FAMILY LAW-II

MODULE IV
MUSLIM LAW
• Who is a Mahomedan:
• A person who professes the Mahomedan religion, that is, acknowledges (1)
that there is but one God, and (2) that, Mahomed is his Prophet, is a
Mahomedan.
• Such a person may be a Mahomedan by birth or he may be a Mahomedan by
conversion. It is not necessary that he should observe any particular rites or
ceremonies, or be an orthodox believer in that religion.
• Court can test or gauge the sincerity of religious belief.
• It is sufficient if he professes the Mahomedan religion in the sense that he
accepts the unity of God and the prophetic character of Mahomed.
• Sunnis and Shias:
• The Mahomedans are divided into two sects, namely, the Sunnis and the
Shias.
• Sunni sub-sects:

• The Sunnis are divided into four sub-sects, namely,

• (i) the Hanafis,
• (ii) the Malikis,
• (iii) the Shafeis and
• (iv) the Hanbalis.
• The Sunni Mahomedans of India belong to principally to the Hanafi schoo
• Presumption of Sunnism:
• The great majority of Mahomedans of this country being Sunnis, the
presumption will be that the parties to a suit or proceeding are Sunnis, unless
it is shown that the parties belong to the Shia sect.
• The Shia law is not a foreign law.
• It is part of the law of the land, and so no expert evidence can be led to prove
it as in the case of foreign law.
• Shia sub-sects:
• The Shias are divided into three main sub-sects, namely,
• (i) the AthnaAsharias,
• (ii) the Ismailyas and
• (iii) the Zaidyas.
• As most Shias are Athna- Asharias, the presumption is that a Shia is governed
by the Athna-Asharia exposition of the law.
MUSLIM LAW
• UNDER MUSLIM LAW SUCCESSION IS COMBINATION OF FOUR SOURCES
1. The Holy Quran
2. Sunna (Practice of Prophet).
3. Ijma (consensus of the learnt men of the community or over the decision over a particular
subject matter).
4. Qiya (deduction based on analogy on what is right and just in accordance with good
principles.
• Every religion practiced in India – is governed by its respective personal laws.

• Islamic Law of inheritance is a mixture of the pre-Islamic customs and the rules introduced
by the Prophet
• Under Muslim Law, the general law relating to inheritance and succession can be traced to the
Indian Succession Act.

• Non-Testamentary and Testamentary succession under Muslim law:

• In Non-testamentary succession, the Muslim Personal Law (Shariat) Application Act, 1937
gets applied.

• On the other hand, in case of a person who dies testate i.e. one who has created his will
before death, the inheritance is governed under the relevant Muslim Shariat Law as applicable
to the Shias and the Sunnis.
• As per the Pre-Islamic Customary Law
• Nearest Male Agnate(s) succeeded the entire estate of the deceased person.
• Females and cognates were excluded.
• Descendants given preference to ascendants and ascendants to collaterals.
• But this changed due to the reforms brought by Prophet
• Females were allowed to inherit
• Ascendants were given right to inherit
• Inheritance is considered as an integral part of Shariah Law. Muslims inherit from one another
as stated in the Quran.

• Hence, there is a legal share for relatives of the decedent in his estate and property. The major
rules of inheritance are detailed in Qur'an, Hadith and Fiqh.

• When a Muslim dies there are duties which need to be performed:

1. Pay funeral and burial expenses.

2. Paying debts of the deceased.

3. Determine the value / will of the deceased if any (which is capped to one third of the estate as
the remainder is decided by shariah law).

4. Distribute the remainder of estate and property to the relatives of the deceased according to
Shariah Law.

5. So, the heritable property is to be utilized for such expenses.

• Nemo est haeres viventis

• Inheritance opens only after the death of a Muslim.

• Muslims follow the principle of “nemo est haeres viventis” i.e. nobody can
become an heir to a living person.

• It means the legal right to inheritance of property will only arise when the
death of a deceased person will take place and not upon the birth of a child.
• Heritable property

• The meaning of heritable property is that property which is available to the legal heirs for
inheritance.

• After the death of a Muslim, his properties are used for paying funeral expenses, debts and
wills.

• After the payment of such expenses, the left over property is called heritable property.

• Muslim Law does not make any difference between corporeal and incorporeal or movable
and immovable property.

• Any property which is in the ownership of the deceased at the time of his death would be
considered as heritable property.
• Under Muslim Law, any kind of property that the deceased owned at the time of death, may
be the subject matter of inheritance.

• Therefore, it is necessary to determine the relatives of the deceased who are entitled to inherit,
and their shares.

• These laws take greater prominence in Islam because of the restriction placed on
the testator (a person who makes a will).

• Islamic law places two restrictions on the testator:

1. To whom he or she can bequeath his or her wealth.

2. The amount that he or she can bequeath (which must not exceed one third of the deceased's
estate).
• Under Muslim Law, there is no provision of distinction between individuals i.e. self-acquired
or ancestral property.

• The Islamic law of Inheritance does not recognize the concept of joint family or coparcenaries
property.

• Each property that remains within the ownership of a person can be inherited by his
successors.

• Whenever a Muslim dies, all his property whether acquired by him during his lifetime or
inherited from his ancestors can be inherited by his legal heirs.

• Consequently, on the death of every such legal heir, his inherited property and property
acquired by him during his lifetime shall be transferred to his heirs
• The Doctrine of Representation

• It states that if during the life time of an ancestor any of his or her legal heirs dies, but the
latter’s heirs still survive then such heir share become entitled to a share in the property as
now they shall be representing their immediate generation.

• For example: A has two sons B and C.

• B has 2 children i.e. D and E and C also has two children F and G.

• During the life time of A if B dies, then on the event of death of A only C shall be entitled to
inherit A’s property. B’s children D and E shall not be entitled to any share in A’s property.
Between C and B’s children D and E, C would totally exclude D and E from inheriting the
property. Therefore, it is said that the nearer heir excludes the remote heir from inheritance.
• The Muslim jurists justify the reason for denying the right of representation on the ground that a
person has not even an inchoate right to the property of his ancestor until the death of that ancestor.

• It is further argued that a right which was not vested in any possibility cannot give rise to claim
through a deceased person.

• Manner of Distribution

• Under the Muslim law, distribution of property can be made in two ways, firstly per capita or per
strip distribution.

• Per – Capita distribution method is majorly used in the Sunni law.

• According to this method, the estate left over by the ancestors gets distributed among the heirs.
Therefore, the share of each person depends on the number of heirs. The heir does not represent the
branch from which he inherits.
• On the other hand, per strip distribution method is recognised in the Shia law.

• According to this method of property inheritance, the property gets distributed among the heirs
according to the strip they belong to.

• Hence the quantum of their inheritance also depends upon the branch and the number of persons
that belong to the branch.

• For example, if A has two sons i.e. B and C. B has two children i.e. D and E. C has three children
F, G and H.

• Suppose on the death of A his property’s worth is estimated to be about 12000. B and C would be
entitled to an equal share of 6000 each. .
• In case if B and C both die, then the extent of their children’s share shall be in following
manner. B’s children D and E can only inherit the property to the extent of B’s share. Their
share shall be 3000 each. As far as the children of C are concerned the extent of property that
they can inherit shall extend to 6000. Their respective shares shall be equal i.e. 2000 each.

• Hence, it can be said that the share of each person in this method of distribution varies.

• Shia law recognises the principle of representation for a limited purpose of calculating the
extent of share of each person.
• SUNNI LAW

• A has two children a son & a daughter.

• B has two daughters.

• C has two sons The shares would be inherited as per the principles of Quran.

• On the death of A, as per Quran, daughter would become a Residuary in the presence of son
and their share would in the ratio 2:1.

• There are no Q.S. here.

• Rights of Women In Property:

• Muslim law does not create any distinction between the rights of men and women.

• However, the quantum of share of female heir is half of that of the male heirs.

• Males share is equal to the share of two females.

• The justification available to this distinction under Muslim law is that the female shall upon
marriage receive mehr and maintenance from her husband whereas men will have only the
property of the ancestors for inheritance.

• Also, men have the duty of maintaining their wife and children.
• Widow’s right to succession:

• Under Muslim law, no widow is excluded from the succession.

• A childless Muslim widow is entitled to one-fourth of the property of the deceased husband,
after meeting his funeral and legal expenses and debts.

• However, a widow who has children or grandchildren is entitled to one-eighth of the

deceased husband's property.

• If a Muslim man marries during an illness and subsequently dies of that medical condition
without brief recovery or consummating the marriage, his widow has no right of inheritance.
But if her ailing husband divorces her and afterwards, he dies from that illness, the widow's
right to a share of inheritance continues until she remarries.
• A Child in the Womb:

• A child in the womb of its mother is competent to inherit provided it is born alive.

• A child in the embryo is regarded as a living person and, as such, the property vests
immediately in that child.

• But, if such a child in the womb is not born alive, the share already vested in it is divested
and, it is presumed as if there was no such heir (in the womb) at all.
• Escheat:

• Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by
Government through the process of escheat.

• Marriage under the Special Marriage Act, 1954:

• 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 is governed by the provisions of the Indian Succession Act, 1925
and Muslim law of inheritance is not applicable.
• Extent of Liability of Heirs for Debts

• The Qur’anic principle:

• “There is no inheritance until after the payment of the debt” is an integral part of the
Muslim law of Inheritance.

Under Muslim law, the property is not jointly held by heirs. Similarly, the debt that they
inherit from the person deceased is also divided amongst all the heirs according to the
proportion of the estate that they inherit. They are separately responsible for paying that and
no one heir is said to be paying on behalf of the other co-heir.
• SUNNI LAW

• Male Agnatic Heirs

• As a general proposition, the pre-Islamic system of succession centred on the male agnate,4 the nearest
male agnatic relation taking the entire estate of the propositus.

• The agnatic relationship may either be of full blood (germane) or half-blood through the father
(consanguine).

• In Sunni jurisprudence the male agnatic heirs continue to play an important role in the law of
succession.

• (Within any group the individual closest in degree to the propositus takes priority over all those further
removed. Finally, as the Table indicates, among relatives of equal degree, the relationship of full blood
(germane) takes precedence over that of half-blood (consanguine).
• Male Agnatic Heirs in Order of Priority

• Group I: Descendants

• son

• son's son how low so ever

• Group II: Ascendants

• father

• father's father how high so ever

• Group III: Brother and his male issue

• germane brother

• consanguine brother

• germane brother's son

• consanguine brother's son

• germane brother's son's son

• consanguine brother's son

• Group IV:

• Paternal uncle and his male issue

• Germane paternal uncle

• consanguine paternal uncle

• germane paternal uncle's son

• consanguine paternal uncle's son

• germane paternal uncle's son's son

• consanguine paternal uncle's son

• Group V:

• Paternal great uncle and his male issue

• father's germane paternal uncle

• father's consanguine paternal uncle

• father's germane paternal uncle’s son

• SUNNI LAW AFTER THE QURANIC REFORMS

• Heirs are divided into the following categories:

• 1. The Primary Class- Quranic Heirs- they get fixed preferred shares.

• 2. The Residuaries- they get what is left over after the distribution of the estate
among the Q.S.

• 3. The Distant Kindred- they get the left over share (if any).
• The Primary Class- Heirs by Blood or Marriage

• This class includes legal heirs which are directly related to the person through blood.

• The Husband and wife are an exception because they are related through marriage.

• (a) Sharers (Quranic Heirs)

• The Sharers are given preference over the others in process of inheritance and their respective
shares are given in the Quran due to which no human intervention can deny them their share.

• The Quranic heirs or the sharers are those relations of the deceased whose shares have been
determined by the Quran. Their share and the order of preference in succession is fixed under
the Quran. There are 12 Quranic heirs.
 12 relations fall under this category of Sharers in Muslim law:
1. Husband
2. Wife
3. Father
4. Mother
5. Paternal grandfather- True Grandfather; how highsoever
6. Grandmother on the side of the males- True Grandmother-how highsoever
7. Daughter
8. Daughter of a son (or a son’s son or a son’s son’s son)
9. Full sister/Germane sister
10.Consanguine sister
11.Uterine sister
12.Uterine brother
• REMEMBER
*Consanguine relationships result when a man produces children from two or
more wives;
*Uterine relationships result when a women produces children from two or more
husbands.
* Some of these Q.S. get converted into Residuaries in certain circumstances.
• (a) Quranic Sharerers

• The first group are entitled to specific shares, as fixed by the Quran.

• For example: A husband is entitled to ½ his deceased wife’s estate if she has
no children. If she has children, he is entitled to a ¼ share.

• Similarly, A wife is entitled to a ¼ share of her deceased husband’s estate if

she has no children. If she has children, she is entitled to 1/8.

• Also, Sons usually inherit twice as much as their sisters when one of their
parents dies. (In Islam, the share of a male is equal to the share of two
females).
1. Husband: A surviving husband inherits his wife’s property. In case he has a
child or child of a son how low soever, his share is ¼ of the heritable estate.
But if he does not have a child or child of a son how low soever, then he
inherits ½.

2. Wife: A surviving wife is entitled to receive ¼ of the heritable property where

the husband has not left any child or son’s or grandson’s child. If the husband
has left a child, then the wife inherits ⅛. In the exceptional cases where there
is more than 1 wife, then they have to divide this share equally amongst
themselves.
3. Father:

The father becomes a Quranic sharer only in the following scenarios:

• if the deceased has left a child or

• son’s child

• or grandson’s child h.l.s.

Otherwise, he is not a Quranic sharer.

Share- A father who is a Quranic heir inherits ⅙ of the deceased estate.

If not qualified to be a Q.S., a Father becomes a sharer by Residuary(Agnatic Heir).

4. Mother: There are 3 distinct scenarios for the mother’s inheritance:
• ⅙ share –

 Where there is a child or son’s child how low so ever or

 where there are 2 or more brothers or sisters or 1 brother and 1 sister, whether full,
consanguine or uterine.

• ⅓ share –

• When there is no child or child of the son how low so ever and not more than one brother
or sister.

• ⅓ of remaining share-

• If there is a father and a wife/husband, then after deducting the wife’s/husband’s share
and fathers share, she will get 1/3 share.
• 5. Daughter

• Daughter qualifies as a Q.S. only when there is no son.

• Share- ½ share- if one daughter

• If 2 or more than 2 daughters, then they take 2/3 collectively.

• If there is a son, then daughter will not become a Q.S.

• Then she will inherit as a Residuary and will co-share with the son(Agnatic
co-sharers).
• 6. Sons’ Daughter

• Share- ½

• Two or more- 2/3

• She can inherit only when there is no-

• Son

• Daughter

• Equal son’s son.

• If there is only 1 daughter and no son’s son, the son’s daughters(whether 1 or more) will take 1/6.

• With an equal son’s son, she becomes a residuary.

• 7. True Grandfather

• A paternal grandfather becomes a Quranic sharer only when the father of the deceased is absent.

• Share- ⅙ of the share.

• Maternal grandfather is not a Quranic sharer in any case.

• 8. True Grandmother

• Paternal- Only in those cases where both the parents of the deceased are absent, the paternal
grandmother becomes a Quranic heir.

• Share- ⅙ share of the heritable estate.

• Maternal- Only in those cases where the mother is absent, she becomes a Quranic heir.

• If there are 2 or more grandmothers of the deceased (maternal or paternal) who become Quranic
sharers, then both the grandmothers will get a joint share of ⅙ which they have to share equally.
• 9. 10. Uterine Brother and Sister
• Share-1/6
• If two or more- 1/3.
• Can inherit only when there is no- child
• child of a son h.l.s.
• Father
• True grandfather
• 11. Full Sister

• Share-1/2

• Of two or more- 2/3.

• Can inherit only when there is no

• Child

• Child of son

• Father

• True grandfather

• Full brother

• If there is a full brother, she becomes a Residuary

• 12. Consanguine Sister

• Share- ½

• Of two or more- 2/3

• Can inherit only when there is no-

• Child; child of a son;

• Father; True Grandfather;

• Full brother; full sister;

• Consanguine brother

• If there is a Consanguine brother, she becomes a Residuary

• Remember

• These Quranic heirs cannot all inherit at the same time and some may exclude others.
Example, father’s father is excluded by the presence of the father.

• Not all of the Quranic heirs will in fact always figure as actual heirs, the relative(s)
responsible for this exclusion may be one or more other Quranic heirs or a male agnate.

• For example, a son's daughter is excluded as a Quranic heir by the presence of daughters (her
aunts, who are Quranic heirs) or by the presence of a son.
• (b) Residuaries

• Includes All male agnates(Only 4 females who are converted into Residuaries
in some cases).

• Agnate heirs or Residuaries come into the picture only when after dividing the
heritable estate between the Quranic heirs, there is still some estate left.

• This residue left estate goes to the Residuaries.

• All the Residuaries are related to the deceased through males only.

• The Residuaries are further divided into the following sub-categories

• I. Descendants

• Son: The first heir in this category if the Son.

• Son’s son h.l.s.

• The nearer in degree always excludes the remote.

• Two or more son’s inherit in equal shares.

• Son’s daughter, h.l.s. inherits as a residuary in the following situations:

– if there is an equal son’s son;

– if there is an lower son’s son.

– In both the cases, the share of the son would be double the share of the daughter.
• When the Son’s daughter h.l.s. inherits as a residuary with the lower sons’ son
and there are also the lowers son’s daughters, she inherits equally with them
(as if they were of the same grade).
• II. Ascendants

• Father

• Father’s father h.h.s.- True Grandfather

• III. Descendants of the Father

• Full Brother

• Full sister also becomes a residuary with the full brother, with brother’s share
double to that of the sister .
• Consanguine brother

• Consanguine sister: Consanguine sister also becomes a residuary with the full brother, with
brother’s share double to that of the daughter

• Full brother’s son.

• Consanguine brother’s son.

• Full brother’s son’s son.

• Consanguine brother’s son’s son.

• And so on.
• IV. Descendants of the True GrandFather
• Full Paternal Uncle
• Consanguine Paternal Uncle
• Full Paternal Uncle’s son.
• Consanguine Paternal Uncle’s son.
• Full Paternal Uncle’s son’s son.
• Consanguine Paternal Uncle’s son’s son.
• and so on.
 A- Father
(Deceased)

Daughter Son
• Daughter becomes a residuary with the son.
 Mother

P-
Deceased

Wife Daughter
• Quranic heirs are mother, daughter and wife.
• Mother – 1/6.
• Wife- 1/8.
• Daughter- ½.
 Father

x-
Deceased

Husband Daughter Son

• Father-1/6.

• Husband-1/4- due to the presence of children.

• Daughter- Due to the presence of the son, daughter becomes a Residuary.

• Son and daughters share- remaining with the son’s share to be double.

• Remaining will be divided between them, the ratio of 2:1.

 Father

Mother
X-
Deceased
Sister 1

Sister 2
• Mother- 1/6.
• Sisters- Excluded by the father.
• Father- in the absence of a child of the child of a son, father becomes a
Residuary.
• Fathers share- remaining share-5/6.
 i. Father’s Father,
ii. Father
iii. Mother

P- Deceased

Consanguine
Wife Two sons.
Brother
• Father’s father- excluded by Father

• Quranic heirs are father, wife, and mother.

• Highest male agnates are the two sons.

• Father 1/6 (4/24);

• Wife in presence of child 1/8 (3/24);

• Mother in presence of child 1/6 (4/24).

• Quranic shares total 11/24;

• Residue of 13/24 goes to the sons in equal shares (13/48 each) as agnatic heirs.
• (c) Distant Kindered (Uterine Heirs)-Related by Blood

• These heirs can only inherit the property if there are no sharers or Agnatic Heirs of the deceased i.e. the
property cannot be inherited by these heirs if any sharer or agnatic heir of the deceased is present.

• I. Descendants

• Uterine Heirs

• Daughters children and their descendants

• Children of son’s daughters

• I. Ascendants

• False Grandfather h.h.s.

• False Grandmother h.h.s.

• False Grandfather h.h.s.

• False Grandmother h.h.s.

• III. Descendants of parents, other than residuaries; and

• IV. Descendants of grandparents.

• The kindred belonging to class (i) succeed in priority to those in class (ii) succeed
in priority to those in class (iii), and so on.
• General Rules of Succession among Distant Kindred:

• 1. The first class excludes the second, and so on.

• 2. The near in degree excludes the remoter one.

• Thus, for instance, a daughter’s child excludes a son’s daughter’s children.

• As amongst the members of the same class and of the same degree, the children
of sharers and Residuaries are preferred to those of the distant kindred.

• Thus, a son’s daughter’s children are preferred to the daughter’s grandchildren.

• Subject to the above rules, a male takes double the share of a female.
• (d) Unrelated Successors

• These heirs inherit the property in purely exceptional cases.

• These include:

• (a) The State (When there is no Legal Heir of the deceased, all the property is inherited by the
state through the process of escheat)

• (b) Universal Legatee- a person to whom the deceases has left his property by will, which can
be done only if there is no heir of the first or second kind.

• (c) Acknowledged kinsman- An Acknowledged kinsman is a person with whom the deceased
made an acknowledgement of kinship. Like, a man can acknowledge another as his brother,
who becomes an acknowledged kinsman.
• Doctrine of Aul and Radd

• Aul: When in case, the total sum of the specific shares allotted to various shares exceeds the unity then the
doctrine of increase (Aul) comes into the application. In this doctrine, the specific share of each sharer is
reduced in a proportionate manner.

• Radd: This doctrine comes into action when the residue property returns to the Sharers and not the Distant
Kindred in absence of any heir under the residuary category.

• When in case of more than one Sharer then the property shall be proceeding to be returned in the
proportionate shares and if there is only one sharer then the whole of the residue property should be
transferred back to the sole sharer.

• The remaining property or called the residue can not be transferred to distant kindred as long as there is a
sharer or residuary alive.