radd except in a case where there
is no other relative of deceased alive including distant kindred. Shia law has added into this
list two more persons: the one is mother and the other is uterine brother/sister. Under certain
circumstances, they are only restricted to their prescribed share.

(g) Under Shia law a childless widow cannot get share in the movable property whereas there is
no such difference in movable and immovable property in sunni law.
(h) Sunni law recognizes twelve sharers whereas Shia law recognizes only nine- sharers.
(i) Sunnis follow per capita method of distribution and Shia follow per strips method of
distribution.
Shia law of Inheritance follow the per strip distribution method. According to this method,
the property gets distributed among the heirs according to the strip they belong to. Let us
understand this with an example. Suppose A died leaving two sons C1 and C2. A left
Rs.50,000. This money would be equally divided among both of them i.e. Rs. 25,000 each. If
C1 has two sons and C2 has one son. If C1 died his sons would get Rs. 12,500 each means,
Rs. 25,000 would be divided equally among both his sons and if C2 died leaving only his one
son then C2’s son would get Rs. 25000 as whole.

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(B) Explain the doctrine of Aul and doctrine of Radd both under Sunni and Shia law.

Principle of Aul/Increase

If the total shares exceed unity after allotting shares of Quranic heir, share of each heirs is
proportionally diminished by reducing the fractional share to a common denominator, and
increasing the denominator so as to make equal to the sum of nominators, thus artificial inflation
is called Aul. The real effect is the proportionate reduction of share. This doctrine is called
increase not because it increases the share but it reverses the share.

Doctrine of Aul under Shai and Sunni law

The principle of Aul is not recognized in Shia law of inheritance and Shia scholars have
expounded rules to avoid its application. In Sunni law, whenever the calculated shares of heirs of
a deceased are increased from the supposed shares of that estate, the supposed shares are
increased to match the number of the calculated shares. In this manner, each sharer gets what is
prescribed for him/her in the Quran in terms of numbers, though the actual amount/quantity of
his/her share is reduced. As it is not possible to avoid situations which attract the application of
principle of Aul, Shia jurists have devised an innovative manner to resolve such situations. They
have divided the sharers of a deceased into those whose share is susceptible to reduction and
those whose share is not liable to reduction. They have placed daughters and sisters into the first
category taking into account the fact that their prescribed shares (one half and two thirds) could
be reduced in those situations where there is a male counterpart who converts them into
residuaries. On the other hand, there are other sharers, e.g. parents, spouse and uterine sister,
whose share is minimally prescribed in the Quran which could not be reduced from that minimal
amount in any case. So, if there are heirs from both these categories and their calculated shares
are increased from the supposed shares, the heirs of the second category will have their
prescribed shares, while the heirs of the first category will bear the burden of avoidance of
application of the principle of Aul.

Illustration

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A female dies leaving behind her husband and two sisters. The husband’s prescribed share in
such a situation is 1/2, while two sisters’ 2/3. If we solve this proposition, the husband will be
entitled to 3/6 and sisters 4/6. So, according to Sunni law, the Aul will be applied to make the
husband’s share 3/7 and the sisters 4/7. But Shia law resolves it differently by proposing that the
husband should be given 3/6 as his prescribed share is not susceptible to reduction, while the
sisters will jointly inherit 3/6 instead of 4/6 as their share can be reduced to circumvent the
application of Aul.

Rule of Radd/Return

When an entire estate of a Shia Muslim is not consumed by his heirs and something is left out of
it then the rule of Radd/return is applied as is done in Sunni law. The application of Radd is more
frequent in Shia law because it gives less significance to Ausbaat/residuaries as compared to
Sunni law. In Sunni law an exhaustive list of residuaries reduces occurrences of application of
this rule.

Under Sunni Law:

The doctrine of radd is used when there is surplus left after allotting the shares to the sharers and
there are no residuaries to take the surplus, then the surplus is distributed to the sharers according
to their proportions. The formula is to reduce the common denominator. However, there is an
exception and that is, neither the husband nor the wife is entitled to the return as long as there is
sharer or distant kindred alive. If there is no such sharer alive, then the share would return to the
husband or wife.

Under Shia Law:

In Shia law, if after distribution of shares among the sharers any part is left and there are no
residuaries to take it, the balance is distributed among themselves in proportion to their shares.
However, there are three exceptions to this law under Shia law. They are If there are other heirs,
howsoever remote, the husband of the wife is not entitled to return. If an instate Shia dies leaving
behind a mother, father and one daughter; and two or more full or consanguine sisters; or one
such brother and two such sisters or four sisters, then the mother is not entitled to a share in the
return. The peculiarity of the situation is this that the brothers and sisters, being heir of Class II

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are themselves excluded from inheritance, but their presence prevents the mother from taking a
share in the return.

Illustration

If a person dies leaving behind his father and a daughter. According to Sunni law, the daughter
will get one half and the rest will be inherited by the father as a residuary. In Shia law, a father is
not regarded as a residuary in presence of deceased’s daughter as the both are placed in the same
class. Thus, in the above example, the father and the daughter will first inherit as sharers and the
residue will be shared by them under the Radd in accordance with their respective shares.

In Sunni law, spouses are not entitled to any benefit under Radd except in a case where there is
no other relative of deceased alive including distant kindred. Shia law has added into this list two
more persons: the one is mother and the other is uterine brother/sister. Under certain
circumstances, they are only restricted to their prescribed share.

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