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Muslim Law Bullet Notes
Muslim Law Bullet Notes
Muslim Law Bullet Notes
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MUSLIM LAW
INTRODUCTION
MAINS QUESTIONS.
1. What is the statutory authority of the courts to apply the Muslim law?
2. What are the conditions on which Muslim law not applied to Muslims?
4. Who is Muslim? If one of the parents is Muslim what will be the religion of the child?
MUSLIM LAW
INTRODUCTION
3. A person takes with him his own personal law. It is not the territorial law.
• Muslim law is that branch of civil law which regulates the family matters of the Muslim.
• Muslims in India are governed by The Muslim Personal Law (Shariat) Application Act,
1937. This law deals with marriage, succession, inheritance and charities among Muslims.
• The Dissolution of Muslim Marriages Act, 1939 deals with the circumstances in which
Muslim women can obtain divorce from her husband and to provide for matters connected
therewith.
• These laws are not applicable in Goa state, where the Goa Civil Code is
applicable for all persons irrespective of their religion.
• These laws are also not applicable to Muslims who have married under the Special
Marriage Act, 1954.
MUSLIM LAW
INTRODUCTION
PRELIMINARY
14. The Federal Shariat Court declared in that some provisions of the Muslim
Family Law Ordinance 1961 were repugnant to the Islamic injunctions.
(a) Farishta Case
(b) Ismael Qureshi Case
(c) Allah Rakha Case
(d) None of these
17. At the time when Islamic Law came into force the kinds of marriages were in vogue:
(a) 5
(b) 3
(c) 4
(d) None of these
MUSLIM LAW
MARRIAGE (NIKAH)
MAINS QUSTIONS
1. Marriage among Muhammadan is not sacrament but purely a civil contract. Discuss
the statement with reference to contractual nature of Muslim Marriage.
2. How the concept of marriage under Muslim law is different from that of under modern
Hindu Law?
5. Whether a Muslim girl below the age of 18 year could contract a valid marriage-Nikah
without the consent of her parents Explain in the light of the basic principle of Islamic
jurisprudence.
6. Nazma a Muslim girl was married to Ahmed when she was 13 Year old, after 6 month
she went back to her father's house and refused to come back t Ahmed's house, Ahmed
filed a petition for restitution of conjugal right. Nazma pleaded she is no longer his wife
as immediately on attaining the puberty she had repudiated the marriage with him. In
rejoinder Ahmed pleaded consummation of marriage and stated that she had lost the
right of option to repudiate the marriage on attaining puberty. Decide who will succeed.
Give reasons.
PAHUJALAWACADEMY
LECTURE NOTES
• In pre Islamic Arabian society
- The position of women was very bad
- Treated as properties
- The only object of the marriage was procreation of children and enjoyment of sex
- Limitless polygamy
- No restriction in marrying a girl even in one's close relation
- No certainty in matrimonial status of wife
- Islam prescribed a definite form of marriage namely, Nikah.
• Before the birth of Islam there were several traditions in Arab. These
traditions were having several unethical processes like:-
2) Temporary marriages.
• DEFINATION OF MARRIAGE
Hedaya - Marriage is a legal process by which the several process and procreation and
legitimation of children between man and women is perfectly lawful and valid.
Ameer Ali- Marriage is an organization for the protection of the society. This is made to
protect the society from foulness and unchestity.
• Muslim marriage can also be differentiated from a civil contract on the basis
of following points:-
(a) It cannot be done on the basis of future happenings unlike the contingent contracts.
(b) Unlike the civil contract it cannot be done for a fixed period of time. (Muta Marriage
being an exception.)
(i) There should be a proposal made by or on behalf of one of the parties to the marriage, and
an acceptance of the proposal by or on behalf of the other party.
(ii) The proposal and acceptance must both be expressed at once meeting.
• EFFECT OF MARRIAGE
(i) Mutual intercourse legalized and the children so born are legitimate.
(iv) The husband gets right to guide and prohibit the wife's movement(for valid reasons only)
The obligations and rights set between the two parties during and after the marriage are to
be enforced till legality. On the basis of a marriage husband and wife do not get the right on
one another's property.
• Conclusion
Marriage is a religious duty of every Muslim and it is considered to be a moral safeguard and
a social need. The Prophet has also said Marriage is my tradition whosoever keeps away
there from is not from amongst me.
Unlike Hindu where the marriage is a sacrament, marriages in Muslims have a nature of civil
contract. Marriage is necessary for the legitimization of a child. When the marriage is done in
accordance to the prescribed norms it creates various rights and obligations on both the
parties.
MUSLIM LAW
MARRIAGE (NIKAH)
PRELIMINARY QUESTIONS
15. Which one of the following is not essential for a valid marriage under Muslim Law?
(a) Offer and acceptance
(b) Competent parties
(c) Fosterage
(d) Free consent
16. Dower in Muslim Law is-
(1) Dowry
(2) An obligation imposed upon the husband as a mark of respect for wife
(3) Consideration for marriage
(4) A legal right of the wife
Code:
19. Under the Constitution of India, all aspects of family law are in the-
(a)Union list
(b) State list
(c) Concurrent list
(d) None of the above
20. Marriage is an organization for the protection of the society. This is made to protect the
society from foulness and unchestity.
(a) a) Ameer ali
(b) Justice Sulemaan
(c) Justice Mahmood
(d) None of the above
[EDIT] Muslim Law Lectures
pahujalawacademy.com/muslim-law-lectures
PAHUJALAW ACADEMY
LECTURE-3
MARRIAGE
1. Marriage among Muhammadan is not sacrament but purely a civil contract. Discuss
the statement with reference to contractual nature of Muslim Marriage.
2. How the concept of marriage under Muslim law is different from that of under modern
Hindu Law?
(A) Explain the validity of the following agreements entered into between the husband
and wife at the time of their marriage under the Muhammadan Law:
(i) That the parties shall not follow the Muslim law of inheritance.
(ii) That the husband shall have no right to divorce the wife.
(B) M, a Sunni Muslim marries W, a Sunni female without the presence of any witness, will it
make any difference if the parties were Shias?
(A) A Sunni male marries a Shia woman in a desert where there are a witness.
(B) Marriage of A, a Shia woman was dissolved on J an. 1, 1980 on account of death of her
husband B. the marriage was not consummated. A married D on J an. 26 1980.
(C) A, a Shia married B, a Shia female in the presence of a witness Q on Jan, 12, 1980. In
June 1980 he married D, who was B's sister.
(D) A, a Sunni male marries B, a Sunni female but no Mahr was specified.
7. Whether a Muslim girl below the age of 18 year could contract a valid marriage-Nikah
without the consent of her parents Explain in the light of the basic principle of Islamic
jurisprudence.
8. Nazma a Muslim girl was married to Ahmed when she was 13 Year old, after 6 month
she went back to her father's house and refused to come back t Ahmed's house, Ahmed
filed a petition for restitution of conjugal right. Nazma pleaded she is no longer his wife
as immediately on attaining the puberty she had repudiated the marriage with him. In
rejoinder Ahmed pleaded consummation of marriage and stated that she had lost the
right of option to repudiate the marriage on attaining puberty. Decide who will succeed.
Give reasons.
9. A Muslim girl is given in marriage by her father. When she attained the age of 17 year
she repudiated the marriage and brought a suit for dissolution of her marriage. What
facts she is required to prove in order to succeed? Can the husband successfully resist
the suit on any ground? Would it make any difference if the party repudiating the
marriage is the husband.
Akbar an NRI resides in London offers to marry Waheeda in Delhi by long distance call
over the phone. Waheeda accepts the offer on phone. Is this a valid marriage under the
Muslim Law? Discuss.
It is often said that "Muslim Marriage is a Civil Contract". Can parties to this contract
put any condition to contract they like? Discuss.
PAHUJALAW ACADEMY
LECTURE-3
MARRIAGE
Relative Prohibitions
Relative prohibitions are those prohibitions the compliance of which is not mandatory but
their presence is deemed to be unjust. Under Shariat, the rules which are not mandatory are
called directory (Mustahab) and are without any legal effect.
A Muslim is prohibited to have two wives at a time if these two wives are related to each
other (by consanguinity, affinity or fosterage), in such a manner that if they had been of
different sexes, they could not have inter-married. Marriage with two such wives is an
unlawful conjunction. For example, a man is prohibited to marry the sister of his wife
because, if one of them is presumed to be a male, they would become brother and sister and
could not inter-marry. Similarly, a Muslim cannot marry the aunt (Booa or Mausi i.e. khala)
or the niece of his wife. However, a man can lawfully marry his wife's sister after the death or
divorce of the wife.
Shialaw
(i) Under Shia law, marriage with wife's aunt (Booa or Mausi i.e. Khala) is not unlawful
conjunction. Therefore, one can marry with his wife's aunt. But he cannot marry with wife's
niece without consent of the wife; with wife's consent, marriage with wife's niece is
permitted.
(ii) A marriage against the rule of unlawful conjunctions (except marriage with wife's aunt)
is void under Shia law.
Marriage with the fifth wife is only irregular. After the death or the divorce of any of the four
wives, this irregularity does not exist, and he can lawfully marry because at a time he will
have four wives, which is permissible.
A Sunni male can lawfully contract the marriage with a Kitabia female, but he is prohibited to
marry a non-Muslim or non-Kitabia woman. For example, he is prohibited to marry a Hindu
woman. But a marriage against the prohibition is simply irregular, not void ab initio.
Sunni law prohibits a marriage being contracted without two competent witnesses. A
marriage without witnesses or with incompetent witnesses is, however merely irregular.
Shia law.-Under Shia law, the presence of witnesses is not necessary. A marriage contracted
without witnesses is, therefore, valid under the Shia law.
Iddat is that period which a woman has to undergo after divorce or death of her husband.
Marriage with a woman undergoing Iddat is prohibited under Muslim law. According to
Sunni law, a marriage with a woman observing Iddat is merely irregular; but according to
Shia law the marriage is void. However, the prohibition of marrying a woman during Iddat is
a temporary prohibition which comes to an end after the expiry of the specified period.
IDDAT
Iddat is an Arabic word and its literal meaning is 'counting'. 'Counting' here means counting
the days of possible conception to ascertain whether a woman is pregnant or not. Under
Muslim law, it is that period during which a woman is prohibited from re-marrying after the
dissolution of her marriage. During this period the widow or a divorced wife is required to
live a pure and simple life and she cannot marry again.
Marriage with a woman who is observing Iddat is irregular under Sunni law. Under Shia
law the marriage contracted with woman observing Iddat is void. Different periods of Iddat,
which a woman is legally required to undergo, are given below-
(i) When a valid marriage is dissolved by divorce and consummation has taken place, the
duration of Iddat is three monthly courses. Divorce may take place by Talaq, Ila, Zihar,
Khula, Mubarat or under Dissolution of Muslim Marriages Act, 1939. If the woman is not
subject to menstruation, this period is three lunar months.
(ii) If the marriage has not been consummated, the woman is not required to observe the
Iddat.
(iii) If the woman is pregnant at the time of divorce then the duration of Iddat extends till
delivery of the child or abortion.
(i) Where a valid marriage dissolves by the death of the husband, the duration of Iddat is four
months and ten days. If she is pregnant at the time of husband's death, it continues till the
delivery of the child, or four months ten days whichever is longer.
(ii) After the death of the husband, an Iddat of four months ten days must be observed by the
widow even if the marriage was not consummated.
The period of Iddat after divorce is three months. If the divorced woman is observing
divorce-Iddat of three months and her former husband dies before completion of three
months, she has to start a fresh Iddat of four months and ten days from the date of husband's
death. For example, where after completion of two months of divorce-iddat the former
husband dies the divorced woman has to observe a fresh iddat of four months ten days. Thus,
the total period of Iddat in such case shall be five months ten days.
The period of Iddat begins from the date of the divorce or death of the husband and not from
the date on which the woman gets the information of her divorce or of the death of her
husband . If she gets the information after the expiry of the specified term, she need not
observe the required Iddat.
ShiaLaw
(i) A generally accepted tradition among the Shias is that Iddat is not necessary if the woman
is past the age of child bearing or has not attained puberty or if her menstruation is irregular
or absent."
(ii) Under Shia law, the marriage with a woman observing Iddat is void.
Valid Retirement
Under Sunni law if the husband and the wife are together for some time in privacy and there
is no social, moral or legal restriction in their intercourse, they are said to be in valid
retirement (Khilw atus-Sahiha ). If there is a valid retirement, it is presumed that actual
consummation has taken place. Valid retirement is treated as equal to the actual
consummation for purposes of dower, paternity of the child, certain prohibitions in marriage
etc. and also for purposes of the observance of Iddat.
Under Sunni law, therefore, divorce-iddat is necessary even if actual consummation could
not be proved but a valid retirement has been established.
Shia law.-Under Shia law, valid retirement is not recognised; it is not regarded as equivalent
to the actual consummation. Accordingly, if the marriage dissolves by divorce, the divorced
wife is required to observe Iddat only where actual consummation has taken place.
Miscellaneous Prohibitions
(a) Marriage during pilgrimage.-This prohibition is recognised only under Shia law.
Therefore, marriage solemnised during pilgrimage is valid under Sunni law.
Under Shia law, a man is prohibited to marry during pilgrimage. A man who has come to the
sacred territory on pilgrimage to Mecca and has put on the pilgrim's dress, is prohibited to
enter into the contract of marriage. A marriage contracted during pilgrimage is void under
Shialaw.
HALAIA
(d) Polyandry.-Under Muslim law, a man has legal right to marry with four women at a
time. But, a Muslim woman has no such right. A Muslim woman is prohibited to contract
second marriage during the continuance of the first marriage. If she contracts a second
marriage during subsistence of the first, the second marriage is void both under Sunni law as
well as under the Shia law.
As soon as the contract of marriage is completed by offer and acceptance in accordance with
the provisions of Muslim law, the legal consequences of the marriage take effect. The legal
effects of a valid (Sahih) marriage may be summarised as under:
(1) The cohabitation between the husband and the wife becomes lawful.
(2) The children born out of a valid marriage are legitimate and they have right to inherit
their parent's properties.
(3) Mutual rights of inheritance between husband and the wife are established. That is to say,
after the death of the husband, the wife is entitled to inherit the husband's properties and
after the wife's death, husband may also inherit her properties.
(4) Prohibited relationship for purposes of marriage is created between the husband and wife
and each of them is prohibited to marry the relations of the other within prohibited degrees.
(5) The wife's right to claim dower is fully established just after the completion of marriage.
(6) The marriage gives to the wife also the right of maintenance from her husband with
immediate effect.
(7) After the dissolution of the marriage, the widow or the divorced wife is under an
obligation to observe the Iddat, during which she cannot re-many.
(8) Marriage under Muslim law does not change the legal status of the woman. The English
concept of coverture is not recognised in Islam. Her personality is not merged with that of
the husband. Even after the marriage, a wife continues to belong to the same school of law to
which she belonged before her marriage. That is to say, if Shia woman marries a Sunni, she
continues to be a Shia and is governed by Shia law after her marriage. The husband and wife
have independent right to acquire and dispose of their properties. A Muslim wife has a right
to transfer her properties without the consent of her husband. But at the same time, she is
not entitled to deal with the properties of her husband without his consent. In R. v. Khato
Bai, it was held by the court that a wife may be convicted for the theft of her husband's
properties. Similarly, the husband too cannot deal with the properties of the wife without her
consent.
(9) The husband has a marital right to guide and control the movements of his wife in a
reasonable manner. But, he is not entitled to restrain her from visiting her parent's place or
other near relatives. The wife is under an obligation to allow the husband to cohabit with her
if there is no reasonable excuse for the same.
(10) Marriage Agreements. - If there is any marriage-agreement between the parties, the
agreement comes into force on the completion of the marriage provided such agreement is
not illegal. At the time of the marriage, or on a subsequent date, the husband and wife may
enter into an agreement for regulating their marital relations. Where the parties are not
competent, the agreement may be made on their behalf, by their respective guardians. Such
an agreement is binding although the husband and wife are not parties to it. If the agreement
contains conditions which are against the principles of Islam or are unreasonable, the
agreement is illegal. An illegal agreement does not affect the validity of the marriage, but the
condition itself is void and inoperative. Such agreements cannot be enforced because they
contain un- Islamic conditions. Following conditions in marriage-agreements are illegal:
(iii) That husband and wife shall have no mutual rights of inheritance.
(iv) That husband and wife would be free to live separately in future without any reasonable
cause.
On the other hand, if the conditions in a marriage-agreement are not against the principles of
Islam, the agreement is legal and is binding upon the parties.
The following conditions have been regarded as legal conditions and the
agreements are binding :-
(i) The condition that husband shall not contract a second marriage during the continuance
of the first.
(ii) That, the husband shall not remove the wife from conjugal domicile without her consent
(iii) That, the husband shall not be absent from the conjugal home beyond a specified period.
(iv) That, a husband and wife shall live in a specified place (matrimonial home).
(v) That, husband shall pay a fixed maintenance allowance to the wife.
(vi) That, a certain portion of the dower shall be paid at once and the remainder on the
dissolution of marriage.
(vii) That, the husband shall maintain the children of the wife by a former husband.
(viii) That, the husband shall not prevent the wife from receiving the visits of her relation
whenever she likes.
Breach of Marriage-Agreements
Breach of an illegal agreement has no effect on the marital rights and duties of the parties
because an illegal agreement is not taken into account at all by the courts of law. On the other
hand, if there is a breach of a valid agreement, the result would be :
(iii) the wife may have the right to divorce herself, or in an extreme case,
KINDS OF MARRIAGE
According to Sunni law the marriage may be classified into three categories:-
Under the Shia law, irregular marriages are not recognised. A marriage according to Shia
law, may be classified into following categories:-
Under all the schools of Muslim law, a valid marriage is that which has been constituted in
accordance with the essential conditions prescribed under the law. That is to say, a marriage
is valid only where:-
(3) the offer and acceptance has been made according to law ; and
A void marriage is no marriage at all. It exists neither in fact nor in law; it is an illegal union.
Following marriages are void:-
(1) Marriage in violation of absolute prohibitions, that is to say, a marriage in which the
parties are within the prohibited relationship on the ground of consanguinity or affinity or
fosterage.
(2) Marriage with any lawfully married woman (polyandy being strictly prohibited in Islam).
A marriage which is void ab initio, is a radically illegal union from the very beginning ; it
does not create any conjugal right or obligation between the parties. The cohabitation is
unlawful and the children are illegitimate. The husband and wife do not get mutual rights of
inheritance. The wife is neither entitled to the dower nor maintenance under Muslim law. As
a void marriage is no marriage at all, the parties are free to contract another marriage
lawfully.
Irregular marriages are recognised only under the Sunni law. The irregular marriage is an
incomplete marriage. If there is any illegality in a marriage which may be removed, the
marriage is irregular. As soon as that illegality or irregularity is removed, such marriage
becomes perfectly valid. A marriage contracted in violation of any of the relative
prohibitions, is regarded as irregular marriage because relative prohibitions are merely
temporary which may be removed afterwards. Following marriages are regarded as irregular
marnages:-
(2) Children are legitimate and have right to inherit the properties of their parents.
(3) The husband and the wife have no mutual rights of inheritance. That is to say, if the
marriage is irregular and the husband dies, the wife is not entitled to inherit his properties.
Similarly, husband too is not entitled to inherit the properties of the wife.
(4) The wife is not entitled to dower if the marriage has not been consummated.
(5) Where consummation has taken place, the wife is entitled to get only the specified or the
proper dower, whichever is less.
(6) If the marriage has not been consummated, the wife is not required to observe any Iddat.
(7) Where the marriage is consummated, the wife is required to observe an Iddatonly of three
monthly courses whether the marriage dissolves by divorce or by death of the husband. After
the death of the husband, the Widow need not observe the death-Iddat (four months ten
days); three months-Iddat is sufficient.
(8) Irregular marriage is not a perfect union of husband and wife. It is regarded as unholy
union. It is the duty of the Kazi or the Court to separate them and dissolve their marriage. An
irregular marriage may also be terminated by the parties themselves, either before or after
consummation.
Shia Law.-Irregular marriages are not recognised under the Shia law. A marriage, among
the Shias, may either be valid or void.
Muta is a distinct kind of marriage recognised only by the Ithna Asharia Shias. Muta may be
defined as a temporary union of male and female for specified duration, on payment of some
consideration. As against the permanent or a regular marriage (Nikah), the Muta may be
regarded as a temporary marriage. Literal meaning of the Arabic word 'Muta' is 'enjoyment';
therefore, it may also be regarded as 'marriage for pleasure'. In the earlier days of Islam,
when the Arabs had to live away from their homes for a considerably long period either on
account of wars or on trade-journeys, they used to satisfy their sex-desires through
prostitutes. In order to avoid the development of prostitution in the society and to confer
legitimacy upon children of such unions, temporary marriage was recognised and permitted
by the Prophet for some time. But later on, when he felt that this concession was being
exploited, he prohibited it absolutely. It is said that Caliph Omar had made an attempt to
suppress and condemn the practice of Muta and tried his best to abolish it from the society.
Since then the Muta form of marriage has not been in practice under any school of Muslim
law except the Ithna Asharia Shia law. Accordingly, the Muta form of marriage is now not
recognised under any school of Muslim law except the Ithna Asharia. However, the practice
of Muta is not very common in India.
The Muta-marriage must be contracted according to the rules prescribed by Ithna Asharia
law. A Muta contracted against any of the following legal conditions is an unlawful union.
Essential conditions for a valid Muta-marriage may be summarised as under:-
(1) The parties must have attained the age of puberty (fifteen years) and must also possess a
sound mind. Guardians cannot contract Muta of any minor. Minor's Muta is void even if it
has been contracted by marriage- guardian.
(2) The Shia male may contract Muta with any Muslim, Kitabia or a fire-worshipping
woman, but he has no right to contract Muta with the woman of any other religion. 'Muta
with a Hindu woman is void. But, a Shia woman cannot contract Muta with any non-Muslim.
There is no restriction 'as to the number of Muta-wives. One may contract a Muta form of
marriage with as many wives at a time as he likes.
(4) The formalities of offer and acceptance, which are necessary for a regular marriage, are
also essential in the Muta form of marriage. Muta may be contracted lawfully without the
witnesses.
The Muta marriage may be contracted either by the use of the word 'Muta' or any other word
signifying temporary marriage.
(5) There must not exist any prohibited relationship between the parties.
(6) The period for which the Muta is being contracted, must be clearly specified. It may be
for a day, for a week or for certain years. As a matter of fact, the fundamental difference
between a Muta and a Nikah is that, in a marriage if its period has been specified (how so
long that period may be) the marriage becomes a Muta, whereas a marriage without any
specific period is always a Nikah. It may be noted that the word 'Muta' in itself does not
render a marriage temporary. If a Mutaform of marriage has been contracted but its duration
has not been specified, it is regarded as a permanent marriage (Nikah). In SA. Hussain v.
Rajamma, a Shia male Habibulla contracted a Muta with Rajamma, a Harijan converted to
Islam. This marriage continued till the death of Habibulla in 1967. After death of her
husband, Rajamma inherited the properties of her husband. But this inheritance was
challenged by Hussain (brother of Habibulla) on the ground that the marriage between
Rajamma and his brother was simply a Muta-marriage under which a widow is not entitled
to inherit the properties of her husband. A Shia witness confirmed that he had seen the Muta
form of marriage between Habibulla and Rajamma, but he also said that no period was
specified at that time. It was held by the court that a Muta without any specified period, is to
be treated as a permanent marriage (Nikah). In this case, although the word Muta was used
but the term was not specified, therefore, the marriage was treated as permanent marriage
under which Rajamma was entitled to inherit her husband's properties.
In Shahzada Qanum v. FakhrJahan, the High Court of Hyderabad observed that there is no
difference between a Muta in which the period has not been specified and a Muta contracted
'for life'. It was held by the court that a Muta 'for life' is like a Muta for unspecified period,
and it must be treated as a permanent marriage (Nikah). But, it is respectfully submitted that
fixation of the period by the words 'for life' is nothing but to specify the period of a Muta and
it can never be regarded as a permanent marriage. Fyzee rightly observes that to equate a
'Muta for life with a regular Nikah is a serious step.
(7) The dower (consideration) must be specified at the time of the contract. Where the dower
has not been fixed, the Muta-marriage is void. It may be noted that specification of the dower
is necessary for the validity of a Mutaform of marriage but it is not essential for a permanent
marriage (Nikah).
(2) The children are legitimate and have rights to inherit the properties of both the parents.
(3) But, the Muta-husband and wife have no mutual rights of inheritance.
(4) The wife is entitled to get full dower even if the husband does not cohabit for the full term
and leaves the wife before the expiry of the term. But, if the wife leaves the husband, then
husband has a right to deduct the amount of dower proportionate to the unexpired period of
the duration.
(5) A Muta-wife is not entitled to get any maintenance from the husband under the Shia law;
but she is entitled to claim maintenance under the Criminal Procedure Code.
(6) Where consummation has not taken place, the wife need not observe any Iddat. If the
Muta-marriage terminates after consummation, the wife is required to undergo an Iddat of
two monthly courses. But, where the marriage dissolves due to death of the husband, the
Muta-wife is required to observe an Iddat of four months ten days. Where the Muta-wife is
pregnant, the period of Iddat extends till delivery of the child.
(7) There is no divorce in a Muta form of marriage. The marriage in this form dissolves:
Where a husband leaves the wife before the term, it is said that he had made a gift of the
unexpired period in favour of the wife (Hiba-i-Muddat) because in that case he has to pay the
full amount of dower. If wife leaves, her dower is deducted in proportion to the remaining
period of the term.
(8) In a Muta form of marriage, if it is not known as to when the term expired but the
cohabitation continues till the death of the husband, the proper inference would be that
Muta continues throughout the life.
Similar would be the inference where the cohabitation continues after the expiry of a known
period. It is submitted that in such cases a life-long Muta is to be presumed. The issues are
legitimate and may inherit the properties of the parents, but husband or wife may not
mutually inherit each other.
Restitution of conjugal rights means restoring the right of a spouse to live with the other. In
every marriage it is implied that husband and wife both have legal right to cohabit and live
together. If any spouse lives separately without any reasonable excuse and deprives the other
from his (or her) company, the other spouse is deprived of his (her) legal conjugal right. Such
other aggrieved spouse is then entitled to file a suit against the party who lives separately . If
the court finds that the spouse who is living separately without any reasonable justification,
it shall pass order and compel him (her) to live together. Such a suit by the aggrieved party is
called a suit for the restitution of conjugal rights. The success or failure of a suit for
restitution of conjugal rights depends on the fact whether the other spouses has any just
cause for living separately or not. If a spouse lives separately due to some reasonable and just
cause e. g. completing studies or due to transfer in service, the other spouse cannot compel
him (her) to live together. The court then refuse to pass order for restitution of conjugal
rights. It is for the court to decide whether, under the circumstances, a spouse has reasonable
excuse for living separately or not. It is found that in a married life it is generally the wife
who, under some compulsion, has to leave the husband and live separately. And, generally
husband files a suit for restitution of conjugal rights. The wife defends her separation from
husband. Under Muslim law, a wife can take following defences against husband's claim for
restitution of conjugal rights:
(2) The wife had demanded her prompt dower which had not been paid provided no
consummation has taken place.
(4) Renunciation oflslam by husband or husband's using objectionable words against the
Prophet.
(6) Violation of a condition laid down in the marriage agreement, if any. However, such
condition must be legal and must not be void.
(7) Physical or mental cruelty by husband.
It may be noted that the above-mentioned defences are only some of the instances of wife's
reasonable excuse for living separately. Under the Dissolution of Muslim Marriages Act,
1939, the scope of mental cruelty has now been widened. Therefore, any ground which has
been regarded as a ground for dissolution of marriage by wife under this Act or any such act
of husband which may be regarded as 'mental cruelty' by husband may be a reasonable
excuse for the wife to live separately.
PAHUJALAW ACADEMY
MUSLIM LAW
PRELIMINARY QUESTIONS
a. ijab
b. qabul
a. Hanafi law
b. Shiite law
a. two witnesses
b. three witnesses
c. four witnesses
d. six witnesses.
a. minority
b. unsoundness of mind
d. the puberty
7. A marriage entered into by a girl while she has not attained puberty under
Muslim law is a
a. valid marriage
b. void marriage
c. voidable marriage
8. A marriage contracted by the guardian of a girl, while she has not attained
the puberty is a
a. valid marriage
b. valid marriage but the minor girl has a right to repudiate the marriage on attaining
majority
c. void marriage
9. 'The option of puberty' can be exercised by the female before attaining the age
of
a. 21 years
b. 18 years
c. 15 years
b. deprives the wife of her option of puberty only under certain circumstances
(b) has the same right to dissolve the marriage, and has to exercise that right before attaining
the age of 15 years
(c) has the same right to dissolve the marriage and has to exercise that right before attaining
the age of 18 years
(d) has the same right to dissolve the marriage and has to exercise that right before attaining
the age of 21 years.
14. Husband married during minority loses his right to repudiate the marriage on
(c) may severe the marital tie if consented to by the other party
(a) sahih
(b) fasid
(c) batil
(a) three
(b) five
(c) seven
(d) eight.
(a) four
(b) three
(c) two
(d) one.
21. A Muslim can marry any number of wives not exceeding four. If a Muslim marries a
fifth wife, such a marriage shall be
(a) valid
(b) irregular
(c) void
(a) valid
(b) irregular
(c) void
(a) legitimate
MUSLIM LAW
DOWER
Mains Question
1. What is the difference between Sunni and Shia Laws relating to dower?
2. (a) Explain what is Mehr in relation to a Muslim marriage. Can its payment be deferred
either wholly or in part?
(b) whether Mehr can be termed as debt and thus a charge on the property of the husband?
3. Whether dower can be fixed by the guardian? Who can claim dower and When it can be
claimed?
5. What are the rights available to wife, if husband fails to pay dower amount?
MUSLIM LAW
DOWER
• The sum of money or property which is fixed as dower by the parties is called specified
dower.
• Dower may be specified at the time of marriage or even after the completion of marriage.
• Deferred dower -The wife cannot claim it before the termination of marriage
either by divorce of the death or upon happening of a specified event if so
agreed.
Nature of the Right to Dower
• Under Muslim-law, the wife's right to dower is not lost even if-
• she renounces Islam, or
• commits suicide, or
• commits adultery, or
• commits the murder of her husband.
• When a Muslim-wife seeks the dissolution of her marriage under any of
the grounds mentioned in the Dissolution of Muslim Marriage Act, 1939,
and her marriage is dissolved, her right to dower remains intact.
• Section 5 of this Act provides that 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.
• Where the wife is minor or insane, her guardian can refuse to allow the husband to take
his wife with him till the Prompt Dower has been paid. If the minor wife is already in
the custody of her husband, such guardian can take her back on the ground of non-
payment of Prompt Dower.
• But, where the consummation has taken place even once, the wife's right to refuse
consummation is lost. If the marriage has already been consummated, the husband's
suit for restitution of conjugal right will not fail on the ground of non-payment of
Prompt Dower.
• However, the court has a discretion even in such a case, to pass a decree for restitution
of conjugal rights subject to the condition of payment of Prompt Dower.
When the husband is alive and the dower remains unpaid, the wife may enforce her
claim by maintaining suit against the husband for recovery of the unpaid
dower.
If the husband dies, the widow is entitled to recover the amount by filing a suit
against the legal heirs of the deceased husband. But the legal heirs of the husband are
not personally liable to pay the dower.
• It may be noted that generally the dower is not a charge upon the husband's
property. Therefore, if a wife files a suit against her husband or his heirs for the
realisation of unpaid dower, the decree in her favour is a simple money decree. But a
charge on the husband's property may be created for the dower debt by
mutual agreement. If such a charge has been created by an agreement between
husband and wife, the agreement is enforceable.
• The court is also competent to create a charge on husband's property in the
absence of such agreement. But, as a general rule such a charge should not be
created by the courts because if the court creates charge then the dower debt would get
priority over other debts. This situation would be against the interests of husband's
other creditors.
• For a lawful exercise of this right, it is necessary that the possession of husband's
properties was obtained only in lieu of unpaid dower. If the wife is in possession of the
husband's estate for some other reason, she cannot retain it under this right.
• The 'widow's right of retention' means a right to continue the possession which was
already obtained during the life of the husband. This right is, therefore, right to
retain the possession and not to obtain the possession after husband's death. But, if
after the death of the husband his legal heirs themselves allow her to obtain possession
then, the widow's right of retention is valid.
• The wife should have obtained the possession of husband's properties with his consent.
The consent of the husband may be express or implied, but it must be a free consent.
• Where a wife has obtained possession byforce or fraud, it is not a lawful
possession andafter the death of her husband she is not entitled to retain
it in lieu of her unpaid dower.
• The widow's right of retention is simply a possessory right.It does not give any title
or right of ownership to the widow over the property possessed. When the
widow is in possession of certain properties, her only right in respect of those
properties is to retain possession against the legal heirs of the husband.
• The ownership of the properties vests in the husband's legal heirs, including
herself, but possession is with the widow. The possession remains with her only till her
dower debt is not satisfied by such legal heirs.
3. Payment of Dower from Income of Property
• The property which a widow retains in lieu of her unpaid dower is owned by the legal
heirs of her husband. Therefore, the income or benefit arising out of the
property also belongs to those legal heirs. However, the widow who retains
possession of that property can take the usufruct or the benefits. But the
benefits of the property which a widow takes, would be regarded as contribution for the
satisfaction of her unpaid dower.
• The widow who is in possession of the husband's property in lieu of unpaid dower,
must keep an accurate account of all the properties possessed by her. The
expenses, if any, in preserving that property and also the periodical income out of that
property must also be properly maintained by her. As she has retained a property in
which legal heirs have absolute interest (ownership) she is bound to furnish an account
of all the income, rents or profits to such legal heirs.
4. Property is Non-transferable
• The property in possession of the widow in lieu of unpaid dower cannot be transferred
by her.
• Any such transfer will be void and the transferee will not get any title/or interest in the
property. Therefore, if a widow wants to satisfy her dower not out of the income
(because that may take time) but by selling the property, she cannot do so as she has no
authority to sell or otherwise transfer the property.
• Muina Bibi v. Chaudhri Vakil Ahmad, is a leading case on this point.
• Held: It was held by the Privy Council that a widow who is in possession of her
husband's estate in lieu of unpaid dower is not owner of the properties. The only right
with respect to the properties is the right to continue to hold the possession till her
dower is not paid by the heirs.
• The court further observed that failure of the payment of dower by the heirs
would not make her an absolute owner of the immovable property of which
she had been in possession.
• The non-payment also does not confer any interest in the properties retained nor any
right to transfer it. The result was that the gift was held to be void and the possession
was taken from the donees.
• It may be concluded therefore, that any kind of transfer of the retained
property, whether it is sale, gift or exchange etc. is void and cannot take
effect.
But a different view has been taken by other High Courts of India. According to
Allahabad, Mysore and Andhra Pradesh High Courts, the right to hold the property
being a proprietary right which is owned by her; it can be transferred by the widow.
Thus, in so far as the transferability of the 'right of retention' is concerned, the opinion
of the courts is divided. There is no certain law on this point. However, it is submitted
that considering the observations made by the Supreme Court in Kapore Chand v.
Kadar Unnissa, the view taken by Patna High Court is correct i.e. the right of retention
is not transferable.
MUSLIM LAW
DOWER
Pre Questions
1. Dower/Mahr belongs
(a) prompt
(b) deferred
(a) by death
(b) by divorce
5. 'Dower' ranks as
(a) specified
(b) unspecified
a) Dower
b) Option of puberty
10. Which of the following judgement of the kerala High Court expressed concern over
Polygamy
a) Saidali v Saleena
11. In which of the following cases, the Supreme Court overruled Muslim Personal law
relating to maintenance?
a) 1979
b)1980
c) 1985
d)1973
a) Money
b) Property
a) Farz
b) Mahr
c) Riza
d) Hiba
15. If there is no dower mentioned or fixed at the time of marriage contract or ceremony
c) Depends
a) Sale price
b) Consideration
c) A token of respect
a) Quantity
b) Time period
a) Demand
b) Dissolution of marriage
a) Demand
b) Dissolution of marriage
21. Which part of dower can be released by the wife at any time before or after
consummation?
a) Prompt dower
b) Deferred dower
c) Both (a) and (b)
22. Under which law, the whole dower is prompt unless it is not settled?
a) Sunni
b) Shia
c) Hanafi
a)Yes
b) No
c) Depends
24. Where the wife stipulates that she will not demand any dower, is she stopped from
claiming the dower?
a)Yes
b)No
c) Depends
a) 10 Dirham
b) 20 Dirham
c) 25 Dirham
d) No minimum limit
a) 500 Dirham
b) 1000 Dirham
c) 5000 Dirham
d) No limit
27. Is the wife entitled to retain possession of her husband's estate in lieu of unpaid dower
?
a)Yes
b)No
c) Never
28. The wife is entitled to priority in her husband's estate as against her husband's other
unsecured creditors. The statement is
a) True
b) False
c) Partly correct
29. In which of the following cases, the Supreme Court held that wife is not entitled to
priority in her husband's estate as against her husband her husband's other unsecured
creditors?
MUSLIM LAW
LECTURE-5
MAINS QUESTIONS
1. What are revocable and irrevocable divorces under Muslim Law? Can the parties to
these divorces remarry?
2. Is a stipulation between the husband and wife conferring the right on the wife to
divorce herself permissible under Mohemmedan law? 'If so , is it conditioned by
prerequisites? What are the principle on which Mohammedan law recognizes such a
stipulation?
3. A Muslim wife misbehaved with her husband. She was addressed thrice the word
'Talaaq' pronounced by her husband there upon she apologized for her misbehavious.
They continued cohabitation. A son was born to the woman from him. He was got
admitted to the school by her father as his own son and brought him up as such.
After the death of the man, his full brother laid exclusive claim to his estate. Decide the suit.
The defences raised are that divorce was revoked and that paternity of the son was
acknowledged.
4. (a) What is the effect of conversion on marital rights of a Mohammedan? Explain with
special reference to "Dissolution of Muslim Marriage Act 1939".
(b) A Hindu woman is converted to Mohammadanism and leaves her Hindu husband she
marries a Mohammadan according to Muslim rites. Has she committed any offence?
Discuss.
5. A Hindu having a wife and two sons, converted to Mahomedanism and married a
Muslim lady and had two sons from her. State who shall inherit his property on his
death and in what shares?
6. A Muslim man has two muslim wives. The entire family converts to Christianity.
Discuss the status of the wives and children. Can he divorce his wives by triple talaq
post conversion?
MUSLIM LAW
LECTURE-5
• Under Muslim law the divorce takes place by the act of parties themselves or
through the court of law.
• Divorce is an exception to the status of marriage.
• According to Prophet amongst the things which have been permitted by law, divorce
is worst.
• A divorce may be either by act of husband or by wife.
• A husband may repudiate the marriage without giving any reason.
• Generally this is done by Talaq.
• But he may divorce the wife also by Ila and Zihar which differ from a Talaq in
form not in substance.
• A wife cannot divorce her husband of her own accord.
• Divorce By the Husband
• Talaq is an Arabic word and its literal meaning is "to release".
• Although there is no direct check on the unrestricted right of husband to divorce his
wife without giving any reason.
• However, there is indirect check upon this right is the obligation of a husband to pay
the dower upon the dissolution of marriage.
• Conditions for a valid Talaq
1.Capacity
- Muslim Husband
-Sound Mind
- But if the husband is lunatic and Talaq pronounced by him during lucid interval
is valid.
- When such husband has no guardian then the Kazi or the judge has the right to dissolve
the marriage in the interest of husband.
- Capacity of Wife.
2. Free Consent
- Under Hanafi Law, a Talaq pronounced under compulsion, coercion, undue influence,
fraud and voluntary intoxication etc. is valid and dissolve the marriage.
- There are three things which whether done in joke or earnest, shall be considered as
serious and effectual:first the marriage, second divorce and the third taking back.
3. Formalities
Sunni Shia
Competency of witness
• Male Muslim
• SoundMind
• Attained the age of Puberty.
Presence of Wife
nbsp;
KINDS OF TALAQ
(ii) After this single pronouncement, the wife is to observe an Iddat of three monthly
courses. If she is pregnant at the time of pronouncement. The Iddat is to be followed till
the delivery of the child.
• This Talaq is also regarded to be the proper and approved form of Talaq. In this form
too, there is a provision for revocation. But it is not the best mode because evil words
of Talaq are to be pronounced three times in the successive Tuhrs.
• The formalities required under this form are as under :
• (a) The husband has to make a single declaration ofTalaq in a period of 'Tuhr.
• (b) In the next Tuhr, there is another single pronouncement for the second time. It is
significant to note that the first and second pronouncements may be revoked by the
husband. If he does so, either expressly or by resuming conjugal relations, the words of
Talaq become ineffective as if no Talaq was made at all.
• (c) But, if no revocation is made after the first or second declaration then lastly the
husband is to make the third pronouncement in the third period of purity (Tuhr). As
soon as this third declaration is made, the Talaq becomes irrevocable and the marriage
dissolves and the wife has to observe the required Iddat.
• In Ghulam Mohyuddin v. Khizer, a husband wrote a Talaqnama in which he said
that he had pronounced his first Talaq on 15th September and the third Talaq would be
completed on 15th November. He had communicated this to his wife on 15th
September. The Lahore High Court held that this was a Talaq Hasan. The Court
observed that the Talaqnama was merely a record of the first pronouncement and the
Talaq was revocable. The Court further observed that for an effective and final Talaq,
the three pronouncements must actually be made in three Tuhrs; only a mention of the
third declaration is not sufficient.
2. Talaq-ul-Bidaat (Irrevocable)
ShiaLaw
(b) The husband may make only one declaration in a period of purity expressing his
intention to divorce the wife irrevocably saying : "I divorce thee a irrevocably" or "I
divorce thee in Bain".
Note-Relying on Hedaya, the Patna High Court has held that an irrevocable Talaq may
be pronounced even during menstruation period.
In the irrevocable Talaq the, emphasis is upon the husband's intention of irrevocable
Talaq than the words uttered by him. In Marium v. Md. Shamsi Alam, the wife left
her husband's place and went to her parent's house because she found that the
husband was negligent to her health. When the husband went to take her back she
refused to go with him. The husband became agitated and in anger he uttered Talaq
three times in one breath. But later on realising his mistake, he revoked the Talaq
within the period of Iddat. It was held by the Allahabad High Court that although the
word "Talaq" was uttered thrice, but since they were pronounced in one breath it is to
be interpreted as one single pronouncement. It was observed by the court that in this
case the Talaq was in the Ahsan form which was revocable. As the husband expressly
revoked the Talaq before the Iddat he cannot be said to have intended the divorce
seriously. The marriage was, therefore, not dissolved and the wife had to accompany
the husband. In this case the court has interpreted the rules of Muslim law liberally in
order to discourage hasty and unconsidered divorces.
• In Rahmat mlah v. State ofU.P., the Allahabad High Court, has observed that an
irrevocable Talaq (Talaq-ul-Biddat) is unlawful because this kind of Talaq is against the
dictates of the Holy Quran and is also against the provisions of the Constitution, of
India.
• But, against this decision, the separated Muslim couple preferred appeal in the
Supreme Court through their counsel Anis Suhrawardy. The Supreme Court disagreed
with the decision of the Allahabad High Court and held that 'triple talaq' in one sitting
was not unconstitutional. The Five-Judge Constitutional Bench held that the High
Court finding could not operate as the law of the land "until and unless the same arises
in an appropriate case and is decided accordingly". According to the Apex Court, the
present case was unconnected with the issue of constitutionality of 'triple talaq' as a
mode of irrevocable divorce under Muslim law; and the Supreme Court declined to go
further into this question.
TRIPPLE TALAK
The Ordinance states that even though the Muslim Women (Protection of
Rights on Marriage) Bill, 2017 ispending in the Rajya Sabha and despite the
Supreme Court has observed that the practice of Triple Talaq is
unconstitutional, the practice still carries on.
• The Ordinance is applicable to the whole of India but it is not extended to the State of
J ammu and Kashmir
• According to the Ordinance, any pronouncement of 'talaq' by a Muslim husband to his
wife in any manner, spoken or written, shall be void and illegal.
• Any Muslim husband who communicates the 'talaq' orally or in writing may face a
punishment upto three years in jail. The punishment may be also extended.
• The Ordinance also states that despite the presence of general laws in force, if a Muslim
man pronounces 'talaq' to his wife, then the woman and her children are entitled to receive
an allowance for subsistence. Such amount can be determined by a Judicial Magistrate of the
First Class.
• The Ordinance also states that a Muslim woman is entitled to the custody of her minor
children even if her husband has pronounced 'talaq' to her.
• The offence is pronouncing talaq is cognizable if the Muslim woman on whom it is
pronounced, communicates the information to a police officer.
• The offence is also compoundable, if the Muslim woman insists for the same and the
Magistrates allows certain terms and conditions which he may determine.
• A person accused of this offence cannot be granted bail unless an application is filed by
the accused after a hearing in the presence of the Muslim woman (on whom talaq is
pronounced) is conducted and the Magistrate is satisfied about the reasonable grounds for
granting bail.
Written Talaq
• Under Shia law, the Talaq must be pronounced orally except where husband is
unable to speak. But, under Sunni law the Talaq may be oral or in writing.
• If the words are clear and express, a written Talaq takes place immediately. That is to
say, it becomes irrevocable as soon as the Talaq is written.
• But where the writing itself indicates any specific date or event on which the Talaq shall
come into force, the Talaq becomes effective from that very date or upon happening of
the specified event and not on the date when the letter reaches to wife. For example,
where the writing says: "when this my letter reaches you,there would be repudiation of
the marriage. The Talaq comes into effect (and becomes irrevocable) only after the
receipt of the letter by wife, not on the date on which it was written.
• ShamimAra v. State ofU.P. theSupreme Court has disagreed with the established
principles on the law of written divorce among Muslims, and has ruled that 'talaq to be
effective has to be pronounced'. The Court said that plea of talaq taken in an
unsubstantiated written statement submitted before a Court not be accepted as a proof
of talaq. Briefly stated, the facts of this important case are given as under :
• Shamim Ara was married to Abrar Ahmad in the year 1968. In 1979 Shamim Ara (as
'wife', not as 'divorced wife') filed an application before a Family Court demanding
maintenance for herself and for her children from husband under Section 125 Cr.P.C.
on the ground that he has deserted her. In reply, the husband filed a written statement
in 1990 before the Family Court making an averment that he had already divorced his
wife in 1987 and therefore she was not entitled to claim any maintenance. Upon this,
the Family Court rejected the wife's claim of maintenance on the ground that she had
already been divorced. On appeal, the Allahabad High Court held that the
communication of talaq was completed in 1990 by husband's written statement in the
Family Court and she (Shamim Ara) had already been divorced. Against this
judgement, the wife preferred an appeal in the Supreme Court.
• Held: The Supreme Court held that in order to make an effective (valid), talaq it has to
be formally pronounced. The Court said that :
• "A plea of previous divorce taken in the written statement cannot at all be treated as
pronouncement of 'talaq' by the husband on wife on the date of filing of the written
statement in the court followed by delivery of a copy thereof to the wife. So, also the
affidavit ..............filed in some previous judicial proceedings not inter parte, containing
a self-severing statements of respondent (husband) could not have been read in
evidence as relevant and of any value."
• Elaborating the meaning of the word 'pronouncement' the Apex Court said : "the term
'pronounce' means to proclaim, to utter formally, to utter rhetorically, ' declare, to
utter, to articulate.
TALAQ BY HUSBAND
• Besides Talaq, a Muslim husband can repudiate his marriage by two other modes.
• Ila and Zihar Ila and Zihar are the constructive divorce by a husband. The
husband does not expressly repudiate the marriage but the conduct of the husband is of
such nature that it is concluded that he intends to dissolve the marriage.
• In Ila the husband takes an oath not to have sexual intercourse with the
wife. Followed by -this oath, there is no consummation for a period of four
months. After the expiry of the fourth month, the marriage dissolves
irrevocably.
• But if the husband resumes cohabitation within the prescribed period of four months,
Ila is cancelled and the marriage does not dissolve.
• Shia Law.-Under Ithna Ashafia (Shia)" school, Ila does not operate as
divorce without order of the court of law.
According to this school, after the expiry of the fourth month, the wife is simply entitled
for a judicial divorce. If, there is no cohabitation even after expiry of -four months, the
wife may file suit for restitution of conjugal rights against husband. If husband does not
cohabit even then, the marriage is dissolved by a decree of the court." If she does not
obtain the decree of court, the marriage does not dissolve.
ZIHAR
• Zihar is also a constructive divorce. In this mode, the husband compares his
wife with a woman within his prohibited relationship e.g. mother or sister
etc. Thehusband would say that from today the wife is like his mother or
sister. After such an objectionable comparison, the husband does not
cohabit with his wife for a period of four months. Upon the expiry of the
fourth month, the Zihar is complete. But the marriage as such does not dissolve.
After completion of fourth month the wife has following rights :
• (i) She may go to the court for a judicial divorce or,
• (ii) She may go to the court for an order for restitution of conjugal rights.
• Where the husband wants to revoke Zihar by resuming cohabitation within the said
period, the wife cannot seek judicial divorce. But cohabitation with a wife who had been
compared with mother or sister is sinful. Therefore, in such a circumstance although
the wife cannot claim a judicial divorce, yet she can compel the husband to perform
penance for this sinful conduct of comparing her with his mother or sister.
• Note-The penance which the husband is required to perform for being absolved of this
sinful conduct is (1) feeding sixty poor persons or, (2) observance of fast for two
months or, (3) release of a slave.
• It is to be noted that if the wife gets order of the restitution of conjugal rights she may
insist the husband to perform the penance. If a wife sues for restitution of conjugal
rights after her husband has made Zihar and had not made expiation(penance) the
court may order him to perform penance.
• Shia Law.- According to Shia law, the declaration of Zihar must be made in presence
of two competent witnesses.
• Ila and Zihar, as modes of divorce have now become outdated. Although the provision
of such a constructive divorce still exist in the law, but it does not exist in practice. A
Muslim husband who wants to repudiate his marriage may do so by Talaq which is
simple and more convenient than the indirect modes of Ila and Zihar.
• A Muslim wife has no independent right of divorce. She cannot divorce her
husband whenever she likes, as her husband may do.
• Under Muslim law, divorce by wife is possible only in the following situations 1
• (a) Where the husband delegates to the wife the right ofTalaq (Talaq-e-Tafweez).
• (b) Where she is a party to divorce by mutual consent (Khula and Mubarat).
• (c) Where she wants to dissolve the marriage under the Dissolution of Muslim
Marriage Act, 1939.
• In the first two cases the wife's right of divorce depends upon the consent of her
husband. In Talaq-e-Tafweez, unless the husband himself gives her the right to
pronounce Talaq, she cannot divorce. In a divorce by mutual consent, she cannot get
divorce unless the husband also gives his consent for it. Under the Dissolution of
Muslim Marriages Act, 1939, the dissolution of marriage depends upon the decision of
the court. In other words, a Muslim wife cannot divorce without her husband's consent
or without a judicial decree."
• this form of delegated divorce is perhaps the most potent weapon in the hands of a
Muslim wife to obtain her freedom without the intervention of any court and is now
beginning to be fairly common in India." The authority is given to the wife under an
agreement at the time of the marriage or any time after it. The delegation of the power
of divorce to the wife may either be permanent or temporary i. e, only for a specified
duration. A temporary delegation of power is irrevocable but a permanent delegation
may be revoked by the husband.
• The delegation (Tafweez) may be unconditional or subject to certain
condition or contingency. Where the delegation is conditional, the
authority of giving Talaq cannot be exercised until that condition is
fulfilled. The general practice is to delegate the power of divorce to the wife upon the
husband's failure to fulfil certain conditions or upon the happening of an event. But the
conditions must be of reasonable nature and must not be against the principles of
Islam. Where a right of divorce has been conferred upon the wife, she may repudiate
the marriage if the husband fails to fulfil that condition or upon the happening of that
event. In such cases the divorce takes place in the same manner as if the husband has
himself pronounced the Talaq.
• For example, under an agreement of Tafweez the husband may authorise his wife to
divorce herself whenever his behaviour is cruel towards her or when he refuses to pay
the prompt dower. In Sainuddin v. Lati.funnessa,there was an agreement between
husband and wife under which the husband delegated to the wife his own power of
giving three Talaqs in the event of his marrying a second wife without the permission of
the first. The husband took second wife without the permission of the first.
Accordingly, the first wife gave herself three Talaqs under the authority of the Tafweez.
It was held by the Court that as the event upon the happening of which the wife was
given the authority to divorce herself was valid under Muslim law, and since that event
has happened, the divorce by the wife was effective and the marriage must dissolve.
• It is significant to note that right to delegate the authority of Talaq to another persont is
husband's own authority alone.- If the husband delegates his authority to wife in
writing and the wife also puts her signature on that document the delegation continues
to be his own authority given to wife; it does not become divorce by mutual agreement
or does not a bilateral delegation. In Magila Bibi v. Noor Hussain," the husband
had given a written authority to his wife that she may, at her will, divorce him
whenever she wanted. The document was signed by husband and wife both. After some
time, when she felt that husband was cruel to her and also came to know that he was
not a medical graduate as she was told before the marriage, she pronounced Talaq
under the above mentioned written delegated authority. She informed her decision to
husband. It was held by Calcutta High Court that only because wife too had signed the
written delegation by husband, 'the document does not become 'bilateral delegation.' It
continues to be unilateral delegation' and Talaq by wife is valid even without the
consent of husband. The court observed further that since the Talaq under delegated
authority is valid, the wife as divorced woman, is entitled to claim her right of
maintenance etc. under the Muslim Women Act. 1986.
• Where a wife is given the option to divorce herself under a Tafweez, she cannot be
compelled to exercise her right. She may or may not exercise the right. Mere happening
of the event under which the wife is authorised to divorce herself, is not sufficient to
dissolve the marriage; the wife must also exercise her right expressly.''
• It is to be noted that after delegating his authority the husband himself is not debarred
from pronouncing Talaq.
KHULA
• Literal meaning of the word Khula is, 'to take off the clothes. In law, it means divorce
by the wife with the consent of her husband on payment of something to him. Before
Islam the wife had no right to take any action for the dissolution of her marriage. But in
Islam, she is permitted to ask her husband to release her (as he puts off his clothes)
after taking some compensation. Quran lays down about Khula in the following words :
• " .................. and if you fear that they (husband and wife) may not be able to keep
(within the limits of Allah, in that case it is no sin for either of them if the woman
releases herself by giving something (to the husband)."35. In the leading case
Munshee Buzlul Raheem v. Luteefutoon Nissa," the Privy Council describes a
Khula form of divorce in the following words :
• A divorce by Khula is a divorce with the consent and at the instance of the 1wife, in
which she gives or agrees to give a consideration to the husband for her release from
the marriage tie. In such a case the terms of the bargain are matters of arrangement
between the husband and wife, and the wife may, as the consideration, release her
dynmahr (due dower) and other rights, or make any other agreement for the benefit of
the husband."
It may be noted that Khula is a divorce by common consent but the wife has to make
the payment of some consideration to husband because she takes the initiative for
dissolution of the marriage. Essentials of a*valid Khula are given below :
• (4) Consideration
• For her release, the wife has to "pay something to the husband as compensation. Any
sum of money or property may be settled as consideration for Khuld. There is no
maximum or minimum limit as is in the case of dower. But once this consideration has
been settled. it cannot be increased."
• Generally the wife relinquishes claim of her dower for her release or fer-her Khula. She
may relinquish her full dower or only a part of it. Where the dower has already been
paid to the wife, the wife may give to the husband some money or property.
• As a general rule, the exchange or consideration is to be paid immediately to the
husband? But the parties may agree for the payment of consideration on a future date."
In the Khula the marriage dissolves as soon as the proposal has been accepted even if
the payment of consideration has been postponed. Therefore, if she does not pay the
consideration, to husband, the divorce is valid. In such cases, the husband may sue the
wife for the recovery of that amount.
MUBARAT
• Mubarat is also a divorce by mutual consent of the husband and wife. In Khula the wife
alone is desirous of separation and makes the offer, whereas in Mubarat both the
parties are equally willing to dissolve the marriage. Therefore, in 'Mubaraz the offer for
separation may come either from husband or from wife to be accepted by the other. The
essential feature of a divorce by Mubam! is the willingness of both the parties to get rid
of each other, therefore, it is not very relevant as to who takes the initiative." Another
significant point in the Mubarat form of divorce is that because both the parties are
equally interested in the dissolution of marriage, no party is legally required to
compensate the other by giving some consideration.
• Both Khula and Mubarat are divorce by common consent but in Mubarat no.
consideration passes from the wife to the husband. It may be noted that divorce by
Mubarat is very near to the provisions of divorce by mutual agreement under Section
24 of the Special Marriage Act, 1954 or under Section 13-B of the Hindu Marriage Act,
1955 (as amended in 1976). Like Khula, the parties must be competent also in the
Mubarar; their consent must also be a free consent.
The legal effects of a valid Khula or Mubarat are the same as that of a divorce by any
other method. The wife is required to observe Iddat and is also entitled to be
maintained by the husband during the period oflddat. After completion of Khula or
Mubarat, the marriage dissolves and cohabitation between the parties becomes
unlawful. If the consideration in Khula is not the release of wife's dower, the wife is
entitled to get her dower. Other legal consequences of Khula and Mubarat are
discussed in detail in the following pages under the head 'Legal effects of divorce.
• By judicial divorce we mean a divorce by the order of a court of law. Islam provides for
the dissolution of a marriage by a Kazi or Judge. On the application of a wife if the
marriage was found to be harmful or undesirable for her, the Kazi could dissolve the
marriage. The power of a Kazi or Judge to pronounce a divorce is founded on the
express words of Prophet Mohammed :
• 'If a woman be prejudiced by a marriage, let it be broken off
• However, despite the Quranic injunction and the traditions of the Prophet, the Anglo-
Indian courts have not recognised Muslim wife's right of judicial divorce on grounds
other than Lian and impotency of the husband. Before 1939, a Muslim wife could seek
her divorce by a judicial decree only on the ground of (1) false charge of adultery by the
husband against her (Lian), or (2) impotency of the husband, and on no other grounds.
On the other hand, the husband need not go to the court at all as all the forms of
divorce (Talaq, Illa, Zihar, Khula or Mubarat) depend solely upon his will. Therefore,
under pure Muslim law, a Hanafi wife could hardly get any relief against her unwilling
husband on any» other ground except the above mentioned two grounds. But under the
Shafie and Maliki laws a wife was entitled to get a decree from the court for dissolution
of her marriage on the grounds of husband's failure to maintain her, desertion, 'cruelty,
etc. Therefore, there were conflicting provisions in the various schools of Muslim law in
respect of divorce by a wife through judicial intervention. It was felt by the right
thinking persons of the Muslim soceity and also by the Government that great injustice
was being done to a Muslim wife in the matter of matrimonial relief. Accordingly; the
Dissolution of Muslim Marriages Act, 1939 was enacted by the Central Legislature and
it came into force on the 17th March, 1939. Under this Act, a wife married under
Muslim law, may seek divorce by a judicial decree on any of the grounds enumerated
therein. The Act is applicable to all the wives married under Muslim law irrespective of
their schools or sub-schools,
Clause (vii) entitles the wife to" exercise the right of option of puberty through a
judicial decree. The ninth ground in Section 2 Clause (ix) is a residuary clause. Under
this clause a wife may seek
• divorce on any other ground recognised under Muslim law which could not be included
in the first eight grounds.
For example, under this clause, a wife may seek her divorce by judicial
decree on the ground of false charge of adultery against her (Lian). Thus,
while giving some additional grounds of divorce to a Muslim wife, the Act
has not affected her right of divorce on the ground already available under
pure Muslim law.
• (b) The grounds for matrimonial relief in Section 2 of the Act are available only to the
wife, not to the husband. This is obvious because Muslim law has already given an
absolute right to the husband to divorce his wife without judicial intervention and
without any reason.
• (c) For filing a petition for divorce under this Act, formerly there was a controversy as
regards the age of the wife, but now there is no controversy. The Civil Procedure Code
now provides that parties to a suit must be of eighteen years in all the cases including
those relating to marriage, dower, divorce, etc." Thus, although under Muslim law the
age of majority is fifteen years (age of puberty) for purposes of marriage, dower and
divorce but after this amendment, a Muslim wife cannot file petition for divorce
without a 'next friend' if she has not attained the age of eighteen years.
• (d) Section 4 of the Act provides that if the wife renounces Islam and ceases to be a
Muslim, the marriage does not dissolve ipso-facto. This is a new provision because
before 1939 the law on this point was different. At present, therefore, even after
renouncing her religion, -the wife is entitled to exercise her rights of divorce etc., under
this Act. The grounds of divorce are available to a "woman married under Muslim law,"
therefore, at the time of filing of petition under this Act, she need not be a Muslim wife.
Thus, a non-Muslim can also invoke the provisions of this Act if she was married under
Muslim law.
• (e) The Act extends to the whole of India except Jammu and Kashmir. It applies
to Muslim wives of any sector school. It has, therefore, made a uniform law in
respect of judicial divorce by a wife in any part of the country.
Section 2 of the Dissolution of Muslim Marriages Act, 1939, provides that 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 grounds enumerated therein. It is to be noted that benefits of this
section may be given to a wife whether her marriage was solemnized before or after the
commencement of the Act. That is to say, the provisions of Section 2 may be given
retrospective effect.
(ix) Any other ground which is recognised as valid for the dissolution of
marriage under Muslim law
Death-illness is that illness which causes apprehension of death in the mind of a person
that his (her) death is certain and that person subsequently dies due to that very illness.
Death-illness is not the name of any particular illness or disease. Any disease or illness
can be death-illness, provided it causes apprehension of death in the mind of the
person. Muslim law presumes that during death-illness a person does not have ab
normal state of mind. Therefore, special rules have been provided for activities during
death- illness of a person. Where a husband divorces his wife during death-illness, the
wife's rights of inheritance are subject to following rules:
(a) Under Sunni law, if the husband dies during wife's lddat, the divorced wife is
entitled to inherit provided the wife herself had not requested for the divorce. But, if
wife dies during Iddat, the former husband cannot inherit her properties.
(b) Under Shia law, if the husband dies within one year after the divorce, the divorced
wife is entitled to inherit the husband's properties. But, in case wife dies (within one
year of divorce) her husband is not entitled to inherit her properties.
(c) In the above circumstances, if the divorced wife has married another person (before,
death of former husband) she is not entitled to inherit her former husband's properties.
MUSLIM LAW
Dissolution of marriage
Preliminary Questions
(b) khula
(c) mubara
(d) talaq-e-tafusid
A Muslim wife
(a) can divorce herself from her husband without his consent
(b) cannot divorce herself from her husband without his consent
(c) can divorce herself from her husband without assigning any cause
(b) irrevocable
(b) in writing
'Ahsan' is a kind of
(a) talaq-al-sunna
(b) talaq-al-bida
(c) talaq-ul-bidaat
(d) talaq-i-badai.
Which one of the following is not the right of a wife on non- payment of dower?
a) Refusal to cohabit
Which one of the following is not the right of a wife on non-payment of dower?
a) Refusal to cohabit
b) Maliki School
c) Jafari School
d) Ismili School
b) Wife's father
c) Wife's mother
Polygamy in Islam is
a) Prohibited
b) Permissible
c) Encouraged
Which of the following is considered as the most detestable before god of all
permitted things?
a) Zina
b) Riba
c) Talaq
b) Hasan
c) Iia
d) Zihar
b) Zihar
c) Talak us Sunnat
d) Talak ul Bidat
b) Zihar
c) Talak us Sunnat
d) Talak ul Tafwid
b) Three Courses
c) Till delivery
Which law insists presence and hearing of two witness for the pronouncement of
Talak?
a) Hanafi
b) Maliki
c) Jafari
d) Ithna Ashari
c) It is accepted
c) Jafari
d) Ismaili
b) Written
Talak where the husband repudiates his wife by a single pronouncement of Talak
in a period of Tuhr is Talak-e.....
a) Ahsan
b) Hasan
c) Iia
d) Zihar
b) Hasan
c) Iia
d) Zihar
c) Iia
d) Zihar
b) Second
c) Third
b) Lawful
c) Unlawful
b) Talak e Hasan
b)Invalid
c) Voidable
b) Invalid
[EDIT] Muslim Law Lectures
pahujalawacademy.com/muslim-law-lectures
MUSLIM LAW
MAINTENANCE
LECTURE6
MAINS QUESTIONS
2. Trace the history from the Shah Bano judgment which led to the enactment of the Muslim
Women (Protection of Rights on Divorce) Act, 1986 and critically analyse the provisions of
this legislation. Discuss the issues in relation to the constitutionality of this Act as raised
before the supreme court in Danial Latifi and union of India.
3. Discuss whether there is an obligation on father-in-law to maintain the widow of his son?
5. Is a widow entitled to get maintenance out of the properties of her deceased husband
during her Iddat? Explain.
MAINTENANCE
LECTURE6
INTRODUCTION
• Under Muslim law, the wife's right to be maintained by her husband is absolute.
The right arises out of her status.
• It is a legal obligation of every husband to maintain his wife even if the wife may have
her own means to support herself and even if the husband has no means to provide her
maintenance.
• A Muslim wife's right to be maintained by her husband gets priority over
the right of maintenance of all other persons. It is interesting to note that in
maintenance, the wife is preferred even over the young children because wife is
considered to be the source or root(asl) and a child is the offspring
• Wife's right of maintenance is regulated by Muslim personal law and also by the
statutory provisions of the Criminal Procedure Code, 1973 (Sections 125-128).
Wife's right to claim maintenance from her husband is an independent right. This
right does not depend on any separate agreement for maintenance. The husband is
bound to maintain her even if there is no agreement. The wife's right exists whether she
is Muslim or a non-Muslim, rich or poor, of sound health or invalid, young or old.
(2) However, according to Tyabji, where the marriage is irregular merely because of the
absence of witnesses, the wife is entitled to claim maintenance.
A Muta marriage is also valid under Shia law. But the wife is not entitled to
maintenance under Muslim personal law. However, since Muta-marriage is
recognised as a valid marriage, it had been held that, a Muta-wife may claim maintenance
from her husband under Section 125 of the Criminal Procedure Code.1908.
(3) The husband's duty to maintain commences only from the date when
the wife attains puberty (fifteen years) and not before that.
Where a wife is too young for sexual intercourse and lives with her parents, she has no
right to claim maintenance.
(4) Although a Muslim wife's right to be maintained by her husband is an
absolute right yet, she must be faithful and obedient to him in respect of all
the matrimonial affairs.
If the wife's conduct is justified in the eyes oflaw, the husband is bound to maintain
her, although for some reasons, he himself may not be able to exercise his
matrimonial rights over his wife. In such circumstances; the wife would
not lose her right of maintenance.
According to Tyabji, a wife would not lose her right to maintenance in the following
cases:
(a) Where she refuses access to her husband on some lawful ground, or
In Begum Subanu alias Saira Banu v. A.M. Abdul Gafoor, the Supreme
Court held that irrespective of a Muslim husband's right to contract a second
marriage, his first wife would be entitled to claim maintenance. In this case, the
husband married a second wife whereupon the first wife left the house and lived
separately. Living separately, she claimed maintenance under Section I25 of the
Criminal Procedure Code, 1973. Elaborating the provisions of the Explanation to
Section 125(3) of the Criminal Procedure Code, the Supreme Court held that from
the point of view of a neglected wife, for whose benefit the Explanation has been
provided, it will make no difference whether the woman intruding into her
husband's matrimonial life is another wife permitted under (personal) law to be
married and not a mistress. The court observed that the 'Explanation has to be
construed from the point of view of the injury to matrimonial rights of the wife
and not with respect to the husband's right to marry again.'
Enforcement of Wife's Right of Maintenance
A Muslim wife, whose husband neglects to maintain her without any lawful
justification is entitled to file a suit for her maintenance in a civil court under her
personal law. She is also entitled to enforce her right under the Criminal
Procedure Code, 1973.
MAINTENANCE OF THE DIVORCED WOMEN
The Quran provides for the maintenance of a divorced wife in the following
words:
o For the divorced women let there be a provision in kindness; this is an obligation
for those who are mindful of God.
0 However, under Muslim personal law as applied in India, a divorced wife can
claim maintenance from the former husband only for that period during which is
observing her Iddat. The duration of Iddat on divorce is three menstruation
periods or, if pregnant, till delivery of the child.
o In Mohommed Ali v. Fareedunnissa Bagum, the marriage was contracted
in 1950, and a son was born to the couple. But, thereafter, the husband neglected
the wife and refused to maintain her. The trial court passed a decree in her
favour. The wife was informed by written notices from the husband that she had
been divorced by him on the night of their wedding. The first notice was served
on 12.5.1960. The husband's plea was that as the wife had been divorced on the
very first night, he was under no obligation to maintain her. It was held by the
court that when a Talaq is pronounced through notice, the wife is required to
observe "Iddat of divorce" from the date on which the notice is served on her. The
wife was therefore, entitled to maintenance during the period of Iddat which
began from the date of the first notice i.e. 12.5.1960. Under Muslim law a
divorced wife cannot claim her past maintenance unless the claim is for the
arrears of maintenance under any specific agreement.
Muslim law does not prescribe any maximum or minimum amount to
be given during Iddat of the divorced wife. The court is competent to
fix any amount keeping in view the socio-economic status of the
husband and wife.
(B) MAINTENANCE or DIVORCED MUSLIM WOMAN UNDER CRIMINAL
PROCEDURE CODE.
Under Section 125 of the Criminal Procedure Code, 1973, the term 'wife' includes a
'divorced wife'. This enactment is applicable to all the persons in India
irrespective religion, caste and creed. Therefore, Section 125 is applicable also to
a divorced Muslim wife. It may be noted that the term 'divorced wife' includes also that
Muslim wife has obtained a decree for dissolution of her marriage under the
Dissolution of Muslim Marriages Act, 1939.
As stated earlier, under Muslim personal law, the husband's liability to maintain his
divorced wife terminates after the expiry of Iddat even if she remains unmarried But
under the Criminal Procedure Code, divorced wife is entitled to be
maintained by her former husband beyond the period of Iddat provided she
remains unmarried.
where the woman, after obtaining divorce from her husband, has voluntarily
surrendered her right to maintenance
It is interesting to note that the expression "she has received ........ the whole of the sum
which under any customary or personal law of the parties was payable on such
divorce ................ " as provided in Section 127(3)(b) may be interpreted to mean that a
divorced Muslim wife is not entitled to maintenance if she has obtained her dower and
the maintenance during her Iddat.
But, in Bai Tahira v. Ali Hussein, the Supreme Court held that a divorced Muslim
wife is entitled to maintenance even if she has already received the whole amount due
to her under her personal law. Briefly, the facts of this case were that Ali Hussain had
married Bai Tahira in 1956 and a son was born to them. Tahira was living in one of the
flats of her husband. In 1962 Ali Hussain divorced his wife Bai Tahira and transferred
the ownership of the flat to his divorced wife in lieu of dower and maintenance during
Iddat. Bai Tahira remained unmarried. Some years later, she found herself in financial
difficulties and filed a petition for her maintenance under Section 125 of the Criminal
Procedure Code, 1973. The Magistrate ordered for a monthly maintenance allowance.
Ali Hussain challenged this order on the ground that since she has already received
maintenance during Iddat and also the 'whole sum due to her under personal law' (i.e.
dower) in the form of a house, she was not entitled to get any further allowance under
the Criminal Procedure Code. The Bombay High Court decided in favour of the
husband. Bai Tahira then made an appeal in the Supreme Court which restored the
maintenance allowance granted by the Magistrate and reversed the judgment of the
Bombay High Court.
The Supreme Court held that irrespective of the amount settled as Mahr, a reasonable
amount is always due to a Muslim wife for her maintenance. The court observed that
payment of Mahr money, as a customary discharge, is within cognizance of Section
127(3)(b) but until this [reasonable amount) is discharged the divorced woman
continues to be entitled to maintenance under Section 125 of the Criminal Procedure
Code, 1973. The Court further observed that wife's surrender of her right to dower does
not in any way defeat her right under Section 125 of the Criminal Procedure Code, 1973
if she be entitled to it otherwise and has not remarried. The appeal was accordingly
allowed and the Apex Court held that Bai Tahira was entitled to the maintenance
allowance granted by the Magistrate.
In Mohd. Ahmad Khan v. Shah Bano Begum, the Supreme Court reiterated its
stand and held that a divorced Muslim woman, so long as she has not remarried, is a
'wife' for the purposes of Section 125 and is entitled to maintenance from her former
husband.
Facts.--Mohd. Ahmad Khan married Shah Bano in 1932. Two sons and three
daughters were born to them. In 1975 Mohd. Ahmad drove away his wife Shah Bano
out of the matrimonial home. Thereupon she filed a petition under Section 125 of the
Criminal Procedure Code in the court of Judicial Magistrate, Indore asking for
maintenance at the rate of Rs. 500 per month. In November 1978, Mohd. Ahmad Khan
divorced his wife Shah Bane pronouncing irrevocable Talaq. After her divorce, Shah
Bano did not remarry. In defence to Shah Bano's petition for her maintenance, Mohd.
Ahmed Khan took the plea that since she ceased to be his wife after Talaq, he has no
obligation to maintain her. As regards the maintenance during Iddat (as required
under Muslim personal law and the payment of dower, his contention was that he had
already paid the required maintenance to her at the rate of Rs. 200 per month for
about two years -and that he had deposited Rs. 3,000 in the court by way of dower.
However, the Magistrate directed Mohd. Ahmad Khan to pay a nominal amount of Rs.
25 per month to his divorced wife Shah Bano. Against this order of the Magistrate Shah
Bano filed a revision application in the Madhya Pradesh High Court praying for the
enhancement of maintenance allowance. The High Court enhanced the maintenance
rate to Rs. 179.20 per month. Mohd. Ahmad Khan preferred an appeal to the Supreme
Court. The Supreme Court dismissed the appeal and confirmed the judgment of the
High Court.
Held.-The Supreme Court held that clause (b) of Expl. to Section 125(1) of the
Criminal Procedure Code which defines 'wife' as including a divorced wife, contains no
words of limitation to justify the exclusion of Muslim women from its scope. The court
observed that the right available under Section 125 is a statutory right and remains
unaffected and also overrides the provisions of personal law if there be any conflict
between the two. However, the court observed that there is no conflict between Section
125 and rules of Muslim law as regards the husband's liability to maintain his divorced
wife. Section 125 deals with cases in which a person who is possessed of sufficient
means neglects or refuses his wife (including divorced wife who had not married) who
is unable to maintain herself.
The Muslim personal law, which limits the husband's liability to provide for the
maintenance of divorced wife upto the period of Iddat, does not contemplate the
situation envisaged by Section 125, i.e. whether or not the divorced wife is capable of
maintaining herself. The true position, is therefore, that 'if the divorced wife is able to
maintain herself, the husband's liability to provide maintenance for her ceases with the
expiration of the period of Iddat If she is unable to maintain herself she is entitled to
take recourse to Section 125 of the Code. The court concluded that because of these
reasons there is no conflict between the provisions of Section 125 and the rules of
Muslim law.
As regards Section 127(3)(b) under which the divorced wife cannot claim maintenance
if she had received the whole sum due to her under her personal law 'on divorce', the
court held that Mahr is not the amount payable by husband to wife 'on divorce'. Mahr
is given by husband to wife as a mark of respect towards her, therefore, it cannot be
said that it is that amount which is payable on divorce. One may settle a sum upon his
wife as a mark of respect for her but he cannot divorce her as a mark of respect.
Accordingly, the court held that Mahr does not fall within the meaning of Section
127(3)(b) and a divorced wife is entitled to claim maintenance even though she had
already received the whole amount due to her by way of Mahr.
Rejecting the plea taken by husband that provisions of the Criminal Procedure Code in
respect of maintenance to divorced wife beyond the period of Iddat was un-Islamic, the
Supreme Court held that these provisions are not un-Islamic. Quoting Ayats 241 and
242 of Sara II of the Holy Quran, the Supreme Court observed that these Ayats leave no
doubt that the Quran imposes an obligation on a Muslim husband to make provisions
for the divorced wife. Accordingly, the court held that Section 125 Criminal Procedure
Code is not un-Islamic.
It is significant to note that the Supreme Court's judgment in the Shah Bano's case had
become a much debated verdict in the recent time. A section of the Muslim community
in India opposed this verdict as being against the Shariat and alleged that maintenance
to a divorced wife beyond the period of Iddat is un-Islamic. Whereas the others among
the Muslim community favoured this judgment being in accordance with Shariat and in
the larger interest of Muslim women. The spate of arguments of the two groups in
support of their stand and also the socio-political developments, is beyond the scope of
this book and is being avoided. However, conceding to the demands of a section of the
Muslim community, the Parliament enacted Muslim Women (Protection of Rights
on Divorce) Act, 1986.
The Muslim Women (Protection of Rights on Divorce) Act, 1986 is the outcome
of the controversy that usurped the attention of the Muslim community all over India
after the Shah Bano Begam's case. Besides other provisions, this Act was enacted to
negative the law laid down in Shah Bano's case. In so far as divorced Muslim woman's
claim of maintenance beyond Iddat, is concerned. The Act extends to the whole of
India and makes provisions for the maintenance of a divorced Muslim woman during
and after the period of Iddat and also for enforcing her claim to unpaid dower and other
exclusive properties.
The Act is applicable to every such divorced woman who was married according to
Muslim law and has been divorced by, or has obtained divorce from her husband under
the provisions of Muslim law. Thus, the Act is applicable to a woman who had
contracted marriage according to the provisions of Muslim personal law and her
marriage dissolves through any of the kinds of judicial or extra-judicial divorce
recognised under Muslim law such as, Talaq, Ila, Zihar, Khula or Mubarat and also
under the Dissolution of Muslim Marriages Act, 1939.
PAHUJALAW ACADEMY
MAINTENANCE
Pre Questions
In which of the following cases the Supreme Court has held that although the
Muslim Law limits the husband's liability to provide for maintenance of the
divorced wife to the period of Iddat, it does not contemplate or countenance the
situation envisaged by section 125 of the Code of Criminal Procedure, 1973?
(a) Bai Tahira v Ali Hussain
(c) Section 4
(d) Section 5
Where a Magistrate is satisfied that a divorced woman has not re-married and is
not able to maintain after the iddat period, he may make an order directing
(a) Her relatives, who would be entitled inherit her property on her death according to
law, to pay such reasonable and fair maintenance to her
Section 3(1) of the Muslim Women (Protection of Rights on Divorce) Act, 1986
provides that a divorced woman shall be entitled to have from her husband, a
reasonable and fair maintenance which is to be made and paid to her
(b) On the time by which an arrangement for payment of provision and maintenance
should be concluded
b) Justice Bacholar
c) Justice baharul Islam
b) Marriage
c) Adoption
d) Gift
Is the jurisdiction of the family Court ousted by the enactment of Muslim women
(Protection of Rights on Divorce) Act?
a)Yes
b)No
c) Depends
In the absence of either principle or subsidiary heirs, the whole estate would go
to...
a) Wakf
b) State
c) Mahal
b) Option of puberty
Which of the following judgement of the kerala High Court expressed concern
over Polygamy
a) Saidali v Saleena
In which of the following cases, the Supreme Court overruled Muslim Personal
law relating to maintenance?
a) Danial Latifi case
All India Muslim personal Law board was established in the year
a) 1979
b)1980
c) 1985
d)1973
[EDIT] Muslim Law Lectures
pahujalawacademy.com/muslim-law-lectures
MUSLIM LAW
GIFT
MAINS QUESTIONS
1. A father made a gift inter vivos to his minor son. Critically examine the validity of the
said gift in the light of the essentials ofhiba under Mohammadan law.
2. Rehman is suffering from blood cancer and is bedrideden. When he came to know it he
gave all his property in favour of his wife by way of gift. Six month later he dies. His
legal heirs challenge the gift (HIBA). Will they succeed?
3. A Muslim executed a deed of gift of a house in favour of D. At the same of gift the house
was in possession of A who claimed it adversely to C.D sues A to recover possession of
the house as donee of the property and joins C also as defendant. C in his written
statement admits claim of D. A contends that the gift is void since Chad no possession
of the house at the date of the gift and no possession was ever given to D. decide.
4. A gift of a house was made by donor X to donee Y without delivering the title deed, no
mutation of name was effected and the donor continued t pay the house tax. Comment
whether gift is valid?
6. When the delivery of possession is completed? Who may Challenge the Delivery of
Possession?
PAHUJALAW ACADEMY
MUSLIM LAW
GIFT
1. Gift is a transfer by act of the parties not a transfer which takes place by operation of
law.
2. It is a transfer of an absolute interest in the property. There cannot be a gift oflimited
or partial interest of a property.
3. It is a transfer of property without any consideration.
4. The property must be in existence at the time when the gift is made, gift of a future
property is void.
5. In a gift, the transferor intends to transfer the property immediately to the transferee.
1. Declaration
2. Acceptance
3. Delivery of possession
1. Declaration of gift
Capacity
2.Sound
3. Muslim
Right
A donor has right to make gift of only those properties of which he is owner.
Any person including Muslim does not have right to declare a gift of non transferable
properties.
2. Acceptance of gift.
3. Delivery of Possession
• Under Muslim law, a gift is complete only after the delivery of the possession.
Therefore, the gift takes effect from the date on which the possession of the property is
delivered to the donee; not from the date on which the declaration was made.
• The donor must divest himself of not only the ownership, but also of possession in
favour of the donee to complete the gift. Delivery of possession is so important in the
Muslim law of gifts (Hiba) that without delivery of possession to the donee, the gift is
void even if it has been made through a registered document.
• Muslim law does not presume transfer of ownership rights from donor to donee
without the delivery of possession of the property.
• A delivery of possession may be either (i) actual or (ii) constructive.
(1) Actual Delivery of Possession
• Where a property is physically handed over to the donee, the delivery of possession is
actual.
• Generally, only the tangible properties may be actually delivered to the donee. A
tangible property may be movable as well as immovable.
For example jewels, money, vehicle etc. is tangible movable property and house, land
etc. is tangible immovable property. Where the property is movable, it must be actually
transferred and handed over to the donee; a mere entry in a register or account book is
not sufficient and does not constitute a delivery of possession.
(ii) Where the property is tangible property but, under the situations, its actual or
physical delivery of possession is not possible.
Intangible Properties
• It is interesting to note that there are certain properties which have no physical
existence i.e., they cannot be perceived through senses. Such properties are called
intangible or incorporeal properties. Although an incorporeal property cannot be
possessed but it can be owned and its owner may make a lawful gift of it. Therefore, in
the gifts of incorporeal properties, only constructive delivery of possession is possible
which, under the law, fulfils the requirement of a valid gift. Any such act of the donor
which indicates a clear intention that he has relinquished all the benefits of the
property, gifted, may be regarded as constructive delivery of possession.
• All that is required to constitute a constructive delivery of possession is an 'overt act' by
the donor. Therefore, the modes of constructive delivery of possession may differ from
case to case. Thus, where a gift is made of certain Zamindari rights, the delivery of
possession is legally presumed by mutation of names i.e., by change of names in the
revenue records.
• It must be noted that an act of the donor may amount to a constructive delivery of
possession only where such an act is sufficient to give to the donee the rights over the
gifted property.
In the leading case, Aga Mohamed Jaji.er v. Koolsom Beebee if a husband gave to his
wife a bank receipt issued in his favour from a bank where he had deposited some money.
After giving the bank receipt to his wife, he said, after taking a bath, in shall go to the bank
and transfer the account in your name". Unfortunately, the husband died before he could
transfer the money in favour of his wife. The widow as a donee, claimed the amount on the
ground that there was a declaration and acceptance of the Hiba and there was also a delivery
of possession because the husband (donor) had handed over the bank-receipt to her. But, the
Privy Council held that giving of the bank receipt to the wife does not amount to a
constructive delivery of possession because this was not an appropriate method of
transferring the account. If the account could have been transferred, the delivery of
possession could have been construed; the widow had no right to draw the money without
the transfer of account in her name. Moreover, it was found that the margin of the receipt
contained the words, 'not transferable'. Accordingly, the court held that Hiba in favour of the
widow was not valid because there was no delivery of possession, sufficient to give rights to
the donee, under the law.
Where a donor whose property is in the adverse possession of another person, has done
everything which entitles the donee to get the possession, a constructive or symbolic delivery
of possession takes place although the possession is not given immediately to the donee. A
whose property is held in adverse possession by Z, makes a gift of that property to B. The gift
is duly executed by A and is accepted by B. The donee B, files a suit against Z for obtaining
the possession and also joins A (donor) as the defendant party. In the written statement A
admits the claim of-B whereas Z argues that gift to Bis void because there was no delivery of
possession by A to B. In this illustration we find that although there was no actual delivery of
possession by the donor, as he himself had no possession, yet his admission, of B's claim in
the written statement must be taken as a constructive delivery of possession. In Mahomed
Buksh v. Husseini Bibi, where the facts were similar to the illustration given above, their
Lordships of the Privy Council observed that under these circumstances there can be no
objection as to the validity of the gift on the ground that donor had no possession at the time
of the gift which could be given' to the donee. The Court further observed that the donor did
all that 'could perfect the contemplated gift and that nothing more was required from the
donor to complete the gift. But, it must be remembered that where the property is in the
adverse possession, there must be some 'overt act' on the part of the donor to indicate his
intention of parting with the possession.
Gift to Minor or Lunatic Muslim law on gifts to minors may now be summarised
as under:
(a) As a general rule, a gift to minor must be accepted and possession must also be taken on
his (her) behalf by a competent guardian.
(b) The order of priority of the guardians of the minor's property must be strictly followed.
(c) In the absence of a 'guardian of property', acceptance of the gift may be made by any
person having custody of the minor.
(d) Where a gift is made to a minor who has attained puberty, i.e. has attained the age of
discretion, the gift is valid even if the acceptance of the gift and its delivery of possession has
been taken by a person who has no authority to accept the gift on behalf of the minor.
The subject-matter of a gift is the property which is transferred by a donor to the donee. Any
kind of property which the donor owns at the time of making the gift may be the
subject matter of gift.
However, the property must be transferable under Section 6 of the Transfer of Property Act,
1882. As a matter of fact, any property (mal) over which ownership may be exercised, may be
transferred through a gift.
Gift is a transfer of ownership (absolute interest) of the property, therefore, the donor must
own it at the time of the declaration. Once it is established that a person owns a property and
he has right to transfer it, he can make a gift of that property whether movable or
immovable. Tangible as well as intangible property may be the subject-matter of a gift.
The word Mushaa has been derived from the Arabic word Shuyua which literally means
'confusion'. Under Muslim law, Mushaa signifies an undivided share in a joint property.
Mushaa is therefore, a co-owned or joint property. If one of the several owners of this,
property makes a gift of his own share, there may be a confusion as to which portion or part
of the property is to be given to the donee.
In other words, there may be a practical difficulty in the delivery of possession if gift of a
joint property is made by a donor without partition of the gifted share. To avoid any such
confusion and difficulty at the stage of delivery of possession, the Hanafi jurists have evolved
the principle of Mushaa. Where the subject-matter of a gift is co-owned or joint property, the
doctrine of Mushaa is applied for examining the validity of the gift.
Mushaa Indivisible
Mushaa-Divisible
(i) The rule of Mushaa is not applicable where the property is indivisible.
(ii) Where the property is divisible, the doctrine is applicable but only under the Hanafi
school. In other words, the doctrine of Mushaa is applicable only where the donor is a
Hanafi-Sunni.
(iii)'Even under the Hanafi school, if a gift is made against the rule of Mushaa the gift is not
void, it is merely irregular (Fasid).
(iv) Hanafi law recognises certain exceptions to this doctrine and in those exceptional cases
the gift is valid, though made in violation of this doctrine.
The doctrine of Mushaa is limited in it's application and is subject to certain exceptions
where the doctrine is not applicable. Exceptions to the doctrine of Mushaa are given
below:
(1) Gift ofMushaa to Coheir.-Donor and the donee are co-heirs, if they are entitled to
inherit simultaneously the properties of a person. Gift of undivided property is valid even if
made without partition where donor and donee are co-theirs. If a person dies leaving behind
a son, a daughter and the mother, then the son, daughter and mother are all heirs as they all
are entitled to inherit the properties of the deceased. Thus, after the death of a Muslim male,
his widow and his daughter are the co-heirs, therefore, the widow i.e. mother of the
daughter) can make a lawful gift of her undivided share in the lands to her daughter without
separating her share physically. In Mahomed Buksh v. Hosseini Bibi, a Hanafi woman
died leaving her mother, son and a daughter, as her only heirs. The mother of the deceased
made a gift of her share to the son, without separating her 1/6 share in the properties of the
deceased. It was held by the Privy Council that the gift of the undivided 1/6 share by
grandmother to her grandson or to the grand- daughter or to both jointly, was valid even
without partition.
(2) Gift of Share in Zamindari.-Where a part of the erstwhile Zamindari or Taluka was
gifted away by one of its co-sharers, the doctrine of Mushaa was not applicable. In the
Zamindari systems, it was possible that two or more persons were the co-sharers having their
definite shares of which they used to be respective owners. If any of them made a gift of his
share, the gift was valid without actual delivery of possession and without physical partition
of the gifted share from the rest of the property. Similarly, a gift of Kaimi raiyati
land"(undivided' share) was held valid although there was no actual division of the share
before the gift was made.
Note.- This exception is only of academic interest because the Zamindari system has now
been abolished in India;
(3) Gift of a Share in Landed Company .-The Hanafi doctrine of Mushaa ii originated
with an object of avoiding confusion at the stage of taking the possession by donee. In the
landed companies or big commercial establishments where the ownership consists of several
definite shares, gift of a share by separating the share physically from the rest, would create
confusion and inconvenience and this would be against the very purpose of this doctrine.
Therefore, in such cases, the doctrine is inapplicable. In Ibrahim Goalam Arif v. Saiboo the
donor owned a large number of shares in six limited liability companies together with several
pieces of freehold land and some buildings thereon in Rangoon. He notionally divided the
whole property into one thousand shares and made a gift of loo such shares each to four
donees and also 25 such shares each to the two other donees. The whole property could be,
inconveniently though, physically partitioned from the rest. But no such partition was made
by the donor. It was held by the Court that the gift was valid without actual division because
the property was not conveniently divisible. The Court further observed that it would be
inconsistent to apply the doctrine of Mushaa to shares in the companies because the doctrine
originated for very different kinds of properties.
Conditional Gifts
For example where A makes a gift of his house to B on condition that B should give one-third
of the income of the house to A's grandson C during the life of C, then both, the gift as well as
the condition is valid and B is bound topay one-third of the income to C so long as C is alive.
It may be noted that here the condition is not in respect of the return of one-third of the
house, it is in respect of the return of one-third of the income of the house. 'Validity of such
conditions may also been plained on the basis of creation of a trust in favour of the donor for
his maintenance.
REVOCATION OF GIFTS
Gift is a voluntary and gratuitous transfer of property. The donor makes a gift of the
properties of his own free will and the transfer is without any consideration or exchange. In
the transfer of property by way of gift there are three stages: declaration,
acceptance and the delivery of possession. At the first two stages namely, the
declaration and acceptance, the gift is simply a contract for the transfer of property. The gift
is not complete before the delivery of possession. Without actual or constructive
delivery of possession there is no gift at all; it is merely a promise.
Revocation Before Delivery of Possession.- Under Muslim law, a gift may be revoked
by the donor at any time before delivery of possession. A mere declaration by the donor that
he has revoked the gift is sufficient.
In Riazan Khatun v. Sadrul Alam, the Patna High Court has held that since gift itself is not
deemed to be complete before delivery of possession, therefore, the donor may cancel or
revoke the gift any time before delivery of possession. After the revocation, the donee is not
entitled to get any compensation because for the breach of a gratuitous promise the donor is
not liable. However, only donor is entitled to revoke the gift. If the donor dies before delivery
of possession his heirs have no right to revoke the gift.
Until a decree invalidating the gift is passed, the gift stands and the donee is entitled to enjoy
the property as owner including the right of transferring the property. But , if the gift is of
irrevocable nature, it cannot be revoked even by the court. Muslim law recognises certain
situations in which a gift is irrevocable.
Shiu.law.- Under the Shia law, even after the delivery of possession, a gift may be revoked
by the donor merely by declaration ; decree of a court of law is not necessary. But, under the
Shia law too, if the gift is irrevocable, it cannot be revoked after the delivery of possession
even by the court.
Irrevocable Gifts
Irrevocable gifts are those gifts which, after the delivery of possession, cannot be revoked
even by court. In the following cases, the gifts are irrevocable:
1) A gift by husband to wife or by wife to husband.- i.e. where the donor and the donee are
spouses.
Shia law- Under the Shia law, a gift by husband to wife or vice-versa, revocable even after
the delivery of possession.
2) Where donor and the done are within the prohibited relationship.- Where the donor and
the donee are so related to each other that their marriage is void on the ground of
consanguinity, affinity or fosterage, they are within prohibited relationship. In such a case,
gift by one to another is irrevocable. For example, gift by a brother in favour of his sister is
irrevocable.
Shia law-Under the Shia law, if donor and donee are related through blood, though not
within the prohibited relationship, the gift is irrevocable.
3) Where the donor or donee is dead.- After the death of the donor or donee, a gift becomes
irrevocable. This is obvious, because gift begins with a declaration (offer) and the acceptance,
and the parties to the contract of gift are the donor and the donee. If, after the completion of
a gift a court attempts to invalidate it, then decree would have to be passed against the heirs
of the donee. This is not possible because heirs of the donee or donor were not party to the
transaction of the gifts.
4) Where the donee has transferred the property to another person.-After completion of
the gift the donee becomes an absolute owner of the gifted property. As such, the donee may
transfer that property to another person. If a gift is revoked when the donee has already
transferred the property to a third person, then interest of that third person would be
affected and he would be put to loss without any fault of his own.
5) Where the property is lost or has been destroyed.--After revocation of a gift, the property
should revert back to the donor but if it is lost or destroyed there would remain nothing to be
given back to the donor. Therefore, where the gifted property is lost or is otherwise not
available, the revocation would be meaningless.
6) Where the value of the property increases subsequently-The value of the property may
increase by accretions or, by accidental discovery of gold or coal mine or due to some other
reason. After completion of a gift, if the value of the property is increased, it is natural that
the donor would be interested in the revocation of gift. Muslim law negatives the possibility
of revocation of gift by donor due to such temptation.
7) Where the property given is changed beyond identification-Where the shape, size and
identity of the property has been changed and it is not possible to recognise that it is the
same property which was the subject matter of gift, the gift becomes irrevocable. For
example, if a piece of gold or bag of wheat is given in gift and the donee has converted it into
ornaments and flour respectively, the original subject-matter cannot be identified. In such a
circumstance, the gift is irrevocable because after cancellation off the gift, the same property
cannot be given back to the donor.
8) Where the gift has been made to secure religious or spiritual benefits- Where a gift is
made not out of natural love and affection, but with religious motives, its revocation may
amount breach of a religious promise which is not permissible. A gift for religious or spiritual
purposes is called Sadqa which is irrevocable.
9) When a gift is in the form of Hiba-bil-iwaz.-That is to say, where the donor has accepted
something as consideration of the gift; the transfer becomes irrevocable. As is discussed in
the following lines, Hiba-bil-iwaz is not a gift at all; it is treated either as a sale or an
exchange, therefore, it is irrevocable.
AREEAT
LECTURE7
GIFT
PRELIMINARY QUESTIONS
1. Hiba under the Mohammedan law means
(a) immediate and unqualified transfer of the corpus of the property without any return
(b) immediate and unqualified transfer of the profits of the property without the corpus and
without any return
(c) immediate but qualified transfer of the corpus of the property for a consideration
(d) immediate and unqualified transfer of the corpus of the property for a return.
(a) valid
(c) void
(d) invalid.
(a) valid
(c) void
(c) there is a declaration by the donor, acceptance by the donee and delivery of possession
(d) either (b) or (c).
(a) orally
(b) in writing
10. A gift of immovable properties made by a Muslim, through an instrument of gift, that
instrument of
gift
11. Which if the following are the essential ingredients of a valid gift?
a) Hiba
b) Wakf
c) Shufa
a) Valid
b) Irregular
c) Void
a) Once it is made
b) Once it is executed
a)Yes
b) No
c) Depends
b)No
c) Depends
a)Yes
b) No
c) Depends
a) Hiba
b) Ariya
c) Shufa
a) Mushaa
b) Ariya
c) Shufa
a) Mushaa
b) Ariya
c) Shufa
a) Valid
b) Void
c) Irregular
a) Valid
b) Void
c) Irregular
a) Valid
b) Void
c) Irregular
a) Valid
b) Void
c) Irregular
a) True
b) False
c) Partly correct
d) None of the above
a) Mushaa
b) Ariya
c) Shufa
d) Ewaz
a) Mushaa
b) Ariya
MUSLIM LAW
WILLS
1. P, a Muslim has a son S, a wife Wand a grandson from a predeceased son D.P make a
will of his whole property in favour of G. decide the validity of this bequest.
2. Mahmood has got property worth Rs.1olacs. he has to pay Rs. One lac to his creditor
and 50,000 tohis wife as dower He bequeaths his entire property by will in favour of
his son. Mahmood dies without discharging his debts. Whether the son will succeed on
'Wasiyat', Discuss.
4. Where the legatee is one of the legal heirs of a testator, whether the consent of
remaining legal heirs required? Explain.
5. Is a Juristic person also a juristic legatee? Explain in the light of the concept of
Competency of Legatee.
LECTURES
MUSLIM LAW
WILLS
Introduction
Definition of Will
• According to Tayabji, Will means a legal declaration of the intentions of a Muslim with
respect to his property, which he desires to be carried into effect after his death.
• According to Baillie, Will is a device for conferring a right of property in a specific
thing, or in a profit or advantage, in the manner of a gratuity, postponed till after the
death of the testator.
Under Muslim law, following essential conditions are necessary for a valid will:
• The person who makes a will is called legator or testator. The legator must have the
capacity to make a will.
• Every (i) Muslim of (ii) sound mind who has attained the age of majority, has capacity
to make a will.
1. Muslim
2. Soundness of Mind
• At the time of execution of a will (i.e., when it is being made), the testator must be of
sound mind.
• A will executed by an insane person is void.
• The legator must be capable of knowing fully the legal consequences of his activities not
only for a brief period when the declaration was made, but much after that.
• According to Ameer Ali, a will executed by a person during soundness of mind is void if
the testator does not remain of sound mind at least for six months from the date of
execution of the will.
3. Age of Majority
The testator must also be adult. He must have attained the age of majority at the time
of execution of the will. For purposes of making a will, the age of majority is governed
by the Indian Majority Act, 1875. A will executed by a minor is void. But, if an person
who had made a will during his minority, ratifies the will upon attaining majority, the
will becomes valid.
• Under the Shia law, if a person executes any will after attempting to commit
suicide, the will is void.
• For example, where a person seriously wounds himself or, takes poison to end his life
and then makes any will before his death, the will is void. The reason behind this rule is
that where a person has attempted suicide, he cannot be said to be in his normal state
of mind. After the attempt has been made, his mental capacity is completely disturbed.
• But under Sunni law, the will executed in such circumstances is perfectly valid.
• However, if the testator executes a will before attempting to commit suicide, the will is
valid both under Sunni as well as under the Shia law.
• In Mazhar Husen v. Bodha Bibi, a Shia Muslim Expressed his will through a letter
addressed to his attorney. After giving in detail the scheme of distribution of his
properties, he wrote the following words: In consequence of having suffered to a
certain extent and the exposure being so great that I could not show my accused face to
any one, I thought it advisable to put an end to my life, and therefore, took poison and
died today. Please begin to take all the proceedings after pursuing this letter. It was
held by the Privy Council that on the basis it may be said that the testator had made the
will first attempted suicide. The will was, therefore, held valid.
(i) The child must be in existence in mother's womb at the time of testator's death.
(ii) The child in mother's womb must be born alive within six months from the date of
testators eat.
Murderer of Legator
• A person who has caused the death of the legator, cannot be a competent legatee. If a
person, in whose favour a will has been made, kills or causes the death of the legator
either intentionally or unintentionally, he is disqualified for getting any property under
the will. The reason for such a rule is simple. A will operates only after the death
of a legator therefore, a greedy and impatient legatee may cause the legator's
death to get the properties immediately. A common sense rule is that no person
should be allowed to be benefitted out of his own wrongs.
• However, under the Shia law, if a legatee causes the death of the legator negligently or
accidently, he is not disqualified and the will in his favour is valid.
Joint Legatees
A bequest may be made to two or more legatees jointly. Where a will is made jointly to
several legatees and no specific share of any of them has been mentioned, the property
is divided equally amongst all the legatees. Where a will is made in favour of a specified
class of persons, the class as such is treated as a single legatee and each person gets the
property equally. For example, if a testator makes a will under which his properties are
to be given to the Fakirs and the 'poor people of his locality' then, half of the
bequeathable property is to be given (equally) to the Fakirs and the remaining half is to
be distributed equally amongst the poor persons of that locality. But, where the legato
himself has specified the respective shares of the legatees then, each legatee would get
the shares allotted to him.
• We have already seen that a legatee must be in existence at the time of the legator's
death. Where a legatee dies before the legator's death, the will fails. This is called the
lapse of legacy. Where a will lapses because the legatee does not survive the legator, the
property given under the will is not given to the heirs of the legatee. It remains with the
legator as if no will was made at all. It is relevant to note that in such cases, the will
automatically fails. Whether the testator revokes it or not, it is deemed to be revoked.
• Where a will has been made to two or more legatees jointly without specifying their
shares and, one of such legatee dies before the testator's death, the whole property is
given to the surviving legatee. But, if their shares are specified, the surviving legatee
gets only his own share; the share of the predeceased legatee reverts back to the
lestator's heirs.
• Shia law.-Under the Shia law, if the legatee dies before the death of the testator, the
will does not lapse. The property under the will is given to the legal heirs of the legatee
after the death of the testator. Where the legatee has no heirs at all, the will lapses and
property remains with the testator. However, as a testator is always free to to revoke a
will any time during his life, he may revoke it when he finds that the legatee is now
dead.
Consent of Legator
• The will must be executed by a legator with his free consent. Where a will is
proved to have been executed by the legator under compulsion or, by
fraud, or undue influence, the will is void and the legatee would not be
entitled to get any property under that will. There is a general presumption that
a sane person having capacity to make a will has executed it with free consent,
understanding fully the nature of the transaction.
• But where the testator is a Pardanashin lady, this general presumption is not
applicable. Any woman who generally lives in seclusion and does not move outside her
house is a Pardanashin lady. It is supposed that such a woman has no opportunity to
know about the dealings in properties and, may be easily influenced by others. Law,
therefore, gives a protection to such ignorant women of the society.
• Where a will has been executed by a Pardanashin lady, the legatee must prove of his
ownself, that there was no undue influence and that she had executed the will with her
free consent exercising an independent discretion in the matter.
Consent of Legatee
• Consent of the legatee is also necessary. After the testator's death the legatee must give
his consent for taking the property. The consent may either be express or implied. If
the legatee does not give his consent for taking the property given to him, i.e. if he
declines to become the owner of the bequeathed property, his title to the property is not
complete. A legatee who survives the legator but dies without assenting or disclaiming
the legacy, is presumed to have given his consent and, the property under the will
automatically devolves upon the legatee's heirs. But under the Shia Law, if a legatee,
dies without assenting or disclaiming the will, the property does not devolve
automatically upon legatee's heirs. The legatee's heirs may accept or disclaim the
property given under that will.
• The reason for the rule that the title of the property given to a legatee is not complete
unless the legatee gives his consent is simple. Even a beneficial interest cannot be
thrust upon any person against his wishes. Nothing enters the proprietorship
(ownership) of a person without his express or implied consent except inherited
property.
The Formalities
• Muslim law does riot provide any special formality for the validity of at will. The only
essential requirement is that there should be a manifestation of the intention of testator
that after his death, he wants to confer the ownership upon the legatee..Once this
intention is established, the form of the will is immaterial.
• A will may be made either orally or in writing. If in writing, it is not necessary that it
should also be attested and registered. It need not be even signed by the testator,
provided it is in his handwriting. A will may be written on any piece of paper. Where a
testator wrote a letter, shortly before his death, in which he gave directions for the
distribution of properties after his death, the letter was regarded as a valid will.
Moreover, it is also not necessary that the document be named as a will. Irrespective of
the name given to the document, if it contains the essential elements of a will, it may
operate as a will. It is the intention of the testator which is decisive; the name given to
the document is not relevant. According to Wilson:
• "If a person executes a deed purporting to transfer ownership of certain property to
another person, but providing that the latter shall only obtain possession after the
death of the executant, such an instrument cannot operate as a gift for want of
immediate possession but will take effect, subject to the usual restrictions, as a will.
• Whether a document is a will or not depends neither upon the name given to it nor
upon its form. Any document in which it is clearly expressed that the creator of the
document provides manner of devolution of his properties after his death, may be a
document of will. It depends upon the legal import of the transaction which decides
whether it is to operate as a will or not. Where a deed was named as a deed of
assignment (Tamlik-nama) but it had the character of a will i.e. ownership to be given
after the death of the transferor, it was held to be a deed of will. However, the intention
of the transferor that the property is to devolve upon the transferee after his death must
be expressed in clear and unambiguous terms. Where a Muslim executed a document
in which he stated: "I have no son, and I have adopted my nephew to succeed to my
property and title," the Privy Council held that the document was not a will.
Oral Wills
An oral will is valid. Any declaration in which a person expresses his intention that after his
death the specified property should be given to the legatee, may operate as a will. But, proof
of the genuineness of an oral will is always difficult. An oral will must be proved with utmost
precision and the declaration must clearly indicate the intention of the testator. Sufficient
proof must be given to the court regarding the testamentary effect of the words spoken and it
must be convinced, beyond any reasonable doubt, that the speaker intended nothing but a
will." It is interesting to note that under Muslim law, even the words of mouth are not
necessary; a will made only through gestures and signs, is valid. Thus, where a testator is
illiterate and is also unable to speak, he may express his intention through signs and
gestures. A will expressed through gestures is valid provided, it clearly indicates the intention
of the testator. According to Baillie:
"A sickman makes a bequest and being unable to speak from weakness give a nod with his
head, and it is known that he comprehends what he is about in these circumstances if his
meaning be understood, the bequest is lawful.
Any kind of property, movable or immovable, corporeal or incorporeal, may be the subject-
matter of a will. A testator may make a will of any property subject to two conditions:
(i) the property is owned by the testator at the time of his death, and
(ii) the property is transferable. The property which is bequeathed under a will may or may
not exist at the time of making of the will but, it must exist and must be in the ownership of
the testator at the time of his death. The reason is simple. A will operates only after the death
of the testator. Thai is to say, the transfer of property under a will takes place from the
moment of testator's death, not from the date on which the will was made. For example, A
makes will of his all properties in favour of B. At the time of making the will A has only a
house. After sometime A purchases a garden and when he does he owns the house as well as
the garden. B is entitled to get the house as well as the garden under the will although the
garden was not owned by A when the will was executed.
Will of Usufruct
Under Muslim law, it is possible that a will is made only of the usufruct of a property. That is
to say, a testator may make a will only of the produce or the benefits. In such cases, the
legatee is entitled to get only the benefits of the property and has no right over the corpus.
The bequest of usufruct of a property in favour of a legatee may be for a limited period or for
the life of that legatee. The result would be that after the death of the testator, the corpus
would be inherited by the legal heirs of the testator whereas, the benefits or the produce of
the property would go to the legatee.
Tayabji, observes:"The right to occupy a house during a future period of time or to take the
rents or future produce or usufruct (or part of the rents, produce or usufruct) of movable or
other property for a limited time, or for life time of the legatee, may validly be the subject-
matter of a bequest.
Thus, if a testator makes a will..for the right of rent of a house to a legatee then, after the
death of the testator, the legatee is entitled only to the rent, her cannot live in that house.
Similarly, where right to occupy a house for a limited period has been bequeathed, the
legatee can only live and has no other right in respect of that property; other rights
pertaining to it e.g. right to maintain or manage the house, would be: exercised by the legal
heirs of the testator.
Will of Life-Interest
As discussed earlier corpus and usufruct of a property are separable for purposes of
disposition. Accordingly, under Muslim law, it is possible that a testator makes will of the
corpus to one person and of its usufruct to another. Under a will, the property as such may be
given to A, whereas its produce or benefits may go to another legatee B, either for a fixed
duration or for the life of B. Under Muslim law, t-he life-interest may be a lawful subject-
matter of a will. In a will of life-interest the legatee has right only over the usufruct of the
property during his (her) life.
When a person dies, first of all his funeral expenses and the debts, if any, are
satisfied out of the property left by him. The property, which remains after
payment of funeral expenses and debts incurred by a deceased person is called
the bequeathable property if the deceased had made any will.
Under Hindu law or Christian law etc. a legator can make a will of the entire property. Except
under Muslim law, a testator has right to make a will of his total assets and there is no
restriction either in respect of the quantity of property or in respect of the legatee. But, the
right of a Muslim testator to dispose off his properties through will is restricted to one-third
of his total assets. That is to say, where the testator is a Muslim, he is authorised to make will
only of one-third of the bequeathable property i.e. one-third of what remains after payment
of his funeral expenses and debts, if any. For example, upon the death of a Muslim, if the
value of his entire property is Rs. 5,000 andif his funeral expenses and debts are Rs. 500
and Rs. 1500 respectively, then, after deducting these two expenses the remaining Rs. 3000
would be called the bequeathable property or the total assets left by him. One-third of this
bequeathable property would be Rs. 1,000.
Thus, in this example, Rs. 1,000 isthebequeathable one-third. Moreover, besides the limit
on the quantity of property bequeathed, the testamentary right of a Muslim depends also
upon the fact whether legatee is an heir of the testator or a stranger (non-heir). Accordingly,
the testamentary right of a Muslim may be studied separately under the following two heads
: (a) bequest to a stranger and, (b) bequest to an heir.
A Muslim can make a will of one-third of his total assets to a stranger (i.e. non-heir). In
respect of a will to a non-heir, under Shia law as well as under Sunni law a Muslim has an
unconditional testamentary right upto one-third of his property. For a will of more than
one-third property, the consent of the legal heirs of testator is necessary. In
other words, a will in favour of any non-heir legatee is subject to the approval of heirs of
testator if the property bequeathed exceeds one-third of the total assets. It is significant to
note that this limit (of 1/3) is based on a tradition of the Prophet.
The Prophet once said to AbuVekas that he was not entitled to make any will of
his whole property, nor even of two-third, not of one-half, but only of one-third
of his properties.
If the legal heirs of a testator give their consent, the bequest to a stranger in excess of one-
third is valid. When a Muslim makes will of his entire property to a stranger and his heirs
give their consent, the will is valid. This is obvious, because the object behind this restriction
is to protect the interests of the testator's heirs. If a Muslim be allowed to dispose of his
entire assets to a stranger, his legal heirs would get nothing through inheritance. But, if the
heirs give their free consent for a will in excess of the legal third then, there is no harm in
validating the will. The heirs may assent to such a will either because they are competent
enough to make their livelihood without inheriting or, because they give preference to the
last desires of the testator over their own interests. It is relevant to mention here that in this
respect, Muslim law appears to be very reasonable. On one hand, there is provision for
carrying out the last desires of a testator whereas, on the other hand, it also makes room for
giving honour to the rules of inheritance.
However where a Muslim has no heir at all, he is entitled to bequest any amount of property
to a stranger. It may be noted that when a person dies intestate (i.e. without making any will)
and has also no heir to inherit his -properties, the government is authorised to take over his
properties through escheat. But, a testamentary disposition by an heirless testator defeats
the government's right to take his properties. An heirless Muslim has absolute testamentary
right in respect of his properties and his will, of whatsoever amount it may be, would not be
void for want of heir's consent.
Note.-Where a Muslim testator has only his wife as the only surviving heir, he is entitled to
bequeath 5/6 of his total assets to a stranger. Similarly, where the Muslim testator is a
woman and her husband is her only surviving heir, she may make a will of 2/3 of her
properties to a stranger. This peculiar testamentary right of a Muslim testator having only
wife (or husband) as surviving heir, may be explained by following illustrations:
(i) A Muslim makes a will of his entire properties to a stranger. His only heir at the time of
his death his widow. In this case, first of all the stranger would get 1/3 as a legatee and his
widow would get 1/4 of what remains after this will as Quranic heir. That is to say, the widow
would get 1/ 4 of (1-1/3) i.e. 1/6. Secondly, after this normal distribution of properties, we
find that there remains (1- 1/3 - 1/6) out of the testator's property. This remaining property
(1/2) also goes to the legatee. In this manner, the legatee's share would become (1/3 + 1/2) =
5/6.
(ii) A Muslim woman makes a will of her entire property to a stranger. She is survived by her
husband as her only heir. Here, in the normal course the legatee would get 1/3 in the first
instance and her husband would get 1/ 2 of the property which remains after giving to
legatee; That is to say, the husband would get 1/3 as Quranic heir. After distributing property
in the normal course (i.e. 1/3 to the husband as heir and 1/3 to the legatee) there still
remains 1/3 of the testator's whole property. This remaining property would again go to the
legatee in the second instance and the legatee's share in property would become 2/3 (1/3 in
the normal course plus 1/3 as residue).
(iii) A Muslim woman makes a will of 1/2 of her properties to a stranger. Her sole surviving
heir is her husband. In this case; in the first instance, the legatee gets 1/3 in the normal
course and the husband gets l/3 (1/2 of 2/3) as Quranic heir. Now there remains 1/3 of the
testator's total assets. We find that as against bequest of 1/2 the legatee has got only 1/3 (i.e.
short of 1/6, to make it .1/2). The will shall be honoured as far as possible and legatee would
get, 1/ 6 more in the second instance so that his final share as legatee would become 1/ 2. But
we find that after honouring the will (1/2) and giving share to the Quranic heir, (1/3) there
still remains 1/ 6 of the testator's whole property. The residue of 1/ 6 is the surplus property
after legacy and inheritance, this 1/6 should normally go to the government by escheat. But,
now in India, both under Shia as well as under Sunni law, husband or wife as sole surviving
heirs of each other, are entitled to return as against escheat. Therefore, the remaining 1/6
would go to husband in return. Thus the husband shall get 1/3 + 1/6 = 1/2 of the property.
Where the legatee is one of the legal heirs of a testator, consent of the remaining legal heirs is
necessary even though' the property given is one-third or less. In other words,
irrespective of the quantity of property bequeathed, will to an heir of the
testator is valid only if other heirs give their consent. A bequest to an heir is
always subject to approval by rest of the heirs, whatsoever be the amount given
under a will.
The reason behind this rule has been explained by Muslim jurists as under. When a
Muslim testator makes any will in favour of one of his heirs, such heir (legatee)
gets double advantage, out of the testator's properties.
He gets the property given to him under the will and, would also get some property as a legal
heir of the testator. This may amount undue favour to such an heir (legatee) as against rest of
the heirs. Obviously, this may cause jealousy and enmity among the heirs. Such an
unpleasant situation has been avoided by Muslim jurists by making a rule that a bequest to
an heir would not be valid without consent of other heirs. Hedaya lays down the object of this
rule as under:
"If a man makes a bequest in favour of a part of his heirs, it is not valid ;
because of a traditional saying : "God has allotted to every heir his particular
right", and also because a will in favour of a part of the heirs is an injury to the
rest; and therefore, if it were 'deemed legal, would induce breach of the ties of
kindred.
It is relevant to note that bequest to an heir means bequest to a person who is entitled
to inherit the properties of the testator at the time of his death. A will in favour of
any close relative of the testator needs no consent of the heirs if such relative is not entitled
to inherit testator's properties. In other words, a will to a relative who is not an heir at the
time of testator's death, is valid (up to one third) without the consent of the heirs because,
such a will would be treated in favour of a stranger i.e. non-heir.
example, a Sunni Muslim makes a will in favour of his paternal grandfather. At the time of
his death his only relatives are the paternal grandfather, his father and, his son. Out of these
surviving persons, the testator's father and son are his legal heirs. The paternal grandfather
is excluded from inheritance by the presence of father. Therefore, a bequest to paternal
grandfather is not a bequest to an heir; it is a bequest to a stranger and is valid (upto
the legal third) without consent of the legal heirs namely, the testator's father and
son.
Shia law.-Under the Shia law, there is no difference between a bequest to an heir and a
bequest to a non-heir . Where the testator is a Shia Muslim, a bequest to an heir upto one-
third is valid without consent of his remaining heirs: The consent of other heirs is necessary
to validate a will only where the bequest to an heir exceeds the legal third.
Where, under the same will, some property is given to a non-heir and some to an heir, the
whole will is interpreted in two separate parts. The will in favour of the non-heir is valid upto
one-third, without consent of the testator's heirs. But, that part of the will, which is in favour
of an heir, is not valid without consent of .the remaining heirs whatsoever be the quantum of
property given to him." However, where the testator is a Shia Muslim, there would not be
two different interpretations and the whole will i.e. (to an heir and to non-heir) would be
valid upto one-third without consent of the testator's heirs.
&bsp;
We have already seen that the consent of the testator's heirs is required to validate a will in
the following circumstances:
(a) where the bequest to stranger exceeds one-third, whether testator is Sunni or Shia;
(b) where the testator is a Sunni and the bequest is made to one of his heirs; and
(c) where the testator is a Shia and a bequest to an heir is made in excess of one- third.
Rules relating to the consent of heirs, necessary to validate at will, may be summarised as
under:
(1) The consent of the heirs must be obtained only after the testator's death. Consent given
during the life of a testator is no consent at all. But, under the Shia law, the consent of heirs
may be obtained either before or after the testator's death. That is to say, if the testator is a
Shia Muslim, the consent given by his heirs during his life, is a valid consent for purposes of
validating the will ; such a consent need not be ratified by the heirs after testator's death.
(2) Consent of the heirs means consent of those persons who are testator's Heirs at the time
of his death. Consent of a presumptive or would-be heir cannot validate a will. As discussed
earlier, a person may be testator's heir at the time of execution of a will, but may not be his
heir at the time of his death. Consent of such persons is not relevant.
(3) Consent may be express or implied. In other words, it may be given by an heir in express
words or may be inferred from his conduct and the circumstances. For example, a Muslim
makes a will of his entire properties to a stranger. The will is in writing and is attested by
testator's two sons, who are his only heirs. After the testator's death, the legatee takes
possession of the properties bequeathed to him. The fact that possession is being taken by
the legatee, is known fully to the two sons but, they do not raise any objection. The conduct
of the sons (attesting the will and not objecting to the taking of possession) suggests that the
two sons have given their consent impliedly. The will is, therefore, valid although the two
sons (heirs) have not given their consent in express words." However, a mere silence on the
part of a legal heir does not amount his implied consent. In a will all the female heirs of the
testator were excluded. When the mutation of name in favour of legatee took place, the
female heirs kept silence because they could not know the nature of the proceedings. It was
held by the Court that it cannot be inferred from the silence of the female heirs that they have
given their implied consent becuase, they had no opportunity at all to know about the
transfer of possession and raising any objection.
(4) Once the consent to a will is given by an heir, it cannot be rescinded by him. That is to
say, after giving the consent, a legal heir is bound by it; he cannot withdraw it subsequently.
(5) By giving consent, an heir approves the will only in respect of his own share in the
testator's property. Where some of the heirs consent and the others do not, the bequest (in so
far as its validity needs consent) is payable out of the shares of the consenting heirs alone.
(6) The consent of the heirs must be a free consent. A consent obtained by undue influence,
compulsion, force or fraud etc. is no consent at all and an heir is not bound by it.
Under Sunni law, the legacies (i.e. the wills) abate rateably. Abatement means, 'to deduct' or
to make less. Rateably means 'proportionately'. That is to say, without the approval of
testator's heirs, the property given to each legatee is reduced in proportion of the share
allotted to him in such a manner that the aggregate of the property given to all of them does
not exceed bequeathable one-third. But this deduction is not made from the share of one or
two legatees. The deduction is made from the share of each legatee in the ratio of what they
have got under the will. The Sunni rule of rateable distribution may well be
explained with the help of following illustrations:
(1) T, a Sunni Muslim makes a will of half of his properties to A who is a non- heir. The heirs
of T refuse to give their consent. A would get only 1/3.
(2) T, a Sunni Muslim makes a will to A, Band C. All the legatees are non-heirs. Under the
will, T distributes his property to each of the legatee as follows:
Here the testator has attempted to give half of the whole property to A, and one fourth of the
whole to B and C each. In this manner he has bequeathed his whole property. But without
heir's consent, the bequeathable property is only one-third of the nett assets, not the whole.
To deduct the excess property from the shares of A, B and C, in proportion of their shares,
the bequeathable property would be taken to be 1/3 as against the whole (one) and their
respective shares would remain unaffected. Thus, the three legatees would finally get as
under:
(3) A Sunni Muslim makes a will of his properties to A and B who are not his legal heirs. His
heirs do not approve the will.
A1/2
Here, the total property given to A and Bis 3/ 4 (1/2 + 1/ 4), which exceeds the legal third by
5/12 (3/4 - 1/3). This excess property must be deducted from the share of each legatee. But
the reduction of their shares must be rateably or proportionally. There is at simple method
for this. By taking the ratio of the shares of A and B, we find that their shares are in the ratio
of 2 : 1 i.e. 2/3 and 1/3 respectively. Now, without the consent of the heirs, the bequeathable
property is only 1/3. Therefore, the respective shares of A and B would be as under:
Thus, we find that total property given to the legatees is 1/3 (2/9 + 1/9) and the ratio of their
shares has also not been disturbed.
Note.-It is significant to note that for abatement oflegacies, a will under Sunni law may be
classified into two categories (a) secular wills and (b) religious wills. A secular will is that
under which there is no religious "motive whereas, a religious will is executed to secure
religious or spiritual benefits. If there is a will in which one part consists of a bequest for
secular object and the other for a religious object then, both of them are treated equally. That
is to say, the religious part is not given any preference over the secular one. The result is that
if the sum total of property bequeathed exceeds the legal-third, the excess share is deducted
proportionally from both. For example, the total assets of a Sunni testator are Rs.15,000. He
executed a will under which he attempts to give Rs. 3,000 to A and Bin equal shares (on
account of personal reasons) and another Rs. 3,000 for religious or pious purposes. The
heirs have not given their consent. Now, we find that the total amount directed to be given
under the will is Rs. 6,000 whereas in the absence of the heirs' consent, the bequeathable
property is only Rs. 5,000 (1/3 of 15,000). Therefore, out of this bequeathable one-third (Rs.
5,000), Rs. 2,500 would be given to A and B, to be shared by them equally and, Rs. 2,500
would be left for the religious purpose.
The principle of rateable distribution is not recognised under the Shia law.
According to this school, if the sum total of the shares given to different legatees
exceeds one-third and, testator's heirs refuse to confirm then, their legacies
take effect in order of preference. The preference is determined by the order in which
they are mentioned in the will. The share of each legatee is not reduced and remains intact.
The legatee mentioned first in the will gets his share as mentioned under the will. After
giving this share, the remaining goes to the second legatee. If there still remains something,
it goes to the third and so on. As soon as the one-third property is exhausted the distribution
is stopped and the next legatee does not get anything. Thus, we find that here a legatee either
gets his share or gets nothing at all. The Shia law on this point may therefore, be
called as the rule of 'preferential distribution'. Following illustrations would
explain this rule clearly:
(1) T, a Shia testator makes a will of his properties to A, Band C giving them the following
shares:
A1/3
B 1/4
C 1/6
Here, the aggregate of what T attempts to give to the three legatees exceeds one- third of his
total assets. But the heirs of T, refuse to give the consent. The result is that by applying the
Shia rule of preferential distribution, A would get his share of 1/ 3 because he is the -legatee
who has been mentioned, first. After giving the A's share there remains nothing, therefore, B
and C would get nothing.
(2) T, a Shia Muslim, executes a will in favour of three persons, A, B and C and specifies their
shares as under:
A1/12
The sum total of all the properties given to these legatees exceeds one-third. T's heirs refuse
to give consent; therefore, the principle of preferential distribution, would be application.
Thus, A, the first legatee would get his share 1/ 12. But there still remains (1/3- 1/12) = 1/ 4.
This remaining ¼, which is also the share of B would go to B. After giving the property to A
and B the bequeathable one-third exhausts and therefore C would get nothing. In this
example, if the shares of A, Band C would have been 1/12, 1/2 and 1/6 then A's share would
be 1/12 as he is the first legatee. Next to him, in the order of preference, is B who has to get
1/2 under the will. But, after giving to A there remains only¼ out of the legal-third. Thus, B
is unable to get the share given to him under the will; he could get only what remains after
giving the property to the first legatee. Accordingly B would get only 1/4 whereas, C would
get nothing because one-third property exhausts after giving the properties to A and B.
Exceptional Rule
There is an exception to the Shia rule of preferential distribution. Where a Shia testator
makes a bequest of exactly 1/3 of his property to two legatees, the order of preference is
reversed and the legatee mentioned in the last gets preference over the earlier legatee. For
example, a Shia testator makes a will of 1/3 of his properties to A, and 1/3 to B. Generally,
under the Shia rule, A should get his 1/3 share and since the legal third exhausts, B should
get nothing. But, under the exceptional Shia rule B would get 1/3 and the first legatee
namely, A would get nothing.
The reason behind this peculiar rule is that where a will is made of exactly one-third, the Shia
jurists regard the last will as implied revocation of the first. However, it may be noted that
this exceptional rule applies only where' two legatees are given exactly 1/3 each. Where A is
given 1/3 and Bis given 1/6 this rule would not apply and A will take his 1/3 under the Shia
rule of preferential distribution, whereas B would get no property.CONDITIONAL AND
CONTINGENT WILLS
Conditional Will
Where a testator makes any will and provides that the legatee's interest would depend upon
the fulfillment of certain conditions then, the will is enforceable as if no condition was
attached to it. The condition so attached need not be fulfilled and the legatee gets absolute
unconditional interest in the property bequeathed to him. For example, a Muslim makes a
will of his properties to a stranger. The will contains a condition that the legatee cannot sell
the property. The will is valid and enforceable and the legatee gets unconditional interest in
the property; he is not bound by the condition.
Similarly, a Muslim makes a bequest in favour of A subject to condition that upon the death
of this legatee, the property would pass on to B. 'Here, A would take the property absolutely
as if no condition at all was attached in the bequest. The result would be that after the death
of A, property would be inherited by 'A': legal Heirs and B would not get anything because
the condition under which he had to get, is void.
Contingent Will
A contingent will is void. That is to say, where the vesting of interest in a legatee
depends upon some uncertain future event, the will is void and does not operate.
The legatee would not get any property even though the contingency happens. The basic
feature of a transaction by way of will is that the interest in the bequeathed property vests in
a legatee only upon the death of the testator. Therefore, nothing except the event of testator's
death may cause vesting of interest in favour of a legatee.
REVOCATION OF WILLS
A will may be revoked by a testator any time during his life. The testator has every right to
repudiate a will before it begins to operate. Revocation may either be of the whole bequest or
only of a part of it. A will may be revoked either expressly or impliedly. Implied revocation is
by implication. Where a will has been revoked by a testator either expressly or impliedly, the
legatee does not get the property bequeathed to him.
Express Revocation
Revocation of a will is express if the testator makes a statement that he has rescinded the will
executed by him. The statement of revocation may either be oral or in writing. But, it must be
in clear and unambiguous terms. Destruction of an unregistered will by tearing it off or, by
burning it, is also an express revocation as it clearly indicates the testator's intention to
nullify the bequest. A testator may also revoke the will expressly by making a statement to
that effect before a court oflaw. Such a statement revokes the will even though the will has
not been destroyed. However, a mere denial by the testator of the validity of a bequest made
by him, or of the fact of his having made it, does not operate as revocation of the will.
Implied Revocation
Revocation of a will may also be implied. The testator may not revoke the will expressly but
his intention to rescind the will is inferred from his conduct. Where a testator does
something in respect of the property bequeathed by him which is violative of his own rights
as owner of that property, the testator's conduct suggests nothing but the revocation of that
will. For example, when a testator destroys or transfers the bequeathed property he himself
to be the owner of that property and the will becomes meaningless. According to Hedaya:
"If the testator performs, upon the article he had bequeathed, any act which, when
performed on the property of another, is the cause of terminating right of the proprietor
.................. such act is a retraction of the bequest.
It may be stated that where a testator extinguishes his own right in bequeathed property the
legatee's right to take that property after testator's death, is also extinguished. For example,
where a testator has made a bequest of his goat but subsequently slaughters the same goat,
the will of that goat is automatically rescinded. Similarly, a bequest of a piece of copper is
impliedly revoked if the testator subsequently converts it into a pot. Or, where a testator has
made a will of a bag of wheat but subsequently converts it into flour, the bequest of the bag of
wheat is revoked. The testator's right over the bequeathed property is extinguished' also
where he transfers its ownership to another person during his life. Therefore, where a"
testator sells or makes a gift of the same property of which he had made a will, the will is
impliedly revoked. It is to be noted that the revocation is valid even if the testator re-
purchases the same-property or repudiates the gift. Moreover, there is also an implied
revocation of a will if the testator makes any substantially addition to the bequeathed
property in such a manner that the property cannot be given to the legatee without that
addition. For example, a testator makes a will of his plot ofland, later-on the constructs a
building on that plot. The bequest of the plot of land stands revoked because the plot cannot
be given in legacy without giving also the subsequent addition i.e. the building.
A subsequent will in favour of another legatee, of the same property which was the subject-
matter of an earlier will, also revokes the earlier will. Where a testator makes a will in favour
of a legatee X and after sometime makes another will of the same property to another legatee
Y, the first will is automatically revoked without any express declaration of revocation
because, only the last will prevails.
Gifts made by Muslims during 'death-illness' (Marz-ul-maut) are regarded as wills. Where a
Muslim makes any gift of his properties while on his death-bed, the legal effects of the
transaction are not of a Hiba but of will. There are two aspects of a gift made during death-
illness ; in its formation it is a pure gift but in its legal consequences it is a will. Describing
the nature of a 'gift during death-illness' (donatio mortis causa) Buckley, L.J. observed that
it is a gift of amphibious nature; not exactly a gift nor exactly a legacy but partaking of the
nature of both." The doctrine of death-bed gifts is based on the donor's state of mind at the
time of the transfer. When a person makes a gift during death illness, he intends to distribute
his properties according to his own scheme giving up all the hopes for his life. A person
suffering from mortal-disease believes, beyond reasonable doubt that he would die very
soon. With this apprehensions in mind, he attempts to give away his properties. The result is
that although the transfer is inter-vivas but the idea behind such transfer is that it is likely to
take place only after the donor's death. Through a gift, a Muslim donor on his death-bed may
transfer his properties without any restriction of its quantity although in its effects, the
transaction is a will. This may frustrate the very purpose of one-third rule in respect of
Muslim wills. Accordingly, in order to prevent the evasion of restrictions on the testamentary
capacity of a Muslim, a death-bed gift is interpreted as a will.
A gift during death-illness is a pure Hiba in its formation but after the donor's death it
operates like a will.
(i) A valid and complete gift.-The only difference between a simple gift and a death-bed
gift' is that if a gift is made by a donor during his death-illness, the gift is testamentary ; if it
is made normally, the gift is inter vivos i.e. pure Hiba. Thus, in a death-bed gift all the
essentials of a valid Hiba are necessary. There must be declaration, acceptance and the actual
or constructive delivery of possession. In brief, the gift must be valid in all respects according
to the provisions of Muslim personal law.
According to Tyabji, for establishing the existence of death-illness following conditions are
necessary:
In Mohammad Gulshere v. Mariyam, it was held by the Allahabad High Court that boils
or corbuncle for long continuance for over an year, may not cause apprehension of death,
therefore, it cannot be regarded as death-illness. Similarly, asthama, lingering consumption
and sudden bursting of blood-vessels have not been regarded as death- illness. But, all rapid
consumption, tumour in the stomach and a tuberculosis of the last stage have been held to be
death-illness. A serious case of pneumonia was held to be a death- illness. In Abdul Hafiz v.
Sahib Bi, an aged Muslim of over eighty years remained ill very seriously for four days. On
the last day, i.e. just before his death, he made a gift. It was held by Bombay High Court that
the gift was made during a death-illness. The Court observed that what is required to be
proved upon the preponderance of probabilities is, whether the gift was made by the ailing
person while under the apprehension of death and, that whether in such ailing he died.
During the delivery of a child, the pains of child-birth may also be regarded as death-illness.
It is to be noted that a gift during Marz-ul-maut is established only where the donor dies. If
the donor survives that illness, the transaction continues to be a gift.
Gifts made during mortal-disease have testamentary effects. That is to say, although the
transaction may be constituted as a gift but, it would be interpreted like a will. In its
operation, such a gift is governed by the Muslim law of wills. Accordingly, where the donee is
a stranger or non-heir, he cannot get more than one-third of total assets without consent of
the donor's legal heirs. Where donee is one of the legal heirs of the donor, the consent of the
remaining legal heirs is necessary even though the property given is less than one-third.
However, if the donor is a Shia Muslim, a gift during death-illness is valid upto one-third
even if the donee is an heir of the donor. To conclude, in the words of Wilson:
"A gift made in mortal sickness is so far regarded as a bequest that it cannot operate on more
than one-third of the testator's net assets unless with the consent of all the heirs nor in
favour of one heir without the consent of all heirs.
Acknowledgement of debt by-a person means acceptance of the fact that he owes certain
debts to another person. Acknowledgement of debts may be made by a Muslim during his
death-illness. A Muslim may acknowledge a debt during his death-illness either in favour of a
stranger i.e., non-heir or, in favour of a person who is one of his heirs.
(a) Acknowledgement in favour of stranger.-Where a Muslim makes -any statement
during Marz-ul-maut that he owes certain debts to a person (who is not his heir) the
acknowledgement is binding on the legatees and also on the legal heirs of the deceased. That
is to say, an acknowledgement during death- illness is a conclusive proof of the debts. But,
such acknowledgement is subject to the following two conditions:
(ii) if any debt has been proved otherwise than acknowledgement in death-illness then, the
debt proved otherwise would prevail over a debt acknowledged during death-illness.
MUSLIM LAW
WILLS
PRE QUESTIONS
(c) needs attestation by one adult male & one adult female witnesses
2. A bequest to an heir is
(b) valid only when the other heirs consent to the bequest after the death of the testator
(c) valid only when the other heirs consent to the bequest before the death of the testator
(a) valid without the consent of other heirs, so long as it does not exceed one third of his
estate
(b) valid without the consent of other heirs even if it exceeds one third of his estate
(c) valid only with the consent of other heirs and that too when it does not exceed one third
of his estate
4. Under the Shia law, a testator leaving a legacy to an heir exceeding one third of his
estate, is
5. Consent by the other heirs to the bequest of more than one third of the estate to an
heir, under the Shia law, can be given
(d) only after the death and not before the death of the testator.
(a)void
(b)valid
(c)voidable
(d) invalid
(a) void
(b) voidable
(c) valid only if the child is born within normal span of gestation from the date of the Will
(d) valid only if the child is born within six months from the date of the Will.
(a) it is necessary that the property bequeathed should be in existence at the time of making
the will
(b) it is necessary that the property bequeathed should be in existence at the time of the
testator's death
PAHUJALAWACADEMY
PRE-EMPTION
MAINS QUESTIONS
1. Is the right of pre emption a right of repurchase from a buyer, or, is it an incident of
property? Discuss, bringing out the true nature of the right of pre-emption.
2. What are the formalities that a pre-emptor must perform in order to succeed in a suit
for pre-emption by him.
5. What are the grounds on which the right of Pre-emption becomes applicable to a
person?
MUSLIMLAW
PRE-EMPTION
Introduction
Pre-emption (Shufa) is a right. Under this right owner of an immovable property is entitled
to repurchase an adjacent property which has been sold to someone else. Exercising this
right, the owner of an immovable property can compel the purchaser of his adjacent property
to sell it to him at the same price at which it was purchased by the said purchaser. In other
words, it is the preferential right of the owner of an immovable property, to acquire an
adjacent property. The person who claims this right is called a pre-emptor or Shufee.
The origin of the law on pre-emption may be traced back to the traditions of the Prophet.
The Prophet is reported to have said:"A neighbour has a right, superior to that of a stranger,
in the lands adjacent to his own"; and "the neighbour of a house has a superior right to that
house and the neighbour of lands has superior right to those lands, and if he be absent, the
seller must wait his return..."
Definition
In Gobind Dayal v. Inayat Ullah, Mahmood, J. defined pre-emption in the following words:
"Pre-emption is a right which the owner of certain immovable property, possesses as such,
for the quiet enjoyment of that immovable property, to obtain, in substitution for the buyer
proprietary possession of certain other immovable property not his own, on such terms as
those on which such latter immovable property is sold to another person."
On the basis of the definitions given above, the ingredients of the right of pre-emption may
be stated as under:
(ii) Under this right, the owner of an immovable property can claim his substitution in place
of the buyer of an immovable property which is adjacent to the property of claimant (pre-
emptor).
(iii) The claimant of this right is entitled to re-purchase that adjacent property at the same
price and on same conditions on which it was purchased by the buyer.
(iv) The right of pre-emption is in the form of a special privilege which is available for quiet
enjoyment of an immovable property.
(v) Being a proprietary right, it can be enforced against any purchaser irrespective of religion,
caste or creed.
it may be said that the right of pre-emption is a right in rem, i.e. it can be claimed against all
the persons who may purchase a property adjacent to the pre-emptor's property.
The nature of the right of pre-emption has been a subject of some judicial controversy.
Fortunately, it was held by certain courts that pre-emption was a personal right of the
claimant. Another view was that it was a proprietary right i. e. incident of property. However,
now this controversy has been resolved. The settled law on the nature of the right of pre-
emption is that it is purely a personal right.
Earlier in Bishan Singh v. Khazan Singh, the Supreme Court had approved the view
taken in Gobind Dayal's case and has held that the right is proprietary rather than
personal.
But subsequently in Bhoop v. Matadin Bhardwaj the Supreme Court has held that the
right of pre-emption is purely a personal right. According to the Apex Court this right may be
founded in a statute or custom or personal law but in every case the sole object of this right is
to keep away an objectionable stranger from the neighourhood.
Constitutionality of Pre-emption
Before the Forty-Fourth Constitutional Amendment in 1978, there was Art. 19 (1)(f) in the
Indian Constitution. Art. 19 (1)(f) provided that all citizens had a fundamental right to
acquire, hold and dispose of property. Clause (5) of this Article provided the reasonable
restrictions may be imposed on this right in the interest of general public. Although the right
of pre-emption operates against the right of a person to acquire, hold and dispose of a
property yet it was protected under clause (5) of Art. 19. Further , the right held constitutional
whether it was exercised under some enactment or under Muslim personal law.
But in 1962, in the case of Bhau Ram v. Baij Nath, the Supreme Com overruled this view,
and held that pre-emption only on the ground of vicinage was unconstitutional and cannot
be enforced. The court held that unless the pre-emptor and the vendor are co-sharers or
participators in some immunities, the right cannot be protected.
However, pre-emption still continues to be a legal right. It is therefore, submitted that the
reasonableness of the right of pre-emption can still be examined under Arts, 14 and 15 of the
Constitution.
In Atma Prakash v. State of Haryana, the Supreme Court held that claim of pre-
emption on ground of consanguinity i.e., on the ground that pre- emptor is co-sharer of the
vendor, is ultra vires the Constitution.
While examining the constitutionality of Section 15 (1)(a) Thirdly, of the Punjab Pre-emption
Act 1923 (as amended in 1960) which provided pre-emption to the co-sharers or kinsfolk of a
vendor, the Supreme Court held that the claim of pre-emption on the ground of
consanguinity is the relic of feudal past and is totally inconsistent with the constitutional
scheme. The Court observed that the reasons which justified pre-emption in the past namely,
the preservation of the integrity of rural society, the unity of family life and the agnatic
theory of succession, are totally irrelevant. The court held that the claim for possession by
way of pre-emption only on ground that claimant had superior rights being father's brother's
son of the owner, cannot be sustained. Accordingly, Clause (1)(a) Thirdly of Section 15 of the
Act was held to be unconstitutional by the Supreme Court because there was no reasonable
classification' of the co-sharers entitled to claim pre-emption. It is submitted that claim of
pre-emption by a co-sharer as such, had not been declared unconstitutional.
(i) The statutory right of pre-emption only on the ground of vicinage is now unconstitutional
(Bhau Ram).
(ii) Pre-emption on the ground of being co-sharer is constitutional provided the classification
of claimant is not unreasonable.
(iii) It is necessary for a pre-emptor to satisfy the court that without claiming this right there
would be personal inconvenience to him.
In this case the suit property was a house. There was a partition or house in three parts. One
portion of the house was given to the brother and he remaining portion was divided equally
among the two sisters. The two sisters sold their shares jointly. Upon this, the brother
claimed pre-emption on the grounds of 'vicinage' (Shufa-i-jar) and 'co-sharer' (Shrifa-i-
Sharik). Reiterating its views in Sant Ram and Baijnath Singh's decisions, the Supreme Court
held that the claim of pre-emption by the brother is void and it cannot be accepted under the
law. It may be noted that claim of pre-emption was rejected by the Apex Court because pre-
emptor could not establish personal inconvenience to him.
Once it is established that the law of pre-emption is applicable to a person (on the ground of
equity, custom or statute) he may exercise this right. A person who is entitled to claim this
right, is called a pre-emptor. Under Muslim law, pre-emptors are classified into three
categories, given below, in the order of merit.
The persons who are entitled to inherit the properties of a common ancestor are called co-
sharers. Where the vendor and pre-emptor are co-sharer, the pre-emptor is called a shafi-i-
sharik and has the preferential right of pre-emption against any other class of pre-emptors.
For example, brothers or two sisters are the co-sharers. If one of them sells his or her house,
the other is entitled to claim pre-emption. Co-sharers are given preference against other
categories of pre-emptors because they are common blood- relations tie related to each other
on the ground of consanguinity. Therefore, if one co- sharer sells his share of property, his
nearest blood-relation would be the person worst affected by substitution of a stranger.
However, since the list of blood-relations may be very large, the category of consanguine
(blood) relations entitled to claim preferential right of pre-emption must not be
unreasonable.
In Atma Prakash v. State of Haryana, the Supreme Court held that if the classification
of pre-emptors on the ground of consanguinity is 'unreasonable' the classification is
unconstitutional. It is submitted that co-sharer as a class of pre-emptors, as such, has not
been declared unconstitutional. Recently, in Krishna v. State of Haryana, the Supreme Court
has held that right of pre-emption to co-sharers is valid and it is not violative of Articles, 14,
15 and 16 of the Constitution.
Where two or more persons enjoy a common privilege e.g. a common right of way
or, drainage or any other common right to use a property, they are participators in
immunities. In Bhan Ram v. Baij Nath, the Supreme Court has held that participation in
certain appendages e.g. a common entrance to the property or a common stair case, was a
reasonable ground for the claim of pre-emption. However, preemption on the basis of
participation exists only in the easements of way and water on private lands. It does not
extend to any other easement such as easements of air and light.
The neighbours, who are owners of immovable properties, constitute a class of pre-emptors
on the basis of vicinage. There is vicinage if two properties are adjacent to each other. Only
the owners of properties may be pre-emptors, not their tenants. Moreover, the right of pre-
emption on this ground exists only in respect of houses, gardens and small lands. Pre-
emption on the ground of vicinage does not exist in respect of large estates e.g. Zamindaris or
Villages.
However, as discussed earlier, after the Bhau Ram's case in 1962, the claim of pre-emption
only on the ground of vicinage has now been declared to be unconstitutional. This means to
suggest that claim of pre-emption only on the ground that pre-emptor is owner of a property
which is adjacent to the property sold, is not valid. In A. Razak Safari Saheb case stated in the
preceding lines, the Supreme Court, reiterating its earlier decisions held that claim of pre-
emption only on the ground of 'vicinage' or, being 'co- sharer' is now unconstitutional.
Pre-emptors of the same class are treated equal. No distinction is made between the pre-
emptors of the same class; they are entitled to claim pre-emption simultaneously. Muslim
law does not recognise degree of nearness in the same class of pre-emptors.
For example, A and B are two pre-emptors. A is a participator in immunities and is also
living in neighbourhood but Bis only a participator. Here both A and B belong to the
category of shafi-i-khalit but A cannot claim any preference over Bon the ground that he is
also a neighbour. Accordingly, both of them would have equal rights and each of them would
be entitled to re-purchase the sold property in equal shares (tie. half each). Similarly, a co-
sharer who is neighbour of the vendor has no priority over another co sharer who is not a
neighbour, both have equal rights of pre-emption.
In certain cases the purchaser himself may be a pre-emptor in respect of the property sold to
him. In such a circumstance, vendee (purchaser) would be subject to the same rules as any
other pre-emptor. That is to say, if the vendee pre-emptor belongs to second or third class of
pre-emptors, he would be excluded by a pre-emptor of class one. But, where he comes within
the same class of pre-emptors, he would not be excluded by the other pre-emptors and is
entitled to claim the right equally. For example, if the purchaser himself is a co-sharer then,
together with other co-sharers he too is entitled to pre-empt. The property sold to him would
be divided equally between them.
ShiaLaw
(a) Shia law recognises co-sharers (Shafi-i-Sharik) as the only class ofpre-emptors.
Theother two categories namely, the participators and the neighbours cannot
become pre-emptors.
(b) Under the Shin law, the co-sharers are entitled to pre-empt only where their number does
not exceed two; if there are more than two co-sharers, the right is not available to any one of
them.
(c) Under the Shin law, if there are two co-sharers, they are entitled to pre-empt only in
proportion of their respective shares. Their right of pre-emption is simultaneous but not
equal in magnitude.
For example, A and B are the two Shin co-shavers having 2/3 and 1/3 shares respectively.
Upon the sale of pre-empted property, A is entitled to re- purchase 2/3 of the property
whereas B is entitled to re-purchase only 1/3 of it.
Transfer of Ownership in Immovable Property
Essential condition for the claim of pre-emption is that (i) there is sale (transfer of ownership
with money consideration) of immovable property and, (ii) the claimant himself is owner of
an immovable property.
Pre-emption is available only to the owners of immovable properties. A person who is simply
in possession of house, cannot claim pre-emption. Thus, a tenant (or lessee), usufructuary
mortgagee or, any other person having merely the possession of an immovable property, has
no right of pre-emption.
Recently, in Mohd. Noor v Mohd. Ibrahim, it was held by the Supreme Court that right
to pre-emption is not available in the transfer of tenancy. A co-sharer can claim the right of
pre-emption only if it is sale of ownership.
The claimant himself must be owner of the property in respect of which pre- emption is
being claimed. The owner may claim pre-emption even if he is not in possession of the
property. Where the owner of the property is a minor, the claim on behalf of such minor may
be made by his guardian.
Difference of Religion
(a) Where the pre-emptor, seller and the purchaser, all are Muslims, the Muslim law of pre-
emption is applicable.
(c) As stated above, where the pre-emption is claimed under custom or under an enactment,
the claim is determined by uniform customary or statutory law, irrespective of religion of the
parties. Where the basis of this right is contract, there too the religion of the parties is
irrelevant; the claim of pre-emption is determined according to terms and conditions of that
contract.
Difference of Sect
The pre-emptor, seller and the purchaser may all be Muslims but they may belong to
different sects. Because of difference in their sects their personal laws may also differ. In
such circumstance, following rules are followed:
(a) Where the pre-emptor and the seller belong to one sect, the rule of that particular school
shall apply.
(b) Where the sect of seller and purchaser is different, the courts apply law of pre-emption of
that particular school in which the right is narrower or limited. For example, if pre-emptor is
Sunni and seller is a Shia the pre-emption under Shia law (which is narrower than Sunni law
of pre-emption) would be applicable. The result is that if a Sunni pre-emptor claims pre-
emption on the ground of vicinage or participation in immunities, his claim must fail because
Shia law does not recognise pre-emption on these grounds.
Pre-emption is a right. For getting the benefit of this right, it is to be enforced by the pre-
emptor. Essential conditions for enforcement of this right are:
A pre-emptor can enforce his right only upon the sale or exchange of the adjacent property. If
there is any other kind of transfer of property, there is no right of pre-emption. That is to
say, if the property is transferred through gift, lease, mortgage, etc. the pre-
emptor {who may be otherwise competent) may not enforce his right against the
transferee. Moreover, a transfer of property takes place also under a will or
through inheritance. But in such transfers too there is no pre-emption.
Mortgage: Mortgage is not a transfer of ownership; therefore, the right of pre- emption
does not arise in the case of mortgage of the pre-empted property. But, when a mortgage has
been foreclosed, the mortgagee gets an absolute interest or ownership; accordingly, the right
of pre-emption may arise in the case of foreclosure of a mortgage.
Transfer in lieu of Dower: Transfer of property by a husband to his wife in lieu of unpaid
dower, is a transfer of ownership for money consideration. Such transfer is a sale.
Accordingly, the Allahabad High Court has held that the right of pre-emption arises when
there is a gift of adjacent property by husband to wife in lieu of her unpaid dower But the
Chief Court of Oudh has held that a gift in lieu of unpaid dower is Hiba-bil-Ewaz and not a
sale, therefore, the right of pre-emption does no arise.
Muslim law prescribes certain formalities for the claim of pre-emption. No person is entitled
to the right of pre-emption unless he observes these formalities strictly and at proper time.
The right of pre-emption is a weak right because its operation hits directly against the very
concept of ownership and freedom of contract.
In Mohd. Noor v Mohd. Ibrahim, the Supreme Court held that availability of is weak or
archaic right has to be construed strictly. Muslim law of pre-emption is a law of technicalities
and the availability of the right depends upon the full and complete observance of
formalities. If the formalities are in any way incomplete or defective, the right of pre-emption
is not available to the pre-emptor. The formalities for the claim of this right consist of three
demands. The demand must be made by the pre-emptor step by step and, at proper time.
First demand is the initial step for enforcing the right of pre-emption. The first demand is
immediate declaration by which the pre-emptor expresses for the first time his intention to
enforce his right. Significant features of the first demand are given below:
(i) This demand is made only after lawful completion of the sale (or exchange) of me
property. The first demand cannot be made before the sale is completed.
(ii) The first demand is to be made immediately after getting the information that sale is
completed. Promptness is an essential element in the claim of pre-emption. Law requires
that a pre-emptor must assert his claim without any delay.
(iii) It is not necessary that Talab-i-Muwasibat is made personally by the pre- emptor. It may
be made by any person authorised by the pre-emptor. But, unless a person is specifically
appointed by a pre-emptor for this purpose, he cannot place the demand lawfully even
though he might be a close relative of the pre-emptor. Where the pre-emptor is a minor, this
demand may be validly made by his (or her) guardian.
(iv) Talab-i-Muwasibat must be made in express words so that the intention of the pre-
emptor is evidently clear. If it is not clear, the first demand is not valid and the claim fails.
For example, where the pre-emptor filed a petition before the Sub-Registrar for staying the
sale of pre-empted property it was held by the Court that filing of the petition was not any
assertion of the claim of pre-emption, therefore, it was not Talab-I-Muwasibat. In Alimon
Nessa v. Sudhir Chandra Day, the owner of a property offered the sale of his property to the
owner of adjacent property. The owner of the adjacent land accepted the offer but in turn
offered to purchase it on installment basis. The owner of the property did not agree to it and
sold it to another person. Thereupon, the owner of the adjacent land claimed pre-emption
and said that his offer to purchase the land on installment was his first demand. The
Guwahati High Court held that owner of the adjacent land has no right of pre-emption
because offer made by him to purchase the property in installments cannot be regarded as
evidence of placing his first demand.
(v) The first demand may be made orally or, in writing. It may also be made through a letter.
(vi) For placing the first demand, presence of witnesses is not necessary under Muslim law.
First demand without witnesses is valid and lawful. However there must be some evidence of
the fact that this demand was made properly and in time.
After making the first demand the next step in the formality is to place the second demand.
The second demand is repetition of the first demand, therefore, it is also called as the
confirmatory demand or, Talab-i-Taqrir. The second demand is in the form of making the
second declaration. This too may be made orally or in writing. It may also be made through a
letter. Like first demand, the Talab-i-Ishhad may also be made by any other person
authorised by the pre-emptor. The second demand too can be placed by guardian of the
minor pre-emptor. Essential features of the second demand are given below:
(i) The second demand is effective only when the first demand was lawfully made at an
earlier date.
(ii) There should be least practical delay in making the second demand. Although it is not
necessary that second demand is made immediately after the first, yet, there should not be
any unreasonable interval of time between the two demands.
(iii) In Talab-i-Ishhad, the pre-emptor must mention that he has already placed his first
demand and now he is asserting the claim for the second time.
(iv) The second demand should be addressed either to the seller or, to the purchaser. If both
of them are not available, the second demand should be addressed to the property sold. Where
the second demand is addressed to the purchaser, it should be addressed to all the purchasers,
if there are more than one. If a pre-emptor addresses his demand only to some of the
purchasers and not to all then he can claim pre-emption only against those purchasers to
whom he had addressed the demand. However, where the pre-emptor addresses the demand
to seller of the property, all the purchasers are bound by the demand. It may be noted that
where the demand is addressed to the property sold, it is not necessary that pre-emptor
should enter into it. It is sufficient that pre-emptor makes the second demand near the
premises, say house, and touches the walls of that house.
(v) The second demand must be made in presence of two competent witnesses. Without
testimony of the witnesses, the second demand is not valid and the claim fails. According to
Allahabad High Court it is not necessary that witnesses have been specially called to testify
the demand. But the Patna and Calcutta High Courts have held that inviting the witnesses to
bear testimony to this demand is necessary for its validity.
(vi) While making the second demand, payment of the price is not necessary. The pre-emptor
need not tender the price to the purchaser then and there. It is sufficient that the pre-emptor
has expressed his readiness and willingness to pay the price.
Note- In certain cases, the first two demands may be combined together. If, per chance, the
pre-emptor gets the opportunity of having two witnesses and also the purchaser or seller (or
the premises itself) he may make the declaration satisfying the requirements of both the
demands.
After the first two demands, if the purchaser sells the property to him, the claim of pre-
emption is materialised No further formality is required and the pre-emptor is substituted in
place of vendee. In such a case, there is no need of any further formality.
But, if after the first two demands, the pre-emptor fails to re-purchase the property, then he
has to take legal action. In other words, the third and the last step is to maintain an action in
a court of law. Filing of a suit for the claim of pre-emption is known as the third demand.
This is also termed as Talab-i Khusumat or 'demand of possession'. The third demand is,
therefore, not always necessary.
The suit must be filed within one year of the completion of sale. Where pre-emptor is a
minor, the suit may be filed by his or her guardian But, the guardian too should file the suit
within the period of limitation referred above. The pre-emptor claims re-purchase from the
vendee, therefore, vendee is a necessary party in the suit for pre-emption. But, if the vendor
(seller) is still in possession of the property sold, the suit must be filed against both.
In a suit for pre-emption, the pre-emptor must claim the whole of his interest. He cannot
claim pre-emption only for a part of the property sold. For example, where some part of the
preempted property is beneficial and the rest is useless, the pre-emptor cannot claim pre-
emption only in respect of beneficial part. His claim must be for the whole property; there
cannot be a partial claim. The suit must include the entire property. If the suit does not ask
for the right of pre-emption in respect of entire property, the suit cannot be entertained by
the court and, claim of- the pre-emptor is defeated. Malta explains the rule against partial
pre-emption in the following words:
"The principle of denying the right of pre-emption except as to the whole of the property sold
is that if the pre-emptor were allowed to split up the bargain, he would be at liberty to take
the best portion of the property and leave the worst pan of it with the vendee".
However, if under one sale-deed two or more properties have been sold, some of which are
not subject to pre-emption, the pre-emptor is entitled to exclude these properties from his
suit. Similarly, where the sale-deed is one but it contains two separate transactions of sale,
the pre-emptor can pre-empt in respect of one property and exclude the other from his claim.
Another significant point to be noted in this respect is that the pre-emptor must have a right
to pre-empt not only at the time of the sale of the adjacent land but also at the time of filing
of the suit for pre-eruption and this right must continue till the decree in that suit is passed
by the trial court.
Once a pre-emptor has made the demands lawfully, he is supposed to have completed the
formalities. If the purchaser transfers the property after valid demands by pre-emptor, the
pre-emptor need not repeat his demands against the new transferee. The demands made
against the original purchaser would operate also against the new transferee.
Death of Pre-emptor
Where a pre-emptor dies after making the first demand, his legal heirs are not entitled to
make the second demand. That is to say, if a pre-emptor has made first demand but dies
before making his second demand, the claim cannot be continued by his legal heirs and the
right is extinguished.
Similarly, if the pre-emptor dies before he could file the suit, his legal heirs cannot file the
suit of pre-emption in continuation of the first two demands made by the deceased pre-
emptor.
When the pre-emptor dies during pendency of the suit for the claim of pre-emption, his legal
representatives cannot continue the proceedings. But under the Shin law, if a pre-emptor
dies during pendency of the suit, his legal heirs are substituted in place of the deceased pre-
emptor. Death of pre-emptor, before he could get the decree, does not affect his claim of pre-
emption. The Shafie law is the same as Shia law on this point.
Section 306, Indian Succession Act, 1925.- Under the provisions of Section 306 of the
Indian Succession Act, 1925 if a pre-emptor dies during pendency of the suit, his legal
representatives or heirs may be substituted in place of the deceased pre-emptor. According
to Mulla, this section applies also to Muslims whatever be the sect to which the parties
belong. Therefore if a pre-emptor dies during pendency of the suit, the suit may be continued
by his heirs on obtaining letters of administration. In other words, even if a Sunni pre-
emptor dies during the suit, the right is not extinguished and his heirs are entitled to be
substituted in his place.
In Hazari v. Neki the Supreme Court has held that right of pre-emption under Section
15(i)(a) of the Punjab Pre-emption Act can be continued after the death of pre-emptor by the
legal representatives brought on record.
(1) Acquiescence or Waiver: Where a pre-emptor waives his right, it is lost forever. A pre-
emptor may waive his right by acquiescence i.e., by not asserting his claim. Upon the sale of
the pre-empted property, a pre-emptor may either assert his right by making first and second
demands or, may willingly forego his claim by not making any demand. Knowing that sale
has been made, if a pre-emptor deliberately fails to observe the formalities or demands, he is
supposed to have abandoned his right.
In Indira Bar v Nand Kishore, the Supreme Court observed that pre-emption is a weak
right and in Muslim law it is settled law that the right of pre-emption is lost by estoppel and
acquiescence.
Where a bona fide pre-emptor joins with himself such persons as claimants who are not
entitled to pre-empt, the suit for pre-emption is dismissed and the pre-emptor's right is
extinguished. However, where the co-plaintiffs, joined by the pre-emptor, who are otherwise
competent pre-emptors but could not make the required demands properly, 'the suit is not
dismissed and the pre-emptor's right is not lost. But in such a situation the co-plaintiffs
would not get the right of pre-emption.
(3) Forfeiture:
(i) The right of pre-emption is lost by forfeiture if a pre-emptor releases the right in
consideration of something paid to him by the seller. However, under Hanafi law a pre-
emptor cannot lawfully claim payment of the consideration for any such release whereas,
under the Shia law, be may lawfully claim the consideration amount.
(ii) The right of pre-emption is extinguished if a pre-emptor transfers his own property (the
subject of pre-emption) to any stranger. Upon transfer of property, the pre-emptor ceases to
be its owner whereas, a pre-emptor must be owner of some immovable property.
(iii) Where the original sale is avoided or, it is impossible for the pre-emptor to carry it out,
the re-sale to pre-emptor cannot take place and the right is lost. It may be noted that in the
original sale, there may be an option (either with the seller or with the purchaser) to dissolve
the contract of sale. Where the original sale itself has been dissolved under such option, the
pre-emptor has no right to claim repurchase from the vendee. Similarly, if the price cannot
be determined or in the case of exchange, if the consideration has perished, the pre-emptor
cannot carry it out, therefore, his right is automatically extinguished.
(iv) Where the right of pre-emption may be claimed only by co-parceners, the right is
forfeited upon partition amongst them.
(v) Lastly, the right of pre-emption may be forfeited if there is any statutory disability on the
part of pre-emptor to repurchase the pre-empted property. In such a circumstance a pre-
emptor who may otherwise be competent to enforce the right, is unable to claim the right
because of statutory disability.
As discussed earlier, if a pre-emptor dies after the first demand or, after the second demand
or, during the pendency of the suit for pre-emption, his right is extinguished. However,
under the Shia and Shafi laws, if "a pre-emptor dies during pendency of the suit, the right is
not lost.
MUSLIM LAW
PRE-EMPTION
Pre-Questions
1. Gobind das v inayatullah is a leading case on...
a) Hiba
b) Ariya
c) Shufa
d) Ewaz
(a) No
(b) Primary
(c) Secondary
(a) In sadaqa
(b) In wakf
(c) In bequest
(d) All the above
(a) Seller
(b) Purchaser
(c) Creditor
(a) A co-sharer
(b) A participatory
(a) Yes
(b) No
(c) Depends
(d) none
(a) 550AD
(b) 560AD
(c) 570AD
(d) 590AD
(c) Forfiture
(c) both
MUSLIMLAW
WAQF
Mains Question
1. Explain fully the concept of Waqf. Discuss the effects of the Mussalman
Waqf Validation Acts of 1913 and 1930.
2. What is meant by Waqf? Is waqf valid without designating a Mutawalli? How can a
Mutawalli be appointed and by whom?
3. Where the particular object laid down in a waqf fails because of some reason, will the
waqf come to an end?
4. Explain the powers and functions of Mutawalli?
MUSLIMLAW
WAQFS
Introduction
• Literal meaning of the word waqf is 'dete ntion'. In the language of law, waqf means
detention of a property so that its produce or income may always be available for
religious or charitable purposes.
• The institution of waqf was not known in the pre-Islamic Arabian society. In Quran too,
we do not find any clear provision regarding waqfs.
Definition of Waqf
Section 2(1) of the Musslaman WaqfValidating Act, 1913, defines Waqf as under:"Waqf
means the permanent dedication, by a person professing Mussalman faith, of any property,
for any purpose recognised by the Mussalman law as religious, pious or charitable."
(i) Perpetuity: In a waqf, the property is settled permanently so that its usufruct is always
available for an indefinite period. There cannot be waqf for a limited period.
(ii) Non-Transferability: When a waqf is created, the property vests in the implied
ownership of God. The result is that its property becomes non- transferable.
(iii) Irrevocability: Once it is created, the waqf cannot be revoked. As the property is
deemed to vest in God, the waqif cannot revoke it subsequently.
(iv) Absoluteness: The settlement of the property in waqf is unconditional and absolute. A
conditional or contingent waqf is void.
(v) Religious or charitable use of usufruct: The produce and benefits of the waqf
property are utilised only for such purposes which are recognised as religious, pious or
charitable under Muslim law.
(iv)The object of the waqf must be religious, pious or charitable, under Muslim law.
Waqf is a transfer of ownership without any consideration made generally with religious
motives. This gratuitous transfer is made in such a manner that after constitution of the waqf
the substance or corpus of the property must be detained. In order to detain the property, it is
dedicated to God.
By transferring the ownership to God, the dedication becomes 'permanent. Under Muslim
law, perpetuity is an essential condition for every waqf.
The person who constitutes the waqf of his properties is called the 'founder of waqf or,
Waqif.
Every Muslim, who is of sound mind and has attained the age of majority, has capacity to
constitute a waqif.
Waqfby Non-Muslims.- Waqfis an institution of Muslim personal law; therefore, the
dedicator is generally a Muslim. But a non-Muslim can also constitute a valid waqf.
According to the Waqf Act, 1954, and the Waqf Validating Act, 1913 the waqif must be a
person professing Islam. The dedicator must profess Islam i.e., believes in the principles of
Islam; he need not be a Muslim by religion. Ameer Ali observes:
"Islam is not a necessary condition for the constitution of a waqf. Any person of whatever
creed, may create a waqf but the law requires that the object for which the dedication is made
should be lawful according to the creed of the dedicator as well as the Islamic 'doctrines.
The waqif must also possess the right to make the waqf. When a waqf is constituted there is a
permanent transfer of ownership of the property. Therefore, the settlor must be owner of the
property dedicated. If the subject matter of a waqf is not owned by the settlor at the time
when the waqf is made, the settlor has no right to make waqf.
Amount of Property Dedicated.-A dedicator has right to constitute a waqf of his entire
properties without leaving anything for his heirs. But, in the case of a 'testamentary waqf, the
founder has no right to constitute a waqf of more than one third of his properties. In other
words, in the cases of inter vivos waqfs the founder is competent to constitute a waqf of his
entire properties whereas, in respect of testamentary waqf the founder has no right to
constitute waqf of more than one-third of his properties without consent of his legal heirs.
Any property, whether movable or immovable, tangible or intangible, may be the subject-
matter of a waqf.
After 1913, the courts in India have followed the definition of waqf given in the Waqf
Validating Act.
Under Section 2(1) of this Act, 'any property' may be dedicated in waqf. At present, a
waqf may be constituted of both the kinds of properties, movables as well as immovable.
Moreover, the expression 'any property' means not only tangible property but, it also
includes intangible properties.
Doctrine of Cypres
The word cypres means 'as nearly as possible.' The doctrine of cypres is applicable also to
waqfs.
Formalities
Muslim law does not prescribe any special formality for the creation of a waqf. It may be
made orally or in writing. Writing is not necessary even if the property dedicated is an
immovable property of high valuation. Registration is not necessary for the validity of a waqf
even though the property dedicated is immovable. As discussed earlier, even writing is not
necessary. But, where a waqf of some immovable property is constituted through writing and
the value of property is Rs. one hundred or more, the deed must be registered.
Delivery of Possession
A waqf may be lawfully constituted only by declaration. Delivery of possession and the
appointment of mutawalli (manager of the waqf-property) is not an essential condition for its
validity. In Garib Das v. Munshi A. Ahmad, the Supreme Court held that for the validity of a
waqf it is not necessary that a mutawalli is appointed simultaneously. Mutawalli may be
appointed 'subsequently. The delivery of possession, actual or constructive, is also not
necessary.
Shia law
Under the, Shia law a waqf cannot be created by mere declaration. Delivery of possession of
the property is necessary for the completion of waqf. Therefore, the mutawalli must also be
appointed simultaneously so that he may accept the property.
Modes of Creation
THE MUTAWALLI
Any person who is, (a) of sound mind and, (b) has attained the age of majority, is qualified to
be appointed as a mutawalli. Under Muslim law, the general rule is that soundness of mind
and majority are the only qualifications for being a competent mutawalli. Any person
whether male or female Muslim or non-Muslim, may be appointed as a mutawalli.
Minor Mutawalli
Generally a minor cannot be appointed as mutawalli. But, where the office of mutawalli is
hereditary and, after the death of last mutawalli the person entitled to succeed to that office
is a minor, then the office may be held by that minor. The office of mutawalli is hereditary in
following two cases: (a) Where the founder has laid down the line of succession in the waqf-
deed and ; (b) Where the succession to this office is allowed by a local custom.
A mutawalli is entitled to get some remuneration in return of the services discharged by him.
Generally, the founder himself provides for the remuneration of mutawalli.
The mutawalli is manager of the waqf-property. His primary duty is to preserve the property
like his own, but to manage and spend it like a servant of God.
Mutawalliship Non-Transferable
Possessory Right
In respect of the waqf-property, the mutawalli has only a possessory right. But, his right to
possess the property is perfect and absolute against all other persons. The possession of a
mutawalli can never be regarded as an adverse possession against the founder of the waqf.
Therefore, if a mutawalli has been dispossessed by the founder or any other person, he is
entitled to maintain an action in a court of law for getting back his possession.
A mutawalli is not owner of the waqf-property. Therefore, as a general rule, he has no right to
transfer the property by sale, exchange, gift, or mortgage. However, a mutawalli can transfer
the waqf-property in following situations:
(a) Where the founder has expressly authorised the mutawalli to sell, exchange etc., or
mortgage the property, or
(b) Where the mutawalli has taken a prior permission of a court oflaw for transferring the
property.
Removal of Mutawalli
The court has unrestricted power to remove a mutawalli from his office in any of the
following circumstances:
A waqf may either be public or private. A public waqf is that in which the beneficiaries are
public generally. Where the beneficiaries are only the members of the founder's family or his
descendants, the waqf is private. A private-waqf is also called as a family-waqf or a waqf-alal-
aulad. Through a family-waqf, the founder may make provisions for the maintenance of his
children and descendants of coming generations.
The family waqf is now being governed by the Mussalman Waqf Validating Act, 1913. This
enactment has removed the strict judicial conditions for the validity of a family-waqf. Under
this Act, it is now lawful for a Muslim to constitute a waqf-al-al-aulad for the benefit of his
family or children without any concurrent and substantial gift to charity. The relevant
provisions regarding family-waqfs are given in Sections 3 and 4 of the Act. A brief account of
these provisions may be stated as under:
Section 3 of the Act lays down that it shall be lawful for any person, professing Mussalman
faith to create a waqf which in all other respects is in accordance with the provisions of
Muslim law, for the following, among other, purposes:-
• for the maintenance and support wholly or partially of his family, children or
descendants, and
• where the person creating a waqf is a Hanafi Mussalman, also for his own maintenance
and support during his life time or for the payment of his debts out of the rents and
profits of the property dedicated:
Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the
poor or for any other purpose recognised by the Mussalman law as a religious, pious or
charitable purpose of a permanent character.
ShiaLaw
The Waqf Validating Act, 1913 makes no difference between Shia and Sunni law in respect
of family-waqfs. The provisions of the Act are equally applicable to both. But, Section 2(b) is
applicable only to Hanafi Muslims. Accordingly, a waqf for the benefit of one's own self may
be created only by a Hanafi settlor. If the settlor is Shia, he cannot constitute any waqf for his
own benefits such as for his own maintenance or for payment of his debts.
MUSLIM LAW
WAQF
PRELIMINARY
1. Wakf is a
(a) Sadaqa
(b) Wakf
(c) Hiba
(a) Mahal
(b) Mutawalli
4. Wakf created for the benefit of individual including the settler's family relations is
termed as ......
(b) Wakf
(c) Hiba
(a) Mahal
(b) Mutawalli
a) Corpus
b) Usufruct
a) It cannot be revoked
a) True
b) False
c) Partly correct
a) Sale
b) Mortgage
c) Hiban
a)Yes
b) No
c) Depends
a) 1 January 1995
b) 1 January 1996
c) 1 April 1995
d) 1 April 1996
13. Which of the following Durgah is exempted from the application of the Wakf Act 1995?
a) Ajmer
b) Nizamudin
c) Ullal
14. Which of the following sections of the Wakf Act, 1995 defines the term "Wakf'?
a) Section 2(p)
b) Section 2(q)
c) Section 2(r)
d) Section 2(s)
a) Movable
b) Immovable
a)Yes
b)No
17. Can a Non-Muslim create a Wakf as per the Wakf Act 1995?
a)Yes
b) No
c) Depends
a) Hanfi law
b) Shafii law
c) Shia law
d) Hanbali law
19. A man must necessarily be poor to have benefits of a wakf. The statement is
a) True
b) False
c) Partly correction
d) None of the above
a) Wakif
b) Mutawalli
c) Pirene
d) Mujawar
[EDIT] Muslim Law Lectures
MUSLIMLAW
LECTURE11
INHERITANCE
1. Enumerate and comment upon the main difference between the Sunni and Shia rules
of inheritance. Are these differences justifiable?
3. What are the general principles of succession under the Hanafi Law? Explain.
4. How the allotment of shares is made among collaterals under the Muslim Law of
in heritance.
5. Write short note on classification of heirs under the Shia Law of Inheritance.
6. What are the rights of an illegitimate child against his putative Muslim father? Explain
and refer to relevant case-law.
(b) A Muslim male of Hanafi School dies leaving after him his father, his mother, two
daughters and a son's daughter. Determine the shares of the heirs in the property of the
deceased.
8. Enumerate the various classes of heirs according to Sunni and Shia schools. A dies
leaving his widow, mother, full brother. Divide his property according to Hanifi Law.
10. A Muslim died leaving behind 5 grand children, three children Gl, G2, G3 of his
predeceased son Fazal, and two children G4 and G5 of his predeceased son Abdul.
What is the quantum of share of each under the Sunni law and Shia law?
11. A Muslim, who died leaving behind her husband, made a will of her entire property in
favour of her friend "F". What is the maximum share to which 'Fr is entitled to under
Muslim Law?
MUSLIMLAW
INHERITANCE
• Heritable property is that property which is available to the legal heirs for inheritance.
• Under Muslim law, every kind of property may be a heritable property. For
purposes of inheritance, Muslim law does not make any distinction between corpus and
usufruct or, between movable and immovable, or, corporeal and incorporeal property.
• Under the Shiu law, a childless widow is entitled to get her share (1/ 4) in the
inheritance only from the movable property left by her deceased husband.
Whenever a Muslim dies, his properties devolve on his heirs in definite share of which
each heir becomes an absolute owner. Subsequently, upon the death of such heir, his
properties are again inherited by his legal heirs, and this process continues. Thus,
unlike Hindu law, there is no provision for any ancestral or joint-family property.
Accordingly, under Muslim law of inheritance, no distinction has been made between
self-acquired and ancestral property.
(3) No Birth-Right
• Inheritance opens only after the death of a Muslim. No person may be an heir of a
living person. Unlike Hindu law, the Muslim law of inheritance does not recognise the
concept of 'right by birth.
• Under Muslim law, an heir does not possess any right at all before the death of an
ancestor. It is only the death of a Muslim which gives the right of inheritance to his
legal heirs. They are simply his heir-apparent and have merely a 'chance of succession,
(spes successionis).
• Normally the share of a male is double the share of a female. In other words, although
there is no difference between male and female heir in so far as their respective rights of
inheritance is concerned but generally the quantum of property inherited by a female
heir is half of the property given to a male of equal status (degree).
• The principle that normally the share of a male is double the share of a female has
some justification. Under Muslim law, while a female heir gets (or hopes to get in
future) an additional money or property as her Mehr and maintenance from her
husband, her male counterpart gets none of the two benefits. Moreover, the male heir
is primarily liable for the maintenance of his children whereas, the female heir may
have this liability only in an extraordinary case.
A child in the womb of its mother is competent to inherit provided it is born alive.
(8) Primogeniture
• Primogeniture is a principle of inheritance under which the eldest son of the deceased
enjoys certain special privileges. Muslim law does not recognise the rule of
primogeniture and all sons are treated equally.
• However, under the Shia law, the eldest son has an exclusive right to inherit his father's
garments, sword, ring and the copy of Quran, provided that such eldest son is of sound
mind and the father has left certain other properties besides these articles.
(9) Step-Children
The step-children are not entitled to inherit the properties of their step-parents.
Similarly, the step-parents too do not inherit from step-children.
According to the texts of Hanafi law, a missing person was supposed to have been dead
only after ninety years from the date of his birth; till then the inheritance of his
properties did not open. But, now this rule has been superseded by Sec. 108 of the
Indian Evidence Act, 1872.
(12) Escheat
Where a deceased Muslim has no legal heir under Muslim law, his properties are
inherited by Government through the process of escheat (State is regarded as the
ultimate heir of every deceased).
Where a Muslim contracts his marriage under the Special Marriage Act, 1954, he ceases
to be a Muslim for purposes of inheritance. Accordingly, after the death of such a
Muslim his (or her) properties do not devolve under Muslim law of inheritance. The
inheritance of the properties of such Muslims are governed by the provisions of the
Indian Succession Act, 1925 and Muslim law of inheritance is not applicable.
RULES OF EXCLUSION
(a) Homicide
• A person who causes the death of another, is disqualified for inheriting the properties of
the said deceased. It is a rule of common prudence that law cannot allow a person to
derive benefits out of his own wrongs. Under Hanafi law, an heir who causes the death
either intentionally or negligently, is a disqualified heir or cannot inherit properties of
the deceased. Thus, even if the death is caused due to negligent or accidental act of an
heir, the heir is debarred from inheritance.
• ShiaLaw
• Under the Ithna Asharia law, an heir is excluded from inheritance only where the death
is caused intentionally. If the death is caused accidentally or negligently, the Ithna
Asharia heir is not debarred from inheritance
(b) Illegitimacy
• Under Sunni law, an illegitimate person is not entitled to inherit the properties of his (or
her) father. But an illegitimate person is competent to inherit the properties of mother. It
is to be noted that under Sunni law, an illegitimate child is entitled to inherit not only
the mother's properties but through her also the properties of mother's other relations.
• In Bafatun v. Bilaiti Khanum, a Sunni female died leaving her husband and an
illegitimate son of her sister as her sole surviving heirs. The husband took 1/2 of her
assets and the remaining 1/2 was inherited by her sister's illegitimate son who was the
only distant relative of the deceased. It was held by the court that under Sunni law, an
illegitimate son was competent to inherit his mother and through his mother could
inherit also the properties of his mother's sister. However, an illegitimate child is not
entitled to inherit mother's those relations who became relatives by any subsequent
remarriage of the said mother.
• Under the Islamic texts, a non-Muslim is excluded from inheriting the properties of a
Muslim. But under the Muslim law as administered in India, difference of religion is
not any disqualification for inheritance. A legal heir of the deceased Muslim cannot be
debarred from inheritance on the ground that such heir was not a Muslim at the time of
death of the deceased.
• Under the Caste Disabilities Removal Act, 1850, renunciation of religion by any heir
does not affect his (or her) rights of inheritance under the personal law to which that
heir belonged before conversion. Accordingly, a converted heir will continue to be
governed by the Muslim law of inheritance.
• However, it may be noted that religion of the propositus i.e. deceased, is an important
factor because the properties devolve under the personal law to which the propositus
belonged just before his death.
• In P. Chandrashekhar v. Govt. of Mysore, a Hindu woman converted to Islam
died as a Muslim. She had no heir under Muslim law. Her Hindu brother claimed
inheritance. It was held by the court that her Hindu brother could not inherit because
he was not an heir under Muslim law.
At certain places daughters are sometimes excluded from inheritance under any local
custom or under some specific enactment. For example, among the Gujars and
Backkerwals of Kashmir, there is a custom that daughters cannot inherit in the
presence of any male descendant of the grandfather. Similarly, under the Watan Act,
1886, enforced in Bombay, a daughter is excluded from inheritance in the presence of a
paternal uncle.
The legal heirs of a Sunni Muslim are classified into following categories:
The following three classes of heirs may be termed as principal classes oflegal heirs. The
heirs included in any of the following classes are related to the propositus by blood except the
husband and widow who are related through marriage.
A Sharers are those heirs who are entitled to get a prescribed share from the heritable
property. The Sharers and their respective shares in the property of a deceased are given in
Quran. The Sharers are, therefore, also called as Quranic heirs. In the distribution of
property, the Sharers get preference over the other class of heirs, therefore, first of all the
respective share is allotted to each Sharer. It may be noted that Sharers are those heirs whose
respective shares are given in Quran; therefore, their shares cannot be altered by any human
effort.
Residuaries are those heirs who inherit only the residue of the property after, allotment of
respective shares to the Sharers. Obviously, the Residuaries have no specific, share of their
own. After giving the property to the Sharers in their fixed shares, if there remains some
property that 'remaining property' (residue) is available to the Residuaries. The residue may
differ from case to case. If there are no/Sharers, the whole is inherited by the Residuaries.
Residuary heirs are also termed as Agnatic heirs because they inherit through male relations.
All those persons who are related to propositus through blood but could not be included as
heirs in the class of Sharers or of Residuaries, are called distant kindred. If a popositus has
neither Sharers nor Residuaries, the properties are inherited by his Distant Kindred. Distant
Kindreds cannot inherit in presence of any Sharer or Residuary. The heirs included in this
class are also termed as uterine heirs.
Relations by Affinity
I. Husband
(i) The husband gets 1/2 if there is no (a) child or, (b) child of son how low soever
(hereinafter-called h.l.s.)
(ii) The husband gets 1/4 if there is (a) child, or (b) child of son h.l.s.
II. Widow
(1) The widow gets 1/ 4 if there is no (a) child, or (b) child of son h.l.s.
(2) The widow gets 1/8 if she is with (a) child, or (b) child of son h.l.s.
(3) If the propositus had-left more than one widow, all the widows share equally out of the
1/ 4 or 1/8 share, as the case may be.
Relations by Blood
III. Father
(1) Father without (a) child or, (b) child of son h.l.s is treated as Residuary i.e. ceases to be a
Quranic heir and is entitled to get the residue after allotment of shares to other Quranic
heirs.
(2) Father together with (a) child, or (b) child of son h.l.s. gets 1/6. In other words, in the
absence of children the father becomes a Residuary whereas in presence of the children his
share is 1/6.
(1) True grandfather is entitled to inherit only in the absence of father. That is to say, if the
propositus dies leaving behind both, father and a true grandfather, the true grandfather
cannot inherit.
(2) If there is no father, the true grandfather inherits like a father. That is to say, if there is no
father, the true grandfather would become Residuary in the absence of children. But, in
presence of the children a true grandfather gets 1/6.
V. Mother
(a) child, or
(e) one brother plus one sister, whether full, consanguine or uterine.
(2) The share of mother is 1/ 6 in the presence of:
(a) child, or
(e) one brother plus one sister whether full, consanguine or uterine.
(3) If mother is with father and there is also widow (or husband) the mother gets 1/3 of what
remains after deducting the share of widow (or husband). In this peculiar combination the
mother (without children) does not get 1/3 of the whole property because in that case father's
share would become half of mother which is against the general principle that share of a male
should be double the share of female.
(1) The true grand-mother inherits only where she is not excluded by the presence of any of
the relations given below.
(2) If not excluded, the share of true grandmother is 1/6 whether she is one or more than
one. Two or more grandmothers get 1/ 6 jointly.
(a) mother, or
(a) mother, or
(b) father, or
In other words, a maternal true-grandmother gets her 1/6 share only in the absence of
mother and any nearer grandmother. A paternal true-grandmother gets her 1/6 share only in
absence of mother, father and any nearer true grandmother.
VII. Daughter
(3) Daughter together with son, is treated as agnatic heir i.e. inherits as Residuary.
In other words the son's daughter is entirely excluded from inheritance in presence of the
above relations.
(2) In the absence of above relations, the son's daughter gets 1/2 if single and, 2/3 if more
than one.
(3) If son's daughter is together with one daughter, the share of son's daughter is 1/6 whether
such son's daughter is single or more. For example, if there is a daughter and two son's
daughters, the share of son's daughters would be 1/,6 which would be divided equally among
them i.e. each son's daughter would get 1/12.
(4) Son's daughter together with son's son is treated as agnatic heir i.e. inherits as Residuary.
IX. Full-Sister
(2) The share of two or more full sisters is 2/3 to be divided equally among them.
(3) If full sister is together with full brother, she becomes an agnatic heir and inherits as
Residuary.
• child, or
• child of son h.l.s., or
• father, or
• father's father.
X. Consanguine-Sister
(3) With one full-sister, the share of consanguine sister is 1/6 whether single or more.
(4) The consanguine sister is excluded from inheritance in the presence of:
• child, or
• child of son h.l.s., or
• father, or
• father's father, or
• two full sisters, or
• one full brother.
(5) With consanguine brother, the consanguine sister becomes agnatic heir and inherit as
Residuary.
(2) If there are two or more uterine brothers, their share is 1/3 to be equally divided among
them.
• child, or
• child of son h.l.s., or
• father or
• father's father.
XII. Uterine-Sister
The share and the conditions under which an uterine sister inherits a property is the same as
that of uterine brother. That is to say
(2) If there are two or more uterine sisters their share is 1/3 to be divided equally among
them.
(3) Uterine sister is excluded from inheritance in the presence of (a) child, (b) child of a son,
(c) father, and (d) father's father.
Doctrine of Increase(Aul)
After allotment of the respective shares to Sharers, if the sum total exceeds unity, the
doctrine of increase (Aul) is applied. As discussed in the. preceding lines, in the fraction of
the aggregate of shares, the numerator denotes total number of shares and the denominator
denotes the pieces of heritable property. For example, if the aggregate of the shares is 13/12
then, 13 represents the number of shares and 12 represents fragments or pieces of the
property. In this case, therefore, the number of shares exceeds the number of fragments of
property. In other words, the fragments or pieces of the property is less than the number of
shares.
In the distribution of shares among legal heirs, two things must be taken into account ;
firstly, the sum total must come out to be unity and, secondly, the respective shares of the
Sharers cannot' be changed because they are specified-I/in Quran. Therefore, for making the
aggregate unity without changing the respective shares, the fragments, of property is
increased by adopting the following method :
Keeping the numerator intact, the denominator is increased in such a manner that the
denominator (i.e. total number of fragments" of property) becomes equal to the numerator
(total number of shares). Thus, instead of altering the respective shares which are of divine
origin, the pieces of heritable property is enhanced. By this process the aggregate of the
shares is made unity. This signifies that the property (presumed to be one) exhausts without
affecting the shares. For example, if the aggregate is 13/12, we find that denominator is short
of one (piece) therefore, by adding one to denominator (12+1) it becomes 13 i.e. equal to the
numerator. Similarly, if the aggregate is 15/13 we have to add two to the denominator (13+2)
to make it equal to numerator.
Shia law: Under the Shia law, as discussed in detail in the following pages, the excess share
is directly deducted from the share of (a) daughter or (b) full sister.
A Sunni propositus dies leaving her (a) husband, and (b) two full sisters.
Here, the sum total of the shares is not unity, it is (1/2 X 2/3)= 7/6 which is greater than
unity. Thus the aggregate of the shares of husband and two full sisters may be given as
under:-
By applying the doctrine of increase, we add one to the denominator so that it becomes (6 +
1) = 7. Thus, we have increased the number of fragments of property without altering the
shares. Now, taking this increased denominator (i.e. 7) as the common denominator, we may
allot the respective shares.
Husband 3/7
7/7
Shia law : Under the Shia law the excess share (1/6) is deducted from the share of two
sisters. Thus the share of the two sisters becomes 2/3 - 1/6 or 4/6 - 1/6 = 3/6. Accordingly,
the respective shares under Shia law are:
Husband 3/6
Where the sum total of shares is less than unity, the doctrine of return is applicable. As
discussed earlier, in the fraction of the sum total of shares, the numerator represents as the
total number of shares and denominator denotes the number of pieces of property.
Therefore, where the sum total of all the shares comes out to be less than unity, it implies
that number of shares are less than the number of fragments of property. For example, if the
sum total of shares is 5/ 12 this means that shares are 5 whereas the pieces of heritable
property are 12. This situation indicates that after allotting the respective shares to the
Sharers there still remains some (fragments of) property and there are no Residuary or other
heirs to get this residue. In such cases the doctrine of return (Radd)-is applied under which
the excess property is returned back and is added to the respective shares of the legal heirs,
in proportion of their own shares. According to Mulla:
"If there is a residue left after satisfying the claims of Sharers, but there is no Residuary, the
residue reverts to the sharers in proportion to their shares. This right of reverter is
technically called 'Return' or Radd.
The residue is added to the shares of the respective Sharers according to following rules:
• The residue is added to the shares of each heir in proportion of their own share. Thus,
in the above example where the sum total was 5/12 the residue is (1- 5/12) i.e. 7/12.
This 7/12 is to be added to the share of say, father and sisters in proportion of their own
shares i.e. in the ratio of 1/6 and 1/2 respectively.
• The husband and widow do not participate in return. If, among the legal heirs of a
propositus, there is a husband or widow the surplus is not added to their shares. That is
to say, the residue returns to all the heirs (in proportion of their own shares) except the
husband or widow. However, if widow (or husband) is the sole surviving heir of a Sunni
Muslim, she inherits the whole property. For example, if widow is the sole surviving
heir of a deceased, the widow gets 1/4 as Sharer-and would also get the remaining 3/ 4
in return (Radd). In such cases the surplus 3/ 4 is not escheated to the Government.
Similarly, this rule may be applicable if husband is the only heir of a propositus.
Shia law: Under the Shia law, besides husband or widow, in some exceptional cases, the
mother and uterine brother and sister also do not participate in return.
The Method
The method of adding the surplus property among heirs (except husband or widow) in
proportion to their own shares, is given below:
(a) First of all the respective Quranic shares are allotted' to all the Sharers.
(b) If there is a husband or widow among the heirs, his (or her) share is left apart. That is to
say, this share remains unaffected from further calculations.
(c) Out of one property (as the heritable property is always supposed to be one) the share
of husband or widow, as the case may be, is deducted. In this manner, after giving the share
of husband (or widow) the 'remaining heritable property' is obtained.
(d) Now, the proportion or ratio of the respective shares of remaining heirs is calculated. For
example, if the remaining heirs are a daughter and mother, their Quranic shares are 1/2 and
1/6 respectively. The ratio of these shares is 1/2: 1/6. Thus, the ratio of the daughter's and
mother's share is 3 : 1. In other words, if property is 4, daughter's share is 3/ 4, and mother's
share is 1/4.
(e) Now, 'the remaining heritable property' is divided among the heirs (excepting husband or
widow) in the ratio of 3:1. For instance, after deducting the Quranic share of say widow (1/8)
the remaining heritable property is (1-1/8) = 7/8. This is distributed among the daughter and
mother in the ratio of 3:1. Accordingly, the shares of the daughter and mother are 3/ 4 of 7/8
and 1/4 of 7/8 respectively. It is significant to note that by application of the doctrine of
return, the quantum of the share of each heir (except husband or widow) is increased.
However, this increase or addition is in the same proportion as is the ratio of their own
shares.
Illustrations
(1) A Sunni Muslim dies leaving her (a) husband and (b) mother. Their shares may be
calculated as under:
The sum total of their shares is 1/2 + 1/3 = 5/ 6, whereas, the property to be distributed is
one. "Thus, there is a surplus property. The surplus property is (1-5/6) i.e. 1/6. This surplus
property would return back to the heirs. But, husband (or widow) do not get the surplus.
Here, we find that excepting husband the only surviving heir is the mother. Therefore, this
surplus would be added to the share of mother. Thus, the share of mother is 1/3 + 1/6 = 1/2.
In this manner, finally the shares of husband and mother are:
(2) The surviving heirs of a Sunni Muslim are (a) husband and (b) daughter. The allotment of
their normal shares is as under:
Total of their shares is 1/4 + 1/2 = 3/ 4. Thus, we find that out of one property, there still
remains a surplus of 1/4. As the husband cannot participate in return this surplus goes to
daughter and her share in the property is now 1/2 + 1/ 4 = 3/ 4. Finally, the shares are:
It is significant to note that residuary heirs have no fixed share. Their shares depend upon
the amount of property left as residue which may vary from case to case.
Descendants
1. Son
(i) When there is no daughter, the son takes the entire residue.
(ii) When the son is together with a daughter, the son gets double the share of daughter.
Ascendants
3. Father
4. True Grandfather
A true grandfather also takes the entire residue but a nearer true grandfather excludes the
remotor.
5. Full Brother
(i) If there is no full sister, the full brother inherits the entire residue.
(ii) If there is also a full sister, the full brother inherits with her but his share is double the
share of a sister.
6. Full Sister
In the absence of full brother and other Residuaries enumerated in the preceding lines from
(1) to (4), the full sister is treated as Residuary provided there is (1) daughter(s) or (2) son's
daughter h.l.s. or (3) one daughter and a son's daughter h.l.s.
7. Consanguine Brother
A consanguine brother inherits together with consanguine sister but the share of
consanguine brother is double the share of consanguine sister.
8. Consanguine sister
In the absence of consanguine brother and any of the Residuaries given above from ( 1) to (6)
the consanguine sister is treated as Residuary and takes the residue provided there is (1)
daughter(s) or (2) son's daughter(s) h.l.s. or (3) one daughter and a son's, daughter(s) h.1.s.
Where Residuaries are the only legal heirs of a propositus the whole property is distributed
among them. If all the Residuaries are males,' the property is divided among them equally.
But, if the Residuaries include also females, the property is divided in such a manner that
share of a male is double the share of a female.
Where, among the legal heirs of a propositus there are Sharers and Residuaries both, the
whole property is not given to the Residuaries» In such circumstance the specific shares of
the Sharers are allotted first and, the remaining property is distributed among the
Residuaries. The distribution of property among Residuaries may be understood with the
help of following illustrations.
(1) A Sunni Muslim dies leaving a son and a daughter. Here, we find that daughter is a Sharer
but because she is together with son, she is treated as Residuary. As there are no other heirs,
the whole property is to be given to the son and the daughter. But it is to be given to
them in such a manner that share of a son is double the share of daughter. In other words,
the ratio of the share of son (male).and daughter (female) is to be 2 : 1. That is to say 2/3 and
1/3. Thus, the respective shares of the son and daughter are:
3/3
(2) The only heirs of a Sunni Muslim are (a) two sons and (b) three daughters. For
determining the ratio of males and females, following simple formula may be applied.
Now, making X as the denominator and number of males and the number of females as the
numerators, the shares of males and females may be obtained.
or, 4 + 3 = 7
Two sons 4/7 (share of each son being 4/7 X 1/2 = 2/7)
Three daughters 3/7 (share of each daughter being 3/7 X 1/3 = 1/7)
In the absence of Sharers and Residuaries, the properties devolve upon the Distant Kindreds
or the Uterine Heirs of the propositus. However, there is an exception to this general rule.
Where the only heirs are the husband (or widow) and the Distant Kindreds, the Distant
Kindreds get the residue after allotment of share to husband (or widow). In other words,
normally the Distant Kindreds are excluded by Sharers and Residuaries but in the
exceptional situation, the Distant Kindreds are entitled to inherit together with a Sharer
husband (or widow).
Classification of Heirs
Under the Shia law, a person may become the legal heir of a propositus either because of his
relationship through marriage or because of relationship through blood. Thus, the heirs may
be either (a) heirs by marriage or (b) heirs by consanguinity.
The heirs by consanguinity have been divided into following three classes :
Class I
(ii) the children and other lineal and descendants how low soever.
Class II
Class III
(ii) maternal uncles and aunts of the propositus and of his parents and grandparents h.h.s.
and also their descendants h.l.s.
For purposes of determining the respective share of each heir, the Shia law classifies them
into two categories, the Sharers and the Residuaries. As against Sunni law, there is no
separate category of Distant Kindreds. There are nine sharers whose shares are already
assigned. The first two namely, the husband and wife are heirs by affinity or marriage and
the rest are heirs by consanguinity. The Sharers, their shares and rules relating to allotment
of the shares to each of them has been given in brief, in the following list:-
1. Husband
3. Father
4. Mother
• In the absence of (a) child or lineal descendant or (b) two or more full or consanguine
brothers or (c) one such brother and two such sisters or (d) four such sisters with
father, the share of mother is 1/3.
• In the presence of (a) child or lineal descendants (b) two or more full or consanguine
brothers (c) one such brother and two such sisters or (d) four such sisters with the
father, the share of mother is 1/6.
5. Daughter
6. Full Sister
• The share of a single full sister is 1/2 and that of two or more full sisters is 2/3.
• The full sister gets the above-mentioned share in the absence of (a) parents (b) lineal
descendant (c) full brother and (d) father's father.
• In the presence of (a) full brother and (b) father's father, the full sister inherits but as a
Residuary.
7.Consanguine Sister
• The share of a single consanguine sister is 1/ 2 and that of two or more consanguine
sisters is 2/3.
• The above share is .inherited by consanguine sister in the absence of (a) parent (b)
lineal descendant (c) full brother (d) full sister (e) consanguine brother and (f) father's
father.
• In the presence of (a) consanguine brother and (b) father's father, the consanguine
sister inherits as Residuary.
8. Uterine Brother
• The share of one uterine brother is 1/6 and that of two or more uterine brothers is 1/3.
• The above share is inherited by uterine brother in the absence of (a) children or lineal
descendants, and (b) parents.
9. Uterine Sister
As regards the Sharers, and their respective shares, the following significant points may be
noted:-
Firstly, out of the nine Sharers, mentioned above, first two are heirs by marriage and the
next three heirs, i.e. father, mother and daughter are heirs through consanguinity and belong
to Class I. The remaining four heirs belong to Class II. It is to be noted that in Class III there
are no Sharers.
Secondly, the list of Sharers under Shia law is the same as that under Sunni law except that
under the Shia law (i) true grandfather (ii) true grandmother and (iii) son's daughter are not
recognised as Sharers. According to Shia law these three heirs are Residuaries.
Thirdly, under the Shia law the descendants h.l.s. of the Sharers are also regarded as
Sharers. Thus, the descendants or (i) daughter, (ii) full sister (iii) consanguine sister (iv)
uterine brother and (v) uterine sister are also Sharers. However, there is an exception to this
rule. The descendants of (i) husband, (ii) wife, (iii) father and (iv) mother are not regarded as
Sharers.
Distribution of Property
Class I
Class I includes husband or wife and parents, children, grandchildren and also the remoter
lineal descendants, of the propositus. When the inheritance opens, the heirs of this class are
entitled to inherit first of all. For distributing the property among the heirs of this class,
following procedure is adopted. First of all the shares are allotted to the husband or widow,
as the case may be. Next the shares are allotted to those heirs who inherit only as Sharers.
Thereafter, the residue if any, is divided among the Residuaries. In cases where there is
residue but there are no Residuaries, the doctrine of Return (Radd) is applied. Similarly,
where the shares are in excess of the property, the property is distributed by applying the
doctrine of Increase (Aul).
Illustrations
(1) A Shia Muslim dies leaving her (a) husband (b) mother and (c) father. The respective
position of each heir is given below:
Husband Sharer
Mother Sharer
Here, the share of husband is 1/2. Mother is also a Sharer and without children her share is
1/3 of the estate. Father without children is Residuary, and gets the residue which remains
after allotment of the shares of husband and mother. The residue is 1- (1/2 + 1/3) = 1/6
which goes to father.
Note.- It is significant to note that under Sunni law, in this particular combination of heirs
(where mother is together with father and husband or wife), the mother is entitled to her 1/3
share not out of the whole estate. According to Sunni law, as discussed earlier, in this case
the mother gets 1/3 of what remains-after giving to the husband i.e. 1/3 of (1-1/2). In other
words, had propositus been a Sunni Muslim, the shares would have been as under:
Husband
(2) A Shia Muslim dies leaving (a) widow (b) mother and (c) father. The respective shares are
as under:
Widow 1 /4 (Sharer)
Class II
This clause of heirs includes (i) grandparents h.h.s. (ii) brothers and sisters, and (iii)
descendants h.l.s. of the brothers and sisters. In the absence of any of Class I, the estate is
distributed among the heirs of Class H after deducting the share of husband or widow, if
there by any one of them. However, if a male co-exists with a female of the same degree, the
general rule, that share of a male is double the share of a female, is applied in the distribution
of property among them.
Illustrations
(1) A Shia Muslim dies leaving (a) father's father and (b) mother's mother. Here, we find that
both the surviving heirs are grandparents of the propositus. One belongs to the paternal side
and the other belongs to maternal side. The male getting double the share of female, the
respective shares of these grand-parents, in the ratio of 2 : 1, are given below:
(2) The surviving heirs of a Shia Muslim are (a) father's father (b) father's mother and (c)
mother's mother. Here, there are two grand-parents from the paternal side and one from
maternal side. The grand-parents from paternal side would get 2/3 jointly whereas 1/3 is
available to the maternal grandparent. The respective shares are:
Mothers mother
Now, we find that in the grand-parents from paternal side one is male and the other is
female. Therefore, the 2/3 share available to them jointly would be divided between them in
the ratio of 2 : 1. Thus, finally the shares are as under:
Mother's mother
Class III
In the absence of the heirs of Class I and Class II, the estate is divided among the heirs of
Class III after deducting the share of husband or widow, if any. It may be noted that the heirs
of this class are all Residuaries; there are no Sharers in Class III. The rules of distribution of
estate among the heirs of this class (which consists of uncles, aunts and -their descendants)
have been explained in brief, with the help of following examples:
(1) A Shia Muslim dies leaving (a) full paternal uncle and (b) full paternal aunt. The
respective shares of these Residuaries are in the ratio of 2 : 1, as if they were brothers and
sisters:
When the sum total of all the shares exceeds unity i.e. the shares are in excess of the
fragments of property, the doctrine of increase is applied for 'distribution of the estate. But,
the Sunni doctrine of increase under which the share of -each heir is reduced
proportionately, is no recognised under Shia law. Under the Shia doctrine of increase, the
excess share is deducted invariably from the shares of:
• the daughter, or
• the full sister, or
• the consanguine sister.
The share in excess is not deducted from the share of uterine sister.
Illustrations
(1) A Shia Muslim dies leaving her (a) husband (b) daughter (c) father and (d) mother. The
respective normal shares are:
Husband
Mother 1/6 or 2/ 12
Total 13/12
We find that the sum total exceeds unity. The excess share is 1/12 which is directly deducted
only from the share of daughter. Accordingly, the final shares are:
Husband 3/12
Father 2/12
Mother
12/12
(2) A Shia Muslim dies leaving her (a) husband and (b) two full or consanguine sisters. The
normal shares are:
The excess share 1/6 is deducted from the share of the two sisters. Thus, finally the shares
may be worked out as under:
Where the sum (total of all the shares is less than unity and there is no Residuary in the class
to which the Sharers belong, the residue reverts back to the Sharers in proportion of their
own Shares.
Exception (1).- The husband or widow never participate in return. Accordingly, the property
in excess does not revert back to the husband or the widow, if they happen to be among the
heirs. However, where widow is the sole surviving heir of a propositus, she is entitled to
participate in return and the result is that whole estate devolves upon her.
Exception (2).- Mother is also excluded from return if the heirs of a propositus are mother,
father, one daughter and also any one of the following:
Exception (3).-The uterine brothers or uterine sisters are also excluded from return if they
are together with full sisters. That is to say, in presence of full sister, the uterine brother (or
uterine sister) is not entitled to participate in return. It may be noted that the method of
adding the residue is the same as that under Sunni law, discussed earlier.
Illustrations
(1) A Shia Muslim leaves his (a) mother (b) father and (c) daughter. The normal share of each
heir is given below:
Mother 1/6
Father 1/6
5/5
The sum total being less than unity, doctrine of return is applicable. Under Shia law, father
has no double capacity. Therefore, the excess property would be distributed among all the
heirs in proportion of their own shares. Now the ratio of their normal shares is 1/6: 1/6: 3/6
or 1/5 : 1/5 : 3/ 5. In other words, if the property is 5 the shares of mother, father and
daughter are 1/5, 1/ 5 and 3/ 5 respectively. But, here we have to distribute the whole property
(i.e. one). Accordingly, the final shares of each heir is as under:
5/5
Note:-Under Sunni law the father has double capacity and as such the residue 1/6 would
have returned only to father to make his share (1/6 + 1/6) = 1/3.
It is evident from the preceding lines that there is a marked difference between the Sunni
and Shia laws of inheritance. The significant points of difference between the two systems
may be summarized as under:
MUSLIM LAW
INHERITANCE
PRELIMINARY QUESTIONS
2. A person who causes the death of the Propositus is disqualified from inheriting the
property of the deceased under
(a) Shia law
(c) Both
(a) 1/2
(b) 1/4
(c) 1/5
(d) 1/6
5. Under Sunni law the share of two or more full sisters is to be divided equally
among them
(a) 2/3
(b) 1/2
(c) 1/6
(d) 1/8
6. What is the share of wife when there is a child or child of a son under Hanafi law?
a) One fourth
b) Half
c) One eighth
a) One fourth
b) Half
c) One eighth
8. What is the share of father when there is a son under Hanafi law?
a) One fourth
b) Half
c) One eighth
a) Doctrine of aul
b) Doctrine of Radd
c) Doctrine of representation
a) Nasab
b) Sabab
b) Family wakf
c) Family settlement
13. The right of the owner of a property which Is in conjunction to another property to
subsequent purchase of the adjacent property is called
a) Mushaa
b)Ariya
c) Shufa
d) Ewaz
14. In which section of the Hindu Succession Act, 1956 general rules of succession in the
case of female Hindus is provided?
a) Section 15
b) Section 14
c) Section 18
d) Section 16
[EDIT] Muslim Law Lectures
PAHUJALAWACADEMY
MUSLIMLAW
GUARDIANSHIP
MAINS QUESTIONS
1. Who is entitled to guardianship of a Muslim wife who has not attained the age of puberty?
3. Can a muslim in the exercise of hi right as a natural guardian of his children claim the
custody of his 9 years old daughter from her mother? Explain in the light of the concepts of
wilayat and hizanat under muslim law.
MUSLIMLAW
GUARDIANSHIP
Introduction
Law prescribes certain age-limit before which a person is said to be a minor. A minor has no
capacity to understand the legal consequences of his or her activities. The legal position of a
person who has not attained the age so prescribed, is called minority. The legal position of a
person who has attained that age, is called the age of majo rity.
Under Muslim law, the age of majority is regulated by two systems: (1) the
classical Muslim law and (2) the statutory law (Indian Majority Act, 1875).
Under the classical Muslim law, a person is said to be minor if he or she has not
attained the age of puberty. The age of puberty is fifteen years. But, as already
discussed, fifteen years is the age of majority only for marriage, dower and
divorce. Thus, for purposes of marriage, dower and divorce, a Muslim who has not attained
the age of puberty is called a minor.
A minor is supposed to have no capacity to protect his or her own interests. Law therefore,
requires that some adult person must safeguard the minor's person or property and do
everything on his (her) behalf because such a minor person is legally incompetent.
A person who is authorised under the law to protect the person or property of a
minor, is called a guardian. Under Muslim law guardians are required for purpose of
marriage, for protecting the minor's person (including the custody of the minor) and for
protecting the minor's property.
CLASSIFICATION OF GUARDIANS
Natural Guardians
Natural guardian is a person who has a legal right to control and supervise the
activities of a child. Father is recognised as the natural guardian of his child
under all the schools of Muslim law.
The father's right to act as guardian of the minor is an independent right, and is given to him
under the substantive law of Islam.
Natural guardian is also called Dejure or the legal guardian. But in the absence of
father, the father's executor may also act as legal guardian. Executor is a person who is
appointed by father or grandfather to act as guardian of his minor child on his behalf. In the
absence of father or his executor, paternal grandfather or paternal grandfather's executor
acts as legal guardian.
Thus, the natural (or legal) guardians of a minor, in order of priority, are as under:
• Father
• Executor of father.
• Paternal Grandfather.
• Executor of paternal-grandfather.
Under Muslim law, in the absence of any of the above mentioned persons, nobody else is
recognized as the natural or legal guardian of a minor.
Shia Law: According to Shia law, in the absence of father only paternal grand-father may
act as natural or legal guardian. Thus, in presence of paternal grandfather, the father's
executor has no right to act as legal guardian of a child.
Testamentary Guardians
It may be noted that no provision has been made under this Act for the
guardianship for marriage. The result is that except the guardians for marriage, the
guardians for a Muslim minor's person or property may be appointed by a court of
law.
In some cases, there may be a conflict between Muslim personal law and the Guardians and
Wards Act. In cases of such a conflict, provisions of the Guardians and Wards
Act will prevail over the provisions of Muslim personal law. Court here means
court of the District Judge.
The courts are empowered to appoint the guardians for a minor upon an application. Such
application may be made by any of the following persons:
lf the court is satisfied that it is for the welfare of the minor that an order should be made,
then it may make an order-
It may be noted that although the Act lays down a uniform rule for the guardianship of all the
persons in India irrespective of religion, yet the religion and the personal law of the minor
may be taken into account while appointing a guardian.
In Smt. Farzanabai vs. Ayub Dadamiya, the Bombay High Court observed that under
Guardians and Wards Act, the personal law of the parties is a factor which is to be kept in
mind by courts subject to the interest of the child. However, as the central idea should be the
welfare of the minor; therefore, the rules of Muslim personal law may be considered by the
court only where they are conducive to his welfare.
De-facto Guardians
The powers and functions of the guardians in respects of minor's person, property and for
marriage are different. Therefore, the powers and functions of the guardians are discussed in
the following lines separately in respect of (i) the person of a minor, (ii) the property of a
minor, and (iii) the marriage of a minor.
Guardianship of the minor's person means an overall supervision of the minor's personality.
It means care and welfare of the child including the liability to maintain it. It is more than
simply the custody of the child upto a certain age.
Under Muslim law, 'guardianship of the minor's person' is called Wilayat-e-nafs and the
'custody of the minor' is called Hizanat. They are sometimes taken to mean the same thing.
But, under Muslim law, these two aspects of the guardianship are different and are governed
by distinct rules. The guardianship of a child's person means overall supervision of the child
during its minority. Father (or his executor) or in his absence, the paternal grandfather,
being the natural guardian, are incharge of the minor's person.
On the other hand 'custody of the child' (Hizanat) simply means a physical possession
(custody) of the child upto a certain age. Although mother is not natural guardian under
Muslim law, but she has a right to the custody of her child till the child attains a specific age.
But, father or the paternal grandfather has a control over the person of the minor during the
whole period of minority.
It may be said therefore, that mother has a right to the custody of her child for
some time, because except her, no one else can nurse and handle a child during
its infancy. But her custody of the child is subject to the supervision of the
father who, as a legal guardian, is under an obligation to provide means for
upbringing of the child.
Under all the schools of Muslim law, the general rule is that mother is entitled to the custody
(Hizenat) or the physical possession of her child upto a certain age. This rule is based on the
presumption that on account of her peculiar relationship with the child, she is obviously the
best person to give that natural love and affection which a child requires during its infancy
including its dependence for feeding. Nature itself has given to the mother the custody of her
child's embryo even before it comes in the worldly existence.
Where the child is a son, the mother is entitled to his custody till he attains the
age of seven years. Where the child is a daughter the mother's right to the custody
continues till the daughter attains puberty (fifteen years).
It may be noted that mother is entitled to the custody of her child (under the age of seven
years or below puberty, as the case may be) even if she has been divorced by the husband or
has become widow provided she remains unmarried.
In S. Rehan Fatima vs. Syad Bdinuddin Perviz, the dispute was regarding the custody
of a child aged three years six months. The Andhra Pradesh High Court held that under
Muslim law, the mother's right to the custody of her child continues even after the
dissolution of her marriage by Talaq. The court observed further that in absence of any other
alternate arrangement, under the Guardians and Wards Act too her right to the custody of
child continues even after the divorce.
Being a legal privilege, the mother's right is not lost even if she ceases to be a
Muslm. In Zaynab vs. Md. Ghouse, the Madras High Court has held that conversion of
the mother to any other religion does not deprive her of the right of Hizanat. In this case, the
court allowed to the mother the custody of her child although she had become a Christian. It
was also observed by the court that even if the mother was living separately, she would not
lose her right to the custody of her child.
As discussed earlier, the mother is given the custody because of her typical relationship with
the child therefore, she cannot surrender it to another person. Poverty or inability of the
mother to maintain the child can neither deprive her of the right to custody nor can she
surrender this right on the ground of her poverty. In case where the mother is poor, the
father has an obligation to provide for the child during the custody of its mother.
A mother is considered to be disqualified for the physical possession of the infant, and her
right to the custody is lost in the following circumstances:
• Where the divorced or the widowed mother, having custody of a child, has remarried
another husband.
• Where the mother leads an immoral life or is of had character or is otherwise found
guilty of such conduct which is against the interest of the child.
• Where she is unable to take proper care of the child. -In certain cases, the mother's
inability to take proper care of her child might be due to her own self-created problems
for example, over-business in her career or, her modem style oflife. According to
Fyzee: the ancient doctors would obviously have frowned upon the modern society
mother who goes out for bridge (playing Cards) or social service in the morning, has
lunch with a friend and comes home late in the evening after a dance at the club".
• Mother's mother;
• Fathers mother;
• Mother's grandmother;
• Fathers grand mother
• Full sister
• Uterine sister;
• Full sister's daughter;
• Uterine sister's daughter;
• Full maternal aunt;
• (it) Uterine maternal aunt, and
• Full paternal aunt.
Shia Law- Under the Shia Law, a mother is entitled to the custody of her infant
son only upto two years, and of her daughter upto the age of seven years. If the
mother dies before the son attains two years, or the daughter attains seven years, the custody
is to be given to the father. In the absence of the father, the father's father is entitled to the
custody of the infant child.
Father is entitled to the custody at the following two stages of the child's minority-
• In respect of a minor boy under the age of seven years, and a girl under puberty, the
father is entitled to the custody of the child only in the absence (or disqualification) of
mother and other -female relations of the child.
• In respect of a boy over the age of seven years and an unmarried girl over the age of
puberty (fifteen years) the father is entitled to the custody of the child as a natural
guardian till the child becomes adult, e.g.; attains the age of eighteen years.
The minority of a child for purposes of its custody by father is divided in two stages. The first
stage of minority is upto the age of seven years in the case of male child, and upto puberty
where the child is female. The second stage begins after the age of seven years till the age of
eighteen years in case of a male, and after puberty upto eighteen years in the case of a female
child, provided she remains unmarried. During the first stage, the custody primarily belongs
to the mother and during the second stage it belongs to the father. Thus, father is entitled to
the custody of a minor child in two circumstances:
First, where the child is within the age limit, in which mother or female relations are legally
authorised to have the custody, but they are either disqualified or not available.
Secondly, after the age limit beyond which the mother or other female relations have no right
to the custody of a child.
It is to be noted that in the circumstances mentioned above, the father is entitled to have the
custody and this right is available to him because he is regarded as a natural guardian under
the Muslim personal law. The court has no power to appoint any other person to have
custody of a child where the father is alive except where the father is found by the court to be
unfit or unsuitable for this purpose. In siddiqunnisaz vs. Nizamuddin, it was held by the
Allahabad High Court that under Muslim law, the father status is the creation oflaw, not
requiring even a declaration; therefore, in presence of a father, who is not unfit for
guardianship, the court cannot appoint any other person as guardian. The disqualification of a
father due to which he is deemed to be unfit for having the custody of a child is a matter of
fact to be decided by the court. In deciding Guardians and Wards Act, 1890, in the light of
the interests and welfare of the child. However, merely a second marriage by father has not
been regarded as a disqualification of the father for having the custody of a child by the first
wife.
In the absence of the father, the custody of a child belongs to the paternal male relations in
order of priority given below:
But the custody by the above mentioned male relations is subject to a condition that no male
is entitled to custody of an unmarried girl unless he stands within the prohibited relationship
to her. For example, a male child may have the custody of a son paternal uncle's son) but a
female child cannot be put in his the prohibited relationship and their marriage is possible
under Muslim law. The purpose of this rule is to avoid the possibility of any exploitation of
the custody of an unmarried girl.
Father, or in his absence the paternal grandfather, has a right to appoint a testamentary
guardian of the minor's person, provided the father himself was entitled to the custody of
that child at the time of execution of the will.
Guardianship of an illegitimate child belongs to its mother. Therefore, only she is entitled to
have the custody of such a child as a natural guardian. In the absence of the mother, her
substitutes are entitled to the custody of an illegitimate child. Putative father of an
illegitimate child is not regarded as its natural or legal guardian.
Where a Muslim girl has been married before attaining the age of puberty, the custody of the
girl is not given to her husband till she attains the age of puberty (fifteen years).
In Nur Kadir v. Zuleikha Bibi,
it was held that under Muslim law, the mother or in her absence a substitute of the mother, is
entitled to the custody of a minor wife against the husband. Thus, the custody of a Muslim
girl, under age of puberty, belongs to her mother and not to her husband. But, under Section
19 of the Guardians and Wards Act, 1890, the husband is the guardian of his minor wife and
the court cannot displace him from this position unless he is found to be unfit. Thus, there is
a conflict between the provisions of this Act and the rules of Muslim law. However, the rule
of Muslim law that the custody of a minor wife (under the age of puberty) belongs to the
mother and not to the husband, may be reconciled by considering husband as 'unfit' under
Section 19(b) of this Act for custody of his wife until she attains puberty.
Marriage of a boy or a girl under the age of puberty, is not valid unless it is contracted by a
marriage-guardian.
A person appointed as guardian of the person or the property of a minor does not become a
guardian also for contracting the marriage.
Apply only to the guardianship for the marriage. Therefore, the guardianship for the
marriage is governed only by the pure Muslim law. A marriage-guardian is required to
contract not only a minor's marriage, but also that of an insane boy or girl of any age. It is to
be noted that under Muslim law, the marriage-guardian has a right to confer the status of
marriage on the minors against or without their consent.
"It is the substantive law itself that declares who for the purposes of marriage, possesses the
putria porestas; the court cannot appoint a wali (marriage-guardian) although in some
cases, the kazi (or the court) himself could act as a marriage-guardian.
The following persons, in the order of priority, are entitled to act as guardians for the
marriage of a minor:
• father;
• paternal grand-father, how high soever;
• brother or other male members of the fathers family, one after the other in the line of
agnatic heirs;
• mother;
• maternal relations, such as maternal uncle (Mama) or maternal aunt (Mausi) and other
maternal relations within prohibited degrees, and in absence of the maternal kindreds,
• the Kazi or the Court.
Shia Law- According to Shia law, the only guardians for the marriage are (1) the father, and
(2) the paternal grandfather.
The order of priority of the above-mentioned persons entitled to act as marriage guardians,
must be followed strictly. A marriage-guardian, who is entitled to contract the marriage of
the minor, has no authority to change this order or to appoint any other person under a will
to act as a marriage-guardian for that minor. A nearer guardian excludes the remoter, and in
presence of a nearer guardian the remoter guardian cannot contract the minor's marriage.
Where a nearer guardian of a minor is alive but the marriage is contracted by a remoter
guardian without the approval of the nearer the marriage is void and even the consummation
cannot validate such marriage.
In Abdul Ahmad v. Shah Begum, a person contracted the marriage of a minor girl by
declaring himself as her guardian (wali). He was not a 'marriage guardian. It could also not
be established that he had ever been given any such authority by a competent marriage-
guardian.
The Jammu -Kashmir High Court held that this marriage was void ab anitio and for
annulment of this marriage repudiation of marriage by the girl through her right of option of
puberty is not needed. However, it a marriage has been contracted by a remoter guardian out
of his turn, the marriage may be validated by a subsequent ratification by the proper
marriage-guardian.
Apostasy of Marriage-Guardian
It is not clear whether a Muslim father may lawfully act as a marriage-guardian after
renouncing Islam. Under Muslim law if the marriage-guardian renounces Islam, he has no
right to contract the marriage of the minor.
In the matter of Mahin Bibi, the Bombay High Court has held that a non-Muslim father has
no right to act as a marriage-guardian. The facts of this case were that a Shia female married
a Muslim husband and a daughter was born to them. After sometime, the husband converted
to Jewism, and renounced Islam. The daughter remained with the mother, who later on
married her to a Shia Muslim acting as the marriage-guardian for her daughter. The husband
(who had become Jew) contended in an application that the marriage contracted by the
mother was not valid because he has not given consent to it. It was held by Macpherson, J.
that "Under the Mahommedan Law, an apostate is not entitled to exercise the right of
assenting to the marriage of his children, who have been contracted by the guardian next in
order to him; and that, therefore, the marriage of the applicant's daughter was valid without
his assent." However, it is difficult to reconcile this decision with the provisions of the Caste
Disabilities Removal Act 1850 and all that can be said in this regard, is that the law on this
point is not certain.
Marriage- guardianship or the right of Jabar comes to an end as soon as the child, whether
male or female, attains the age of puberty. But under the Shafie and the Maliki schools, the
right of Jabar in the case of a female child continues till she is married.
Under Muslim personal law, the following persons, in the order of preference, are recognised
as the legal guardians of a minor's property
• father;
• executor appointed by father under a will;
• paternal grandfather;
• executor appointed by paternal grandfather under a will.
The guardianship of a minor's property belongs primarily to the father who is a natural
guardian. After his death it belongs to the executor appointed by the father under a will. Such
an executor, under the authority of the father's will, acts as a legal guardian of the minor's
property.
The mother or other near relations of the minor have no right of their own to act as
guardians of the minor's property.
The guardian of the property of a ward is bound to deal with it as carefully as a man of
ordinary prudence would deal with his own, and subject to the provisions of the Guardians
and Wards Act, 1890, he may do all reasonable and proper acts for the realization, protection
or benefit of the minor's property. The powers of a legal guardian to deal with the properties
of a minor depend upon the nature of the property i.e. whether the property is movable or
immovable, it also depends upon the nature of the transfer of property by such guardian i.e.
whether it is a sale, mortgage or lease etc. It may be noted that under Muslim law, the
guardians power to transfer the movable property of the minor is wider. In respect of an
immovable property, the legal guardian has a very limited right of transfer.
Keeping in view the Muslim personal law and also the provisions of the Guardians and
Wards Act, 1890, the courts in India have laid down specific rules relating to guardian's
powers over the minor's immovable properties. The extent and the legal limits of a
guardian's powers of disposition of the minor's immovable properties, are given below.
Sale - A legal guardian has no authority to sell the immovable properties of his ward. But,
in the following exceptional circumstances the legal guardian is authorised to sell the
immovable properties of the minor-
• Where by sale, the guardian can get double the value of the property.
• Where the sale is absolutely necessary for the maintenance of the minor i.e. there is
neither any movable property nor any other alternative for the livelihood of the minor.
• Where the sale is necessary for the satisfaction of a debt incurred by the deceased from
whom the minor inherited the property.
• Where there are some general provisions in the will of the testator such as the payment
of legacies, which cannot be complied with without sale of the property.
• Where the property ceases to be a beneficial property, i.e. its expenses such as taxes or
its maintenance charges, exceed the income.
• Where the property is in the hands of an usurper (who has wrongfully assumed its
possession) and the guardian has a reasonable belief that the property cannot be
recovered from such person.
• Where the property is decaying or is being destroyed, or there is an imminent danger of
its being lost.
It is evident from the preceding lines that the guardian's power of disposing off the minor's
property by sale is very limited.
According to Ameer Ali, guardian may not sell his ward's real (immovable) property into his
own hands or into the hands of arty one connected with him under any circumstances. This
is obvious, be-cause the guardian-ward relationship is of utmost confidence and there should
be no room for any doubt regarding the integrity of the guardian.
Mortgage.-The legal guardian's right to mortgage the minor's properties is the same as
that for a sale. A guardian is not authorised to mortgage his ward's properties except in the
interest of the minor or in the interest of the property itself.
Lease.- The guardian's power to grant lease of the minor's property is also subject to
condition that it must be for the advantage of the minor or is otherwise urgently required.
The legal guardian is, therefore, authorised to lease out the property only if it is for the
benefit of the ward. However, it is submitted, the guardian's power to lease out the minor's
property does not extend beyond the minority of the ward, therefore, the lease must be for a
term not exceeding the minority.
Transfer of property by a legal guardian against the provisions of the Muslim law is not void
but only voidable at the instance of minor on attaining puberty. But where the transfer is
according to the rule of Muslim law, it is binding on the minor and on attaining majority he
cannot ignore the liability.
For example, if a minor possesses small items of several properties, the total income of which
is not adequate to meet his expenses the legal guardian can lawfully sell any one item of the
property for his maintenance and such a transfer would be binding on the mirror.
Under Muslim law, the legal guardian has right to deal with the movable properties of his
ward. The guardian is authorised to sell, pledge or pawn the movable property of the minor,
provided it is urgently required in the interest of the minor e.g. for minor's footling, clothing
or nursing etc. According to Ameer Ali a guardian is allowed to borrow money for the
support and education of his ward, even ifhe has to pledge the minor's property.
Right to enter into contracts
Formerly, the Privy Council's view was that a legal guardian was competent to enter into a
contract on behalf of a minor for purchase of an immovable property. Such a contract, it was
observed by the Court, would not be binding either on the minor personally, or upon its
estate.
But later on in the case of Sri Kakulam vs. Kurra Subba Rao, the Privy Council held
that a de jure or legal guardian is empowered to enter into contracts on behalf of the minor
and such contracts are binding on the minor as well as on minor's estate provided such
contracts were for the benefit of that minor. The court further observed that such a contract
can be enforced against the minor and the minor too can specifically enforce the contract
against any other party. The Indian law on this point is now well settled and the courts have
recognised the guardians authority to enter into contracts for the benefit of a minor.
Amir Ahmad vs. Meer Nizam Ali, the High Court of Hyderabad has held that a de jure
Muslim guardian has power to bind a minor by personal contract, even if the contract is for
the purchase of an immovable property subject to the condition that such a contract is
necessary for the benefit and welfare of the minor.
However, according to Tyabji and Malla, the guardian is not competent to bind a minor or
his estate by an agreement for the purchase of immovable property. Such agreement,
according to these jurists, would be void.
Exercise of pre-emption
A legal guardian is competent to exercise the right of pie-emption on behalf of the minor. The
guardian is also empowered to refuse to exercise the right of pre-emption if it is in the interest
of the ward.
Acknowledgement of Debt
The legal guardian is empowered to acknowledge a debt on behalf of his ward so as to give
the creditor a fresh start. Acknowledgement of a debt by the guardian is recognised under
Muslim law because it is in the interest of the minor to get the debt acknowledged so that he
may get further time to pay it to the creditor.
As discussed earlier, the father and die paternal grandfather have right to appoint executors
by a will to discharge the functions of the natural guardians after their death. Such executor-
guardians are called testamentary guardians because they get the authority to act as natural
guardians under a testament (will) from the father or paternal grandfather. As such,
testamentary guardian too can act as legal guardian under Muslim law. In so far as the
powers of the testamentary guardians to deal with the minor's properties are concerned, it is
same as that of a father or paternal grandfather. As a matter of fact, the testamentary
guardians are supposed to be the substitutes of natural guardians.
In the absence of the legal guardian i.e. father, paternal grandfather and their executors
(testamentary guardians), the guardians for the property of a minor is appointed by the
Court. We have already discussed the rules relating to the appointment of such guardians. A
guardian by court is also termed as Certificated Guardian.
The powers and the duties of a guardian appointed by court is governed by the provisions of
the Guardians and Wards Act, 1890.
Under Section 33 of this Act the court has authority to define, restrict or extend the powers of
a guardian from time to time. In brief, the powers of testamentary guardians to deal with
minor's properties are given below: A guardian appointed by a court of law has no authority
to deal with the minor's property without the sanction of the court. Such a guardian cannot
sell, exchange, mortgage, charge, or otherwise transfer the immovable property of the minor
without a previous permission of the court. The court gives the permission for transfer of
property only in cases of absolute necessity or where it is manifestly advantageous to the
minor." The court may give the permission subject to some condition. If the court has given
conditional permission, the transfer of property by the guardian may be effected strictly
according to that condition.
Lease.- A guardian appointed by court is empowered to lease out the minors property for a
period of five years, or for any term not extending more one year beyond the date on which
the minor attains majority. For a lease extending the above mentioned periods, the guardians
must take the previous permission of the court. However, transfer of an immovable property
by a guardian appointed by court against any of the above rules, is not void, it is merely
voidable at the option of the minor upon his attaining majority. Such transfer is voidable also
at the option of any other person affected thereby.
Movable Property- A guardian appointed by court is empowered to deal with the movable
properties of the minor without any previous permission of the court. But the guardian must
deal with minors movables as carefully as a man of ordinary prudence would deal with his
own property.
Immovable Property- A de facto guardian has no authority to deal with the immovable
property of a minor. Transfer of any right or interest in the minors immovable property by a
de facto guardian is void ab initio. In Mohd. Amin vs. Vakil Ahmad, the Supreme Court
has held that unless a brother, uncle or other relatives of a minor have been specifically
appointed as testamentary guardian or a guardian appointed by court, they have no authority
to transfer immovable properties by sale, exchange, mortgage, or lease etc. A non-guardian
person who acts as guardian of the property, has no power to enter into any contract on
behalf of the minor and has no authority to enter into any family settlement in regard to the
miner's immovable property. In Gayasuddin vs. Allahtala Waqf Mansooma, a
mother executed a Waqf of the properties of her minor son on his behalf. The mother was
neither a testamentary guardian nor a guardian appointed by court. She, being mother, used
to take care of her minor son's properties as a de facto guardian. The Allahabad High Court
held that mother whose legal status is merely a de facto guardian, has no right to execute
Waqf of properties of minor son on his behalf and the Waqf is void. The court observed
further that since the Waqf is void ab initio, the minor son cannot ratify and validate it on
attaining the age of majority.
In Mata Din vs. Ahmad Ali, the Privy Council held that a sale or mortgage by a defacto
guardian is void even where it was made to satisfy a debt of the deceased from whom the
minor inherited the property. The court further observed that such a sale (or mortgage) was
not binding on the minor. As the transfer of a minor's immovable property by a de facto
guardian is void ab initio; it cannot be validated by the minor on attaining majority. The
minor, on attaining majority, has every right to challenge the transfer made by a de facts
guardian. But, if he does not challenge this transfer, any other person on his behalf, has no
right to challenge and get it declared void.
Movable Property.-A de facto guardian is empowered to sell and pledge the movable
properties of a minor provided such a transfer is urgently required for the basic needs such
as footling or nursing of the minor. It is therefore, evident that a de facto guardian's power to
alienate minor's movables is subject to basic requirements of the minor which may be
urgently needed for the miner's subsistence. A transfer of minor's movable property is not
valid if it has been made for any other purpose.
PAHUJALAW ACADEMY
MUSLIM LAW
GUARDIANSHIP
PRELIMINARY QUESTIONS
3. De-facto guardians are the custodians of the person or the property of the minor and
have
(a) valid
(b) voidable
(c) void
(d) invalid
5. Who amongst the following is not the legal guardian of the property of the minor
(a) mother
(b) brother
(c) uncle
6. A legal guardian of the property of a minor can sell the immovable property of the
mmor
(a) where he can obtain the true market value of the property
(d) where he can obtain half the true market value but it should be more than the purchase
pnce.
(a) void
(b) voidable
(c) valid
(d) invalid.
(a) void
(b) voidable
(c) valid
(d) invalid.
(d) when the minor if female attains the age of 18 years & if male, attains the age of 16 years.
a) Mother
b) Paternal Grandmother
a) Mother
b) Paternal Grandmother
c) father
a) Right of irrigation
b) Right of drinking water
c) Right of easement
15. Which of the following is not personal matter within the meaning of section-2 of
Shariat Act, 1937?
a) Wakf
b) Guardianship
c) Pre-emption
d) Maintenance
a) Voidable
b) Void
c) Nullity
17. The Dissolution of Muslim Marriages Act, 1939 gives a right of judicial divorce, on any
of the grounds mentioned in it, to
b) Husband only
c) Wife only
18. If a Shia male marries with a Sunni female, the marriage will be
(a) Batil
(b) Sahi
(c) Fasid
(a) Valid
(b) Void
(c) Irregular
(a) Valid
(b) Void
(c) Invalid
(d) Voidable