Family Law I 12 Mark Answers-3.docx - 1494242773827

Family Law 12 Mark Answers
Mohammedan Law
⦁ What are the different sources of Muslim Law?; (4 times; Ashutosh; 1300 words)
Ancient sources or Formal sources of Mohammedan Law
Quran
● Every word of Quran is the word of God communicated to the Prophet Muhammad through
Gabriel (the Angel). The Prophet recited the word of Quran as divinely inspired, while in a
state of ecstatic seizure. Thus, Quran literally means recital.
● These sayings of the God were not written down by the Prophet himself but by his
companions immediately after his death.
● Quran can be said to be a complete code of conduct for all time. The Muslims believe that
the Quran is AlFurqan, i.e., one distinguishing truth from falsehood and right from wrong.
● The Quran contains about 6223 ayate, i.e., verses, out of these only 200 deal with legal
principles. There are about 80 ayate which deal with the law of personal status. Most of them
are concerned with marriage, divorce, inheritance and such like matters.
● In Quran, there are total 30 paras (chapters) which are further divided in 114 suras. Over 500
verses in the Quran deal with Nature. Therefore Quran is regarded as an inadequate source
of Mohammedan law.
● As the Quran is of divine origin, and has no earthly source, it is obvious that none of this can
be altered by any human agency or institution.
Sunnah (Tradition)
● The Arabic word ‘Sunnah’ means ‘the trodden path’, it denotes some kind of practice and
precedent. It mainly refers to the practice and precedents of the Prophet, i.e., Sunnatalnabi.
● Sunnah is a rule of law deduced from Hadis(practice). Hadis is the story of particular
occurrence, it is the practice of the Prophet, his ‘model behaviour’.
● The number of Hadis is very large. Ahmed IbnaHanbal in his ‘Musnad’ collected over
80,000 Hadis.
● One of the greatest differences between the Sunnis and Shias lies in the fact that the Shias do
not give credence to Hadis unless it emanates from the household of Ali.
● Classification of traditions according to Abdur Rahim is:
○ Hadis Mutwaur = Continuous Hadis;
○ Hadis Mashoor = Well known Hadis;
○ Hadis Ahad = Isolated Hadis.
● The Prophet once said to his followers: “So long as you hold fast to, two things which I have
left among, you will not go astray; God’s book and His messenger’s Sunnah.”
Thus, Quran and Sunnah are said to form the fundamental roots of Islamic Law.
Ijma
● Ijma means the “consensus of opinion”. When a number of persons who are learned in
Muslim law and have attained the rank of jurists of some sort agree on a particular legal
question, their opinion is binding and has the force of law. It becomes Ijma.
● Modern critics consider it to be the most important source of Mohammedan law. The validity
of Ijma is based upon a Hadis of the Prophet which says that “my people will not agree in
error.”
● Ijma has been classified into three types:
○ Ijma of the Companions of the Prophet
○ Ijma of the Jurists
○ Ijma of the People
● The first type of Ijma, i.e., of the Companions of the Prophet, is universally accepted and is
incapable of being repealed. But the other two types are somewhat disputed.
● A few of the important requirements of the validity of Ijma are:
○ It shall not come into conflict with Quran or Hadis;
○ Once a question is determined by Ijma it cannot be reopened by individual Jurists;
○ One Ijma may be reversed by a subsequent Ijma.
○ When the jurists of an age have expressed only two views on a particular question, a
third view is inadmissible.
Qiyas (Analogy)
● Qiyas is a process of deduction of a rule by analogy. It means when the language of the text
of law is not clear or the rule laid down in the text of the law is not clear, then in such a
situation, the object or reason of the text is taken into consideration and accordingly the
proper rule is made applicable.
● Definition of ‘Qiyas’ according to the Hanafi scholar Abdur Rahim is as under:
“An extension of law from the original text, to which the process is applied to a particular
case by means of a common ‘illat’ or ‘effective cause’ which cannot be ascertained merely
by interpretation of the language of the text.”
● The greatest opponents of Qiyas were persons belonging to the school of Ahmed Ibn
Hanbal, the great traditionalist (the founder of Hanbali School). The Shias also do not accept
Qiyas because they are of the opinion that if their law needs to be enlarged it, must be by
Imam and none else. The Shafeits (followers of Shaafi School) also regard Ijtihad and Qiyas
as contradictory of their own views.
Modern sources or Informal sources of Mohammedan Law
Customs and Usages
● Customs were the basis of the entire social life, religion, morality, trade and commerce in
Arabia. No codified law existed during those times.
● After the advent of Islam, Quran and Hadis took place of the custom which lost much of its
importance. Nevertheless, it influenced the growth and formation of Shariat in several ways.
● The validity of customary law rests on the principles similar to Ijma. As regards the customs
prevalent in the time of Prophet, his silence as to these customs have been regarded as
recognition to these customs.
● In India, in Punjab, and among certain communities such as the Khojas, Muslim law, on
some points, was superseded or considerably modified by customs adopted from the Hindus
and sanctioned by the Legislature or the Courts.
● But in view of the Muslim Personal Law (Shariat) Application Act, 1937, it is no longer open
to Courts in India to recognise and give effect to customs derogating from rules of Muslim
Law, in matters relating to topics enumerated in that Act.
Judicial Decisions (Fatwas)
● Though not a source of law of, Fatwas as opinions of judges and Muftis in the light of facts
are important. These have been instrumental in the development and enrichment of legal
principles. In dealing with the facts the mufti consults the Quran, Hadis, Ijma and then gives
his ruling as to the law applicable.
● In India the most famous collection of Fatwas, compiled in Aurangzeb’s time, goes under the
name ‘FatwaAlamgiri’.
● The decisions of the Indian courts and Privy Council have considerably influenced the tenets
of Mohammedan law.
Legislation
● Though Mohammedan law in India is not codified yet, some aspects of Mohammedan law
have been regulated by acts of Legislature. Mohammedan law has been reformed to some
extent through legislations but reform of personal law nearly always poses a serious problem
for any government particularly if religion plays a part.
● The reference to the following important legislative enactments is quite evident to show how
Mohammedan law is greatly modified and developed by the legislation from time to time:
○ The Shariat Act, 1937
○ The Dissolution of Muslim Marriages Act, 1939
○ The Mussalman Wakf Validating Acts, 1913 and 1930
○ The Muslim Women Protection Act, 1986
Juristic Deductions (Principles of Justice, Equity and Good Conscience)
● Where there is a Conflict of opinion and there is no specific rule to guide the Court, the
Court follows that opinion which is more in accordance with justice, equity and good
conscience (Aziz Bano vs. Muhammad, 1925, 47 All. 823)
● Where the law analogically deduced is unadaptable to the present needs of the society or
where it is such that its rigid application would result in hardship to the people, then in such
cases rules of equity could be applied.
● Following juristic deductions are known to Mohammedan law
○ Istihsan (juristic preference)
○ AlMasalih (public interest)
○ Istidlal (process of inferring)
○ Ijtihad and Taqlid (interpretation and imitation)
⦁ Schools of law under Muslim Law; (2; Tapasya Marathe; 1284 words)
Schools of Muslim Law
( Introduction, history of schools, and the description of the founders can be ignored for the 5 marks
question;)
● Introduction: It is often said that in India there is no lex loci and every person is governed by
his personal law. Prima facie a Hindu residing in a particular part of India is deemed to be
governed by the school of Hindu law that operates there. Hindu schools have regional
connotations while it is not so in case of Muslims, it is as per sects. India has all sects of
Christians, the Protestants and the Catholics and others too. Though the Protestants are the
dominant Christians. Among Parsis there are no sects or schools.
● Schools of Muslim law: In Case of Muslims the schools have no territorial or regional
significance in the sense in which they have in relation to Hindus. There are two sects Sunni
and Shia who live all over India. The differences between the groups were mostly political
and dynastic. Doctrinal and Legal Differences begun to grow only in course of time
● Forming of Schools: After the death of Prophet Muhammad, the quarrel arose as to the
succession of Imamat (the leadership of Muslim Commonwealth) It was because of this
question that difference between people groups arose. They formed two groups and thus two
sects came into existence which divided the Islamic world into two groups. Thus the two
sects.
● Schools of Sunni Sect : The Sunnis contended that Prophet Mohammed never indicated any
such person to act as claimed by the Shias as a spiritual chief leader. Therefore he should be
elected by the Jamaat (mass of people) They believed in the principle of election. This
election was held in which Abu Bakra who was father of Ayesha Begum was elected and he
became the first caliph
1. The Hanafi schools covers a vast majority of Muslims all over India. The commercial
communities Cutchi and Halai Memons, before Shariat Act 1937 were governed by their
own customs and in some matters by Hindu Law. After 1937 it is not so. The hanafi schools
were found by Abu Hanifa. It is also known as the kufa school because Abu Hanifa was
born in kufa. Abu Hanifa main contribution was that instead of accepting each and every
traditional law he tried to find out the law in text of Quran itself through analogical
deductions. He earned the title of upholder of private judgement and great Imam. It is one of
the salient features of the school that out of large number of traditions the hanafi school
recognises only those traditions which have passed through the severe test regarding the
originality. Abu Hanifa is said to have relied upon 18 traditions only
2. to the Shafi'i schools are mostly found in Southern India. The Shafi schools were founded
by Mohammed Bin Idris.
3. The other two schools of this sect the Maliki and the Hanbali have hardly any adherents in
India. the Hanbai school was found by Ahmad Bin hanbal resident of Baghdad
4. The Maliki school was founded by Malik Ibn Anas. The Maliki school is the most
favourable to women. North Africa mainly follows Maliki law and women enjoy greater
rights. Unlike hanafi is the school emphasizes the importance traditions as a source of law.
According to the school as far as possible the new rules should be obtained exclusively from
the traditions. If it is not possible then only Qiyas and Ijma may be taken into consideration.
This made the approach of law more practical than that of the Hanafis. Does the interpreter
of law in new element called Istidlal was introduced.
The principles of these four schools of jurisprudence are substantially the same and they differ
slightly from each other merely in matters relating to minor details.
The followers of Abu Hanifa in India Pakistan Turkey and Central Asia from the largest group.
Maliki law is followed in north and West Africa. Shafi is followed in Indonesia Egypt East Africa
and Syria while Hannabali school is followed only in Arabia.
According to the sunnis the leader of Muslims is Khalifa the successor of Prophet who is the
temporal and political ruler rather than a religious chief for religious matters they must follow the
shariat. The Institution of the khalifat was abolished in 1924
● Schools of Shia Sect : ( the literal meaning of Shia is faction) The founder of The Shia school
is Imam Zafar. The people belonging to the Shia contended that, the Prophet Muhammad
had already indicated HajarataAli who was his son in law to act as his successor. Therefore
HajarataAli can only act as their Imam and hence, there is no question to elect any other
person who can supersede the claims of HajarataAli. Thus Shias did not accept the
authority of Jamaat)(mass of people) to elect a spiritual chief or leader. They only believed in
blood relationship.This minority group was represented by Fatima, daughter of the prophet.
Consequently Ali, who was son in law of the prophet and was also his cousin, was
nominated as the first Imam by the group of Muslims.
1. The Ismailis, who constitute the smallest minority group among the Muslims and who were
found in the Western and Central India are governed by the Ismaili schools of Shia. The
commercial communities Khoja and Bohras before Shariat Act 1937 were governed by their
own customs and in some matters by Hindu Law. After 1937 it is not so. These two
communities belong to the Shiite Ismaili school. The Ismaili sect is the dominant majority in
Persia. Elsewhere they are generally in minority.
2. Most of the Shias are governed by the Ithna Ashari schools. There were twelve imams.
Devar known as twelvers. hence Ithna Asharia. There important text is Sharia ul Islam
3. The Zaydis, followers of Zayd school of Shias are not found in India. zaidiyas consider
Imam merely a right guide. They seek his advice whenever it is needed. They are mostly
found in South Arabia
4. There are no followers of Ibadi school, another school of Shias in India either.
According to the shariat the Imam is the final interpreter of the law on earth. He is a leader not by
suffrage of the people but by divine right as descendant of the prophets. Some Shia sects like that
Dawoodi bohras originated as the outcome of a rebellion against the operation Sunni theology in
around 8 century a.d. and were considered to be reformative and emancipatory.
Both sunnis and shias agree on the core fundamentals of Islam the 5 pillars and recognise each other
as Muslims
● Other:
1. The Mopilias and the Meos are Hindu Converts to Islam and in some matters tye are still
covered by Customary law.
2. In case of Matrimonial law, the Hanafi school of Sunnis and the Ithana Ansari schools of
Shia are important.
3. Incase of other communities in India there are no schools, though local variations still exist
such as those living in urban areas and those living in mofussil. These variations exist either
on account of historical development of law of community concerned or on account of
variations introduced by custom
Every adult and sound mind Muslim make choose any school he or she likes and may renounce 1
school in favour of the another. When the parties to suit are Muslims of the same school the law of
the school will apply. If that do not belong to the same school then the law of the defendant School
will apply.
⦁ Discuss the different kinds of marriage under Muslim Law (4; Saloni; 1200 words)
KINDS OF MARRIAGE
Marriage or Nikah under Muslim law is defined to be a contract, the object of
which is procreation and legalising of children. There is no formality nor any
religious ceremony required for the marriage but since it is a contract, the usual
conditions to constitute a valid contract are to be fulfilled.
Kinds of marriage
According to Sunni law, the marriage may be classified into three categories:
I. Valid marriage (Sahih)

II.Void marriage (Batil)
III. Irregular marriage (Fasid)
Under Shia law, of the above mentioned marriages, Irregular Marriage, is not
recognised. Instead, Temporary Marriage, known as Muta is recognised.
I. Valid Marriage
➢ A marriage that conforms in all respects with Muslim law is termed as

valid/sahih marriage.
➢ Essentials:
(i)Competence of parties
Every Muslim who is of sound mind and has attained the age of puberty
is competent to marry. A Muslim is presumed to have attained puberty at
the age of 15 years. A person who has not attained the age of puberty is a
and is competent to marry only with the consent of the guardian.
Under the Muslim law the following the persons are regarded as in the
preferential order for contracting the marriage of minors:
⦁ Father
⦁ Paternal grandfather, however so high
⦁ Brother or other male members of the father’s family
⦁ Mother
⦁ Maternal uncle, aunt or other relations.
(ii) Free consent
The consent for the marriage should be free from all forces. Where the
parties to the marriage are sane and adult, it is their own consent which
is required. But if any of them is minor, or an insane, then the consent on
his or her behalf, must be given by the guardian.
If the consent is given under compulsion, fraud, mistake of fact, under

threat, it is not free and it cannot be said that such a person has intended
to what he/she has consented.
(iii) Completion of all formalities
Offer and Acceptance

The offer (Ijab) for the marriage is generally made from the side of the
boy or his guardian. The offer must also be accepted (Qubool) by the girl
or the guardian. The offer and acceptance should have been made at the
same sitting and in the presence of number of witnesses as prescribed
under the law. When it appears that the offer and acceptance are isolated,
there is no formation of marriage contract.
Dower / Mahr
Dower or mahr is the payment by the husband or his family to the wife
to support her especially in the event of his death. Dower if any has to be
specified in the marriage contract.
(iv) Absence of any impediment or prohibition
In a valid marriage, there must not exist any of the prohibitions laid
down under the Muslim personal law. Prohibitions are of two kinds:
⦁ Absolute prohibitions
⦁ Relative prohibitions
➢ Absolute prohibitions
(a) Polyandry : A married woman cannot contract another marriage while

her husband is alive and the marriage is subsisting.
(b) Consanguinity and Affinity : A man cannot marry his mother,

grandmother, granddaughter, sister, weather fully consanguine or
uterine, niece or greater niece, aunt or greater aunt weather paternal or
maternal. This is known as bar of consanguinity. Also a man cannot
marry his wife’s mother, grandmother, granddaughter, father’s wife,
son’s wife. This is called as prohibition on ground of affinity.
(c) Fosterage : Fosterage is another impediment to a valid marriage. So a

man cannot marry or intercourse with the relation prohibited on the
ground of consanguinity or affinity which arise on account of fosterage.
➢ Relative Prohibition
(a) Unlawful conjunctions

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.
Marriage with two such wives is an unlawful conjunction.
(b) Marriage with 5th wife
Muslim law allows a limited polygamy of four wives and prohibits a
man to marry with the 5th wife. However, marriage with the 5th wife is
only irregular and this irregularity can be removed either by divorcing
any of the four wives or if one of them dies, this irregularity does not
exist.
(c) Marriage with non muslim
A sunni male can contract a marriage with a kitabia female but he is
prohibited to marry a non muslim or non kitabia woman. However,
under the shia law, a marriage with any non muslim is void.
(d) Marriage without witness
A marriage contracted without the witness as required under the law is
irregular but not void.
(e) Marriage during Iddat
Marriage with a woman undergoing Iddat is prohibited under muslim
law. Iddat is the period which is incumbent upon a woman, whose
marriage has been dissolved by death or divorce to remain in seclusion
and abstain from marrying another man.
II.Irregular (fasid) marriage
If there exists any of the relative prohibitions in the marriage then it is

termed as irregular marriage. An irregular marriage is not a valid marriage
to begin with but it can be validated and made a fully valid marriage by
removing the impediment, or by remedying the prohibition. It is totally
ineffective before consummation. Either party has a right to terminate it at
any time, either before or after consummation, by just expressing an
intention to do so.
III. Void (batil) marriage
When a marriage is performed in violation of absolute or perpetual

impediments or with forced consent, or without the consent of guardian (in
case of minors or lunatics) the marriage is batil or void ab initio. A void
marriage is no marriage and no legal consequences flow from it. Neither is
confers the status of husband and wife on the parties, nor the status of
legitimacy on the children, nor do mutual rights and obligations arise from
such marriage.
IV. Muta – temporary form of marriage :
➢ Mutant is recognized in Shia school of Muslim law only. It may be

defined as a temporary union of male and female for specified duration,
on payment of some consideration.
➢ Essentials:
(i) 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 guardian.
(ii)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. But, a Shia woman cannot contract Muta
with any nonMuslim.
(iii) There is no restriction as to the number of Мutаwives. One may

contract a Muta form of marriage with as many wives at a time as he
likes.
(iv) The consent of both the parties must be a free consent.
(v) 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.
(vi) There must not exist any prohibited relationship between the
parties.
(vii) The dower (consideration) must be specified at the time of the

contract. Where the dower has not been fixed, the Мutаmarriage is
void.
➢ In practice, however the institution of muta marriage is almost obsolete

in India.
⦁ Discuss different kinds of talaq: concept, procedure; (6 Agastya; 572 words)
Introduction:
• Among the PreIslamic Arabs, the power of divorce possessed by the husband was unlimited.
• They could divorce their wives at any time, for any reason or without any reason.
• They could also revoke their divorce as many times as they so wished.
• The Prophet Muhammad disapproved of these customs, noting that, ‘the most detestable of all
things permitted is divorce,’
Classification of Muslim divorces:
• By the death of a spouse

• By the act of a party
• By the husband
• Talak
• Ila
• Zihar
• By the wife
• Talaketafweez
• By mutual or common consent
• Khula
• Mubara’at
• By judicial process
• Lian
• Faskh
Talak introduction:
• Talak literally means, ‘taking off any tie or restraint;’ in law it signifies dissolution of marriage
• Any Mahomedan of sound mind, who has attained puberty, may divorce his wife whenever he
desires without assigning any cause [Ahman Kasim v/s Khatun Bibi, 1932, 59. Cal.833]
• Talak can be effected orally or by a written document known as Talaknama
• If the words are expressly (saheeh) or well understood to mean divorce, no proof of intention is
necessary. If the words are ambiguous (kinayat), the intention must be proved
• It is not necessary that the talak is pronounced in the presence of the wife. It may be pronounced
in her absence, when it comes to her knowledge, it is binding on her and she is supposed to
observe ‘iddat’
Types of Talak [male]:
• Talakussunnat: this form carries the approval of the Prophet Muhammad and has two forms
• Talak ahsan: the most proper form
• Single pronouncement of divorce during a ‘tuhr’ [meaning purity or when wife is free from
menstrual courses] during which husband did not have intercourse with her, and then leaves
her to the observance of Iddat
• The husband can revoke this divorce until the period of Iddat is completed
• Talak hasan: proper form
• Three pronouncements made during successive ‘tuhrs’. Intercourse should not have taken
place during any of these periods.
• Irrevocable and complete on the third pronouncement irrespective of Iddat
• Talakulbiddat: common in India and has two forms
• TalaqulRajai:
• Three pronouncements of divorce during a single tuhr
• Can be, ‘I divorce thee thrice’ or ‘I divorce you’ said three times
• Irrevocable after period of Iddat is complete
• TalakiBain: irrevocable talak
• Single pronouncement of divorce during a tuhr clearly indicating an intention to dissolve the
marriage
• This is not a revocable talak, and is immediately effected after pronouncement
Other forms of divorce that can occur through husband’s actions:
• Ila: Vow of continence

• The husband swears in the name of Allah that he will not have sexual intercourse with his wife
and abstains from the same for four months, the divorce is effected
• May be revoked by the husband within the said period of four months
• Zihar: injurious assimilation or comparison
• The husband compares his wife to his mother or any other female within prohibited degrees of
relationship
• Following this, the wife no more remains the husband’s wife for the purposes of sexual
intercourse. Thus she may refuse herself to him until he repents and pays money to her
Types of Talak [female]:
• Talaketafweez: delegated divorce

• The power to give divorce can be delegated to a wife or a third person, either absolutely or
conditionally
• In a Muslim marriage agreement, provisions can be made for times when the woman is
permitted to divorce
• For example a clause in the agreement can note that if the husband treats the wife cruelly she
can conduct talaketafweez
⦁ Discuss the provisions of maintenance under Muslim Law with case Laws (3; Namrata;
1520 words)
Maintenance of Woman + Case laws
Maintenance, under the Muslim law, is known as ‘nafqah’ or ‘nafkah’. It includes all the
basic necessities of life, which is required by a person for the sustenance of his or her life.
According to Halsbury’s law of England, maintenance is the name given to the weekly or
monthly payments which may be ordered on a decree of divorce, or nullity to be made for the
maintenance and support of the wife during the joint lives of the spouses, which may be made
in the proceedings for divorce, nullity, judicial separation of restitution of conjugal rights. In
the words of Baillie, maintenance signifies all those which are necessary for the support of
life and includes suitable food, raiment and lodging.
Under Muslim law, the obligation of a Muslim to maintain arises only if the claimant has no
means to maintain him or herself. A person may have the right to be maintained by the other
on the basis of (i) the marriage; and (ii) the blood relationship.
Maintenance of Wife
(I) Maintenance during the subsistence of marriage

(a) Husband’s obligation to maintain is absolute
During the subsistence of a marriage, a Muslim husband is bound to maintain his
wife even if she is rich; having means to maintain her and even the husband is
necessitous having no means to maintain. She is entitled to a separate apartment
exclusively for herself and her husband.
(b) Marriage must be valid
A husband is bound to maintain his wife of a valid (Sahih) marriage and not of a
void or irregular marriage. He is bound to maintain the wife of an irregular
marriage only when the marriage is irregular for want of witnesses. It is
immaterial whether the marriage is consummated or not.
(c) Wife has attained puberty
The wife will not be entitled to maintenance if she has not attained puberty. The
husband’s duty to maintain commences only from the date when the wife attains
puberty and not before that. But under the Shafi law, the wife is entitled to
maintenance immediately on marriage, even though she has not attained puberty.
Where a wife is too young for sexual intercourse and lives with her parents, she
has no right to claim maintenance.
(d) Wife’s faithfulness and obedience
The husband’s obligation to maintain his wife exists only so long as she remains
faithful to him and obeys his reasonable commands. 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.
(II) Maintenance after the dissolution of marriage
Maintenance of a divorced Muslim woman may be discussed under the following
grounds:
(a) Muslim Personal Law
(b) Section 125 of the Code of Criminal procedure, 1973 (CrPC)
(c) The Muslim Women (Protection of Rights on Divorce) Act, 1986
(a) Maintenance of Divorced Woman under Muslim Personal Law

A Muslim husband’s duty to maintain his divorced wife extends only upto the
period of ‘Iddat’ and thereafter, his liability is over.
A marriage may be dissolved either by death or divorce or an apostasy. The law
relating to maintenance during these three circumstances is different:
(i) Dissolution by death: When a marriage is dissolved by death, the wife is not
entitled to maintenance even during the period of ‘Iddat’, even though she is
pregnant.
(ii) Dissolution by divorce: When a marriage is dissolved by divorce, the wife is
entitled to maintenance during the period of Iddat. It is immaterial whether the
divorce is revocable or irrevocable and she is pregnant or not. The period of ‘Iddat’
upon divorce is three menstrual courses or three lunar months. In case the wife is
pregnant, the period would be extending the time delivery, or abortion, even if it is
beyond three months.
The ‘Quran’ provides for the maintenance of a divorce wife in the following
words: “For the divorced woman let there be a provision in kindness; this is an
obligation for those who are mindful of God.”
It may be noted that Muslim law does not prescribe any maximum or minimum
amount to be given during ‘Iddat’ of the divorce wife. The court is competent to fix
any amount, payable daily or monthly or annually, keeping in view the
socioeconomic status of the husband and wife.
If the maintenance is paid by the husband in advance, he would not be entitled to
recover it even though marriage is dissolved either by death or divorce.
(b) Section 125 of the Criminal Procedure Code
A wife, whether Muslim or NonMuslim, is entitled to claim maintenance against
the husband under section 125 of the CrPC, 1973. Section 125 of the code defines
wife and includes ‘a woman who has been divorced by or has obtained a divorce
from her husband and she has not remarried.’ So, now a Muslim husband can’t
defeat the claim of his wife by pronouncing Talaq on her. Muslim husband is liable
to provide maintenance for divorced wife who is unable to maintenance herself, so
long as she not remarried.
Case Laws
Mohd. Ahmed Khan v. Shah Bano Begum
1985 AIR 945, 1985 SCR (3) 844
Facts
In 1975, the appellant drove the respondent out of the matrimonial home. In April
1978, the respondent filed a petition against the appellant under section 125 of the
CrPC, asking for maintenance of Rs. 500 per month, in view of the professional
income of the appellant which was about Rs. 60,000 per month. On November 6,
1978, the appellant divorced the respondent by an irrevocable ‘talaq’ and took up
the defence that she ceased to be his wife by reason of the divorce granted by him;
that he was, therefore under no obligation to provide maintenance for her; that he
had already paid maintenance at the rate of Rs. 200 per month for about two years,
and that, he had deposited a sum of Rs. 3000 in the court by way of “dower or
mahr” during the period of ‘Iddat’. The wife, however, did not remarry. The
magistrate directed the appellant to pay a sum of Rs. 25 per month as maintenance
which was revised to Rs. 179.20 per month by the High Court of Madhya Pradesh.
Hence the special leave petition by the husband.
Held
The Supreme Court 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. The Hon’ble court also held that section 125 of the CrPC
applies to all irrespective of the religion practised by the person and section 125
overrides the personal law if there is any conflict between the two. It was further
held that it would be incorrect and unjust to extend the above principle of Muslim
law to cases in which the divorced wife is unable to maintain herself, so if the
divorced wife is able to maintain herself, the husband’s liability ceases with the
expiration of the ‘Iddat’ period, but if she is unable to maintain herself after the
said period, she is entitled to have recourse to section 125 of the CrPC.
(c) The Muslim Women (Protection of Rights on Divorce) Act, 1986
The act extends to the whole of India and makes provisions for the maintenance of
a divorced Muslim woman during the period of ‘Iddat’ and also for enforcing
claim to unpaid dower and other exclusive properties. The fair and reasonable
provision and maintenance contemplated under section 3(1)(a) payable by the
husband is restricted only for the period of Iddat and the liability of the husband to
provide any provision or maintenance after the period of ‘Iddat’ does not arise.
Case Law
Musarat Jahan v. State of Bihar
AIR 2008 Pat 69
In this case it was held by the Patna High Court that under section 3(1) (a) of the
Muslim Women Act, 1986, a divorce Muslim woman would be entitled to
maintenance continuously and beyond ‘Iddat’ period till she remarries or she is
able to maintain herself.
Md. Zakir Hussain v. State of Bihar
AIR 2009 (NOC) 1020 (Pat)
In this case, where a minor wife and her child claim maintenance under section 3 of
the act, the court made it clear that unless divorce takes place, this act would not
apply. Hence, neither to petitioner nor her minor child would be entitled to get
maintenance since it is only after woman had been divorced that Act becomes
applicable.
Maintenance of Widow
The wife’s right to claim maintenance from husband ceases as soon as her husband dies.
After the husband’s death, widow is not entitled to maintenance even during her period of
Iddat. Husband’s liability to maintain his wife is his personal liability which comes to an end
upon his death. She is neither entitled to be maintained by relatives of her husband nor out of
her husband’s properties. Moreover section 125 of the CrPC, 1973 does not include ‘widow’
in the term ‘wife’ therefore; a widow has no right to claim maintenance also under the section
125 of the CrPC.
Indian Divorce and Christian Marriage Act
⦁ Discuss provisions for dissolution of marriage under Indian Divorce Act (3, Arun; 733
words)
Grounds For Divorce [ Indian Divorce Act, 1869 & Indian Divorce
(Amendment) Act, 2001 ]
Grounds for Divorce
Under Section 10 of the Indian Divorce (Amendment) Act, 2001, the grounds on which
divorce can be applied by either husband or wife are:
1) Committing adultery (i.e. has consensual sexual intercourse outside of marriage)
Explanation (Under Sec 11): Adulterer or adulteress to be co respondent On a petition for
dissolution of marriage presented by a husband or wife on the ground of adultery, the
petitioner shall make the alleged adulterer or adulteress a co respondent, unless the petitioner
is excused by the Court from so doing on any of the following grounds, namely:
a) When the wife is the respondent – If she is leading the life of a prostitute
When the husband is the respondent – If he is leading an immoral life and that the
petitioner knows of no person with whom the adultery has been committed
b) That the name of the alleged adulterer or adulteress is unknown to the petitioner
although the petitioner has made due efforts to discover it
c) That the alleged adulterer or adulteress is dead.
2) Ceasing to be Christian by conversion to another religion
3) Incurability of an unsound mind for a continuous period of not less than 2 years
immediately preceding the presentation of the petition
4) Has been suffering from a virulent and incurable form of leprosy; for a period of not less
than 2 years immediately preceding the presentation of the petition
5) Has been suffering from venereal disease in a communicable form for a period of not less
than 2 years immediately preceding the presentation of the petition
6) Has not been heard of being alive for a period of 7 years or more
7) Wilful refusal to consummate the marriage, and the marriage not having been
consummated
8) He / She has failed to comply with a decree for restitution of conjugal rights for a period
of 2 years or upwards after the decree has been passed against the respondent.
Explanation (Under Sec 32) : When either the husband or the wife has (without any
reasonable excuse) withdrawn from the society of the other, either of them may apply, by
petition to the District Court for restitution of conjugal rights, and the Court may decree
restitution of conjugal rights based on truth of the statements.
9) He / She has deserted the petitioner for at least 2 years immediately preceding the
presentation of the petition for divorce
10) Cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would
be harmful or injurious for him / her to live
Divorce by Mutual Consent (Section 10(a) of Indian Divorce (Amendment) Act, 2001)
1) Section 10(a) has been inserted allowing for divorce by mutual consent.
2) A separation of 2 years is required (as against other legislations which provide for only 1
year separation period) before filing a petition for divorce by mutual consent.
Grounds for Divorce (Available only to wife)

There are 2 more grounds on which divorce can be applied but are exclusive to the wife:
a) Rape
b) Sodomy
c) Bestiality
This exclusive right given to the wife was challenged as discriminatory against the husband
as the same grounds were not available to a Christian man against his wife for dissolution of
marriage (Case law Anil Kumar Mahsi vs Union Of India). The Courts in this regard held
that the legislature that the said two grounds are made available to the wife and not to the
husband for seeking dissolution of the marriage due to following reasons :
a) Muscularly weaker physique of the woman
b) Women’s general vulnerable physical and social condition and
c) Women’s defensive and nonaggressive nature and role particularly in India
Additional provisions for declaring the marriage null and void

There are also additional provisions for declaring the marriage null and void:
1) If the respondent party was impotent at the time of marriage and institution of the suit
2) The parties are within the prohibited degrees of consanguinity (whether natural or legal)
or affinity
3) If one of the parties was a lunatic / idiot at the time of marriage
4) If either of the parties had been into a marriage already and that wife or husband is still
alive at the time of marriage and institution of the suit.
Indian Succession Act
⦁ Write a note on law of domicile relating to Indian Succession Act (5; Ammar; 1863
words)
Domicile has been defined to be the country which is taken to be a man’s permanent home for the
purpose of determining his civil status. Domicile may be acquired by birth, by choice and by
operation of law. At the time of its inception, the Indian Succession Act 1925 had special
significance due to the fragmented nature of what we now consider to be the unified Indian state.
With many different governing elements within close proximity of each other this act specifically
applied to ‘British India’ and dealt with succession within this territory, however, it now applies to
the independent Indian Republic. Domicile is important in discerning the territorial law and
jurisdiction that is applicable to a particular succession procedure.
Application:
This part will not apply if the deceased person is Hindu, Muhammadan, Buddhist, Sikh or Jaina
Section 5 (ISA 1925)
Law regulating succession to deceased person's immoveable and moveable property, respectively.
(1) Succession to the immoveable property in India( and the state within) of a person deceased shall
be regulated by the law of India( and said state) wherever such person may have had his domicile at
the time of his death.
(2) Succession to the moveable property of a person deceased is regulated by the law of the country
in which such person had his domicile at the time of his death.
Illustrations
(i) A, having his domicile in India dies in France, leaving moveable property in France, moveable
property in England, and property, both moveable and immoveable, in India The succession to the
whole is regulated by the law of India
(ii) A, an Englishman, having his domicile in France, dies in India and leaves property, both
moveable and immoveable, in India The succession to the moveable property is regulated by the
rules which govern, in France, the succession to the moveable property of an Englishman dying
domiciled in France. The succession to the immoveable property however is regulated by the law of
India
Principle and scope of section:
This section follows the tenets of private international law that state that all rights of immovable
properties are governed by the laws of the country in which those properties are situated( Bonnaud v
Emile Charriol 32 Cal 631 (640) and applies to both testate and intestate succession. Thus even if a
foreign domicile dies leaving a will with respect to immovable property in India the Indian court will
have jurisdiction to grant probate in respect of that will.
Onus of proof:
The onus of proof is on the persons who attack a settlement of movable property on ground of
nationality to show that the settlor and if successful the onus is then on the persons supporting the
settlement to to show that the settlor had acquired a domicile in India and should be administered
according to Indian Laws.
Section 6
One domicile only affects succession to moveables.
A person can have only one domicile for the purpose of the succession to his moveable property
even if he has multiple domiciles for other purposes.
Section 7
The domicile of origin of every person of legitimate birth is in the country in which at the time of his
birth his father was domiciled; or, if he is a posthumous child, in the country in which his father was
domiciled at the time of the father's death.
Illustration
At the time of the birth of A, his father was domiciled in England. A's domicile of origin is in
England, whatever may be the country in which he was born. This prevents from there being any
confusions in domicile in case of accidental birth or birth in transit etc.
Concept
Every individual at the time of birth has to become the subject of some particular country. It is a
settled principal that no man that no man shall be without domicile and to secure this the law
attributes every individual with the domicile of the father if the child is legitimate. Where the parents
of a child are unknown the domicile of origin is the place of the child’s birth or where it is found.
Section 8
Domicile of origin of illegitimate child.The domicile of origin of an illegitimate child is in the

country in which, at the time of his birth, his mother was domiciled.
Section 9
Continuance of domicile of origin.The domicile of origin prevails until a new domicile has been
acquired
Concept
The domicile of origin is to prevail until the party has not only acquired another, but has manifested
and carried into execution an intention of abandoning his former domicile and taking another as his
sole domicile.( Somerville v Somerville ). No new domicile can be enacted without actual residence
in new location and without clear intention to abandon the old. Temporary residence does not change
domicile. Every presumption of domicile is to be made in favour of the original domicile. The law
leans very strongly in favour of retention domicile of origin. Thus when there is no declaration of
intention either way, the courts would be slow to infer from the residence however protracted that
there is substation of domicile of origin.
Onus of proof
Onus of proof is on the person alleging that a man has acquired a domicile of choice he must prove
to the court the intention of said man.( Santos v Pinto 41 Bom 687)
Domicile and nationality
Domicile and nationality are two very different things as pointed out by Lord Westbury in Udny v
Udny where he states that a man has a distinct political status and civil status. He says this political
status may depend on different laws in different countries but this civil status is governed universally
by the singular principle of domicile. A man may change his domicile without divesting his
nationality and conversely there may be change on nationality without change in domicile.
Section 10
Acquisition of new domicile. A man acquires a new domicile by taking up his fixed habitation in a
country which is not that of his domicile of origin. Explanation.A man is not to be deemed to have
taken up his fixed habitation in India merely by reason of his residing there in the civil, military,
naval or air force service of Government, or in the exercise of any profession or calling.
Illustration
(i) A, whose domicile of origin is in England, proceeds to India, where he settles as a barrister or a
merchant, intending to reside there during the remainder of his life. His domicile is now in India.
iii) A, whose domicile of origin is in France, comes to reside in India under an engagement with the
Central Government for a certain number of years. It is his intention to return to France, at the end of
that period. He does not acquire a domicile in India.
(iii) A, whose domicile is in England, goes to reside in India for the purpose of winding up the
affairs of a partnership which has been dissolved, and with the intention of returning to England as
soon as that purpose is accomplished. He does not by such residence acquire a domicile in India,
however long the residence may last.
(iv) A, having gone to reside in India in the circumstances mentioned in the last preceding
illustration, afterwards alters his intention, and takes up his fixed habitation in India. A has acquired
a domicile in India.
Concept
Domicile of choice is acquired by a combination of fact and intention. The fact is residence and the
intention is that the residence should be permanent (Santos v Pinto) Bom 687 (703)
Onus of Proof
Onus of proof of proving abandonment of the domicile of origin and acquisition of a new one is on
the person who sets up such a change of domicile.
Section 11
Special mode of acquiring domicile in India.Any person may acquire a domicile in India by making
and depositing in some office in India, appointed in this behalf by the State Government, a
declaration in writing under his hand of his desire to acquire such domicile; provided that he has
been resident in India for one year immediately preceding the time of his making such declaration.
Section 12
Domicile not acquired by residence as representative of foreign Government, or as part of his

family. A person who is appointed by the Government of one country to be its ambassador, consul
or other representative in another country does not acquire a domicile in the latter country by reason
only of residing there in pursuance of his appointment; nor does any other person acquire such
domicile by reason only of residing with such firstmentioned person as part of his family, or as a
servant.
Section 13
Continuance of new domicile.A new domicile continues until the former domicile has been resumed
or another has been acquired.
Concept
The domicile of origin having been abandoned and a new domicile acquired, the new domicile may
be likewise abandoned and a third domicile acquired. However once again, mere abandonment is not
enough, preceding domicile continues until intention of another change of domicile is carried into
execution.
Section 14
Minor's domicile. The domicile of a minor follows the domicile of the parent from whom he derived
his domicile of origin.
Exception.The domicile of a minor does not change with that of his parent, if the minor is married,
or holds any office or employment in the service of Government, or has set up, with the consent of
the parent, in any distinct business.
Section 15
Domicile acquired by woman on marriage.By marriage a woman acquires the domicile of her
husband, if she had not the same domicile before.
Section 16
Wife's domicile during marriage.A wife's domicile during her marriage follows the domicile of her
husband.
Exception.The wife's domicile no longer follows that of her husband if they are separated by the
sentence of a competent Court, or if the husband is undergoing a sentence of transportation.
ConceptIn the absence of a decree of judicial separation or divorce a wife cannot obtain a separate
domicile from that of her husband. Even after divorce until she exercises her option of new domicile
her marital domicile does not change.
Reality This rule has been widely considered tyrannical and outmoded. In Narsimarao vs
Venkatalakshmi the Supreme Court found in a matrimonial dispute for divorce that a woman
domiciled in India married to a man who was domiciled in Missourie USA could not be said to have
lost her domicile and in India and be subjected to the jurisdiction of the US court. This basically
overrides the rule of section 16.
Section 17
Minor's acquisition of new domicile.Save as hereinbefore otherwise provided in this Part, person
cannot, during minority, acquire a new domicile.
Section 18
Lunatic's acquisition of new domicile. An insane person cannot acquire a new domicile in any other
way than by his domicile following the domicile of another person.
Section 19
Succession to moveable property in India in absence of proof of domicile elsewhere. If a person
dies leaving moveable property in India, in the absence of proof of any domicile elsewhere,
succession to the property is regulated by the law of India.
⦁
⦁ Discuss types of wills under ISA (3; Rahul Tripathi; 2047 words)
Indian Succession Act, 1925 is the main law in India which governs the Wills made by persons other
than Muslims. The law relating to Wills is contained in Part VI Chapters 1 to 23 of the Indian
Succession Act, 1925. Wills made by Mohammedans are governed by the provisions of
Muhammadan Law.
2. DEFINITIONS OF WILL
'Will' shall include codicil and every writing making a voluntary posthumous disposition of property.
General Clauses Act, S.3 (64).
'Will' denotes any testamentary document. Indian Penal Code, 1860, S.31.
'Will' means a legal declaration of the intention of a testator with respect to his property, which he
desires to be carried into effect after his death. Indian Succession Act, 1925, S.2 (h).
The Will takes effect only after the death of the testator (i.e. the author of the Will). The will is
revocable during the life time of the testator.
KINDS OF A WILL
The Indian Succession Act mentions to two kinds of Wills privileged will and unprivileged will.
However, there are nine kinds of wills as under.
(1) Privileged Will and Unprivileged Will

(2) Contingent or Conditional Will
(3) Joint Will
(4) Mutual (or Reciprocal) Will
(5) Duplicate Will
(6) Concurrent Will
(7) Sham Wills
(8) Holograph Will
(9) Inofficious Will
(1) Privileged and Unprivileged Wills

Wills executed according to the provisions of section 63 of the Indian Succession Act are called
Unprivileged Wills and Wills executed under section 66 of the Act, by a soldier employed in an
expedition or engaged in actual warfare, or by an airman so employed or engaged, or by mariner
being at sea, are called Privileged Wills.
It is provided in the Act that such a Will may be written wholly by the testator with his own hands
and, in such a case, it need not be signed or attested; or it may be written wholly or in part by another
person, in which case, it may be signed by the testator but need not be attested. If, however, an
instrument purporting to be a Will is written wholly or in part by another person and is not signed by
the testator, it shall be deemed to be his Will, if it is shown that it was written by the testator’s
directions or was recognised by him as him Will. If, on the face of it, the instrument appears to be
incomplete, it shall nevertheless, be deemed to be the Will of the testator, provided the fact that it
was not completed, can be attributed to some cause other than the abandonment of the testamentary
intentions expressed in the instrument. Further, if such a soldier, airman or mariner has written
instructions for the preparation of his Will, but has not died before it could be prepared and executed,
the instructions shall be deemed to be his Will; and if such a person has, in the presence of two
witnesses, given verbal instructions for the preparation of his Will, and such instructions have been
reduced to writing in his lifetime, but he has died before the Will could be prepared and executed,
then such instructions are to be considered to constitute his Will, although they may not have been
reduced into writing in his presence, nor read over to him. It is also provided that such a soldier,
airman or mariner may make a Will by word of mouth by declaring his intention before two
witnesses present at the same time, but such a Will shall become null at the expiration of one month
after the testator, being still alive, has ceased to be entitled to make a privileged Will.
An unprivileged Will like Codicil can be revoked by the testator only by another Will or by some
writing declaring an intention to revoke the same and executed in the manner in which an
unprivileged Will can be executed under the Act or by burning, tearing or destroying of the same by
the testator or by some other person in his presence and by his directions with the intention of
revoking the same.
Mere loss of a Will does not operate as a revocation but where a Will is destroyed by the testator or
with his privacy or approbation, it is to be deemed to have been revoked.
No obliteration, interlineations or other alternation made in any unprivileged Will after the execution
thereof, can have any effect except so far as the words or meaning of the Will have been thereby
rendered illegible or unidiscernible, unless such alteration has been executed in the same manner as
is required for the execution of the Will; but a Will, as so altered, shall be deemed to be duly
executed if the signature of the testator and the subscription of the witnesses is made in the margin or
some other part of the Will opposite or near to such alternation, or at the foot or end or opposite to a
memorandum referring to such alteration, and written at the and or some other part of the Will.
A privileged Will or Codicil may be revoked by the testator by an unprivileged Will or codicil, or
buy any act expressing an intention to revoke it and accompanied by such formalities as would be
sufficient to give validity to a privileged Will, or by the burning, tearing or otherwise destroying the
same by the testator or by some person in his presence and by his direction with the intention of
revoking the same. In such cases, it is not necessary that the testator should, at the it time of doing
the act which has the effect of revocation of the Will or Codicil, be in a situation which entitles him
to make a privileged Will.
Every Will is revoked by the marriage of the maker, except a Will made in exercise of a power of
appointment, when the property over which the power of appointment is exercised, would not, in
default of such appointment, pass to his or her executor or administrator, or to the person entitled in
case of intestacy.
This rule as to revocation of a Will by marriage, does not, however, apply to Wills and codicils
executed by Hindus, Buddhists, Sikhs or Jains.
An unprivileged Will which has once been validly revoked cannot be received otherwise than by the
re – execution thereon with the prescribed formalities, or by a codicil executed with such formalities
and showing an intention to revive the same. When a Will or a codicil, which has been partly
revoked and afterwards wholly revoked, such revival cannot extend to so much thereof as has been
revoked before the revocation of the whole thereof, unless and intention to the contrary is shown by
the Will or codicil.
It has already been stated that in the case of Hindus, Buddhists, Sikhs and Jains a Will could validly
be made orally and no formalities for the execution of a Will are required. This rule, however, did
not apply to Wills made by Hindu, Buddhists, Sikhs or Jains, on or after the 1st of September, 1870,
within the territories which were subject to the Provincial Government of Bengal or in the local
limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay, and
also, to all such Wills and codicils made outside those territories or limits so far as they related to
immovable property situated within these territories or limits. The execution of such Wills was
previously regulated by the Hindu Wills Act (XXI of 1870). Except in the cases mentioned in that
Act, oral Wills could be made by person’s professing the Hindu, Buddhist, Sikh and Jain religions. A
question, however, arises whether the Indian Succession Act, 1925 has the effect of depriving such
persons of the privilege of making oral Wills, or whether the provisions of section 63 of the Act do
not merely provide for the formalities which must be observed, if any of such persons chooses to
‘execute’ a Will, i.e., chooses to reduce his testamentary dispositions to writing. It will be observe
that section 63 of the Act provides for the manner of ‘execution’ of unprivileged Wills, it does not
deal with the question of the ‘making’ of such Wills.
That the Act seems to make a distinction between the ‘execution’ and the ‘making’ of Wills, will
appear from a comparison of the phraseology of sections 63 and 66 of the Indian Succession Act,
1925. While section 63 refers to the ‘execution’ of unprivileged Wills, section 63 refers to the
‘execution’ of unprivileged Wills, section 66 prescribes the ‘mode of making’ and rules for
executing Privileged Wills’. A distinction, therefore, seems to be contemplate between the
‘execution’ and the ‘making’ of a Will. The former expression apparently applies to cases where the
Will is to be reduced to writing, and the expression ‘making of a Will’ includes the execution of a
Will and also an oral declaration by the testator of his testamentary disposition of his estate, if such
declaration legally amounts to a Will. The matter is a debatable one, and no definite opinion,
therefore, need be expressed on it at this stage.
(2) Conditional or Contingent Wills

A Will may be expressed to take effect only in the event of the happening of some contingency or
condition, and if the contingency does not happen or the condition fails, the Will is not be legally
enforceable. Accordingly, where A executes a Will to be operative for a particular year, i.e. if he dies
within that year. A lives for more years, after that years. Since A does not express an intention that
the Will be subsisting even intestate. A Conditional Will is invalid if the condition imposed is invalid
or contrary to law.
(3) Joint Wills

A Joint Will is a testamentary instrument whereby two or more persons agree to make a conjoint
Will. Where a Will is joint and is intended to take effect after the death of both, it will not be
enforceable during the life– time of either. Joint Wills are revocable at any time by either of the
testators during their joint lives, or aster the death of one, by the survivor.
A Will executed by two or more testators as a single document duly executed by each testator
disposing of his separate properties or his joint properties is not a single Will. It operates on the death
of each and is in effect for two or more Wills. On the death of each testator, the legatee would
become entitled to the properties of the testator who dies.
(4) Mutual (or reciprocal) Wills

A Will is mutual when two testators confer upon each other reciprocal benefits by either of them
constituting the other his legatee. But when the legatees are distinct form the testators, there can be
no position for Mutual Wills.
(5) Duplicate Wills

A testator, for the sake of safety, may make a Will in duplicate, one to be kept by him and the other
to be deposited in the safe custody with a bank or executor or trustee. If the testator mutilates or
destroys the one which is in his custody it is revocation of both.
(6) Concurrent Wills

Generally, a man should leave only one Will at the time of his death. However, for the sake of
convenience a testator may dispose of some properties in one country by one Will and the other
properties in another country by a separate will.
(7) Sham Wills

If a document is deliberately executed with all due formalities purporting to be a Will, it will still be
nullity if it can be shown that the testator did not intend it to have nay testamentary operation, but
was to have only some collaterally object. One thing must be borne in mind that the intention to
make the Will is essential to the validity of a Will.
(8) Holograph Wills

Such Wills are written entirely in the handwriting of the testator.
(9) Inofficious Will

It is a will which is not consonant with the testator's natural love, affection and moral duty. Under an
inofficious will a testator bequeaths all his property to a stranger or a third party instead of to his
children, his wife (or her husband), and other near relatives.
⦁ Explain testamentary succession under ISA (2; Prathamesh; 1044 words)
Testamentary Succession
Meaning
⦁ Testamentary succession is the situation where a deceased person has left a
“will”.
⦁ Will is defined under section 2(h) of The Indian Succession Act, 1925
(hereinafter referred to as “the Act”) as “will means the legal declaration of
the intention of a testator with respect to his property which he desires to be
carried into effect after his death.”
In such cases i.e. where a deceased person has left a will, he is called
“testator”.
Applicability
⦁ As per Sec. 57 of the Act, provisions of testamentary succession, subject to
restrictions and modifications as given in Schedule III, shall apply to:
i. All wills and codicils made by a Hindu, Buddhist, Sikh or Jain within
the erstwhile province of Bengal or within the cities of Madras or
Bombay.
As per Sec. 2(b) of the Act, codicil means an instrument made in
relation to a will, and explaining, altering or adding to its dispositions,
and shall be deemed to form part of the will.
ii. To all such wills and codicils made outside the above territories,
provided that such wills or codicils are in respect of immoveable
properties situated within the territories mentioned in (i) above.
iii. To all wills and codicils made by any Hindu, Buddhist, Sikh or
Jain after 1st January, 1927, provided that marriage would not revoke
such will or codicil.
⦁ As per Sec. 58 of the Act, provisions of testamentary succession don’t

apply to Mohammedans.
Important aspects for a valid testamentary succession under the Act
⦁ The will should be a legal will for the Court to consider it as a testamentary
document and thereby grant probate which essentially grants validity to the
will. The mere fact that the writer of the instrument calls it a “will” does
not make it a testamentary document, if it fails to fulfil any of the
following four conditions:
i. Legal declaration
The document purporting to be a will must be legal i.e. in conformity
with the provisions as regards execution and attestation as laid down in
Sec. 63 of the Act, and must be made by a person competent to make it.
Under Sec. 59, every person of sound mind and not being a minor is
competent to make a will.
ii. Property of the testator

The declaration should relate to the property of the testator which he
wants to dispose of. Merely appointing a manager to manage the
property, or giving an authority to widow to adopt, is not a will.
iii. Effectuate after death

The declaration as regards the disposal of the property of the testator
must be intended to take effect after his death and not during his
lifetime.
iv. Revocable
The will must be revocable during the lifetime of the testator. However,
mere fact that testator calls it “irrevocable” or agrees not to revoke it,
does not make the will irrevocable (exception: mutual will).
⦁ Except in case of soldiers, airmen and mariners (who are allowed to make
privileged wills which can be oral under sec.66), the will should satisfy the
following three conditions:
i. Testator must sign or affix his mark to the will.

ii. Such signature or mark should be so placed that it appears that it was
intended to give effect to the writing.
iii. It should be attested by at least two witnesses.
⦁ A will is void if it is made in any of the following circumstances:
i. Will by minor, lunatic etc. (Sec. 59)

ii. Will caused by fraud, coercion etc. (Sec. 61)
iii. Oral privileged will, one month after the testator has lost entitlement to
make such a will. [Sec.66(h)]
iv. Uncertain will i.e. intention of the testator is not definite (Sec. 89)
⦁ A void bequest does not make the entire will void. For example, a testator
is not allowed to make a bequest to an attesting witness. If he does so, only
that particular clause will be void, the rest of the will remains valid.
⦁ As per Sec. 67 of the Act, any bequest or appointment shall be void in so
far as it concerns the person attesting the will, or the wife or husband of
such person, or any person claiming under either of them.
⦁ As per Sec. 129 of the Act, if a prior bequest fails, the second bequest takes
effect, even if the failure did not occur in the manner contemplated by the
testator.
⦁ As per Sec. 130 of the Act, the second bequest will not take effect on
failure of the first bequest where the will shows an intention that the second
bequest shall take effect only on the first bequest failing in a particular
manner, and it does not fail in that particular manner.
Court rulings on legal niceties involved in testamentary succession
⦁ As per Sec. 70 of the Act, a will is said to be revoked if, inter alia, it is
destroyed by the testator.
The Supreme Court in Durga Prasad Vs. Devi Charan 1979 AIR 145 held
that, “The will being a product of free will of the testatrix there must be
strong and cogent reasons for holding that it was revoked. The fact that the
will was not found, despite search, was not sufficient to justify a
presumption that the will was revoked.”
⦁ Sec. 141 of the Act states that, “If a legacy is bequeathed to a person who
is named an executor of the will, he shall not take the legacy, unless he
proves the will or otherwise manifests an intention to act as executor.”
In Bhagwani Kuer (Dead) & Ors. Vs. Tapeswari Kuer (Dead) & Ors. [1973
AIR 2583], where the testator had directed his executor to perform his
Shradh ceremony, and where the testator although performed the cremation
but did not perform the Shradh ceremony, the Supreme Court held that he
had not manifested his intention to act as the executor.
Shirinbai Maneckshaw & Others Vs. Nargacebai J. Motishaw & Others
[1956 AIR 747]
This Supreme Court case law helps to understand how the application of
Sec. 67 can lead to an application of either Sec. 129 or 130. All these
sections have been touched upon in the answer. However, this case law has
not been included in the answer, to keep the answer concise.
You can read the case law here.

⦁ Discuss lapsing of legacy, vesting of legacy and contingent legacy (2, Rupal, 1786 words)
Lapsing of Legacy
Doctrine of Lapse – The term “lapse” is applied to the failure of a testamentary gift owing to the
death of the legatee before the death of the testator. It is not relevant whether such as legatee has died
after making the will r even before making the will was made (which can happen in cases where the
testator was not aware that the intended legatee was already dead). What is important is that, in order
to entitle the legatee to his legacy, he must survive the testator; otherwise the legacy cannot take
effect. The law does not require the legatees of a will to be in existence at the date of the will. Thus a
legatee may not be born at the date of the will; but in order to get a bequest, he must be in existence
when the testator dies.
Cases in which legacy lapses (Ss. 105 & 107)
If the legatee does not survive the testator, the legacy cannot take effect; it lapses and forms part of
the residue of the testator’s property, unless the testator intended that it should go to some other
person. Thus, if A bequeaths his house to X, and the residue of this property to Y, if X is already
dead when A dies the house will pass (under the residue clause) to Y.
However, if the same case, A had said that the house is to go to X if he is then alive, and if he is not,
to B, the house will go to B(and not to the residuary legatee Y) if X has predeceased the testator.
If it is proved that the legatee died after the testator (maybe, even a minute later), the legacy would
go to the legal heirs or representatives of the legatee.
Effect of lapse – If a legacy is given in words which show that the testator intended to give distinct
shares of it, then, if any legatee dies before the testator, so much of the legacy as was intended for
him falls into the residue of the testator’s property.
As seen above, a legacy will form part of the residue and will go to the residuary legatee. However,
when the residue itself lapses by death of the residuary legatee before the testator, or in any other
manner, it will go as on intestacy, and it will be divided amongst the nextofkin of the deceased.
Cases in which legacy will not lapse (Ss. 106, 108111)

However, in the following five cases, a legacy will not lapse :
1. If a legacy is given to two persons jointly and one of them dies before the testator, the other
legatee takes the whole. (S. 106)
IIIus – The legacy is simple to A and B. A dies before the testator. Therefore, B takes the legacy.
2. Where a bequest is made to any child or other lineal descendant of the testator, and the legatee
dies in the lifetime dies in the lifetime of the testator, but any lineal descendant of his survives the
testator, the bequest does npt lapse, but takes effect as if death of the legatee had taken place
immediately after the death of the testator, unless a contrary intention appears by the will. (S 109).
IIIlus – A makes his will, by which he bequeaths a sum of money to his son, B for his own absolute
use and benefit. B dies before A, leaving a son, C who survives, A and having made his will
whereby he bequeaths all his property to his widow D. The money goes to D.
3. When a bequest is made to one person for the benefit of another, the legacy does not lapse by
the death of the person to whom the bequest is made. (S. 110)
Thus for instance, if under a will a bequest is made to A, with a specific direction that he holds the
same is trust for B, the bequest does not lapse because of A’s death, because in such as case. A was
only a trustee and the real bequest is in favour of B.
4. Where a bequest is to a class of persons, some of whom are dead, it does no lapse, but goes to
those members of the class who are alive at the testator’s death.
5. Lastly, if a charitable bequest contains a general charitable intention, the bequest does not lapse,
but will be applied cypres. The doctrine of cypress enables the court to direct an application which
is as near as may be to the charitable intention declared.
However, if a bequest is made for a particular charitable institution, and that institution is
nonexistent when the testator dies, the bequest will lapse, and will not be applied cypres.
An exception to this rule is contained in the Bombay Public Trusts Act, under which such a trust is
not to be deemed to be void only on the ground that the society or institution (for the benefit of
which a public trust is created) does not exist or has ceased to exist.
Vesting of legacies
Vesting means to be “payable” and, as applied to a legacy, means vesting in interest and not merely
vesting in possession. Hence, there are two types of vesting of legacies. One is vested in interest and
the other is vested in possession.
A bequest is said to be vested in possession where there is a

present right to the immediate possession or enjoyment of the thing bequeathed. Section 104 of the
Indian succession act deals with this kind of legacies.
A bequest is said to be vested in interest where there is a present

indefeasible right to the future possession or enjoyment. Section 119 of the Indian evidence act deals
with vested in interest legacies.
Thus, if a bequest is made to B directly, he will have a present right to the immediate possession and
enjoyment of the object concerned. However, if the bequest is to go to B after the death of A, it will
be a case of vesting in interest because B has a present and indefeasible right on the subjectmatter of
the bequest, but the possession and enjoyment thereof tare postponed till the death of A.
Following are the four rules that may be noted as regards to vesting of legacies:
1.) Vesting of legacy in general terms ( section 104 and section 174)
2.) Date of vesting of legacy when payment or possession postponed( section 119)
3.) Date of vesting when legacy contingent upon specified uncertain event( section 120)
4.) Vesting of interest in bequest to such members of a class as shall have attained a particular
age( section 121)
1.) Vesting of legacy in general terms ( section 104 and section 174)
As per section 104 of the act, if the legacy is given in general terms, without specifying the time
when it is to be paid, the legatee has a vested interest in it from the day of death of the testator. So, if
he dies without having received it, the property passes to his heirs or representatives.
Under section 174, where a will provides for the payment of purchase of annuity, the legacy vests in
interest in the legatee on the testator’s death. Although under section 104, the legacy vests on the
date of death of testator, he cannot demand payment of the legacy until the expiration of one year
from the testator’s death. It must also be remembered that until the assent of the executor is given,
the legatee has only an inchoate (incomplete) right to legacy.
2.) Date of vesting of legacy when payment or possession postponed( section 119)
Section 119 deals with legacies vested in interest. A bequest is said to be vested in interest where
there is a present indefeasible right to the future possession or enjoyment.
This section enacts the rule that a legacy vests in interest in the legatee at the date of testator’s death,
and the mere fact that the possession or enjoyment is deferred will not prevent the vesting, unless a
contrary intention appears by the will.
3.) Date of vesting when legacy contingent upon specified uncertain event( section 120)
S.120, which deals with contingent interests, provides as follows :
a) A legacy bequeathed in case a specified uncertain event shall happen, does not vest until that
event happens.
b) A legacy bequeathed in case a specified uncertain event shall not happen, does not vest until the
happening of that event becomes impossible.
c) In either case, until the condition has been fulfilled, the interest of the legatee is called contingent.
d) However, if a fund is bequeathed to any person upon his attaining a particular age, and the will
also gives to him absolutely the income to arise from the fund before he reaches that age, or directs
the income or so much of it as may be necessary, to be applied for his benefit, the bequest of the fund
is not contingent.
4.) Vesting of interest in bequest to such members of a class as shall have attained a particular
age( section 121)
Where a bequest is made only to such a member of a class as has attained a particular age, a person
who has not attained that age cannot have a vested interest in the legacy.
Conditional legacies
Section 124 and 125 of Indian evidence act mentions two rules with regard to contingent bequests.
A contingent bequest is one, which is effective only on the happening or not happening of a
contingency. Thus a legacy is given to A. If A dies, it is to go to B. This is a contingent bequest.
Section 124:
Where a legacy is given if a specified uncertain event happens, and no time is mentioned in the will
for the occurrence of that event, the legacy cannot take effect, unless such event happens before the
period when the money becomes payable.
Ex. A legacy is bequeathed to A, and in case of his death, to B. If A survives the testator, the legacy
to B does not take effect.
Section 125:
Where a bequest is made to such of certain persons as shall be surviving at some period, but the
exact period is not specified the legacy goes to such of them as are alive at the time of payment or
distribution unless a contrary intention appears in the will.
Ex. Property is bequeathed to A and B to be equally divided between them, or to the survivor of
them. If both A and B survive the testator, the legacy is equally divided between them. If A dies
before the testator, and B survives the testator, it goes to B.
⦁ Discussion interpretation/construction of a will (2, Pushpendra; 1607 words)

The question on construction and interpretation of wills pertains to Chapter 5 of Indian Succession
Act (ISA) 1925. This is only relevant to written/ testamentary wills. Since the written text of will is
open to challenge, there are rules from section 74111 which provide guidance. The individual
provision can be picked from jhabvala or bare act
General reading
A. What is Construction?
The process by which the meaning of an ambiguous provision of a statute, written document, or oral
agreement is determined.
A judge usually makes a construction of an unclear term in a document at issue in a case that
involves a dispute as to its legal significance.
A rule of construction is a principle that either governs the effect of the ascertained intention of a
document or agreement containing an ambiguous term or establishes what a court should do if the
intention is neither express nor implied.
There are codified terms that are subject to repeated judicial construction.
E.g 1. "Calendar day" means a twentyfour hour period starting on midnight of one date and ending
midnight of the next day.
2. Section 99 of ISA, 1925 where terms like children, grandchildren, cousins, issue, descendants
have been explained.
B. What is interpretation?
Interpretation is the method by which the true sense or the meaning of the word is understood. The
meaning of an ordinary word of the English language is not a question of law.
According to Gray, the process by which a judge constructs from the words of a statute book, a
meaning which he either believes to be that of the legislature, or which, he proposes to attribute to it
is interpretation.
Salmond describes interpretation or construction as the process by which courts seek to ascertain the
meaning of the legislature through the medium of authoritative forms in which it is expressed.
According to Cooley, interpretation differs from construction in that the interpretation is the art of
finding out the true sense of any form of words; Construction on the other hand, is the drawing of
conclusions respecting the subjects that are beyond the direct expression of the text.
Why interpretation or construction of will is needed?
In Kalvelikkal Ambunhi v. H. Ganesh Bhandary (AIR 1995 SC 2491), it was observed that a Will
may contain several clauses and the latter clause may be inconsistent with the earlier clause. In such
a situation, the last intention of the testator is given effect to and it is on this basis that the latter
clause is held to prevail over the earlier clause.
As observed in Hammond v. Treharne, (1938 (3) All ER 308), if in a Will there are two inconsistent
provisions, latter shall prevail over the earlier clause. This principle is also contained in Section 88 of
the Act which together with its illustrations, provides as under:
"88. The last of two inconsistent clauses prevails. Where two clauses of gifts in a Will are
irreconcilable, so that they cannot possibly stand together, the last shall prevail.
Examples
(i) the testator by the first clause of his Will leaves his home estate to "A", and by the last clause of
his Will leaves it to "B" and not to A". B will have it.
(ii) if a man, at the commencement of his Will gives his house to A and at the close of it directs that
his house shall be sold and the proceeds invested for the benefit of B, the latter disposition will
prevail.
<<It is to be noted that rules of interpretation of Will are different from rules which govern
interpretation of other documents like sale deed, or a gift deed, or a mortgage deed or, for that matter,
any other instrument by which interest in immovable property is created. While in these documents,
if there is any inconsistency between the earlier or the subsequent part or specific clauses, inter se
contained therein, the earlier part will prevail over the latter as against the rule of interpretation
applicable to a Will under which the subsequent part, clause or portion prevails over the earlier part
on the principle that in the matter of Will the testator can always change his mind and create another
interest in place of the bequest already made in the earlier part or on an earlier occasion.
Undoubtedly, it is the last Will which prevails.>
From various decisions of the Supreme Court e.g.
⦁ Ram Gopal v. Nand Lal (AIR 1951 SC 139),

⦁ Gnambal Ammal v. Raju Ayyar (AIR 1951 SC 103),
⦁ Raj Bajrang Bhadaur Singh v. Thakurain Bakhtraj Kher (1953 SC 7),
⦁ Pearey Lal v. Rameshwar Das (AIR 1963 SC 1703),
⦁ Ramchandra v. Hilda Brite, (AIR 1964 SC 1323) and
⦁ Navneet Lal v. Gokul (AIR 1976 SC 794),
The following principles are well established for Interpretation and construction of will:
(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain
the intention from the words used; the surrounding circumstances are to be considered; but that is
only for the purpose of finding out the intended meaning of the words which have actually been
employed.
(2) In construing the language of the Will the Court is entitled to put itself into the testator's armchair
and is bound to bear in mind also other matters than merely the words used. It must consider the
surrounding circumstances, the position of the testator, his family relationship the probability that he
would use words in a particular sense. But all this is solely as an aid to arriving at a right construction
of the Will and to ascertain the meaning of its language when used by that particular testator in that
document.
(3) The true intention of the testator has to be gathered not by attaching importance in isolated
expressions but by reading the Will as a whole with all its provisions and ignoring none of them as
redundant or contradictory.
(4) The Court must accept, if possible such construction as would give to every expression some
effect rather than that which would render any of the expressions inoperative. The Court will look at
the circumstances under which the testator makes his Will, such as the state of his property of his
family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect
to every word used in a document, such a construction should be accepted instead of a construction
which would have the effect of cutting down the clear meaning of the words used by the testator.
Further where one of the two reasonable constructions would lead to intestacy, that should be
discarded in favour of a construction which does not create any such hiatus.
(5) To the extent that it is legally possible, effect should be given to every disposition contained in
the Will unless the law prevents effect being given to it. Of course, if there are two repugnant
provisions conferring successive interests, if the first interest created is valid the subsequent interest
cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy
so that effect could be given as far as possible to every testamentary intention contained in the Will.
<<If the above general principles are difficult to remember, then refer text fro western case study
below>>
Kaptyn Estate case in Ontario helpfully summarized many of the principles relating to the
interpretation and construction of wills:
a) The court will seek to determine the actual intention of the testator, as opposed to an objective
intent presumed by law
b) Other cases interpreting words in other wills are of little assistance since the task is to interpret this
testator’s subjective intentions .
c) There is a distinction between interpretation and construction of a will. Interpretation seeks to

determine the testator’s subjective intentions from the words used in light of the surrounding
circumstances. Rules of construction are a default process turned to by the courts when the testator’s
actual intentions cannot be ascertained.
d) The starting position of the court is the “armchair rule”, where the court puts itself in the place of
the testator at the time when he made his will. This allows consideration of some extrinsic evidence
of the surrounding circumstances known to the testator as might bear on his intentions
e) The authorities distinguish between admissible and inadmissible extrinsic evidence in interpreting
a will :
i. “indirect extrinsic evidence” of the surrounding circumstances known to the testator at the
time he made the will is generally admissible. This includes evidence of such things such as the
testator’s occupation and property and financial situation; his relationships with family and
friends; and natural objects of his grant;
ii. “direct extrinsic evidence” of the testator’s intentions is generally inadmissible. This is so as
to preserve the will itself as the primary evidence, and to avoid the situation of an “oral will”
displacing the written form. However, there is an exception where there is an “equivocation”,
namely, where the will describes two or more persons or things equally well. In that situation,
the law will allow evidence of the testator’s intention. Examples of inadmissible direct evidence
are such things as notes or statements of the testator as to his intention, or instructions he gave
his lawyer in preparing the will;
f) The court will interpret the will viewed as a whole;
g) The court will prefer an interpretation that leads to a testacy, not an intestacy; and,
h) The court will not hesitate to correct obvious mistakes, including deleting or inserting words,
where to do so accords with the testator’s intentions, or where not to do so would lead to an absurd
result.
⦁ Discuss revocation of a will (2, Rohan; 1020 words)
Revocation of Wills under Indian Succession Act of 1925 (12 Marks)
Will:
As per S. 2(h) of The Indian Succession Act,1925, Will is defined as Legal declaration of the
intention of testator with respect to his property which he desires to be carried into effect after his
death.
Types of Wills:
The Indian Succession Act of 1925 recognizes 2 kinds of Wills as below:
A. Privileged Will: S. 65 of the act defines Privileged will as ‘Any soldier being employed in
an expedition or engaged in actual warfare, or an airman so employed or engaged, or any
mariner being at sea, may, if he has completed the age of eighteen years, dispose of his
property by a Will made in the manner provided in section 66. Such wills are called
privileged wills. ‘
S. 66 define below rules:
⦁ Privileged wills may be in writing, or may be made by word of mouth.
⦁ The will may be written wholly by the testator, with his own hand. In such case it
need not be signed or attested.
⦁ It may be written wholly or in part by another person, and signed by the testator. In
such case it need not be attested.
⦁ If the instrument purporting to be a will is written wholly or in part by another
person and is not signed by the testator, it shall be deemed to be his will, if it is
shown that it was written by the testator's directions or that he recognized it as his
will.
⦁ The soldier/ airman or mariner may make a will by word of mouth by declaring his
intentions before two witnesses present at the same time. But it will become null
after 1 month provided testator is still alive.
B. Unprivileged Will: Every will made by any other persons than Soldier/ Airman or Mariner
is considered as unprivileged will and its 3 necessary conditions are as below:
1. Signature: Either the testator must sign or affix his mark on the will or must be signed by
some other authorized person in presence and under directions of testator.
2. Intention behind Signature: Such signature or mark must be so placed to appear to intend
to give effect to the will.
3. Attestation: The will must be attested by at least 2 witnesses who have seen the testator
sign the will.
Revocation of Wills:
S. 62 of the Act state that ‘A will is liable to be revoked or altered by the maker of it at any time
when he is competent to dispose of his property by will.’
Revocation of Wills differs as per if the will is a Privileged Will or an Unprivileged Will.
Modes of Revocation are as below:

A. Unprivileged Will:
1. By Testators Marriage (S 69)
⦁ However below exceptions apply:
⦁ However this provision is not applicable to Hindu, Buddhist, Sikh and Jain
⦁ A will made by Muslim is not revoked by his marriage
⦁ Will made in exercise of power of appointment is not revoked by testators
marriage
⦁ A Mutual will is not revoked by marriage of other person
⦁ Revocation is not valid if subsequent marriage is held as void
2. By another Will or Codicil
⦁ Eg. If A has made an unprivileged will and afterwards makes another will which
purports the first one whether or not same is expressly mentioned in the will.
3. By some writing declaring an intention to revoke it and executed as a will is required to
be executed.
4. By burning, tearing or otherwise destroying the same by testator or some person in his
presence and directions of the testator
B. Privileged Will:
1. By Testators Marriage (However this provision is not applicable to Hindu, Buddhist,
Sikh and Jain)
2. By an Unprivileged will or codicil
3. By any act expressing an intention to revoke it with necessary formalities needed for a
privileged will.
4. By burning, tearing or otherwise destroying the same by testator or some person in his
presence and directions of the testator
Doctrine of Dependent Relative Revocation:

When a testator destroys a will with an intention of setting up previous will executed by him
, the intention of revocation is conditional one the condition being validity of document
intended to be set up. So if this document is not a legal one the subsequent will is not
revoked.
Power of Appointment:
When a man is invested with power to determine disposition of property of which he is not
an owner he is said to have power to appoint for such property.
Treatment of Lost wills:
Under English Law where it is shown that Will was in custody of Testator and not to be
found at time of his death, will is presumed to be destroyed by testator himself for revoking
the same.
However Indian law does not hold this presumption.
Cases:
1. It was held that Will is not revoked by the Testator by merely tearing it off without the
necessary animus revocandi (intention to revoke the will). (Brunt v. Brunt)
2. It was held that Will is not validly revoked by merely crossing out the Will and writing
that will is revoked, even if same is done by the testator. It is necessary to be signed by
the testator and also attested by 2 witness. (Cheese v Lovejoy)
3. It was also held that even if testator has striked out the will and written on the will that it
is cancelled and also signed it, yet in absence of attestation by 2 witness the Will is not
held to be revoked. (Kharsetji v Kekobad)
4. Indian law does not recognize mere loss of Will as Revocation of will. (Babulal v
Baijanath)
Also Durgaprasad v Devicharan AIR 1979 SC 145
5. Also observed by Calcutta HC that in India deeds and documents are not held with great
degree of care and so mere loss of will after testers death especially when people near
him had easy access to the documents, it was held that will is not presumed to have been
revoked just as it is not traceable post death of testator. (Anwar Hussain v Sec of State)
Parsi Marriage and Divorce Act, 1936
⦁ What are the requisites for a valid Parsi Marriage? When is remarriage unlawful under
Parsi Marriage and Divorce Act? What are the various grounds of divorce under the Parsi
marriage and divorce Act? (8; Aditya; 1733 words)
Requisites of a valid Parsi marriage
● Section 3(1) provides for the requisites of a valid marriage. Under this section marriage is
invalid:
○ if parties are within prohibited degrees of relationship of consanguinity or affinity [S.
3(1)(a)]
○ if necessary ceremonies of marriage have not been performed [S. 3(1)(b)]
○ if any party to the marriage has not completed the requisite age of marriage [S.
3(1)(c)]
○ if either party to the marriage was impotent [S. 30]
● Schedule 1 gives a table of prohibited degrees of consanguinity and affinity. A man or a
woman is prohibited from marrying his or her relations mentioned in the Schedule 1. The
Schedule specifies 33 such relations with whom a man cannot marry and 33 relations with
whom a woman cannot marry.
● Parsi marriage is solemnised by a Parsi priest. A Parsi priest includes Dastur and Mobed. For
the purposes of solemnization of a Parsi marriage the ceremony of “Ashirwad” should be
performed by a Parsi priest in the presence of two Parsi witnesses.
● There are no preliminaries prescribed for a Parsi marriage. Registration of Parsi marriage is
compulsory, though non registration does not affect the validity of the marriage. Even if it is
not certified it remains valid.
● By Amending Act of 1988, it has been laid down that no mlel below the age of 21 years and
no female below the age of 18 years can marry. Marriage of a person below the requisite age
is null and void. The provision for guardianship has been abolished by the Amendment of
1988.
Grounds of Divorce
A Parsi marriage may be dissolved on any one of the following 11 Grounds under Sections 32 and
32A, i.e. defendant’s:
1. Wilful refusal to consummate marriage [S. 32(a)]

2. Unsoundness of mind [S. 32(b) and S. 32(bb)]
3. Premarriage pregnancy [S. 32(c)]
4. Adultery, fornication, bigamy, rape or an unnatural offence [S. 32(d)]
5. Cruelty [S. 32(dd)]
6. Causing grievous hurt or infecting with venereal disease or forcing into prostitution [S.
32(e)]
7. Imprisonment for 7 years [S. 32(f)]
8. Desertion for 2 years [S. 32(g)]
9. Nonresumption of marital intercourse [S. 32(h)]
10. Conversion [S. 32(j)]
11. Nonresumption of cohabitation or restitution of conjugal rights [S. 32A]
The first 3 grounds mentioned above relate to premarriage impediments whereas the rest of them
relate to postmarriage guilts or faults.
Wilful refusal of the defendant to consummate marriage [S. 32(a)]
Consummation of marriage requires an act of sexual intercourse which is natural and complete. This
ground implies some delinquent act on the part of the respondent. The respondent deliberately,
purposely, designedly or calculatively declines to consummate the marriage. Wilful refusal to
consummate the marriage within one year after it is solemnized becomes a ground of divorce.
Unsoundness of mind
Premarriage insanity is a ground of divorce. If, at the time of marriage, the defendant was of
unsound mind and continued to be so up to the date of presentation of the suit, then the plaintiff can
obtain a decree of divorce. But as per S. 32(b), the plaintiff has to show that:
● He/she was ignorant of the fact of insanity at the time of marriage and
● He/she has filed the suit within 3 years from the date of marriage
Under this Act, unsoundness of mind or insanity is not a ground of void marriage. Therefore if a
Parsi knowingly marries an insane person, then that marriage cannot be avoided.
Section 32(bb) deals with postmarriage insanity. Now, the plaintiff can obtain a decree of divorce if
he/she shows that the defendant has been incurably of unsound mind for a period of 2 years or more
before filing of the suit, or the defendant has been suffering continuously or intermittently from
mental disorder of such kind and to such an extent that the plaintiff cannot reasonably be expected to
live with the defendant.
Premarriage pregnancy of the respondent wife
In order to get a decree of divorce on this, ground the plaintiff husband was prove that:
1. the respondent wife was pregnant at the time of the marriage

2. the respondent wife was pregnant from a person other than the plaintiff
3. the plaintiff husband was ignorant of the respondent wife's pregnancy at the time of marriage
4. the suit has been filed within 2 years of the date of marriage, and
5. the plaintiff husband did not have marital intercourse with his pregnant wife after he
discovered her pregnancy
Defendant has committed adultery, fornication, bigamy, rape or unnatural offence
● Adultery means voluntary sexual intercourse between one spouse and a person of the
opposite sex, not his/her spouse during the subsistence of marriage.
● Fornication is illicit voluntary sexual intercourse by a spouse with an unmarried person of
the opposite sex.
● Bigamy is committed if the defendant marries another person during the subsistence of the
first marriage.
● Rape is a sexual intercourse by a man with a woman,
i) against her will
ii) without her consent
iii) with her consent when her consent is obtained by putting her in the fear of death or hurt
iv) with her consent when she is made to believe that she is married to him
v) with or without her consent when she is under 16 years of age
● Unnatural offence consist in carnal intercourse committed against the order of nature with
any man, woman, or animal.
Defendant has treated the plaintiff with cruelty
Cruelty has been defined as conduct of such a character has to have caused danger to life, limb or
health, bodily or mental, or a conduct of such a character as to give rise to a reasonable apprehension
of such danger. The court shall have the discretion either to grant a decree of divorce and judicial
separation in such cases.
Defendant has caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease
or where the defendant is the husband, has compelled the wife to submit herself to prostitution
Grievous hurt means:
● Emasculation
● Permanent privation of the sight of either eye
● Permanent privation of the hearing of either ear
● Privation of any member or joints
● Permanent disfiguration of the head or face, or
● Any hurt which endangers life
“Infected the plaintiff with venereal disease”

Under this clause a spouse cannot sue for divorce unless he or she gets infected with the venereal
disease from the other spouse. If the spouse seeking divorce does not get infected from the disease
from the other spouse, it is immaterial that the other party is suffering from venereal disease.
The plaintiff should bring the suit within 2 years:

i) after grievous hurt is caused
ii) after the plaintiff came to know of the infection or 3 after the last act of compulsory prostitution,
or compulsory prostitution
Defendant is undergoing sentence of imprisonment for 7 years or more
For the purpose of this clause,
i) the defendant must have been sentenced to imprisonment for a period of 7 years or more
ii) such sentence should be given for an offence committed by the defendant under the Indian Penal
Code, 1860, and
iii) the defendant must have undergone at least 1 year imprisonment out of the said period of 7 years
prior to filing of the suit
Defendant has deserted the plaintiff for at least 2 years
For the purpose of this clause the plaintiff must prove that
i) the defendant deserted the plaintiff for at least 2 years continuously, and
ii) the defendant has deserted the plaintiff without reasonable cause and without the consent or
against the will of the plaintiff
Nonresumption of marital intercourse
After an order of separate maintenance for a period of 1 year by the party (guilty party) against
whom such an order is passed, entitles the other party to a decree of divorce. The other party
(innocent party) who has obtained the decree or order of separate maintenance can sue for divorce
on the ground that there was no resumption of marital intercourse for a period of 1 year or more after
the order of the Court.
Conversion of the dependent
Under this clause the 2 requirements are:
i) the defendant has ceased to be a Parsi by conversion to another religion, and
ii) the suit for divorce is filed within 2 years of the plaintiff’s knowledge about defendant’s
conversion.
Nonresumption of cohabitation or restitution of conjugal rights
If there is,
i) no resumption of cohabitation between parties to the marriage for a period of 1 year after the
passing of a decree for judicial separation; or
ii) no restitution of conjugal rights between parties to the marriage for a period of 1 years after the
passing of a decree for restitution of conjugal rights
then, the court can dissolve the marriage on a suit for divorce filed by a party in whose favour the
decree was passed.
Unlawful Remarriage
● Section 4(1) states that a Parsi husband or wife cannot remarry in the lifetime of his wife or
her husband until:
○ Lawful divorce is obtained
○ The marriage has been declared null and void or dissolved under law
● Section 4 prohibits the remarriage of parties except under certain circumstances mentioned
in Section 4(1). Section 4(2) lays down that every marriage contracted contrary to the
provisions of Section 4(1) shall be void.
● Section 5 further lays down that every Parsi who contracts a marriage in violation of Section
4(1) shall be subject to the penalties provided in Sections 494 and 495 of the Indian Penal
Code, 1860 for the offence of bigamy.
● Under section 494 the punishment for bigamy is imprisonment which may extend to 7 years
as well as fine. Under Section 495, the punishment for bigamy by concealment of former
marriage is imprisonment for a term upto 10 years and also a fine.
Case Laws
● The offence of bigamy can be committed only if the requisite ceremonies of marriage
(Ashirwad) are performed. (Modi vs. Modi, 1975 Cal. L.J. 298)
● The second marriage cannot be taken to be proved by mere admission of the parties,
essential ceremonies and rites must be proved to have taken place. (Priya vs. Suresh, AIR
1971 SC 1153)
● If the first marriage is not proved the second marriage is not bigamous.(Katri Subha Rao vs
Katri Sethe, AIR 1994 A.P. 364)

Family Law I 12 Mark Answers-3.docx - 1494242773827

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Family Law I 12 Mark Answers-3.docx - 1494242773827

Uploaded by

Copyright:

Available Formats

Family Law 12 Mark Answers

Ancient sources or Formal sources of Mohammedan Law

Modern sources or Informal sources of Mohammedan Law

Customs and Usages

Judicial Decisions (Fatwas)

Juristic Deductions (Principles of Justice, Equity and Good Conscience)

Schools of Muslim Law

I. Valid marriage (Sahih)

➢ A marriage that conforms in all respects with Muslim law is termed as

(ii) Free consent

If the consent is given under compulsion, fraud, mistake of fact, under

(iii) Completion of all formalities

Offer and Acceptance

(iv) Absence of any impediment or prohibition

(a) Polyandry : A married woman cannot contract another marriage while

(b) Consanguinity and Affinity : A man cannot marry his mother,

(c) Fosterage : Fosterage is another impediment to a valid marriage. So a

(a) Unlawful conjunctions

If there exists any of the relative prohibitions in the marriage then it is

III. Void (batil) marriage

When a marriage is performed in violation of absolute or perpetual

IV. Muta – temporary form of marriage :

➢ Mutant is recognized in Shia school of Muslim law only. It may be

(iii) There is no restriction as to the number of Мutа­wives. One may

(iv) The consent of both the parties must be a free consent.

(vii) The dower (consideration) must be specified at the time of the

➢ In practice, however the institution of muta marriage is almost obsolete

Classification of Muslim divorces:

• By the death of a spouse

Types of Talak [male]:

Other forms of divorce that can occur through husband’s actions:

• Ila: Vow of continence

Types of Talak [female]:

• Talak­e­tafweez: delegated divorce

(I) Maintenance during the subsistence of marriage

(a) Maintenance of Divorced Woman under Muslim Personal Law

Grounds for Divorce (Available only to wife)

Additional provisions for declaring the marriage null and void

Section 5 (ISA 1925)

Principle and scope of section:

One domicile only affects succession to moveables.

Domicile of origin of illegitimate child.­The domicile of origin of an illegitimate child is in the

Domicile not acquired by residence as representative of foreign Government, or as part of his

(1) Privileged Will and Unprivileged Will

(1) Privileged and Unprivileged Wills

(2) Conditional or Contingent Wills

(3) Joint Wills

(4) Mutual (or reciprocal) Wills

(5) Duplicate Wills

(6) Concurrent Wills

(7) Sham Wills

(8) Holograph Wills

(9) Inofficious Will

⦁ As per Sec. 58 of the Act, provisions of testamentary succession don’t

ii. Property of the testator

iii. Effectuate after death

i. Testator must sign or affix his mark to the will.

⦁ A will is void if it is made in any of the following circumstances:

i. Will by minor, lunatic etc. (Sec. 59)

Court rulings on legal niceties involved in testamentary succession

You can read the case law here.

Cases in which legacy will not lapse (Ss. 106, 108­111)

A bequest is said to be vested in possession where there is a

(iii) There is no restriction as to the number of Мutаwives. One may

• Talaketafweez: delegated divorce

Domicile of origin of illegitimate child.The domicile of origin of an illegitimate child is in the

Cases in which legacy will not lapse (Ss. 106, 108111)

The Indian Succession Act of 1925 recognizes 2 kinds of Wills as below:

Modes of Revocation are as below:

Treatment of Lost wills:

Premarriage pregnancy of the respondent wife

Nonresumption of marital intercourse

Nonresumption of cohabitation or restitution of conjugal rights