FAMILY LAW -II (MUSLIM LAW)

According to syllabus of Dr.
Bhimrao Ambedkar Law University, Jaipur 1
FAMILY LAW-II
(MUSLIM LAW)
Short Answers Questions
Q.1. Who is Muslim or Mohammedan?
Or
Who is Muslim? If one of the parents is Muslim what will be the
religion of the child?
Ans. ‘MUSLIM’ is a term referring a person who submits himself to God. A
Muslim is a person who follows Islam. Muslim law applies to a born
Muslim or a person who is a convert Muslim. According to Islam, a
true Muslim is a person who has happily and willingly surrendered
his whole life to one God known as ‘Allah’; and it is his prime duty to
serve Allah. Muslims preach Allah and follow the footsteps of Prophet
Muhammad (last successor).
‘Quran’ is considered as their holy book and acts as guiding light
throughout their lives; according to Islam, Quran is the book where
one can find answers to any and every question that crosses a human
mind and is considered as the literal word of Allah. There are main two
dimensions of Muslims Shia and Sunni.
A Muslim follows 5 pillars of Islam, ‘Shahada’ (testimony/declaration
of faith): ‘Salat’ also known as ‘Namaz’ (praying 5 times in a day);
‘Sawm’ also known as ‘Roza’ (fasting in the auspicious month of
Ramadan): ‘Zakat’ (almsgiving i.e. giving money to poor and needy):
‘Hajj’ (pilgrimage to Mecca once in lifetime); a true Muslim follows all
these practices.
The main aim of a Muslim’s life is to practice deeds which are laid
down by Allah in Quran and to be humane with every one, to not
commit a derogatory act. A Muslim is advised to visit Mosques on
Thursdays and Fridays which are considered to be auspicious days
as per the Islamic Calendar. Muslims celebrate Eid and mourn on
Muharram as it is the day of honouring the martyrs.
A Muslim also believes in almsgiving that is what we call as doing
2 FAMILY LAW -II (MUSLIM LAW)
Charity, this practice is a very important practice of the Islamic Religion
where less fortunate people are provided with cash or kind and it is
the prime duty of a true Muslim to serve the poor and needy. Muslims
are often considered to be focusing on their personality development
and always want to be spiritually educated; the reason being their
complete submission to Allah. Islamic religion gives a basic idea of
living life peacefully; just practice good deeds.
In Azima Bibi v. Munshi Samalanand, (1912), it was observed that a
child born out of a Muslim couple would be Muslim, even if he by
choice goes to a Hindu temple. The person would be a Muslim, till the
time he does not renounce his religion and converts to another religion.
In Bhaiya Sher Babadur v. Bhaiya Ganga Baksh Singh, (1914), it
was held that, if a Muslim woman has a child from a Hindu man but the
child from the time he was born was brought up as a Hindu, then, in
this case, he would be called a Hindu.
Q. 2. What is Islam?
Ans. Islam means to achieve peace – peace with God, peace within oneself,
and peace with the creations of God – through wholly submitting
oneself to God and accepting His guidance.
The term Islam derives from the three-letter Arabic root,
, which generates words with interrelated meanings,
including “surrender”, “submission”, “commitment” and “peace”.
Commonly, Islam refers to the monotheistic religion revealed to
Muhammad ibn (son of) Abdullah between 610 and 632 of the Common
Era.
The name Islam was instituted by the Qur’an, the sacred scripture
revealed to Muhammad. For believers, Islam is not a new religion.
Rather, it represents the last reiteration of the primordial message of
God’s Oneness, a theme found in earlier monotheistic religious
traditions.
Though Islam can be described as a religion, it is viewed by its
adherents – a fifth of the world’s population – in much broader terms.
Beyond belief in specific doctrines and performance of important ritual
acts, Islam is practiced as a complete and natural way of life, designed
to bring God into the center of one’s consciousness, and thus one’s
life. Essentially, by definition Islam is a world view focused on belief
in the One God and commitment to His commandments.
Q. 3. What are the sects & sub sects of Muslim Law?
Ans. A “Sect” is a group of people divided on the basis of religious,
political or philosophical belief system. Originally this term was used
only for religious separated groups but now it is also referred to any
organization that breaks into smaller parts from the big one. Initially
According to syllabus of Dr. Bhimrao Ambedkar Law University, Jaipur 3
Islam was classifies between three major sects known as- Sunni Islam,
Shia Islam and Khariji Islam. Muslim law is basically governed by the
Quran and Prophet Muhammad though recognized by different schools
according to their interpretations.
The schools of Muslim Law can be broadly classified into sects and
sub sects as follows-
1. Sunni Schools-
(a) Hanafi School
(b) Maliki School
(c) Shaffie school
(d) Hanbali school
2. Shia schools-
(a) Ithna-Asharis
(b) The Ismailis
(c) Zaidy
3. Other schools-
(a) Ibadi School
(b) Ahmadiya School
Division between Sunni’s and Shia’s is the oldest history of Islam
who differs in doctrine, ritual, law, theology and few fundamental
beliefs and practices. Estimates suggest that the total percentage of
Sunni and Shia in the world is 90% and 10% approximately. “Sunni”
means people of the tradition, and basically they refer to practices
based on the Prophet Muhammad sayings. Whereas Shia’s are guided
by the wisdom of Muhammad’s descendants through his son-in-law
and cousin Ali as according to them Ali was the rightful successor to
the prophet Muhammad. Pilgrimage to Mecca is one of the many
rituals shared by both the sects
Q. 4. What do you understand by Izma?
Ans. The term ijma means a consensus, i.e., the agreement between all on a
particular point of fact or law. When all the judges in the Supreme
Court unanimously agree to a point and pronounce judgment on that
point, it becomes a precedent and a binding law. Similarly, Ijma is a
concept of law made by consensus of all Islamic jurists or other persons
of knowledge and skill.
With the death of the prophet, the original law-making process ended,
so the questions, which could not be solved either by the principles
of the Quran or the Sunna, were decided by the Jurists with the
introduction of the institution of Ijma.
When Quran and traditions could not supply any rule of law for a
fresh problem, the jurists unanimously gave their common opinion or
a unanimous decision and it was termed as Ijma. Not each and every
Muslim was competent to participate in the formation of Ijma, but
only Mujtahids (persons who had knowledge of law) could take part
in it.
Sir Abdul Rahim defines Ijma as “the consensus of followers of Prophet
Muhammad on a particular question of law.”
Q. 5. What is Qiyas?
Ans. In Arabic Qiyas means ‘measurement, accord, and equality.’ In other
words, it means measuring or comparing a thing to a certain standard,
or to ‘establish an analogy.’ If the matters which have not been covered
by Quran, Sunna or Ijma, the law may be deducted from what has been
already laid down by these three authorities by the process of analogy
(Qiyas).
Qiyas may be defined as a process of deduction by which the law of
the text is applied to cases, which though not covered by the languages
are governed by reason of text. Thus, it should be noted that Qiyas
does not purport to create a new law, but merely to apply old established
principles to new circumstances.
Q.6. What are the essential conditions of a Marriage?
Ans. Essential of Marriage
The following are the requirements for a legal marriage:-
1. A marriage proposal should be made by or on behalf of one of
the parties to the marriage, and the proposal should be accepted
by or on behalf of the other party.
2. Both the proposal and the approval must be made at the same
time.
3. The parties must be competent.
4. Two male or one male and two female witnesses must be present
and hearing during the marriage proposal and approval, and
they must be sane and adult Mahommedans. (In Shia Law, this
isn’t necessary.)
5. There is no need for writing or another religious ritual.
Capacity to Marry
The following are the general requirements for marriage in Islam:-
(a) Every Mahommedan of sound mind who has reached puberty is
eligible to marry. The age of puberty is fifteen years where there
is no proof or signs of puberty.
(b) By their parents, a minor and insane (lunatic) who have not
reached puberty may be validly married.
(c) The consent of the parties is required. If there is no consent, a
Mahommedan marriage that is of sound mind and has reached
puberty is void.
Registration of Marriage
Marriage registration is required in Muslims since a Muslim marriage
is considered a civil contract. “Every marriage contracted between
Muslims after the commencement of this Act shall be registered as
hereinafter given, within thirty days from the end of the Nikah
Ceremony,” according to Section 3 of the Muslim Marriages
Registration Act 1981. Nikahnama is a form of legal document used
in Muslim marriages that contains the marriage’s basic conditions
and information.
Q. 6. Distinguish between ‘Khula’ and ‘Mubarat’.
Ans. Difference between ‘Khula’ and ‘Mubarat’ - There are following
differences between Khula and Mubarat -
Khula Mubarat
1. When the desire for separation 1. Where the desire for
is expressed from the side of wife, separation is expressed from
it is called Khula. any side, it is called Mubarat.
2. Consent of Husband is 2. Mutual consent is necessary.
necessary.
3. It is effected by an offer from 3. It can be effected by the offer
wife to compensate the husband, of any of the spouse.
if she is released by him from the
marital tie.
4. Consideration is essential for 4. No such consideration.
Khula marriage. It may be whole
or part of Mehr.
5. The contract of marriage if 5. Irrevocable.
dissolved, is irrevocable.
6. The observance of period 6. It is followed in Mubarat also.
of ‘Iddat’ is necessary.
Q. 7. Explain the concept of Iddat under Muslim Law.
Ans. Iddat is the period during which it is incumbent upon a woman whose
marriage has been dissolved by divorce or death of her husband, to
remain in seclusion and to abstain from marrying another husband.
So Iddat is an interval which the woman is bound to observe between
the termination, by death or divorce of one matrimonial alliance and
commencement of other.
Object of Iddat is to ascertain the pregnancy of wife so as to avoid
confusion of parentage under Sunni law marriage with woman
undergoing Iddat is irregular and not void. But under Shia law marriage
with woman who is undergoing Iddat is void.
So ‘Iddat’ is described as a period during which a woman is prohibited
from marrying again after the dissolution of her first marriage. Object
of ‘Iddat’ is to ascertain the pregnancy of the wife so as to avoid the
confusion of parentage.
DURATION OF IDDAT
1. Iddat of ‘Talaq’: Period of ‘Iddat’ in case of marriage being
dissolved by ‘Talaq’ (divorce) is that if woman is subject to
menstruation, three courses otherwise (if she is not subject to
menstruation) it is three lunar months. If woman is pregnant at
the time of Divorce the ‘Iddat’ will not terminate till delivery.
2. Iddat of Widowhood: When a person dies leaving a widow, she
is prohibited from marrying before the expiration of 4 months
and 10 days.
3. Iddat of Pregnant Widow Woman: Important point here is that
if marriage is not consummated ‘Iddat’ has to be observed in the
case of death but not in case of divorce.
Under Sunni law marriage with a woman undergoing ‘Iddat’ is irregular
and not void. But under Shia law marriage with a woman who is
undergoing ‘Iddat’ is void.
Q. 8. What do you understand by ‘Muta Marriage”? Describe its legal

effects.
Ans. Muta Marriage
Muta is a kind of temporary marriage recognised in the Shia school of
Muslim Law. The term ‘Muta’ implies “enjoyment” or ‘use’. Muta
marriage is a marriage for a temporary but a fixed period after specifying
dower.
According to Heffening in its legal context it may be rendered as a
“marriage for pleasure”.
It is not recognised in Sunni Law because according to this school
the marriage contract should not be restricted in its duration and the
words used at the time of proposal and acceptance must denote an
immediate and permanent union.
Thus, under Sunni Law, a marriage specifically declared for a limited
period is void but under Shia Law such marriage is valid.
Essentials of Muta Marriage
1. The period for which the union is to last should be fixed at the
time when the Muta is contracted. It may be for a day, a month,
a year or for a number of years.
2. Some dower should be specified in the contract. If the term of
the cohabitation is not specified but the dower is fixed the
contract would be void as Muta but may be valid as Nikah. But
if dower is not fixed, neither Muta nor Nikah is valid.
Therefore where the term of the marriage was not fixed, it is not Muta
and as also the dower is not fixed the Nikah is also not there. Therefore
the cohabitation is illegal and no legal effects of such a marriage will
be there. It is essential for a Muta that the period must be fixed though
the marriage is temporary.
According to Baillie “the rule of limiting the number of wives to four
as regards regular marriage, does not apply to Muta marriage.”
Legal incident of a Muta marriage
The legal incidents of a Muta marriage are as follows -
(i) It does not confer on the wife or husband mutual rights of
inheritance, but children conceived while it exists, are legitimate
and capable of inheriting from both parents.
(ii) Where cohabitation originates in a Muta marriage, but there is
no evidence as to the original term for which Muta marriage was
contracted, or the cohabitation continue after the fixed period
expires, the proper inference is that Muta continued during the
whole period of cohabitation and the children conceived during
such period are legitimate.
(iii) If the Muta marriage is not consummated, the wife is entitled to
half of the dower.
(iv) If the marriage is consummated, the wife is entitled to full dower
even if the husband puts an end to the marriage before the
expiry of the fixed term by “making a gift of the term” to her.
(v) If the wife leaves the husband before the expiry of the fixed term
she is entitled to the proportional dower only.
(vi) A Muta marriage does not entitle the wife to maintenance under
her personal (Shia Mohammedan) law.
(vii) If the children are born out of such marriages, they are legitimate
and have the right of inheritance from the both the Parents.
(viii) The Marriage is dissolved if so facts on the expiry of the fixed
period or by mutual consent.
How dissolved
A marriage is dissolved:
(a) automatically by the expiry of the term fixed, or
(b) at any time by the husband “making a gift of the term” to the
wife even before the expiry of the term. This gift is known as
hiba-i-muddan.
Q. 9. Can a Muslim woman marry during the iddat period?
Ans. Main Directives of Iddat for Widows-
(a) The waiting period of a widow is four months and ten days.
(b) During this time period she cannot marry another man.
(c) A person can declare his will to marry the widow in a acceptable
manner in the society and should not make any secret
commitment of the marriage.
(d) The time and place of the marriage should be fixed only after the
expiration of Iddat period.
Main Directives of iddat for Divorcee:
(a) The waiting period of a divorced female is three monthly periods
for menstruating women.
(b) The waiting period of a divorced female is three lunar months for
non-menstruating women.
(c) The husband may take her back during this time period if he
wants reconciliation only in the case of first or second divorce.
(d) If the marriage was not consummated then there is no need for
Iddat period.
MAIN DIRECTIVES OF IDDAT FOR PREGNANT WOMEN-
(a) Divorced women or a widow who is expecting a child from prior
husband cannot marry another man until the delivery of the
child.
(b) She cannot marry until the period of waiting removes all the
doubts about the pregnancy related to paternity.
RULES OF IDDAT
According to the Quran after the completion of Iddat period a women
can lawfully enter into another marriage but not marriage done during
the Iddat period will not be recognized and held as void.
And above all whatever the female does in her Iddat period should be
true and genuine.
Delhi High Court ruled in the year 2017 that the marriage performed
by a Muslim woman during the Iddat is not held as void. Dismissing
a claim of a man who was accused of domestic violence by his wife
saying their marriage was void as per the Muslim law and she has not
even complete Iddat after getting divorce from her prior husband.
Justice Bhupesh Kumar said that any marriage performed by a Muslim
woman during Iddat period is an irregular marriage and not a void
(Batil) marriage. Hence, the contention of the ma on this aspect is
found to be without any merits.
Q. 10. What are the rights and duties of wife during the iddat period?
Ans. Rights and duties during iddat –
1. The husband is bound to maintain the wife during the period of
iddat.
2. The wife cannot marry another person until completion of her
iddat, and if the husband has four wives including the divorced
one, he cannot marry a fifth wife until the completion of the
divorced wife’s iddat.
3. The wife in entitled to deferred dower, and if the prompt dower
has not been paid, it becomes immediately payable.
4. In the event of death of either party before the expiration of the
iddat period, the other is entitled to inherit from him or her in the
capacity of wife or husband, as the case may be, if the divorce
has not become irrevocable before the death of the deceased.
5. If the divorce is pronounced in death-illness, and the husband
dies before the completion of wife’s iddat, the wife is entitled to
inherit from him, even if the divorce has become irrevocable
prior to his death, unless the divorce has been affected without
her consent.
Q. 11. Distinguish Muta Marriage with valid (Sahih) Marriage.
Ans. Mutta Marriage Valid (Sahih) Marriage
Period of Muta marriage is a temporary Valid Marriage is a
Marriage marriage. permanent marriage
Recognition The muta marriage is Both the Muslim
recognized only by the. communities, the Shias and
Shias and not by the Sunnis. the Sunnies accept and
respect the ‘Nikah’
marriage.
Dower The ‘mutta’ marriage is In ‘Nikah’ marriage, the
authorized only to get a wife has the right to get full
specified dower. dower.
Termination The question of divorce On the contrary, provision
does not arise in a ‘mutta’ of divorce is prevalent in
marriage because it is only ‘Nikah’ type of marriage.
for a specific period. It is
automatically dissolved after
the expiry of the specific
period.
Maintenance After separation, a wife can Such a claim cannot be
claim maintenance from her made in ‘mutta’, marriage.
husband in a regular marriage.
Q. 12. State concisely what do you understand by option of puberty of a
Muslim Girl.
Ans. The marriage in Muslim law is a civil contract. Therefore competency
of the parties to marriage with regard to their age is one of the essential
requirements. However in case of a minor, the consent of marriage of
a girl or a boy can be given by respective guardian on their behalf. It,
however does not mean that contract of marriage entered into by
guardian of a minor on his or her behalf will finally be imposed on
such minor throughout his or her life. Muslim law gives power to
minor to repudiate or continue his or her marriage if he or she so likes
after attaining the age of majority. Such right is called ‘The option of
Puberty’ (Khyarul Bulugh). Thus ‘option of puberty’ is the right to a
minor boy or girl whose marriage has been contracted through
guardian, to repudiate or confirm the marriage on attaining puberty.
Old Law of Option of Puberty
In old law if the marriage of minor had been contracted by his/her
father or grandfather, he/she had no right to repudiate the marriage
after attaining the age of puberty.
Present Law on Option of Puberty
The above said disability in old law has been removed by Section
2(7) of Dissolution of Muslim Marriage Act, 1939 which provide as
under:
“A woman married under Muslim law shall be entitled to obtain decree
of divorce on the ground that she having been given in marriage by
her father or other guardian before she attained the age of fifteen
years, repudiated the marriage before attaining the age of eighteen
years.
Provided that the marriage has not been consummated.”
Time of Option of Puberty
For the sake of convenience, man’s or woman’s life can be divided
into three stages, for understanding time for exercising the option of
puberty.
(a) SAGHIR : It is the first stage when the boy or girl is below
seven years of age. In this stage the marriage is void ab initio.
(b) SARIR : It is the second stage when his or her age is above
seven years but below 15 years. In this stage though he or she
can be married, but his or her consent for marriage is not
recognised. He or she can validly be married only by his or her
guardian.
(c) BULUGH : It is the third stage when he or she is above 15 years
of age .It is now when he or she can enter into contract of
marriage on his or her own free consent.
In case of a girl who is aware of her marriage, she must exercise her
right to the option immediately on attaining puberty. Any unreasonable
delay would deprive her right of option. But if she does not know that
she has this right then it is prolonged until she is acquainted with the
fact that she has such right. The option of puberty can be exercised
through substantive suit filed by wife. But she cannot exercise such
option when her husband has filed suit for restitution of conjugal
rights. The option is lost if she after having attained puberty permits
the marriage to be consummated.
A male has the same right of option of puberty. This option can be
ratified by him on attaining puberty by:
(i) Express declaration
(ii) Payment of dower
(iii) Cohabitation
Q. 13. Distinguish between Sunni and Shia law relating to Dower.
Ans. Difference Between Sunni And Shia Law Relating To Dower
Sunni Law Shia Law
The minimum amount of specified There is minimum amount of
dower is 10 dirhams. specified dower.
There is no maximum amount of The maximum amount of proper
proper dower. dower is 500 dirhams.
There is maximum amount of The maximum amount of
specified dower. specified dower is also 500
dirhams.
In case the marriage is dissolved Payment of dower will not be
by death of husband, and the due if the marriage has not been
payment of dower is not specified consummated.
or it has been agreed that no
payment of dower will be done by
the husband, in such case the
amount will be due whether the
marriage has been consummated
or not.
Any agreement which states that Such agreement will be valid if
no dower shall be due is void. the agreeing party are sane and
adult.
In the absence of agreement, a The whole amount of dower will
reasonable part of dower will be be considered as prompt dower.
considered as prompt.
Q. 14. What are the remedies open to the wife on non-payment of dower ?
Ans. The rights which dower confers on the wife are three-fold :
1. Refusal to cohabit.
2. Right to dower as a debt.
3. Retention of husband’s property.
1. Refusal to cohabit. - If the marriage has not been consummated,
she has a right to refuse to cohabit with the husband so long as
the prompt dower is not paid. Before consummation, the wife is
entitled to refuse to live with her husband and refuse to him
sexual intercourse so long as prompt dower is not paid to her. In
a suit for restitution of conjugal rights by the husband, the non-
payment of prompt dower is a complete defence if the marriage
is not consummated. If the wife is minor or insane, her guardian
can refuse to allow the husband to take her with him till the
payment of prompt dower. If the minor wife is already in her
husband’s custody, such guardian can take her back on the
ground of non-payment of prompt dower. [Nasra Begum v.
Rizwan Ali. (AIR 1980 Alld. 118)].
If the marriage has been consummated, she cannot refuse to
cohabit provided the consummation took place when she was
no more a minor or an insane. The absolute right of the wife to
insist on payment of the prompt dower before giving him the
access to her, is lost after the consummation of marriage. After
consummation the husband’s suit for restitution would be
dismissed, but the court may pass decree of restitution on
condition of payment of prompt dower.
2. Right to dower as a debt. - The dower ranks as a debt and the
wife is entitled, along with the other creditors, to have it satisfied
on the death of the husband out of his estate. The Privy Council
in the case of Ameeroon Nissa v. Moorad-Unnissa, (1855), held
that the dower ranks as a debt and the widow is entitled to have
it satisfied along with the other creditors, in case of death of her
husband, out of his estate.
3. Retention of her husband’s property. - A widow’s right to retain
possession of her husband’s estate in lieu of her dower is sort of
compulsion to obtain speedy payment of the dower which is an
unsecured debt. Where she is not in possession or has lost
possession she cannot claim to obtain it because her right to
retain is not in the nature of a charge on the property like
mortgage but a personal right.
In Main Bibi v. Choudhary Vakil Ahmad, (1924) 52 I.A. 145,
Privy Council observed : Possession of property once lawful
acquired by Muslim widow, right to retain it in lieu of dower and
till payment of dower is conferred upon her by the Muslim law.
However right of retention does not give her any title to the
property therefore she cannot alienate the property.
Q. 15. What is the provision of Muslim Law regarding the following issues
connected with dower :-
(a) Can the amount of dower be increased after marriage?
(b) Is it necessary to specify the amount of dower at the time of
marriage ?
(c) Is a Muslim wife entitled to any other dower when the specified
dower is unlawful ?
(d) Whether the contract of dower made by a father on behalf of his
minor son make him (son) liable to pay such dower ?
(e) Can a Muslim wife remit the whole or part of the dower in
favour of her husband ? If so when and how?
Ans. (a) Increase or decrease of dower - A Muslim husband may increase
the dower at any time after his marriage but once the amount of
dower is agreed by the wife and husband, it becomes a contract.
Such contract then becomes binding on the husband.
(b) Determination of the specific dower - It is necessary in a Muslim
marriage that the amount of Dower (mehr) should be specified.
In case it is not done so, the legality of the marriage is not
adversely affected due to the same.
If the amount of dower is not specified at the time of marriage it
can be determined in proportion to amount of dower given to
the other woman of the bride’s house.
(c) Entitlement of a Muslim wife for other dower - If the amount of
dower (Mehr) in a Muslim marriage is unlawful, the marriage
itself will not be invalid or void. It is a general rule that the
amount of dower for Muslim wife will be fixed on the basis of
social position of her father’s family and her own personal
qualifications.
(d) Liability of son to pay dower fixed by his father - If contract of
marriage of Muslim minor is entered by his or her father or
guardian, the amount of dower fixed in consideration of marriage
becomes binding on the boy (bridegroom). In case such father
or guardian stood as security for the payment of such dower, he
can be held liable to pay the same in case the boy (bridegroom)
fails to do so.
(e) Remission of Mehr by wife - A Muslim wife can remit the dower
or any part thereof in favour of the husband or his heirs. Even if
such remission is without consideration it is held valid in the
eye of law. In this connection it is, however, necessary that the
remission must have been made with the free consent. ‘Free
consent’ in reference means -
(a) Without coercion, or
(b) Undue influence.
In the case of Nurrannessa v. Khoje Mohammad (1930, 47,
Cal 537) it was held by the court that if the remission of dower
is made by the wife when she is in a great mental distress owing
to her husband’s death, it will not be deemed to have been done
with free consent of wife. It is also necessary that remission of
dower must be made only by such a wife who is not minor.
According to Allahabad High Court in the case of ‘Quasim
Hussain v. Bibi Kaniz (1932, 54 All 806) that Indian Majority
Act (section 2) 1875 does not effect on the capacity of only or
any person ‘to act in the matter of marriage or dower’. Therefore,
a Muslim girl who has attained the puberty is competent to
relinquish her dower, though she may have not attained the age
of majority (18 years) within the meaning of Indian Majority Act.
This view is correct as per ‘Mulla’.
Q. 16. What is meant by Khyar-ul-Bulugh?
Ans. A minor cannot legally enter into a marriage contract nor is the contract
of marriage entered into by a guardian on his or her behalf, always
binding on the minor. The minor on attaining puberty may ratify or
revoke such a contract if he or she chooses. This right is called Khayar-
ul-Bulugh (the option of puberty).
This right is one of the plethora of safeguards which the Islamic Law
provides and it pertains against an undesirable marriage. The right to
repudiate a marriage by a woman flows from the Hadith and it comes
to their rescue if such marriage had been forcefully imposed upon
them by the assumption of their mental and physical incapacity to
exercise her independent discretion in her marriage.
Q. 17. What is Khilawat-us-sahih?
Ans. When the husband and wife are alone together under circumstances
which present no legal, moral and physical impediment to martial
intercourse, they are said to be in “valid retirement” (Khilwat- us-
sahiha).
It is also necessary that the place should be such where parties can
really have privacy. If the place is exposed to public view or public
has access or if it is open, unenclosed place, then, no presumption of
consummation of marriage arises.
Under the Shia and the Shafi law, no absolute presumption of
consummation of marriage arises from valid retirement. These schools
insist that it is only actual consummation of marriage which gives rise
to marital rights and obligations.
According to the Hanafi and the Maliki schools, the valid retirement
is placed on the same footing as actual consummation of marriage for
certain purposes; while for other purposes, actual consummation is
necessary.
A valid retirement under Sunni law has the same legal effect as actual
consummation as regards dower, the establishment of paternity, the
observance of iddat, the bar of marriage with the wife’s sister, and the
bar of subsequent marriage. However, it does not have the same effect
as actual consummation as regards the bar of marriage with the wife’s
daughter or the bar of remarriage between divorcees.
Q. 18. What are the effects of valid marriage?
Ans. Effect of Valid Marriages (Sahih) are:
(a) Cohabitation between the husband and wife becomes lawful.
(b) Children born in a valid marriage are legitimate and can inherit
their parents’ properties
(c) Establishment of mutual inheritance rights between the husband
and wife. After the death of either partner, the living partner has
the right to inherit the deceased partner’s properties.
(d) The wife’s right to claim dower is fully established after the
completion of the valid marriage.
(e) The valid marriage gives to the wife, the right to maintenance
from her husband with immediate effect.
(f) Right of succession develops
(g) Prohibition of marriage due to affinity
(h) After the dissolution of the marriage, the widow is under an
obligation to deserve the Iddat, during which she cannot remarry.
Q. 19. What are effects of void marriage?
Or
Discuss the effect of Batil marriage?
Ans. Effect of Void Marriages (Batil) are:
(a) The marriage being void ab initio creates no rights or obligations,
and the children born in a void marriage are illegitimate.
(b) Marriage forbidden by the rules of blood relationships, affinity
or fosterage is void.
(c) Marriage with a divorced wife during her Iddat period will be
void.
Q. 20. What the effect of irregular marriage?
Or
What the consequences of Fasid marriage?
Ans. Effect of Irregular Marriage (Fasid) are:
(a) Irregular marriage is not permanent in nature and can be removed,
thus irregular marriage itself is not unlawful.
(b) A marriage contracted without the required number of witnesses
will be considered an irregular marriage.
(c) Marrying women during her Iddat period will be Irregular.
(d) Marriage with women without her guardian’s consent when such
consent is necessary is an irregular marriage.
(e) Marriage with a fifth wife is an irregular marriage.
(f) A marriage with a woman who was pregnant at that time of
marriage and the pregnancy was not caused by adultery or
fornication.
Q. 21. What is Talaq-a-ahasn?
Ans. This Arabic word “ahsan” means “best”. It is also called “very proper”
form of talaq. This signifies that the talaq pronounced in the ahsan
form is very best kind of talaq. The best feature of this kind of talaq is
that, it is revocable. So, hasty divorce can be prevented.
This is the most proper form of repudiation of marriage. The reason is
twofold: First, there is possibility of revoking the pronouncement
before expiry of the iddar period. Secondly, the evil words of Talaq are
to be uttered only once. Being an evil, it is preferred that these words
are not repeated.
Procedure to be followed in Ahasan Talaq
1. The husband has to make a single pronouncement of Talaq
during the Tuhr of the wife. Tuhr is the period of wife’s purity
i.e., a period between two menstruations. As such, the period of
Tuhr is the period during which cohabitation is possible. But if
a woman is not subjected to menstruation, either because of old
age or due to pregnancy, a Talaq against her may be pronounced
any time.
2. After this single pronouncement, the wife is to observe an iddat
of three monthly courses. If she is pregnant at the time of
pronouncement then the iddat is till the delivery of the child.
During the period of Iddat there should be no revocation of
Talaq by the husband to make the talaq final.
When the period of iddat expires and the husband does not revoke
the Talaq either expressly or through consummation, the Talaq
becomes irrevocable and final.
However during the period of iddat the husband can revoke the talaq.
Revocation may be express or implied. Cohabitation with the wife is
an implied revocation of Talaq. If the cohabitation takes place even
once during this period, the Talaq is revoked and it is presumed that
the husband has reconciled with the wife.
Q. 22. What is Talaq-a-hasan?
Ans. In Arabic, Hasan means “good”. While ahasan means very good. This
kind of talaq is also regarded to be proper and approved form, in this
form also, there is a provision for revocation. But it is not the best
mode because evil words of talaq are to be pronounced three times in
the successive tuhrs.
Procedure to be followed in Hasan Talaq
1. The husband has to make a single declaration of Talaq in a
period of Tuhr.
2. In the next Tuhr, there in another single pronouncement for the
second time.
3. If no revocation is made after the first or second declaration
then lastly the husband is to make the third pronouncement in
the third period of purity (Tuhr) As soon as this third declaration
is made, the Talaq becomes irrevocable and the marriage
dissolves and the wife has to observe the required Iddat.
It is only after the third pronouncement that the wife observes the
iddat period and no revocation can be made post 3 pronouncement
Revocation in Hasan Talaq can be made only made during tuhr firstly
between 1 and 2 pronouncement and secondly between 2 and 3
pronouncement
Ghulam Mohyuddin v. Khizer, AIR 1929
A husband wrote a talaqnama in which he said that he had pronounced
his first talaq 15th September and the third talaq would be completed
on 15th November. He communicated the same to his wife on 15th
September. The court observed that for an effective and final talaq,
the three pronouncements must actually be made in three tuhrs, only
a mention of the third declaration is not sufficient.
After revocable of marriage, the parties were not free to remarry again
unless the wife married another man who had actually consummated
the marriage, and then divorced her. On the completion of iddat, the
woman could marry her former husband. This is a penal provision
meant to chastise the husband who repudiates his wife thoughtlessly.
[Dr. Paras Diwan]
Q. 23. Discuss the validity of marriage of fifth wife under muslim law?
Ans. Muslim laws allow polygamy but it is restricted to a maximum of four
wives. A Muslim man can have four wives at a time, but if he marries
the fifth one despite of having four wives, the marriage turns to be
irregular and not void. The fifth marriage can be valid after death/
termination of marriage of one of the four wives. However, the Shia
law considers marriage with the fifth wife as void. In India, a Muslim
marriage can’t have a second marriage if his marriage is registered
under The Special Marriage Act, 1954.
Q. 24. What is Kharcha-e-pandan?
Ans. The kharch-i-pandan literally means beetle box expenses and is a
personal allowance to the wife customary among Muslim families of
rank specially in upper india. It is also called allowance of mewa khori
(eating fruits).
When the parties are minors, the contract is made between the
respective parents and in such case the wife as a beneficiary is entitled
to enforce it. Moreover this is fixed either before or after marriage and
according to the means and position of the parties. Muslim jurists
have compared Kharche-i-pandan to ‘pin money’ found in English
Law. But there is some difference in the two. The Kharche-i-pandan is
payable to the wife so long as she lives with her husband and she can
spend the same without any control of the husband. The ‘pin money’,
however, is spent during coverture with the advice at the instance of
the husband.
Q. 25. What is pre-emption?
Ans The idea of ‘pre-emption’ finds its origin in the Mohammedan Law,
and was unknown in India till the advent of Moghal rule. This was
administered as general law of land and applied to both Hindus and
Muslim. Later, it was introduced by the Britishers on the grounds of
justice, equity and good conscience even on the Muslims.
The right of ‘pre-emption’ is given to the owner of immovable property
to acquire another immovable property that has been sold to some
other person. It is the purchase by one person before all others.
Therefore, it is a right of substitution and not of re-purchase. The
objective behind this right is to maintain privacy and prevent strangers
to come in neighbour or in a family.
The pre-emption has also been defined by Justice Syed Mahmood as
a right given to the owners of an immovable property for quiet
enjoyment of that immovable property to obtain in substitution for
the buyer, possession of certain other immovable property, on such
term that as those on which such latter immovable property is sold to
any other person.
However, to exercise the right of pre-emption, there are certain
conditions that need to be satisfied.
Those conditions are-
1. ownership over an immovable property,
2. sale of the property which is not of the person exercising the
right of pre-emption,
3. there should be some relation with respect to the property
between the pre-emptor and the seller of the land,
4. possession of the other property is given to the pre-emptor on
the same terms as on which the other person is given the right.
Q. 26. What is Marz-ul-Maut?
Ans. The death-bed gifts are recognized in many systems of law, though to
what extent and in what circumstances such gifts can be made, the
laws differ. Marz-ul-maut gifts of Muslim law derive their rules from
two branches of Muslim law, the law of gifts and the law of wills.
The law relating to the marz-ul-maut is a combination of rules derived
from both the branches. Buckley, L.J., aptly described as donatio
morits causa, as a gift of amphibious nature; not exactly a gift, nor
exactly a legacy, but partaking the nature of both.
Gift or HIBA literally means donation of a thing from which donee may
derive a benefit. It is the conferring of property without consideration.
During the life time of a Mohammdan he can make gift of all or any
part of his property but his right to do so by way of will or while on the
death bed is subject to some restrictions.
Death Bed Illness (MARZULMAUT)
When a person is suffering from ‘Marz’ (Illness) and is under the
apprehension of his ‘Maut’ (death) he is said to be suffering from
‘MarzulMaut’. In Safia Begum v. Abdul Rayaz, AIR 1945 Bom. 538,
it was held that crucial test of ‘MarzulMaut, is the subjective
apprehension of death in the mind of the donor i.e. apprehension
derived from his own consciousness as distinguished from the
apprehension caused in the mind by others of other symptoms or
physical incapacities are only indications but infallible signs of
‘MarzulMaut’.
Essentials of Death bed Gift
A gift that is made during death illness is called a death bed gift and it
subject to certain restrictions. Death bed illness gift transaction
essentially and basically being gift must satisfy all the formalities that
are essential for making gift which are:
(a) Declaration of gift by donor
(b) acceptance of gift and
(c) delivery of subject matter of gift from donor to donee.
It is important to point out that death bed gift is operative as such
after the donor’s death.
In Mumtaz Ahmad v. Wasiunnesa, AIR 1948 Oudh. 301. , it was held
that doctrine of Marzulmaut applies to cases where the gift is made
under pressure of sense of imminence of death.
Though a Muslim has unlimited power to dispose of his property by
way of gift but donor’s power to dispose of his property by gift during
death illness is subject to following restriction:
(i) Gift to non-heir - He cannot make gift of more than 1/3 of his
property in favour of non-heir unless the other heirs give consent
to the excess taking effect.
(ii) Gift to an heir. The gift to an heir made during death illness is
altogether invalid unless the other heirs consent to it.
(iii) A gift made during death illness is subject to all conditions and
formalities necessary to constitute a gift inter vivos so there
must be declaration, acceptance and actual or constructive
delivery of possession.
Q. 27. Is adoption valid under Muslim Law?
Ans. Under Islam, there is nothing as adoption; it is not recognized by
Muslim Law. In the landmark case, Mohammed Allahabad Khan v.
Mohammad Ismail, it was mentioned that there is nothing in the Muslim
Law that is adoption or similar to adoption as recognized by the Hindu
System.
The nearest approach to adoption under Muslim Law is
‘Acknowledgement of Paternity’. The difference between the two
can be stated that in adoption, the adoptee is the known son of another
person, while one of the essentials of acknowledgement is that the
acknowledgee must not be known son of another.
However, under the Guardian and Ward Act, 1980, an adoption from
an orphanage is permissible by the courts.
The concept of adoption among Muslims was discussed in detail in
the case of Shabnam Hashmi v. Union of India[2014]. The Honourable
Apex court invoked the Juvenile Justice Act, 2000 saying that it is a
secular law and applies on all people, including Muslims. Thus, a
Muslim also even if he is governed by the Muslim personal law can
adopt a child.
Q. 28. What is the meaning of Waqf?
Ans. The word ‘Waqf’, in its literal sense it is referred to as ‘detention’,
‘stoppage’ or ‘tying up’. According to the legal definition, it means a
dedication of some property for a pious purpose in perpetuity. The
property so alienated should be available for religious or charitable
purposes. Such a property is tied up forever and becomes non-
transferable.
It has been observed in the case of M Kazim vs A Asghar Ali that
waqf in its legal sense means the creation of some specific property
for the fulfilment of some pious purpose or religious purpose.
A lot of eminent Muslim jurists have defined Waqf in their own way.
According to Abu Hanifa, “Wakf is the detention of a specific thing
that is in the ownership of the waqif or appropriator, and the devotion
of its profits or usufructs to charity, the poor, or other good objects,
to accommodate loan.”
As defined by Abu Yusuf, waqf has three main elements. They are-
(a) Ownership of God
(b) The extinction of the founder’s right
(c) The benefit of mankind
Definition under Mussalman Waqf Validating Act, 1913- Section 2
of the Act defines waqf as, “the permanent dedication by a person
professing the Mussalam faith of any property for any purpose
recognised by Musalman Law as religious, pious or charitable.”
Wakf Act, 1954 defines Wakf as, “Wakf means the permanent
dedication by a person professing the Islam, of any movable or
immovable property for any purpose recognized by Muslim Law as
religious, pious, or charitable.”
A waqf can be either in writing or can be made by an oral presentation.
In the case of an oral agreement, the presence of words emphasising
on the intention of the parties is a prerequisite.
Q. 29. What is doctrine of Cyprus?
Ans. The word cypress means ‘as nearly as possible.’ The doctrine of
cypress is a principle of the English law of trusts. Under this doctrine,
a trust is executed, or carried out as nearly as possible, according to
the objects laid down in it.
Where a settlor has specified any lawful object which has already
been completed or the object cannot be executed further, the trust is
not allowed to fail. In such cases, the doctrine of cypress is applied
and the income of the property is utilised for such objects which are
as nearly as possible to the object already given.
The doctrine of cypress is applicable also to waqfs. Where it is not
possible to continue any waqf because of
(a) Lapse of time or,
(b) Changed circumstances or,
(c) Some legal difficulty or,
(d) Where the specified object has already been completed, the
waqf may be allowed to continue further by applying the doctrine
of cypress.
Q. 30. What is doctrine of Aul?
Ans. When the sum total of the shares allotted to various heirs in accordance
with their entitlement exceeds the unity, then the doctrine of aul lays
down that the share of each heir should be proportionately reduced.
This is done by reducing the fractional shares to be common
denominator. Since this is done by increasing the denominator, the
doctrine has been given the name of increase (aul) though in fact the
shares are proportionately reduced.
Actually shares are reduced for each heir. Only the fractions are
increased.
Q. 31. What is the doctrine of Radd?
Ans. If Residue is left after distributing the property of the deceased amongst
the Sharers, but there is no heir of the deceased falling under the
category of Residuary, the residue of the property reverts back to the
Sharers in the proportion of their shares. The Right of the Sharers of
revert back of the Residue property to the Sharers in absence of the
residuary heirs is called as the Return or Doctrine of ‘Radd’.
The Doctrine of Return
According to this Doctrine under the Muslim Law, the residue property
returns to the Sharers and not the Distant Kindred in absence of any
heir under the residuary category. If there is more than one Sharer
then the property should be returned in the proportionate shares and
if there is one sharer then the whole of the residue property should be
transferred back to the sole sharer. The residue cannot be transferred
to the Distant Kindred because according to the rules, the distant
kindred do not get anything so long as there is a Sharer or Residuary
alive.
Q. 32. Who is Sajjadanashin?
Ans. The work ‘Sajjadanashin’ (spiritual superior) is derived from sajjada,
that is, the carpet used by Mohammedans for prayer and nashin, that
is sitting. The sajjadanashin takes precedence on the carpet during
prayers. The office of sajjadanashin is a spiritual office, and he has
certain spiritual functions to perform.
The status of Sajjadanashin is higher than that of a mutawalli. He is
the head of the institution and has a right to exercise supervision over
the mutawalli’s management. But the Sajjadanashin may also be a
mutawalli and in that case, with reference to the wakf property he is in
no better position than a mutawalli. He has no power to borrow money
for the purpose of carrying out the objects of the trust but he may like
a mutawalli borrow money and incur debt, with the sanction of the
Court, for the preservation of the wakf property. The Court may remove
a Sajjadanashin for misconduct and when framing a scheme may
separate the offices of Sajjadanashin and mutawalli.
Q. 33. What is Takia?
Ans. Meaning of Takia is resting place or Tombor burial ground.
Q.34. What is Imambara?
Ans. An “Imambara” or an “Imambargah” means (House of Imam or Court
of Imam); this word is a North Indian origin. An Imambara is also
known as Hussaniya, Ashoor Khana. An Imambara is a place or a
building with a hall where people assemble for “Majlis” (Mourning
Congregations) of Imam Husain and Martyrs of Karbala.
Q. 35. What is meant by Fiqh?
Ans. The word fiqh is an Arabic term meaning “deep understanding” or
“full comprehension”. Technically it refers to the body of Islamic law
extracted from detailed Islamic sources (which are studied in the
principles of Islamic jurisprudence) and the process of gaining
knowledge of Islam through jurisprudence.
Q. 36. What is Hiba?
Ans. The term Hiba is of Arabic origin and literally means gift. Chapter VII
of Transfer of Property Act, 1872 is applicable to all the gifts made in
India by any person but it does not apply to Hiba or Muslim gifts.
Hiba of Muslim gifts are associated in the Shariat Act, 1937 which is
to be regulated by Muslim personal law.
Estimation of importance of Hiba under Muslim Law can be inferred
from the very fact that under Muslim law, when a living person
voluntarily transfers ownership of property to another living person,
it is transferred in absolute interest and any restraining conditions or
partial transfer of rights in the gifted property are opposed to the
impression of Hiba under Muslim Law.
Definition:
According to Hedaya– ”Hiba is an unconditional transfer of
ownership in an existing property, made immediately without any
consideration.”
According to Ameer Ali– ”A Hiba is a voluntary gift without
consideration of property by one person to another so as to constitute
the donee the proprietor of the subject-matter of the gift.”
According to Mulla– ”A Hiba is a transfer of property, made
immediately and without any exchange by one person to another
and accepted by or on behalf of the latter.”
According to Fyzee– “Hiba is the immediate and unqualified transfer
of the corpus of the property without any return.”
Q. 37. What do you understand by Sadqah?
Ans. Where the object of a gift is to secure religious or spiritual gains, the
transaction is called, sadqah. A Hiba is made out of mutual love and
affection i.e. just to please a person in whose favour it is made. On the
other hand, sadqah is made to please the God. Thus, hiba is a secular
or non-religious gift whereas; a sadqah is a religious gift. The essential
requirements of a valid sadqah are the same as that of a Hiba i.e. there
must be declaration, acceptance and the delivery of possession.
Sadaqah is the act of charity given purely out of compassion, love,
friendship, religious duty or generosity. It’s the smile you give to
your neighbour, the potential harm you remove from someone’s
pathway, the food you feed to the needy or the well you dig to quench
someone’s thirst.
Q. 38. What is Areeat?
Ans. An areeat is the grant of a licence, revocable at the grantor’s option,
to take and enjoy the usufruct of a thing.
The four essentials of an areeat are that
(a) can be revoked;
(b) it must be a transfer of ownership in the property;
(c) it must be for a definite period, and
(d) it does not devolve upon the heirs of the donee on his death.
Q. 39. What is Hiba-ba-Shart-ul-Iwaz?
Ans. Where a gift is made with a stipulation (shart) for a return it is called
hiba-ba-shart-ul-iwaz. As in the case of hiba, in the case of hiba- ba-
shart-ul-iwaz also, delivery of possession is necessary, and the gift is
revocable until the iwaz is paid. On payment of iwaz (consideration)
by the donee, the gift becomes irrevocable. The transaction, when
completed by payment of iwaz is, however, not very common in India.
Q. 40. What is Hiba-Bil-Iwaz?
Ans. Hiba-bil-iwaz is a gift for a consideration. It resembles a sale in that
(a) transfer of title is complete without delivery of possession, and
(b) all the incidents of sale attach to it, including —
(i) the liability of being pre-empted, where the law of pre-
emption is in force, and
(ii) the right to return a thing for a defect.
To constitute a valid Hiba-bil-iwaz, the following two conditions must
be present:
(a) Actual and bona fide payment of consideration (iwaz) on the
part of the donee; and
(b) A bona fide intention on the part of the donor to divest himself
in praesenti of the property, and to confer it upon the donee.
Thus, it is in reality a sale, while the true hiba-bil-iwaz is not a sale
either in its inception or completion. In fact, the Calcutta and the
Lahore High Courts have held that a transaction of this character is
nothing but a sale, and that where it affects immovable property of
the value of a hundred rupees and above, it must be effected by a
registered instrument, as required by Section 54 of the Transfer of
Property Act.
Q. 41. Who is De Facto Guardian under Muslim Law?
Ans. A de-facto guardian is a person who is neither a legal guardian nor a
testamentary guardian or statutory guardian, but has himself assumed
the custody and care of a child.
According to Tyabji a de-facto guardian means that an unauthorized
person who, as a matter of fact, has custody of the person of a minor
or his property. A de facto guardian could be a person having no
authority for the guardianship however underneath the circumstances
has taken the responsibility to act as the guardian of a minor.
Q. 42. What is HIZANAT?
Ans. The first and foremost right to have the custody of children belongs
to the mother and she cannot be deprived of her right so long as she
is not found guilty of misconduct. Mother has the right of custody so
long as she is not disqualified. This right is known as right of hizanat
and it can be enforced against the father or any other person. The
mother’s right of hizanat was solely recognized in the interest of the
children and in no sense it is an absolute right.
All Muslim authorities recognize the mother’s right of hizanat
According to the Rudd-ul-Muhtar, The right of the mother to the
custody of her child is re-established whether she be a Musalman, or
a kitabia or a mojoosia, even though she be separated from her
husband. But it does not belong to one who is an apostate.
Since Muslim law considers the right of hizanat as no more than the
right of rearing of the children; it terminates at an early age of the
child. In this regard Muslim law makes a distinction between the son
and the daughter.
Q. 43. What is Apostasy?
Ans. Apostasy is derived from the Greek word apostasies, which means
defection. To aid, Apostasy is the abandonment of belief or
faithlessness. Apostasy is a term used by society for disaffiliation
from religion by a person.
Apostasy as a legal term in Islamic law signifies the abandonment of
Islam. A person who forsakes Islam for another religion is called a
murtadd (apostate). Apostasy may be committed through one’s belief,
words, or deeds.
Q. 44. What is the effect of conversion to Islam on the legal status of man
and woman ?
Ans. Conversion is renunciation of one’s religion and adoption of another
religion. On conversion to Islam the status of the converts comes
under Mohammedan Law. The effect of conversion is prospective
and not retrospective. A bona fide conversion to and from Islam
substitutes the new religion of the party for his or her previous religion.
We shall consider the effect under the following heads:
1. Effect on marital rights –
(a) Conversion of husband. - If the conversion to Islamic religion is
bona fide it may bring the convert under the rules of
Mohammedan Law. Thus, where a married Christian domiciled
in India, embraces Islam and marries with another woman
according to the Muslim rules, it has been held that Muslim Law
applies to his case and the second marriage becomes valid, and
previous marriage of the husband with the Christian lady is not
dissolved, because Mohammedan Law permits marriage between
a Muslim male and a kitabia woman a follower of one of the
scriptural faiths. But if the conversion is not bona fide and it is
merely pretended in order to take advantage of the personal law
so adopted, the court will not allow the validity of such
conversion.
Thus a Christian who had a Christian wife living, cohabited with
a native Christian woman, in order to legalise his relation with
the latter, he and the woman both embraced Islam and went
through the ceremony of marriage. The marriage was held to be
invalid, as the man had tried to escape the consequences of
bigamy by embracing Islam which recognises plurality of wives.
(Skinner v. Orde, (1871) 14 Moor I.A.309, and Sarla Mudgal
v. Union of India (1995) 3 S.C.C. 653 where a Hindu converted
to islam).
(b) Conversion of wife. - A non-Muslim wife cannot merely by
conversion to Islam legally marry a Mohammedan during the
lifetime of her non-Muslim husband and her marriage with the
non-Muslim male which was solemnised before conversion is
not dissolved merely by the fact of her conversion to Islam.
(c) Effect of conversion on previous marrige. - If one of the spouses
becomes convert to Islam, the conversion will not dissolve the
marriage validly contracted. Thus, if a husband becomes
converted to Islam, his marriage with his non-Muslim wife is not
dissolved.
Similarly, if a non-Muslim wife embraces Islam the marriage would
not be automatically dissolved.
2. Effect on right of inheritance. -
When a person is converted to Islam, the succession to his estate will
be governed by Mohammedan Law. Thus, if a married Hindu embraces
Islam, his Hindu widow or Hindu children will have no right to succeed
to him as the non-Muslim may not succeed to a Muslim according to
Mohammedan Law. (Chedambrian v. Ma-Ne. Me (1928) 6 Rang 243).
A convert to Islam is not governed by his original religion, but is
presumed to have accepted the tenets of the Prophet as well as Muslim
personal law. According to the Shariat Act, 1937, which has abrogated
customs and usages of the Muslim Law, a convert cannot set up any
custom relating to intestate succession.
Q. 45. What is the effect of conversion on marital rights of a Mohammedan?
Ans. Under the pure Muslim law and before enactment of ‘Dissolution of
Muslim Marriage Act 1939’, a Mohammedan after renouncing ‘Islam’
loses all his or her marital right and apostasy from Islam of either
party to a marriage operated as complete and immediate Dissolution
of Marriage.
In Rabian Bibi v. Ghulam Ali, AIR 1941 Lahore 292, it was held
that Section 4 of dissolution of Muslim Marriage Act, 1939 is not
retrospective and applies only to renunciation or conversion which
might take place after the Act came in force consequently apostary of
either party to a Muslim marriage prior to coming in operation of Act
ipso-facto dissolves the marriage.
Section 4 of Dissolution of Muslim Marriage Act 1939, provides that
marriage of a Muslim husband with Muslim wife is dissolved ipso
facto on renunciation by the husband of the Islamic religion. However,
where Muslim married couple renounce Islam and embrace another
religion their marriage remains intact and is not dissolved.
Renunciation of Islam by Married Muslim Woman on her conversion
to faith on any other religion does not by itself dissolve her marriage.
But where woman converted to Islam from some other faith re-embraces
her former faith her marriage with Muslim husband stands dissolved.
The conversion of a Hindu wife to Islam does not ipso facto dissolve
her marriage with her husband. She cannot enter into valid contract of
marriage with any other person during the life time of her husband
and if she goes through a ceremony of marriage after conversion to
Islam she will be guilty under section 494 of Indian Penal Code.
In Ahmad Bux v. Smt. Nathoo, AIR 1969 All. 75, it was held that
marriage between a Hindu couples does not dissolve automatically
after a fixed period on the conversion of Hindu wife to Islam.
In the case of Ram Kumari (1891) 18 Cal.264 a Hindu Married woman
embraced Islam in the belief that her conversion to Islam would ipso
facto dissolve her marriage with her Hindu husband, after conversion
she married again with a Muslim. She was prosecuted for bigamy and
convicted.
Q. 46. What is effect of conversion to Islam with colourable, fraudulent or
dishonest intention ? Give your reply with the help of some decided
cases.
Ans. The effect of conversion to Islam with dishonest fraudulent or
colourable Intention –
One of the essential conditions for a non-Muslim for conversion to
Islam is that there must be good and bonafide intention behind such
conversion. If it is found that the object of conversion was not
bonafide, a converter can be punished in law. For example, in the case
of skinner is example [(1871) 14, MIA 309] one Christian woman was
cohabiting with a married Christian man. In order to legalise their
living as wife- husband both of them converted to Islam and then re-
married. Later on when the question of validity of their marriage arose
in the Court, Privy Council in that case held that such marriage was
‘null and void’ on the ground that the conversion of the parties to
Islam was a fraud upon the law and it was not bona fide.
In one other case (Rakeya Bibi v. Anil Kumar, (1948) 2 Cal. 119) it
was held by Calcutta High Court that where the party puts forward his
or her conversion to a new faith as creating a right in his favour to the
prejudice of another, it is proper and necessary for a Court of Law to
enquire and find out whether the conversion was a bonafide one. In
the instant case since the conversion of the plaintiff (woman) was
with a view to get rid from the unhappiness caused in her mind due to
her husband’s impotency, her conversion to Islam was not bonafide.
In the case of [Ram Kumari (1891) 18 Cal. 254] a Hindu woman
assumed that if she adopts Islam, her marriage, took place earlier
according to Hindu Law, will automatically be dissolved and as such
she adopted Islam. Her conversion to Islam was therefore held non-
bonafide by the Court and she was prosecuted and convicted for
bigamy.
In view of the decision of the above cases, a question arises what is
the true test of conversion:
“The actual position in this regard is that any religion depends upon
belief. It is inner thought or feeling of a man but a partial difficulty in
this regard is that the internal thoughts of a person can neither be
measured nor be tried in the Court. Due to this reason only no `hard
and fast’ rule can be laid down even for the external tests too. Only
circumcision is one of the test but it is also not a final and conclusive
test or guage the sincerity of religious belief.”
The Court, however, can find out the true intention of person lying
behind his acts. So far the genuineness or bonafideness of the
conversion of the Islam is concerned; it can be found out by the Court
from the circumstances of the case whether a pretended conversion
was really a means to some further ends. If conversion is not inspired
by religious feelings and it is done for the sake of achieving one’s
own motive or purpose, it will not be recognised as bonafide.
Summarily it can be said that the conversion to Islam is valid and
bonafide if converter professes Islam and that it is not pretended or
colourable one for the purpose of perpetrating a fraud upon the law
and the whole of the converter’s conduct and the evidence of
surrounding factor is such as to run counter to the presumption of his
or her conversion to Islam.
Q. 47. What do you understand by a valid retirement? Describe its legal
effect.
Ans. Valid retirement - The consummation of marriage is one of the
essential requirements of a valid Muslim marriage. A presumption of
such consummation of marriage can be raised only ‘Us-Sahih’.
The term valid retirement or ‘Khilwat-Ul-Sahih’ has been defined by
the various jurists and the doctors of the Muslim law. Some of the
important definitions are as follows -
‘Radd-ul-Mukhatr, said that “If the parties having no physical, moral
or legal bar, retire into privacy, it raises a presumption of consummation
of marriage.”
According to Fatwai-Alamgiri, “A valid retirement is equivalent to
the actual consummation for the various purposes.”
Ameer Ali defined it in these words “When the husband and wife are
together at a lonely place under such circumstances which present
not legal, moral or physical impediments to material intercourse, they
are said to be in valid retirement.”
The retirement will not be valid under the following circumstances -
(1) When the parties are observing the obligatory fast of
‘Ramzan’. Or
(2) Either husband or wife is suffering from an illness or physical
incapacity which prevents connubial relationship. Or
(3) A third person is present in that room even though such person
is blind. Or
(4) Any other legal, moral or physical impediments which cause or
likely to cause disturbance in free intercourse between the
spouses.
Therefore as per Amar Ali, merely the retirement into the nuptial
chamber is not sufficient to give rise to the presumption of
consummation of marriage. More particularly when the place for that
purpose is exposed to public view or it has a public access or if it is
open, unenclosed place, the presumption of consummation of marriage
does not arise. What actually needed for a valid retirement is the
absolute privacy for the spouses.
Legal effect of the valid retirement - According to ‘Fatwai Alamgiri’,
a valid retirement is equivalent to actual consummation for the purpose
of-
(i) Confirmation of dower
(ii) Establishing paternity
(iii) Observation of Iddat.
(iv) Observance of time in repudiation of marriage.
It is, however, not applicable for the following purposes -
(a) For making a person ‘Muhsan’ or a daughter unlawful.
(b) For making the divorced woman lawful to her first husband.
(c) For revoking repudiation of marriage.
(d) For inheritance.
(e) Replacing actual consummation for the purpose of impairing
virginity.
Amir Ali said that if a man should retire with a virgin and then repudiate
her, she would subsequently marry as virgin.
Q. 48. What are the legal effects of a divorce? Also describe the rights and
obligations of the parties on divorce.
Ans. The following are the legal effects of a divorce -
(i) Right to contract another marriage - If the marriage was not
consummated, the wife is not bound to observe Iddat, and she
may marry again immediately. But if the marriage consummated
then the wife is bound to observe iddat which is three menstrual
periods. If she is not subject to menstruation then, three lunar
months. If the wife is pregnant at the date of divorce, the period
of iddat is until delivery, or three months, whichever is longer.
(ii) Maintenance - During the period of iddat, the husband is not
bound to maintain the wife. If the divorce is not communicated,
the wife is entitled to maintenance even after the expiry of that
period until she is informed of the divorce.
(iii) Dower - If the marriage was consummated, the wife is entitled to
the whole of the unpaid dower, whether prompt or deferred.
But if the marriage is not consummated, the wife is entitled to
half of the specified dower.
Prompt dower becomes payable immediately and deferred dower
also becomes due.
(iv) Right of inheritance - When the divorce becomes irrevocable,
mutual rights of inheritance between husband and wife cease to
exist. There is one exception to this, viz. in case of a divorce
given during death-illness (Marz-ul-maut), in which case, the
wife’s right to inherit continues, till the period of iddat is over.
(v) Remarriage with divorced wife - After iddat, the parties can re-
marry each other, except when divorce is given by triple
pronouncement of talaq. In that case, before they can remarry,
the wife must be married to another person in the interval and
divorced by him.
Rights and obligations of parties
Until the divorce becomes irrevocable (a) the husband can revoke,
and (b) either party is entitled to inherit the order.
But as soon as the divorce becomes irrevocable, the wife may marry
another husband (a) immediately, if the marriage was not consummated
(b) After the completion of iddat, if the marriage was consummated.
Where husband has four wives including the divorced wife at the
date of the divorce, he can marry another wife immediately if his
marriage with the divorced wife was not consummated and after the
completion of period of Iddat, where the marriage was consummated.
Wife is entitled to maintenance during Iddat or until she is informed of
divorce.
In Rashid Ahmad v. Anisa Khatun (1932) Bom.L.R. 475, it was
observed that sexual intercourse with divorced wife is unlawful and
the issues of such an intercourse are illegitimate, that paternity cannot
be acknowledged.
Mutual rights of inheritance ceases after expiry of period of Iddat.
Wife’s right of inheritance continues only if:
(i) Divorce was pronounced during Husband’s death illness and
(ii) It was not repudiated at her own request, until expiry of the
iddat.
Wife becomes entitled to whole of the dower if the marriage was
consummated and half of specified dower if marriage is not
consummated.
Q. 49. Under what circumstances a Muslim wife is entitled to decree of
dissolution of her marriage under the Dissolution of Muslim
Marriage Act, 1939? What is effect of apostasy from Islam?
Ans. Grounds of Dissolution of Muslim Marriage - Section 2 of Dissolution
of Muslim Marriage Act, 1939 lays down nine grounds on which a
woman under Muslim Law is entitled to decree of divorce, it says-
“A woman married under Muslim Law shall be entitled to obtain decree
for dissolution of her marriage on any one or more of the following
grounds namely -
1. Absence of Husband - As per section 2(i) when the where-abouts
of the husband have not been known for period of four years;
However Section 2(i)(b) of Act says that a decree passed on
this ground shall not take effect for a period six months from the
date of such a decree and if the husband appears either in person
or through authorised agent within that period and satisfies the
court that he is prepared to perform his conjugal duties, court
shall set aside the decree.
2. Failure To Maintain - The Husband has neglected or has failed
to provide for her maintenance for period of 2 years (Section
2(ii))
3. Imprisonment of Husband - The husband has been sentenced
to imprisonment for period of seven years or upwards. No decree
shall however be passed on this ground until the sentence
become final. (Section 2(iii)(a))
4. Failure to perform mortal obligation - The husband has failed
to perform, without any reasonable cause, his marital
obligations for a period of three years. [Section 2(iv)].
5. Impotency of husband - The husband was impotent at the time
of the marriage and continues to be so; but on an application by
the husband, the court shall make an order requiring the husband
to satisfy the court, within one year from the date of such order,
that he has ceased to be impotent; and if the husband so satisfies
the court within such period no decree shall be passed on this
ground. [Section 2(iv)(c)].
6. Insanity, leprosy or veneral disease - The husband has been
insane for two years or is suffering from leprosy, or a virulent
disease [Section 2(vi)].
7. Reproduction of marriage by wife - She (the wife) having been
given in marriage by her father or other guardian before she
attained the age of 16 years, repudiated the marriage before
attaining the age of 18 years, provided the marriage has not
been consummated. [Section 2(vii)].
8. Cruelty of husband - The husband treats her with cruelty that is
to say -
(a) habitually assaults her or makes her life miserable by
cruelty of conduct, even if such conduct does not amount
to physical ill-treatment; or
(b) associates with women of evil repute or leads an infamous
life, or
(c) attempts to force her lead an immoral life, or
(d) disposes of her property or prevents her from exercising
her legal rights over it; or
(e) obstructs her in the observance of her religious
profession or practice, or
(f) if he has more wives than one, does not treat her equitably
in accordance with the injunctions of the Quran. [Section
2(viii)].
9. On any other ground which is recognised as valid for the
dissolution of marriages under Muslim Law. [Section 2(ix)].
This clause covers the divorces Illa, Zihar, Khuba, Mubarat and
Tafweez. Imputation of unchastity or a false charge of adultery
against the wife makes a good ground for the dissolution of her
marriage. This ground falls in clause (ix) of section 2 of the
Dissolution of Muslim Marriage Act 1939.
Effect of Apostasy from Islam on Marriage
Section 4 of the Dissolution of Muslim Marriage Act, mentions about
the effect of apostasy from Islam on marriage. The renunciation of
Islam by a married Muslim woman or her conversion to a faith other
than Islam, shall not by itself, operate to dissolve her marriage. But
after such renunciation or conversion, the woman shall be entitled to
obtain a decree for dissolution of her marriage on any of the above
mentioned grounds.
Although apostasy of a Muslim woman shall not, by itself, be a ground
for dissolution of her marriage, the conversion of a woman converted
to Islam from some other faith to her former faith shall, by itself, operate
as automatic dissolution of her marriage.
Q. 50. Can a gift once made be revoked? If so, what are the provisions for
such revocation?
Ans. Yes, gift can be revoked.
Revocation of gift - A gift once made can, with a few exceptions, be
subsequently revoked. According to Tyabji in Muslim Law, all
voluntary transactions are revocable; since the revocability is one of
the characteristics of the law of gift. Baillie, however, said that all gifts
are not revocable. The text contains a long list of gifts which cannot
be revoked if once perfected by delivery. Ameer Ali and others were
of the opinion that gift once completed can be revoked only by the
intervention of the court of law or by consent of donee. A mere
declaration on the part of the donor is not enough.
The revocation of gift can be studied under the following headings:-
(a) Before delivery of possession.
(b) After delivery of possession.
Revocation of gift before the delivery of possession - Every gift can be
revoked under Muslim Law, if the delivery of possession of the gift
property has not been given to the donee. The reason is that under
Muslim Law, a gift is not complete till delivery of possession is made.
Therefore, the revocation of such gift merely means that the donor
has changed his mind and he does not want to complete it by the
delivery of possession. The order of a court is not necessary for such
revocation. Fyzee in this connection said that in such cases, a gift
becomes inchoate gift and it is not proper to apply the term revocation
to such gifts.
Revocation of gift after the delivery of possession - A gift cannot
easily be revoked after the delivery of possession to donee. Once the
possession of a gift-property has been given to donee by a donor
such gift cannot subsequently be revoked merely by:
(a) declaration of revocation or
(b) instituting a suit or
(c) by any other action. It is possible only when the decree of court
is passed.
Discussing the right of done in such circumstances, it was said in the
case of Mahboob v. Abdul, (1964, Raj. 250) that till a decree of the
court is passed for revoking the gift, the donee is entitled to use the
property in any manner. He can also alienate it. It seems that (a) A gift
can be revoked after delivery of possession if donee gives consent
for the same or (b) revocation can be done by decree of the court.
Since the gift is given by donor, the right of its revocation confines
within him only being his personal right, heirs of a donor afterwards
or at any time cannot revoke it.
Q. 51. Enumerate principal points of difference between the Sunni and Shia
rules of inheritance.
Ans. Principal points of difference in rules of inheritance between -
Sunni Law Shia Law
1. Rule of Premogeniture :
The Sunni Law does not recognise The Shia Law recognises it to
the doctrine of ‘Premogeniture.’ certain extent.Thus, the eldest
son is entitled to his deceased
father’s sword, wearing apparel
and Quran.
2. Principle of Consanguinity :
The principle of consanguisnity The Shia law adopts the principle
is not recognised in Sunni law. of consanguinity and not of
The Sunnis prefer agnates to agency. The Shias prefer the
cognates. nearest, kinsmen whether they
are agnates or cognates. They do
not recognise any separate class
of heirs corresponding to the
distant kindred of the Sunni law.
All heirs under the Shia law are
either sharers of residuries.
3. Classification of heir :
The classification of heirs under
Sunni law is rather unnatural. Under the Shia law it is more
natural.
4. Quranic list of Shares :
The Sunni do not interfere with The Shias keep the Quranic list
the Quranic shares except that, intact but re-arrange it in a group
on the authority of the ijma and division on the basis of
qiyas, they introduce into the list propinquity.
of shares, the true grandfather,
the true grandmother and the
son’s daughter.
5. Doctrine of Representation :
It is not recognised. The doctrine of representation is
the key note of the whole system
of the Shia law of inheritance.
6. Distant Kindred :
Under the Sunni law, the distant They inherit along with sharers
Kindred are postponed to sharers and residuaries.
and residuaries.
7. Doctrine of Increase :
Under the Hanafi law the doctrine Under the Shia law, the doctrine
of ‘Increase’ extends to all the applies only against the daughter
sharers alike. and sister.
8. Movable and Immovable Property :
There is no distinction between In one case, viz., in the case of a
movable and immovable property childless widow, the Shia law
left by the deceased. makes a distinction between
movable and immovable property.
A childless widow is not allowed
to take any share in her husband’s
immovable property.
9. Return :
Under the Hanafi law all the Under the Shia law, the wife can
sharers, except the husband or never get benefit by the return
wife share in the return and and the mother, and uterine
even the husband of wife gets brother and sister are excluded
the residue on the total failure from the share under certain
of other heirs. conditions.
10. Devolution of the Residue :
If deceased leaves behind a single According to Shia, residue is
daughter and father, according to divided amongst the sharers by
the Sunnis, the residue goes to return.
the father.
Q. 52. Who is competent to inherit? Describe the principles of exclusion.
Ans. Competency to inherit - According to Muslim Law of inheritance -
(a) Every person and
(b) every child in womb provided it born alive, is entitled to inherit
unless there is a specific rule of exclusion.
According to Mulla, the right of heir (apparent or presumptive) comes
into existence for the first time on the death of the ancestor. He is not
entitled until then to any interest in the property, to which he would
succeed as an heir, if he survived the ancestor.
Q. 53. Write a critical note on “vested inheritance” under Mohammedan
Law.
Ans. Vested interest
It is a well established rule in Muslim Law that property never remains
in a state of abeyance but on the death of the proprietor it passes at
once to his heirs in their proper shares.
Before the death of the proprietor, persons entitled to shares (i.e. heir-
presumptives) have no interest in the property and they cannot deal
with it, nor do their heirs succeed if they die. On the death of Muslim,
the persons entitled to the share do not remain heir-presumptives but
become perfect heirs and take a vested interest in their shares even
before distribution. The share which vested in the heir at the moment
of the ancestor’s death is called “vested inheritance”.
Legal Consequences.
(i) The estate of the deceased Muslim immediately after his death
vests in his heirs in specific shares. Immediately on the death of
a Mohammedan, the property is vested and vesting of property
never gets postponed (Wahab Kumar v. Fateh Kumar, A.I.R.
1986 J. and K. 94).
(ii) If there be debts of deceased, the property would remain liable
for the discharge of those debts and each heir would be liable to
pay a sum proportionate to his share of inheritance.
(iii) If the heir dies before distribution has taken place, his share
would pass on to his own heirs at the time of his death.
(iv) The vested inheritance may be dealt with by the heir at his
pleasure.
Illustration. - A dies leaving a son B and a daughter C, B dies before
the estate of A is distributed, leaving a son D. In this case on the
death of A, 2/3 of the inheritance vests in B and 1/3 in C. On distribution
of A’s estate after B’s death the 2/3 which vested in B must be allotted
to his son D.
Q. 54. Is the right of pre-emption ‘a right of repurchase from a buyer, or, is
it an incident of property’? Discuss, bringing out the true nature of
the right of pre-emption.
Ans. The right of pre-emption or ‘Shuffa’ is a right to acquire by compulsory
purchase in certain cases, an immovable property in preference to all
other persons. Law of pre-emption is based on the texts of Muslim law
and it is well founded doctrine in India. Object of the pre-emption is to
prevent the introduction of strangers among co-sharers.
Right of pre-emption is the right which the owner of an immovable
property possesses to acquire another immovable property for price
for which it has been sold.
In Govind Dayal v. Inayatullah, Mohmood J. defined the right of Pre-
emption as ” a right which the owner of certain immovable property
possess as such for quiet enjoyment of that property, to obtain in
substitution for the buyer, proprietary possession of certain other
immovable property not his own on such terms as those on which
such later immovable property is sold to another person.”
The main ingredients of this definition are:
1. Pre-emption is a right which the owner of a certain immovable
property possesses to obtain proprietary possession of certain
other immovable property, not his own.
2. The right is obtained in substitution for the buyer (who has
already purchased that other immovable property)
3. Right of proprietary possession is obtained on the same terms
on which that other immovable property is sold to purchasers.
4. Right is given by law for the quiet enjoyment of the property.
In Audh Behari Singh v. Gajendhar Jaipuri, 1954, Supreme Court
observed: “The correct legal position seems to be that law of
preemption imposes limitation or disability upon ownership of a
property to the extent that it restricts the owner’s unfettered right of
sale and compels him to sell the property to the co-sharer or neighbour
as the case may be.”
In Indira Bai v. Nand Kishore, AIR 1991 SC 1054 Supreme Court
held that right of pre-emption is a weak right and it can be defeated by
estoppel. Even in Muslim Law which is the genesis of this right, it is
settled that the right of pre-emption is lost by estoppel and
acquiescence.

Long Answers Questions

Q. 1. Discuss about "Muslim Law". Discuss its basic principles. Trace
the History and development of Muslim Law.
Ans. Muslim Law is a personal Law. Muslims are governed by it, just as
`Hindus' are governed by their customary as well as codified law. As far as
Muslim Law in India is concerned, Muslim Law means "that portion of Islamic
Civil Law which is applied to Muslims as a personal law." The term Muslim
Law is also known as "MOHAMMEDAN LAW" though there is big difference
between two expressions. Eminent author Sir A.A.A. Fyzee, has said that
strictly speaking the religion taught by `Prophet' was Ìslam' and not
Mohammedanism. The people who believe in it are Muslims and not
Mohammedan. Therefore Mohammedan Law as applied in India, as personal
law for Muslims, is actually part of Islamic Law. It consists of the injunctions
of Quran, of traditions introduced by practice of the `prophet' of the common
opinion of the jurists (Ijma), of the analogical deductions of these
three (Qiyas) and of the pre-Islamie customs not abrogated by Prophet
Mohammad. It has been supplemented by the juristic preference (Ijtihad) and
State legislations and judicial precedents of different High Courts, Privy Council
and Supreme Court.
"Quran" the Foundation of Muslim Law Muslim law is founded upon
Àl-Quran' which is believed by the musalmans to have existed from eternity,
subsisting in the very essence of God. The Prophet Mohammad himself declared
that it was revealed to him by the angel "Gabriel" in various portions and at
different times. The main characteristic of Muslim law is that it has always
been defined in terms of religion. The word Muslim is a ‘noun' of action. Its
meaning is that one who adopts the faith of Islam and Islam is a word which in
Arabic term means ‘Submission to the will of God’.
Therefore, one who believes in:
(a) the principle of the Unity of God i.e. God is one and
(b) Prophet Mohammed is Messenger of God, is Muslim.
There are three important elements of this religion. They are
(a) ISLAM i.e. submission to the will of God
(b) TAWHID dogma of the unity of God and
(c) AKHWAD i.e. brotherhood.
One who subscribes to these basic elements of Islam is known as
Muslim.
It is believed by Muslims that their religion has a divine origin and it is
in existence since the beginning of the world and will exist till dooms day. The
only thing is that wherever religion is corrupted and people forget the real
sense of it, God in his infinite mercy sends a RASUL (Messenger or reformer)
in the world. Such Rasuls time to time tried to do away with the malpractices
prevailing in those days. He warned the people against those evils.
What is Islam :- In the religious sense Islam means "submission to the
Will of God" and in secular sense Islam means the establishment of peace.
History of Islam
The History of the development of Muslim law has been divided by
various Muslim scholars in their own ways. Sir A.A.A. Fyzee divided the
history of development of Muslim Law into five periods. On the basis of their
study we can divide the history of development of Muslim law, into following
five periods :-
(a) From AH 1 to AH.10 (Period covering last 10 years of life of Prophet)
(b) From AH.10 to AH.40 (The period of first four caliphates)
(c) From A.H.40 to A.H.300 (Most important period of development of
Muslim Law)
(d) From A.H. 300 to 1924 A.D. (Period in which the caliphate was
abolished. British rule was established)
(e) From 1924 Onwards
(a) The period of A.H. 1 to A.H. 10 (The first period) - This period was the
last 10 years of the Prophet Mohammed's life. In that period all verses
of the `Koran' were collected and composed. Important Àhadis' also
came into existence in those days. `Koran' was the direct revelation of
the Angel Gabril to prophet Mohammed. Prophet conquered `Macca'
and `Madina'. During the last few years of his life he took up the task of
legislation. Most of the verses of Koran (Quaran) were revealed during
that period. They are many important judicial decisions and traditions
which pertain to that period. As per Islamic law the inspiration from
Almighty comes through either by direct manifestation (Zahir) or it
may be implied (Batin). The words of `Koran' as per Islamic faith, were
the very words of `God'. The actions and sayings of the prophet were
directly inspired by the `divine power'. Out of which the traditions are
supposed to be indirect revelation. The verses of Koran were the very
words of God.
(b) The period from A.H. 10 to A.H. 40 - The period of those 30 years was
of the first four caliphate's or successors of prophet. There were two
main contributions of this period i.e. (i) The collection and editing of
the text of `Koran' and (ii) Close adherence to ancient practice under
the fiction of adherence to `Sunna'.
(i) The texts of the Koran (Quaran) during the life of prophet have
been preserved by his companions either in memory or by
inscribing them on the bones, date leaves and tables of stone.
After the mass slaughter of the large number of reciters in an
expedition against the importers `Mu ailima', Zaid, a close
companion of prophet Mohammed was employed by caliph Àbu
Bakr' his reign to collect and codify the verses of Koran. He
accomplished between A.H. 11 to 14. Such collection of verses
of Koran were again got revised from Zaid by third caliph Uthman.
Then an authenticated and uniform text was made which is used
throughout the Muslim world even today.
(ii) The sayings and decisions of prophet were not collected under
the authority of State but their collection was left to the person
who were most learned in tradition. They gathered round
themselves and stored up all the sayings of prophet. Such zeal
gave rise to many a false and inaccurate tradition. The leanings
and aptitude in deducing the rules of secular common law of
same comparisons of prophet i.e. Ali. Umar Idn-Umar, Idn Masu'd
and Idn Abbas got prominence. They became the basis of many
principles of Mohammedan jurisprudence.
The second characteristic of the second period was that administration
of justice was established during the period of first four caliphs. After
the death of prophet, Abu Bakr himself administered justice as the
prophet had done before him. He delegated his judicial functions to
Ùmar' who was appointed the first Kazi (Quadi). During his days the
powers and jurisdiction of the Quadi (Kazi) was properly defined. After
Ùmar', Ali was a noted jurist. He was assassinated in A.H. 40. This
brought to close an age of the rightly guided caliph. That period was
characterised by a close adherence to the ordinances of Islam. The law
was then administered either by the head of the state or the church. It
was during the later days of Umaiya's dynasty when a study of law,
was largely influenced by recently introduced science of divinity and
scholastic logic. In that series efforts were made to classify the laws
under different subjects to introduce the use of technical phraseology
and the arrangement of different sources of law. After the fall of
Umaiyad's destiny, Abbasides came into accession. In A.H. 132, the
Abbasides caliphs patronised learning and extended their help and
encouragement for study of `law' and `Jurisprudence'. It was due to
their efforts that Baghdad became the centre of culture and the jurists
and traditionists of those days were attracted to reach there.
(c) The third period from A.H. 40 to A.H. 300 - The third period of the
development of Islamic law was from A.H. 40 to the third century. That
period was remarkable in the sense that the collection of traditions was
done during those days by famous traditionist `Burkhari' and Muslim.
Moreover during the early part of that period four schools of `Sunnite
law' like Hanafi, Shafi, Maliki and Hanabali came into existence and
they did a lot for the development of the Muslim law.
(i) Hanafi School - The first school Sunnite law is Hanafi School.
This school was established by mam Abu Hanifa (80/699 to 150/
766). The main characteristic of this school of thought was that
it made its reliance mainly on the principle of qiyas (or analogical
deductions). Abu Hanifa due to his talent and thorough study,
possessed remarkable powers of reasoning and deduction as
well as retentative memory and clear understanding. The result
was that people flocked to his lecturers and a large number of
people became his disciples.
Abu Hanifa acquired the title of the unholder of the private
judgments. He recognised only eighteen traditions out of the
great mass which in vogue. Abu Bakr was known as the founder
of the Mohammedan science of law. He gave prominence to the
doctrine of `qiyas' or analogical deduction. He recognised the
authority of local customs and usage as guiding the application
law. The most remarkable work done by Abu Hanifa and his
disciples was that the efforts were made for the codification of
laws. Most of the Muslims of the world especially of India,
Afghanistan and Turkey are the followers of Sunni Hanafi
School.
(ii) Maliki School: This school of thought was established by Malik
ibn- Anas (90 or 97/713 to 179/795). Malik relied much more on
the practice of Madina rather than qiyas of the Hanafi School.
The only and main book of Malik was `Muwatta' which was
actually the oldest corpus of Sunnite law. He was not only the
traditionist but a jurist but he leaned more upon traditions and
usage of the prophet. He recognised the principle of public
welfare (Muslahat) as a basis of deduction. He recognised one
more source of law i.e. Istdalal besides four other sources viz.
Koran, Hadith, Ijma and Qyuiyas. His collection of traditions
namely Àl-Muwatta' contains about three hundred traditions.
The followers of Maliki school of thought are mainly found in
northern Arabia.
(iii) Shafi's School: This school of thought was established by
Imam Shafi. He ws one of the greatest jurist of Islam. He did not
only create classical theory of Islamic jurisprudence but also
perfected the doctrine of Ìjma'. His contribution was known as
Àshshafi'. Imam Shafi was noted for his balance of judgment
and moderation of the views. He allowed greater scope of Ìjma'
(consensus of opinion).
(iv) Hanbal's School: Immam Ahmad-bn-Hanbal was founder of
this school. He was man of very saintly character. His reputation
stood very high as traditionist and theologian. His remarkable
work on tradition was known as `Musnadul-Immam Hanbal'. It
contained about fifty thousand traditions.
Shia's Schools and Sub Schools - The schools of Shia's was founded
by Imam Ali who was the son-in-law of prophet.
He was recognised by Shities as successor of prophet in temporal and
religious matters. The followers of Shia's school refused to recognize
the principle of election of Imam by the people. They said that Hazrat
Ali was sometimes appointed as successor by the prophet as his
vicegerent at some occasion. The numbers of shities, as estimated by
Sir A.A.A. Fyzee, are about 30 million.
(d) The period from 300 A.H. to 1924 A.D. - The first period of the
development of Muslim law was long as well as varied. This period
concluded at the time of abolition of caliphate. i.e., 1924 A.D. by Turkish
republic. After that period there was no recognised head in Sunnite
schools. The scholars then devoted themselves only to the methods
already laid down by founders of those four Sunni schools. No one
thereafter, was recognized as having the same rank as the founder
himself. The doctrine of
(i) Taqulid (following or imitation) and
(ii) Ijtihad (the power of independent interpretation of law) which
became popular in those days.
The later jurists and lawyers were not at liberty to cross the barrier
made by the former jurists founders. The power to take independent
judgment in the matters of religion was not permissible. As such this
period was known in the name of the closure of the gate of
interpretation."
(e) The period from 1924 A.D. to present dayÈ - The fifth and last period
of the development of Muslim law commenced with the abolition of the
caliph/sultan. In this period, the most remarkable achievement was
that secular laws (Kanun) were made in the domain of sacred law
(Shariat), in the various Muslim countries. Shariat then became only
moral code for people and it lost its juristic sanction.
So far as the last phare (PHASE) of Mohammed supremacy in India is
concerned, it came to an end with the establishment of British rule. During
Mughal period Sunni Hanafi law was prevalent as the law of land. When
Britishers took the whole administration of India in their hands, the influence
of English common law and the principles of Equity were much more apparent.
The Mohammedan law was then applied as a branch of personal law to all
those persons who belonged to Muslim religion. The British government
gave due regards to the personal law prevalent in India. Both Hindus and
Muslim law officers were appointed for the administration of justice for civil
and criminal cases. All cases pertaining to Hindus were decided by the courts
with the help and opinions of Hindu law officers i.e., `Pandits' and of the
Muslims by Muslims law officers i.e. `Maulvis' according to their respective
personal laws. Thereafter, Regulation II of 1772 envisaged that in all suits
regarding inheritance succession, marriage and caste and other usage or
institution, the law of Koran (Quran) will be applied to the Mohammedans. In
1862, Indian Penal Code and Criminal Procedure Code came into force.
These codes made the Muslim criminal law disappear from India. The Ìslamic
law' of evidence also remained in force till passing of Evidence Act 1872.
Q. 2. What are the various sources of Muslim Law?
Or
What are the main sources of Muslim law according to Shia and
Sunni Laws? Discuss them briefly.
Ans. ‘Source’ means the origin, a place from which a person or thing
has emerged. Muslim law has emerged from several traditional sources and
these sources are the governing pillars of this religion because even today, in
the 21st century, most of the Muslim personal laws are uncodified and some
which are codified are not being followed because of conflict with their
traditional sources.
Legally speaking, there can be only one source of law and that is the
Indian parliament and the State legislatures which are the law-making body of
our nation. Nevertheless, since personal laws are based on customs and
practices of the religion, it is not possible to do away with them and frame laws
completely adverse to religious beliefs. Hence, even the legislations base
themselves on certain aspects of traditional sources.
The origin of Muslim law is Arabia where Mohammad enunciated Islam.
The object of Islam is to create a sense of obedience and submission to Allah.
His ordinances are thereby to walk on right path. Those who follow this path
are Muslim.
According to Amir Ali Muslim is any person who professes the religion
of Islam, in other words accepts the unity of god and prophetic character of
Mohammad.
Thus, to be a Muslim only two things is required- one is that Allah is
one and the second is the prophet hood of Mohammad. Islamic law is a branch
of Muslim theology, giving practical expression to the faith, which lays down
how Muslim should conduct himself through his religion, both towards god
and towards other men.
Muslim law consists of the injunction of Quran, of the traditions
introduced by the practice of the prophet (sunna), of the common opinion of
the jurists (ijma), of the analogical deductions of these three (qiyas). Further
, it has been supplemented by the juristic preference (Istihsan), public policy
(Istislah), precedent (Taqlid) and independent interpretation (Iltihad).
Sources of Muslim Law
Sources of Muslim law is classify into two categories that is primary
sources and secondary sources.
1. Primary Sources of Muslim Law
(a) Quran
(b) Sunna
(c) Ijma
(d) Quiyas.
2. Secondry or formal Sources of Muslim Law
(a) Customs (Urf)
(b) Judicial Precedents.
(c) Legislation.
(d) Good Conscience and Equity.
Primary Sources of Muslim Law
Primary sources are the roots of Muslim law. The primary sources
include the actual rules of law created by the God and the Prophet Muhammad.
The primary sources of Islamic law are the Holy Book (The Quran), The
Sunnah (the traditions or known practices of the Prophet Muhammad), Ijma'
(Consensus), and Qiyas (Analogy).
1. Holy Quran The sacred book of the Quran is the prominent and the
most important source of Muslim law. The word Quran is based on the
Arabic word "Quarra" which means ‘to read’. It contains the very
words of god as communicated to prophet mohammed through angel
Gabriel. It was given to the world in fragmentary forms, extending
over a period of 23 years. It originally had for its objects repealing
objectionable customs, such as, usury, unlimited polygamy and
gambling, etc., and effecting social reforms, such as raising the legal
status of women and equitable division of the matters of inheritance
and succession.
The Quran can be no way altered or changed, thus, even the courts of
law have no authority to change the apparent meaning of the verses as
it does have an earthly origin. This view was held in Aga Mohammed
Jaffer v. koolsom Beebee (1895). But whenever the Quran was silent
on any particular matter, guidance was taken from the ‘sunnat'.
The Quran is like a Constitution for the Muslims and it contains all
principles to be used in personal laws including marriage, divorce,
succession, etc. In case of any question with respect to personal laws
of Islam, the Quran is the first source which needs to be looked into.
The book is divided into chapters and each chapter contains several
verses. For instance, the book contains a chapter titled marriage and it
contains verses on how to get married, the procedure of marriage
(nikah), divorce, etc.
In a strict sense, the Quran cannot be called a legal code and Muslim
jurists agree that it contains verses explaining the way of living and the
morals of life and it is not a legal code backed by sanctions.
2. Sunnat (Sunnas)
Whenever the Quran is silent about an issue, guidance was sought
from the Sunnat. With the death of Mohammed, the living source of
inspiration terminated and a reference of him being no longer possible,
the problems had to be decided by supplementing from his sayings.
The term `Sunna' is applied to the traditions or precedents not merely
emanating from prophet but also from his companion, Sunna, literally
means a path, a procedure, a way of action. Sunnah is second in priority
after the Quran. Therefore, whenever there is a situation where the
Holy Quran is silent and the people are unable to make a decision,
Sunnah, i.e. the actions of the Prophet are followed.
It means Sunnah teaches people what Prophet would have done by
him if he was in a situation like this. Since people believe that his
actions are motivated by God’s grace and His actions are those of God
Himself, adherence to Sunnah became popular.
They are of three kinds -
i. Sunnat-ul-fiel, i.e., traditions about what the Prophet did himself.
(action)
ii. Sunnat-ul-qual, i.e., traditions about what he enjoined by words.
(words spoken)
iii. Sunnat-ul-taquir, i.e., that was done in his presence without his
disapproval. (silence)
`Hadis' or Àhdis' are one of the forms of Sunnatul Taqrir.
HADITH (HADEES) literally meaning of Hadith "talk" or "discourse".
In Islam refers to what Muslims believe to be a record of the words,
actions, and the silent approval of the Islamic prophet Muhammad.
Hadith have been called "the backbone" of Islamic civilization, and
within that religion the authority of hadith as a source for religious law
and moral guidance ranks second only to that of the Quran.
Hadiths are the books containing the Sunnah. It means that Sunnah is
the actions and words spoken by the Prophet and Hadith is the Scripture
where these are recorded.
3. Ijma (Consensus)
The term ijma means a consensus, i.e., the agreement between all on a
particular point of fact or law. When all the judges in the Supreme
Court unanimously agree to a point and pronounce judgment on that
point, it becomes a precedent and a binding law. Similarly, Ijma is a
concept of law made by consensus of all Islamic jurists or other persons
of knowledge and skill.
With the death of the prophet, the original law-making process ended,
so the questions, which could not be solved either by the principles of
the Quran or the Sunna, were decided by the Jurists with the
introduction of the institution of Ijma.
When Quran and traditions could not supply any rule of law for a fresh
problem, the jurists unanimously gave their common opinion or a
unanimous decision and it was termed as Ijma. Not each and every
Muslim was competent to participate in the formation of Ijma, but only
Mujtahids (persons who had knowledge of law) could take part in it.
Sir Abdul Rahim defines Ijma as "the consensus of followers of Prophet
Muhammad on a particular question of law."
There are three kinds of Ijma:
(i) Ijma of Companions: The concurrent opinion of the companions
of Prophet was considered most authoritative and could not be
overruled or modified.
(ii) Ijma of the Jurists: This was the unanimous decision of the
jurists (other than companion).
(iii) Ijma of the people or masses: It is the opinion of the majority of
the Muslims which was accepted as law. But this kind of Ijma
has little value.
Ijma cannot be confined to any particular period or country. It is
completed when the jurists, after due deliberation, come to a finding .it
cannot be questioned or challenged by any individual jurist. Ijma of
one age may be reversed or modified by the ijma of the same or
subsequent age.
Once a valid Ijma is constituted, it is regarded equal to Quranic verse
i.e. it is equally binding on people. Without Ijma, these rules of Islamic
law would have been diffused and incomplete. Its principles cover the
vast subject. Ijma authenticated the right interpretation of the Quran
and the Sunna.
4. Qiyas (Analogical deductions)
In Arabic Qiyas means ‘measurement, accord, and equality.’ In other
words, it means measuring or comparing a thing to a certain standard,
or to ‘establish an analogy.’ If the matters which have not been covered
by Quran, Sunna or Ijma, the law may be deducted from what has been
already laid down by these three authorities by the process of analogy
(Qiyas).
Qiyas may be defined as a process of deduction by which the law of the
text is applied to cases, which though not covered by the languages
are governed by reason of text. Thus, it should be noted that Qiyas
does not purport to create a new law, but merely to apply old established
principles to new circumstances.
For a valid Qiyas, the following conditions must be fulfilled:
(i) The process of the Qiyas can be applied only to those texts
which are capable of being extended. The texts should not be
confined to a particular state of facts or rules having a specific
reference.
(ii) The analogy deduced should not be inconsistent with the
dictates of the Quran and authority of Sunna.
(iii) The Qiyas should be applied to discover a point of law and not
to determine the meanings of the words used in the text.
(iv) It must not bring a change in the law embodied.
If there is a conflict between two deductions, a jurist is free to accept
any one of the deductions from a text. Hence one analogy cannot
abrogate the other.
Compared with other sources, Qiyas is of much lesser significance.
The reason is that on the analogical deductions, resting as they do,
upon the application of human reasons, which is always liable to error.
Secondry or formal Sources of Muslim Law
Secondary Sources on Muslim law can also be categorized as
comparatively modern sources. They are not the basis of Muslim law but are
supplementary in nature. The secondary sources govern Muslim law to an
extent. It includes Urf or Custom, Judicial Decision and Legislation, Equity.
1. Urf or Custom
A custom is tradition passing on from one generation to another that
originally governed human conduct and has obtained the force of law
in a particular locality. It is a natural source of law. The Muslim jurists
do not expressly describe it as a source of law but those customs and
usages which were not modified or abrogated by the Prophet, remained
good and valid. The primeval customs were regulated by Mohammed.
The custom is not an independent source of Muslim Law. During the
British regime, courts in India recognised the legal force of customs on
some occasions in spite of the fact that they were opposed to the clear
texts of a primary text of Muslim Law. This caused great dissatisfaction
among the orthodox Muslims and led to the passage of Shariat Act,
1937 which abolishes most of the customs from the Muslims Personal
Law. Section 2 of this Act lays down that if the parties are Muslims,
only Muslim Personal Law will be applied to them in the following
matters –
(i) inheritance,
(ii) special property of females,
(iii) marriage,
(iv) dower,
(v) divorce,
(vi) maintenance,
(vii) guardianship,
(viii) gift,
(ix) waqf and
(x) trust
In respect of these matters customs or usages have no place.
In various matter of Muslim law, custom play a significant role when
the matter is relating to their:
a. agricultural land;
b. testamentary succession among certain communities; and
c. charities other than wakf, because these matters have not been
included in the section 2 of Shariat Act,1937.
However, there are certain conditions for a valid custom. It includes:
(i) It must be territorial
(ii) It must be ancient.
(iii) It must be continuous and certain.
(iv) It should not oppose public policies.
(v) It should not be in contradiction to the Quran.
2. Judicial Precedents
Interpretation of Mohammedan Law by the judges of the Indian High
Courts and Supreme Court continue in modern times to supplement
and modify the Islamic Law. As such they are continuing sources of
Mohammedan Law. These include the decisions of the Privy Council,
the Supreme Court, as well as of the High Courts of India. These
decisions are regarded as precedents for future cases.
The first landmark judgment that deals with Muslim personal law
was the 1986 judgment in Shah Bano Begum v. Md. Ahmed Khan
[1985]. In this case, the apex court held that Muslim women have a
right to maintenance under Section 125 of the Cr.P.C even if the
Quran or their personal laws have provided for an alternate remedy.
The same ratio was upheld by the apex court in Daniel Latifi v.
Union of India [2001].
Recently, in the leading case of Shayara Bano v. Union of India [2016],
popularly known as "Triple Talaq Case" the apex court held the system
of instantaneous divorce by the utterance of the word ‘talaq’ thrice
orally unconstitutional because the right to instantaneous divorce is
only with the men and not women. Further, the system is arbitrary and
hence, violative of Article 14. Therefore, the judiciary has assisted in
the development of Muslim personal law.
It may be concluded therefore, that to some extent, the courts in India
have tried to modify the rules of Muslim personal law as applied in
India. Unless overruled or negative by some legislative enactment,
these rules through the decisions, continue to be a source of Muslim
law.
3. Legislation
In India, laws are made through Legislation. The bills are passed in
Parliament and are later enforced as statutes applied on the whole of
the country. Since the independence of India, various legislations have
been passed by the government focusing on the Muslims. Some of
these statues are the Muslim Marriage Act, 1957, The Muslim Woman
(Protection of Rights and Divorce) Act, 1986, the Shariat Act and the
Dissolution of Marriage Act. These legislations deal with Muslim
personal laws in some or the other way and are the most modern source
of Muslim law. These laws are enacted as per the needs of society.
The issue of divorce has been a major drawback in the Muslim personal
law because the Holy Quran gives the right to divorce a woman to her
husband but is silent on divorce by a woman. This has led to struggle
by a woman in an unhappy marriage and affected by domestic violence
and cruelty.
In 1939, an attempt was made to allow the woman to divorce their
husbands through the Dissolution of Muslim Marriage Act, 1939.
The woman could divorce their husband on three main grounds, viz.
a. refusal from maintaining the wife, financially and emotionally,
b. ill-treatment in the matrimonial house and
c. desertion by the husband.
Another issue that came after the divorce was the maintenance of the
divorced wife. Since women in India are still fighting for their right to
work and equal opportunity in employment, women needed certain
financial security for their livelihood and their children’s well-being.
Hence, the Muslim Women (Protection of Rights on Divorce) Act,
1986 was enacted that gave them the right to maintenance from their
husband.
The most recent development in legislations has been the Triple Talaq
Act [The Muslim Women (Protection of Rights on Marriage) Act,
2019]. This Act, in substance, declared the triple talaq, i.e., talaq-e-
biddat or any other similar form of talaq, illegal. Any Muslim husband
who pronounces such talaq to his wife can suffer imprisonment for a
term of three years and also be liable for fine.
4. Good Conscience and Equity
The doctrine of equity, justice & good conscience is regarded as one
of the source of Muslim law. Abu Hanifa, the founder of hanafi sect of
Sunni, expounded the principle that rule of law based on analogy could
be set aside at the option of the judge on a liberal construction or
juristic preference to meet the requirements of a particular case. These
principles of Muslim law are known as Istihsan or juristic equity. Istihsan
literally means approbation and may be translated as liberal
construction or juristic preference.
This term was used by great jurist Abu Hanifa to express the liberty
that he assumed of laying down the law, which in his discretion, the
special circumstances required, rather than law which analogy indicated.
Several areas of Muslim were modified so as to meet the changing
conditions in India.
Thus, it can be said that, sometimes analogical deductions fails to
satisfy the jurists owing to the narrowness and inadaptability of the
habits or due to hardship to the public. In such a case, according to the
Hanafis, a jurist could use good conscience.
Conclusion
There four sources namely Quran, Sunna, Ijma and Qiyas are the
primary sources of law. Muslim law mainly based on verses of Quran and
practices of hadith. There is secondary source of Muslim law which
subsequent of it. A sect of shias does not accept the Qiyas as source of
Muslim law. It is due to the contribution of all that an orderly and systematic
theory of personal laws of Islam came into existence which govers the Muslim
community.
Q. 3. Point out the reasons that led to the formation to the Sunni and
Shia Schools of Mohammedan Law. Bring out clearly the main points of
difference between the two schools.
Or
Differentiate between Shia and Sunni School.
Or
Distinguish the main points between Sunni and Shia Law?
Ans. There are two main schools of Muslim Law - The Sunni and Shia.
The majority of Muslim are Sunnis and hence it is presumed that the parties to
a suit are Sunnis unless otherwise is proved.
As Tyabji says: "Where it is not alleged, nor shown that the Parties
are Shias, there is a presumption that they are Sunnis, to which sect the
great majority of Mohammedans of this country belong."
The death of Prophet raised a momentous question - one party
advocated the principles of succession while another pressed for the election
of the successor. The Shias advocated that the pious office should go by the
right of succession and thus Imamat (headship) should be confined to the
Prophet's own family or his nominees while the Sunnis were of the opinion
that the office should devolve by election and it should be chosen by votes.
The Shias repudiate the authority of Jamat while the Sunnis advocate it. Thus
the difference between the two was based on political events and not in law
by jurisprudence.
Shia School Sunni School
1. Marriage
1 Muta or temporary marriages are Muta marriages are not lawful.
lawful.
2. Only the father and grandfather Besides father and father's father how
are recognised as legal guardians highsoever, brothers, other paternal
for marriages. Marriages contracted relations, mother and maternal uncle,
by others have no legal effect. etc., are also recognised as legal
guardians for marriage.
3. Presence of two witnesses is Two witnesses are not necessary at
essential at the time of dissolution the time of dissolution of marriage,
of marriage, while at marriage, they but are necessary at the time of
are not essential. marriage.
4. Marriage cannot be cancelled on Marriage can be cancelled on the
the ground of inequality between ground of inequality between the two
the two parties. parties.
5. They do not recognise the The doctrine of valid retirement is
doctrine of valid retirement, i.e., recognised.
the presumption of the
consummation of marriage if the
husband and wife retire into
the nuptial chamber and there is
no impediment to sexual
intercourse.
6. Re-marriage after the third triple Such re-marriages are legalised.
repudiation is never legalised.
7. Ten months is the longest period The period of gestation is two years.
of gestation.
8. Marriages are either valid or void. Marriages may be irregular also
besides being valid or void.
2. Dower
1. The minimum amount for dower Ten dirhams is the minimum amount
is not fixed. of dower.
2. Presumption of 500 dirhams as the No upper limit.
maximum in case there is no
stipulation.
3. Presumption of prompt dower in The part is prompt and the part is
absence of any Stipulation. deferred.
3. Talaq
1. Talaq must be pronounced orally Talaq can be given orally or in writing
and the words of Arabic language
to be used.
2. Witnesses are required while Witnesses are not required
doing so
3. Talaq pronounced in state of Talaq given in state of intoxication or
intoxication or by force is void under pressure is not held void.
4. `Talaq-ul-Sunnat' is recognised `Talaq-i- Biddat' and `Talaq-ul-Sunnat'
as best form of Talaq both are recognised.
4. Guardianship
1. The mother of a daughter upto the Mother of a daughter upto age of 7
age of 7 years and of son upto 2 years and of a son upto age of
years is legally entitled as attaining puberty is entitled to
"Guardian" guardianship.
5. Maternity
1. If a child is born as a result of Maternity of a child is recognised
illicit relation of mother, the child from such mother who gave birth to
is treated as motherless. child without having any
consideration of the reasons of birth.
6. Waqf
1. Without delivery of possession Mere declaration is enough for valid
of property the `Waqf is invalid. `waqf'
7. Pre-Emption
1. Right of pre-emption is Besides co-sharer a participator in the
recognised only in case of appendages or neighbour owner of
co-sharer who are two in number property can claim right of Pre-emption.
8. Wills
1. A person in an absolute owner Consent of the heirs essential.
of the one-third of his estate
and can bequeath that one-third
without the consent of the other
heirs.
2. In case of the legatee's death in It lapses.
the lifetime of the testator, the
legacy passes to his heirs unless
it is revoked by the testator.
9. Inheritance
1. There are only two classes of Three classes : (a) Sharers,
heirs namely sharers and (b) residuaries (c) Distant kindered.
residuaries.
2. According to the law of The doctrine of primogeniture is not
primogeniture, the eldest son recognised.
gets the deceased father's
garment, the signet-ring, the
sword and the Quran.
3. A Shia childless widow is not There is no such distinction between
permitted to take any share in real and personal property and the
her husband's immovable childless widow can inherit even the
property. immovable property.
4. Only the husband and not the Both husband and wife can take by
wife is entitled to return. return.
5. A man is excluded from He is excluded from inheritance, no
inheritance if he has intentionally matter, the murder was intentional or
caused the murder of the person unintentional.
whom he is going to inherit.
Q. 4. What are the various schools of Muslim law?
Or
What are the different schools of Muslim Law?
Ans. Islam is one of the oldest and most followed major religions of the
world. Although it originates from Arabia, its followers today reside in almost
all countries. It is because of this diversity and differences of opinions of
jurists that various schools of Muslim law exist. As a result, it becomes
pertinent to consider every major school individually to understand Muslim
personal laws.
Schools of Muslim Law
The major sources of Muslim law include the Quran, Sunna, Hadis, Ijma
as well as Qiya. Qiya refers to interpretations of Muslim jurists on matters that
neither the Quran nor Sunna explains.
Since it was inevitable for jurists to interpret all sources differently,
conflicting interpretations often emerged. Consequently, these differences of
opinions led to the creation of various schools of law.
Sunnis and Shias are the two main sects of Islam and both of these
sects have their own schools. Although there are differences of opinions
amongst these schools, the Muslim world considers all of them to be correct.
Thus, no school has more prominence over another.
Sunni Schools
In Sunni sect, there are four major schools of Muslim law which are as
follows:
1. The Hanafi School or Kufah School
2. The Maliki School (Madina School)
3. The Shafii and
4. The Hanbali.
Shia Schools
As per Shia Sect, there are three schools of law. Shia Sect is considered
as the minority in the Muslim world. They enjoy the political power only in
Iran though they don’t have the majority in that state also. Shia Sect which
was similarly divided into
1. Imamiyah School or Ithna Ashriyah School
2. Ismailiya School and
3. The Zaidiyah School.
Sunni Schools
1. The Hanafi School or Kufah School
Before being named Hanafi, this school was known as Kufa School
which was based on the name of the city of Koofa in Iraq. Later, this
school was renamed as Hanafi School based on the name of its founder
Abu Hanafi.
This man was of principle and was well known for his deduction skills.
He did not blindly follow all the customs by the virtue of the majority
following it. He strongly relied upon his deductions from the Quran.
His judgments were clear and straight analogical subtractions of the
Quran. His deductions were not a result of unsighted reliance on
customs. He further understood the vitality of tradition and gave it the
status quo of law.
In the year 132 A.H. he constituted a committee of 40 members for the
codification of Islamic law and this committee took 22 years to complete
its work. He studied 5 lakh legal problems, thus, compiled is known as
Kutub Abu Hanifa. After completion of codification he delivered a
speech before his disciples and other eminent persons who were present
at that time in the Jama Masjid of Kufa. He said, "I have completed the
work of codification of Islamic legal principles and now Islamic
Jurisprudence (fiqh) has achieved such eminence that further
generations will consult its principles to solve their legal issues".
His contribution also was in the areas of Ijma and Ithesan and hence he
was very well reputed and beloved. Among all the Schools of Islamic
Jurisprudence his school got so much popularity that majority of the
population of the Muslim World at present is following the Hanafi
School. This school became widely spread in various territories; as a
result, the majority of Muslims in countries such as India, Pakistan,
Syria, and Turkey belong to Hanafi School. In India, since the majority
of Muslims are from Hanafi School, the Courts decide the case of a
Sunni Muslim as per the Hanafi School unless it is specified that they
belong to other schools.
Main features of this School:
(c) Less reliance on tradition unless their authority is beyond doubt.
(Abu Hanifa was stricter than others in lifting the traditions.)
(d) Greater reliance on Qiyas;
(e) A little extension of the scope of Ijma. (Abu Hanifa advocated
the validity of Ijma in every age, though in theory it was strictly
confined to companions of prophet.
(f) Recognizing the authority of Local custom and usages as guiding
the application of law.
(g) Evolving the doctrine of Istihsan. (It means the modification of
theory of law in its application to actual fact)
2. Maliki School or Madina School
The founder of this School was Malik-bin-Anas, he was the Mufti of
Madeena. He was a strong believer in traditions when it came to the
judgment of modern rules or rules suitable for the time period he believed
Quiyas and Ijmas were sources to be resorted to as last resort.
He believed that in a marriage a wife was incapable of owning and
maintaining her personal properties and therefore, according to him all
the property of the wife in the marriage should be owned and maintained
by her husband due to this disability. This School had a very different
and unique view with regards to the property and no other Schools had
such an outlook.
In India, there are no followers of this school but when the Dissolution
of Muslim marriage act 1939 came in the picture, some of the laws and
provision of this school was taken in account as they are giving more
rights to the women than any other school. In Hanafi School, if the
women not get any news of her husband, she has to wait till 7 years for
Dissolution of the marriage, whereas in Maliki School the women have
to wait 2 years for Dissolution of the Marriage. This School was
prevalent in areas like Spain and North Africa.
Imam Maliki’s greatest contribution is his book Muwatta. Regarding
the importance of this book, Imam Shafi remarked, "Beneath the sky,
on the earth, no book after Holy Quran is most authentic than Muwatta-
e-Imam Malik". Such is the importance and eminence of the
contribution of Imam Malik. This book is also the first book written on
the Hadis in Islam. The book contains about 300 traditions and is
connecting line between fiqh (Islamic Jurisprudence) literature of earlier
days and collection of Hadith in later times.
Main features:
(a) Acceptance of traditions, which in the opinion of Imam Maliki,
were authentic, even if tradition carried authority of only one
narrator.
(b) Acceptance of practices, usages customs of the people of
Madina and of the saying of companions of prophet.
(c) Resource to Qiyas (Analogy), only in the absence of explicit of
test.
(d) Recognition of Principle of public welfare (Al-masalih al-
mursalah) as basis of deduction.
(e) Adding to the four main sources of Muslim Law, one more
source viz., Istidial i.e., principle of logical deduction.
3. Shafi’s School
The Shaffie School gets its name on the name of Muhammad bin Idris
Shaffie, his period was between 767 AD to 820 AD. He was the student
of Imam Malik of Madeena. Then he started working with the disciples
of Imam Abu Haneefa and went to Khoofa.
He concluded the ideas and the theories of Hanafi School and Maliki
School in a friendly manner. The Imam Shaffie was considered as one
of the greatest jurist of Islam. He created the classical theory of the
Shaffie Islamic Jurisprudence.
According to this school, they considered Ijma as the important source
of the Muslim law and provide validity to the customs of the Islamic
people and follow more methods of Hanafi School. The main contribution
of Shaffie School is the Quiyas or Analogy.
He was first to compile sources of law. He writes in a systematic way on
the origins of Jurisprudence in his famous treatise al-Risala. Al-umm
is another work of Shafi, containting seven volumes and was compiled
by his pupil al-Rabi ibn Sulayman. Iktilaf-al-Hadith and Musanad-al-
Imam Shafi are other works of Imam Shafi. His most famous pupil was
Imam Ahmad ibn Hanbal.
Main features:
(a) Acceptance of four sources of law; the Quran, the Sunnah; the
Ijma and the Qiyas.
(b) Acceptance of Istidial as fifth source of law;
(c) Non-Acceptance of Ishithsan of Hanafi School and al-Malih al-
mursalah of Maliki School.
4. The Hanbali School
The Ahmad bin Hanbal is the founder of the Hanbali School. He
found the Hanbali school in 241 (AD 855). He is the disciple of Imam
Shaffie and supports Hadis. He strongly opposed the Ijthihad methods.
He introduced the theory of tracing the root of Sunna and Hadis and
tries to get the answer all his question. His theory was to return to the
Sunna of the Prophet. When the Imam Shafie left for Baghdad, he
declared that the Ahmad bin Hanbal was the only one after him who is
the better jurist after him. The followers of Hanbali School found in
Syria, Phalastine and Saudi Arabia.
It is true that Imam Ahmed Hanbal was undoubtedly more traditionalists
than a jurist. But it is wrong to say that he had not contributed towards
the development of Islamic Jurisprudence. Imam ibn Hanabal’s method
of formulating legal principles was simple. He sought his answers of
legal questions from Holy Quran and next source was Hadith. But he
leaned more towards the Hadiths.
Imam Hanbal was the author of several treatises, among these the
important ones are: Musnad al-Iman Hanbal (It contains a collection
of 5000 traditions); Taat-ur-Rusul and Kitab-ul-Alal. His pupils
included Ismail al-Bukhari and Muslim ibn Daub.
Main Features:
The adherents of Hanabali School recognize five main sources:
(a) The Quran;
(b) The Sunnah;
(c) The Ijma of the companions of Prophet, if there is nothing to
contradict them, and sayings of some of the companions when
these are consistent with the Quran and the Sunnah;
(d) ‘Zaief’ and ‘Mursal’ traditions (traditions having a weak chair
of transmission and lacking in the name of some of the
transmitters); and
(e) Qiyas whenever it is necessary.
Shia Schools
1. Imamiyah School
This School was also called the School of Ithna Ashriyah. Unlike,
other Schools this School was very unique. This School believed in a
Muta. The word ‘Muta’ means ‘temporary marriage’.
This School further subdivided itself into two:
Akbaris Sect– They follow a modern form of legal deductions and
reasoning when there requires an interpretation. The traditions by the
Imams hold vital importance while following this Sect. This Sect as the
name suggests come from the word Akhbari which is derived from the
word news and newspaper.
On the other hand,
Usuli Sect – This is in quite as dominating as compared to the Akbaris.
This School believed in the true sources of Muslim Law i.e., the Quran,
the hadiths, and the Ijmas. The word Usuli essentially means theory of
jurisprudence. Meaning that, the School relies on the jurisprudential
principles.
It is the religion of ruling house of Persia. Almost half of the Muslim
population of Iraq belongs to this sect. They are also found in Syria,
Lebanon and Pakistan. The majority of Shias belong to this school. In
India, they are next to Hanafis and mostly found in Lucknow,
Murshidabad and Deccan. In Kashmir Itnna Asharis are in majority
among Shias.
Main feature:
(a) Believing that last of these Imams has disappeared and to be
returning as Mehdi (Messiah).
2. Ismailiya School
The minority of the Shias, after the death of Imam Jafar did not
acknowledge Musa-al-Kazim, but followed his elder brother, Ismail
and are known as Ismailies. They are also caled "Sabiyya" or "Seveners"
for acepting only seven Imams.
In India, they consist of two groups, viz,
(1) the Kohojas or Estern Ismailis, representing the followers of the
present Aga Khan, who is believed to be 49th Imam in line of
the prophet, and
(2) the western Ismailis, who are popularly called Bohoras and may
be divided into Daudis and Sulaymanis and various other small
groups. It must be pointed out that the word "bohora" merely
means merchant and does not signify any particular school of
Muslim law.
Originally this school prevailed in Egypt where it found favour with the
fatimid Kings. It is for this reason, sometimes called "Fatimid School",
it has small number of followers in several contries, such as central
Asia, East Africa, South Arabia, Iran Syria and Pakistan.
3. The Zaidiyah School
After the death of fourth Imam, Zaynul Abidin, one faction of the Shias
accepted Zaydi, one of his sons, as Imam. Thus Zaidiyah School or sect
was founded. Zayd is the author of Majmu-ul-Fiah, but the work is
available in spurious form. The Zaidis are represented in South Arabia,
mostly in Yemen.
The followers of these schools are considered as political activism.
They often reject the twelver shia school philosophies. This School is
very similar to the teachings of the Sunni Muslims. Also, they believed
that the Muslims should follow the true successor of the Prophet
Mohammed and since Faithma was the surviving daughter only her
sons should be true Imams of Muslim community. It was believed that
untrue and un-divine leaders should be revolted against.
Main fetures:
1. Recognition of principle of election as the basis of succesion.
2. Considering the Imam is nothing more than a ‘right guide’.
Other Schools
Besides the schools under Shia and Sunni sects, there are some
other schools which are also present which are:
Ibadi School
Ibadi is a school which belongs neither to the Shia nor Sunni sect and
this school claim that its history traces back to the times of 4th Khaleefa Ali.
The Ibadi School gives more preference to the Quran and they do not give the
Sunna much importance. This school has its followers in Oman. One of the
most important points about this school is that besides the Quran, it has
provided principal consideration to Ijtihad (personal reasoning) which has
been partially accepted by the Sunnis and has been completely rejected by
the Shias.
Ahmadiya School
The followers of Ahmadiya school claim to be Muslims but they do not
follow Prophet Muhammed. This school has a recent origin and they are
followers of one Ahmed who was alive in the 19th century.
This school is said to have a British-Indian origin and Mirza Ghulam
Khadiani is the founder of this school, who served the British Government.
Even though this school claims to be a follower of Islam, none of the Muslim
Government has accepted them as Muslims because they believe this school’s
faith is completely against the faith of Muslims.
The Khadiyan village which is situated in Punjab in India is said to be
the birthplace of Ahmed and thus it is their holy place and the followers are
also known as Kadhiyani. There is no authoritative book of this school and
because its origin is also recent, it has no recognition by the other authoritative
books of Islam.
There are many differences between the Ahmadiya School and Muslims
therefore; they are not regarded as part of Islam. The major points of difference
between them are as follows:
1. The Muslims believe that Prophet Mohammad was the Messenger of
God on Earth and he was the last Prophet who had spoken with God.
Thus, his teachings are an important part of the lives of Muslims but
the Ahmadiyas believe that God still communicates with his holy
servants even after Prophet Mohammad.
2. The Ahmadiyans claim that the list of Prophets before Mohammad
includes Buddha, Krishna, Zoroaster and Ramchandra and they claim
it is according to the Quran but the non-Ahmadiyans do not accept
such claims and refuse to acknowledge them as Prophets.
3. Unlike the Muslims, the Ahmadiyans do not accept the claim of the
Sultan of Turkey as the Caliphate and they claim that every Muslim
person should remain loyal to the Government of their country.
4. While Muslims believe that Mahdi will have a holy war or Jihad and
Islam will be spread by the sword, the Ahmadiyas believe that it will be
spread by arguments and heavenly signs and not through violence.
Motazila School
The followers of this School are in minority and can be found in Iran.
This School arose out of a different Sect. It does not co-relate itself to either of
the two Sect either Sunni Sect or the Shia Sect. These Muslims were although
defectors of the Shia sect. this Sect was founded by Al-Gazzal.
The followers of this Sect believed in true divine justice and unity and
believed that evil could be overpowered by the good and that the Quran itself
can only be the truest and divine source to overcome evil from the society.
Conclusion
Muslim law is governed by the teachings of the Quran and the Prophet
Mohammad. There have been many different schools which follow their own
interpretations of these teachings on points on which the Quran is silent.
While the major schools of Muslims can be divided under the two sects of
Shia schools and Sunni schools, even the schools under these sects have
been further divided into various schools.
Each school has its own beliefs and practices and because is no set
rule regarding the matters on which the Quran is silent, one school cannot be
said to be better positioned than the other schools and thus even though
there are many schools in Muslim law, they all lead to one path. Thus, the
teachings of these schools can be compared to different paths which all lead
to the same destination.
Q. 5. Define Muslim Marriage. What are the essentials of a Muslim
Marriage? What are the factors which render a Muslim Marriage as "Batil"
or "Fasid"?
Or
Define and explain the term ‘Nikaah’. What is its Nature and essentials
under Muslim law?
Or
What are the essential elements of marriage under mohammdan?
Ans. For the marriage of Muslims, the word ‘Nikah’ is used which
means ‘contract’. Nikah is an Arabic term. The meaning of nikah is the physical
relationship between man and woman. The ‘Quran’ specially refers to marriage
as "Mithaqun Ghalithun" which means ‘a strong agreement’. This contract
results marital rights and obligations between man and woman. Marriage under
Mohammandan law is different from other religious marriage. This is not a
religious ceremony performed by bride and bridegroom, but a contract which
creates marital obligations between man and woman.
Definitions:
Hedaya: Marriage is a legal process by which the several process and
procreation and legitimation of children between man and women is perfectly
lawful and valid.
Bailies Digest: A Nikah in Arabic means Union of the series and
carries a civil contract for the purposes of legalizing sexual intercourse and
legitimate procreation of children.
Ameer Ali: Marriage is an organization for the protection of the
society. This is made to protect the society from foulness and unchestity.
Abdur Rahim: The Mahomedan priests regard the institution of
marriage as par taking both the nature of Ibadat or devotional arts and
Muamlat or dealings among men.
Mahmood J.: Marriage according to the Mahomedan law is not a
sacrament but a civil contract.
Under Section 2 of Muslim Women (Protection of Rights on Divorce)
Act, 1986 Marriage or Nikah among Muslims is a ‘Solemn Pact’ or ‘Mithaq-
e-ghalid’ between a man & a woman, soliciting each others life
companionship, which in law takes the form of a contract or aqd.
In the words of Ronal Wilson, "Muslim marriage is a contract for the
purpose of legalizing sexual intercourse and the procreation of children."
According to Hedaya, "Marriage (Nikah) implies a particular contract
used for the purpose of legalising children."
Ashabah says: "Marriage is a contract underlying a permanent
relationship based on mutual consent on the part of a man and woman."
Based on above mentioned definitions, it may be said that in the
eyes of law, a Muslim – marriage is a civil contract. The object of the
marriage – contract is to provide legal validity to the sexual relationship
of husband and wife and to legalise the children. Without a valid contract
of marriage, intercourse between a man and a woman is unlawful (Zina).
Marriage also legalises the children born out of that marriage. It is therefore
clear that juridically a Muslim marriage is a civil contract; it is not a
sacrament.
Essential Elements of Nikaah or Valid Marriage under Muslim Law
1. Proposal and Acceptance
In a Muslim Marriage, proposal is referred to as ‘ijab’ and acceptance
of the same as ‘qubul’. A proposal should be made by or on behalf of
one party and the same should be accepted by the other party. For a
valid Muslim marriage, proposal and acceptance should be carried out
at the same meeting. If a proposal is made at one meeting and the
acceptance of the proposal is done in the second meeting, it is not
considered as valid.
2. Competency of Parties
The parties to the contract must be (i) Major, (ii) Of Sound Mind & (iii)
Muslims.
a. Major
For the purpose of Muslim marriage, the age when a person
reaches puberty is considered as the age of puberty. According
to Hedaya, the age of Puberty for female is 9 years and for male,
it is 12 years.
The Privy Council in the case of Muhammad Ibrahim v. Atkia
Begum & Anr (1912) it was held that under Muslim law, a girl is
considered to have attained the age of puberty if:
(i) she has attained the age of 15 Years, or
(ii) attaining the state of puberty at an earlier age.
The same rule is also applicable to a Muslim Boy. Thus, it can
also be said that in absence of any contrary, a Muslim is
considered to have attained the age of puberty at 15 years. After
attaining the age of 15, parties can give their own consent and
there is no need of consent of guardians.
If a person is a minor, i.e, not attained the age of puberty, the
consent of the guardian is required to make the marriage lawful.
The persons recognized as guardian under Muslim law are:
(i) Father,
(ii) Paternal Grandfather,
(iii) Brother or any other male member of father’s family,
(iv) Mother,
(v) Members of Maternal Relation.
The right passes from one guardian to other, in absence of the
previous one, in order of priority. In absence of any of these
guardians, marriage may be contracted by Qazi or any other
Government Authority.
b. Soundness of Mind
At the time of marriage, both the parties should be of sound
mind. Person of unsound mind has no capacity to enter into a
contract and in the eyes of law his consent will be considered as
no consent. Unsoundness is of two types:
(i) Idiocy: It refers to a complete abnormal state of mind.
Person belonging to this category are incompetent to
contract, and
(ii) Lunacy: It refers to a curable mental disease. A lunatic
person can enter into a contract in the time interval in
which he behaves like sane person.
c. Muslim
The parties to enter into marriage must be a Muslim irrespective
of their sect or sub-sect. A Marriage is considered to be as inter-
sect marriage is both the parties are Muslim belonging to different
sect but the marriage is valid under Muslim Law. If one is Muslim
& another is from any other religion then that marriage cannot
be happened in Muslim law, and then it comes to Special
Marriage Act.
3. Free Consent
For a valid marriage free consent of the parties is a must. If the consent
is obtained by means of coercion, fraud or mistake of fact, it is
considered as invalid and the marriage is considered as void. In the
case of Mohiuddin v. Khatijabibi (1939), the Court held that a marriage
is invalid if it is held without free consent of the parties.
4. Dower
It is referred to as ‘mahr’. It refers to the amount of money or other
property which a bride groom has to give to bride as a consideration of
marriage. Its object is to offer the bride a sense of financial security
within and after the termination of marriage. In the case of Nasra Begum
v. Rizwan Ali [1980], Allahabad High court held that right
to mahr comes into existence before cohabitation. The Court also
concluded that if wife is a minor, her guardians can refuse to send to
her husband until payment of dower, and if she is in husband’s custody,
then she can also be brought back.
5. Free From Legal Disability
Under Muslim law, marriage is not permitted under certain
circumstances. The restrictions/prohibition can be divided into two
parts:
(a) Absolute Prohibition
(b) Relative Prohibition
(c) Miscellaneous Prohibition
Absolute Prohibition
A Muslim marriage cannot take place if the parties are within the within
blood relationship or prohibited degree of relationship of each other
and the Marriage turns to be void. The absolute prohibited degrees of
relationship are as follows:
i. Consanguinity
It refers to blood relationship in which a man is barred from
marrying the following females. They are as follows:
1. His mother or Grand-mother (how high so ever),
2. His daughter or Grand-daughter (how low so ever),
3. His sister (irrespective of full blood/ half blood/ uterine
blood),
4. His niece or Great-niece (how low so ever), and
5. His aunt or great aunt, whether paternal or maternal (how
high so ever).
A marriage with woman prohibited under consanguinity
is void. Also, children born out of that wedlock are
considered as illegitimate.
ii. Affinity
A marriage with certain close relatives is also prohibited in
Muslims due to closeness of relationship. The prohibited
relationships are as follows:
1. His wife’s mother or Grand-mother (how high so ever),
2. His wife’s daughter or Grand-daughter (how low so ever),
3. His father’s wife or paternal Grand-father’s wife (how high
so ever), and
4. His son’s wife or son’s son’s wife or daughter’s son’s
wife (how low so ever).
A marriage with woman prohibited under affinity is void.
iii. Fosterage
It refers to milk relationship. It is a condition when a lady other
than the mother of the wife, breastfed/ suckled the child under
the age of two years, the lady turns to be foster-mother of the
child. A man is restricted from marrying the persons who come
under foster relationship. The restrictions are as follows:
1. His foster mother or foster grandmother (how high so
ever), and
2. Daughter of foster mother (Foster sister).
Under the Sunni law has a few exceptions with respect to
prohibition on ground of fosterage and the following Marriage
is considered as valid:
1. Sister’s foster mother, or
2. Foster’s-sister’s mother, or
3. Foster-son’s sister, or
4. Foster-brother’s sister.
The Shia jurists consider Consanguinity and fosterage at same
footing and deny the exception allowed by Sunnis.
Relative Prohibition
Under Muslim law, certain prohibitions are relative and not absolute. If
marriage takes place in violation of such prohibition, it is only irregular
and it can’t be declared as void. The marriage becomes valid as soon as
the irregularities are removed. Relative prohibitions are as follows:
i. Unlawful Conjunction
A Muslim man is prohibited to marry two different women if
they are related to each other by means of consanguinity, affinity
or fosterage as if they would have been of opposite sexes their
marriage would have been void (batil). After the termination of
marriage/ death of his wife, marriage can take place with the
other. Under Sunni law, Marriage in violation of unlawful
conjunction is irregular (fasid) and not void but under Shia
law, a marriage violating the rule of unlawful conjunction is void
(batil).
ii. Polygamy
Muslim laws allow polygamy but it is restricted to a maximum
of four wives. A Muslim man can have four wives at a time, but if
he marries the fifth one despite of having four wives, the
marriage turns to be irregular and not void. The fifth marriage
can be valid after death/ termination of marriage of one of the
four wives. However, the Shia law considers marriage with the
fifth wife as void. In India, a Muslim marriage can’t have a
second marriage if his marriage is registered under the Special
Marriage Act, 1954.
iii. Absence of Proper Witness
Contracting of marriage must be done in the presence of proper
and competent witnesses. Under the Shia law, presence of witness
is not essential and marriage without witnesses is considered
as valid. Marriage is contracted by the parties themselves (if
major) or by their guardians itself. Under Sunni law, presence of
witness is essential else the marriage would be irregular. At
least two male or one male and two female witnesses should be
present and the witness should be a major, of sound mind and a
Muslim.
iv. Difference of religion
Under the Sunni law, a Muslim male is allowed to marry a female
who shows respect for same scriptures, such as Christain, Parsi
and Jews, but if he marries with an idol/ fire worshipper, the same
is considered as irregular. A Muslim woman is not allowed to
marry a non-Muslim man and if it happens, the same is considered
as irregular. Under the Shia Law, a marriage with non-Muslim
is considered as void.
According to Fyzee, such marriage is void, but According to
Mulla, such a marriage is irregular.
v. Marriage during Iddat
It is referred to as a period of waiting after the death of her
husband or after termination of marriage during which she cannot
remarry. The purpose of the iddat is to check whether the woman
is pregnant or not to clear doubts of paternity of any child born.
A divorced woman has to observe for a period of three months
whereas a widow observes it for four lunar months and ten days
after the death of husband. If the woman is pregnant then if
extends up to her delivery. Under Sunni law, marriage during
iddat is considered as irregular whereas, under Shia law, it is
considered as void.
Miscellaneous Prohibitions
i. Marriage during pilgrimage is considered as void in Shia law.
ii. Re-marriage between Divorced Couple: A certain procedure
needs to be followed in which a Muslim lady has to perform a
valid marriage with another man. Then her husband needs to
voluntarily divorce her. Then the lady needs to perform iddat.
Now she can marry her previous husband. If this procedure is
not followed the marriage is considered as irregular.
iii. Polyandry: It refers to a condition in which a woman can have
more than one husband. It is not permitted under Muslim law.
6. Registration
Registration of Marriage is not necessary according to Muslim Law.
However, few states like Assam, Punjab, Bengal, Bihar and Orissa have
enacted laws for registration of Muslim Marriage. The registration is
not an essential part for a Valid Muslim marriage but it acts as an
authentic proof.
The apex court in the Case of Seema v. Ashwani Kumar [2006], held
that marriage of Indian citizens irrespective of their religion should be
registered in their states where the marriage has been solemnized.
Also, in the case of M. Jainoon v. Amanullah Khan [2000], Madras
High court observed that although registration of Marriage is not
necessary, it cannot be said that registration of Marriage is prohibited
under Muslim personal Law.
Nature of Muslim marriage
There are numerous opinions in regards of nature of Muslim Marriage.
Some Jurists have their opinions on Marriage that it's purely a civil
contract while others say it's our religious sacrament in nature.
However, Muslim Marriage law says that there are some requirements
to commence a Marriage. There should be free consent, which means
without apprehension of fraud, coercion or undue influence to both
the parties. Secondly, Parties of Muslim Marriage must be obtained an
age of majority. They may enter into Ante-nuptial and post-nuptial
both which is enforceable under law and do not opposed the Islamic
policy. The terms may change of Matrimonial Contracts within legal
limits to suit individual cases.
Although, In the case of Abdul Rahim Vs Salima (1886), Justice
Mahmood observed that the Muslim Marriage is a civil contract that
depends on proposal of one, consent and acceptance of each parties.
Muslim Marriage has an amount called 'mehar' which works as a
consideration as similar as Civil Contracts.
But, it is not merely a civil contract because Marriage contract cannot
be made for future and it has not limited period of time (muta Marriage
is an exception) and also wife is not entitled to live with third person or
to give divorce to her husband until dower remains unpaid and lien
system cannot be applied to Marriage contract.
Conclusion
Marriage is a religious duty of every Muslim and it is considered to be
a moral safeguard and a social need. The Prophet has also said Marriage is my
tradition whosoever keeps away there from is not from amongst me.
Unlike Hindu where the marriage is a sacrament, marriages in Muslims
have a nature of civil contract. Marriage is necessary for the legitimization of
a child. When the marriage is done in accordance to the prescribed norms it
creates various rights and obligations on both the parties.
Q. 6. `Marriage among Muhammedans is not sacrament but purely a
civil contract.’ Discuss the statement with reference to contractual nature of
Muslim Marriage.
Or
‘Marriage among Muslims is not Sacrament, but purely a civil
contract.’ In the light of the above statement discuss the nature of marriage
in Muslim Law.
Or
‘Marriage among Muslims is not Sacrament, but purely a civil
contract.’ Justice Mahmood. Explain.
Or
‘Marriage among Muhammedans is not sacrament but purely a civil
contract.’ Critically analyse this statement and discuss the true nature of
Muslim Marriage.
Ans. Marriage among Hindus is a sacrament tie between Man and
Woman. It is considered to be holy union of husband and wife for the
performance of religious, social and spiritual duties. However, Marriage under
Muslim Law is not a sacrament but is a civil contract.
According to Dr. Jang "Marriage though essentially a contract is
also a devotional act, its object are rights of enjoyments and procreation of
children and regulation of social life in the interest of society."
Marriage Nikaah under Muslim Law
For the marriage of Muslims, the word ‘Nikah’ is used which means
‘contract’. Nikah is an Arabic term. The meaning of nikah is the physical
relationship between man and woman. The ‘Quran’ specially refers to marriage
as "Mithaqun Ghalithun" which means ‘a strong agreement’. This contract
results marital rights and obligations between man and woman. Marriage under
Mohammandan law is different from other religious marriage. This is not a
religious ceremony performed by bride and bridegroom, but a contract which
creates marital obligations between man and woman.
Muslim marriage as a contract has been defined from time to time. In
the words of Ronal Wilson, "Muslim marriage is a contract for the purpose
of legalizing sexual intercourse and the procreation of children."
According to Hedaya, "Marriage (Nikah) implies a particular contract
used for the purpose of legalising children."
Ashabah says: "Marriage is a contract underlying a permanent
relationship based on mutual consent on the part of a man and woman."
In the case of Abdul Kadir vs Salima And Anr. [(1886) ILR 8 All 149],
Justice Mahmood has clearly mentioned that "Marriage among
Mohammedans is not a sacrament but purely a civil contract."
Based on above mentioned definitions, it may be said that in the eyes
of law, a Muslim – marriage is a civil contract. The object of the marriage –
contract is to provide legal validity to the sexual relationship of husband and
wife and to legalise the children. Without a valid contract of marriage,
intercourse between a man and a woman is unlawful (Zina). It is therefore clear
that juridically a Muslim marriage is a civil contract; it is not a sacrament.
Marriage or `Nikah' under Mohammedan law may be defined as "legal
process by which sexual intercourse and procreation and legitimation of
children between man and woman is perfectly lawful and valid."
Mohammedan Marriage is not Sacrament but Purely Civil Contract
The conditions of a Muslim-marriage are almost similar to that of a civil
contract. Few similarities between a Muslim – marriage and a contract are:
1. Proposal and Acceptance: In a Marriage, a proposal, known as "Ijab"
for the marriage and the acceptance of the proposal "Qubul" is must.
This should in the presence of two witnesses i.e. in the presence of two
male or one male and two female witnesses and a "maulvi" or kazi
[Muslim priest].
It is just like the provisions of the Indian Contract Act, 1872 where a
contract is an agreement; an agreement is a promise and a promise is an
accepted proposal. Thus, every agreement must have a proposal from
one side and its acceptance by the other.
2. Capacity of a Person to Contract Marriage: The second condition for
accomplishment of this type of marriage is that the parties must be
adult and of sound mind. Marriage of minors can only by consent of
their parents. According to the Mohammedan law, age of marriage is
considered as the age of puberty and age of 15 years.
According to secion 11 of the Indian contract Act, 1872, only those
persons who are major and are of sound mind can be the party to
contract.
3. Free Consent: Free consent is the most essential point of Muslim
marriage if the consent obtained under fraud, coercion or threat etc. it
is not valid marriage and becomes void. Any marriage is lawful only
when there is free consent from the parties. In the case of Mohiuddin v.
Khatijabibi [41 Bom L.R. 1020], it was held that marriage will be nullified
if it is performed without the free consent of the parties.
According to section 19 of the Indian contract Act, 1872, an agreement
will be voidable if it not prepared by the free consent of the parties.
In a judgment Pareed Pillay, J. of the Kerala High Court, in Adam v.
Mammad [1990], has set out the salient feature of Islamic law of marriage.
In the case before him, he held that where the girl’s father had given his
consent, and the daughter had withheld hers, no valid marriage had
taken place. J. Mahmood, in Abdul Qadir’s case, upheld that for the
validity of a marriage, consent is a must.
4. Consideration: Dower or Mahr is the consideration of marriage. It refers
to the amount of money and property which a bridegroom has to give
to bride as consideration of marriage for her financial security.
In the Indian Contract Act, 1872, section 2(d), 23, 24 and 25 provides
the provisions regarding Consideration of Contract.
5. Discharge: Although discouraged by both Quran and Hadith, Muslim
marriage provides the discharge from marriage through its various forms
of divorce (Talaq) like Talaq-ul-Bidaat, Talaq-ul-Sunnat, Khula, etc.
In the Indian Contract Act, 1872, section 37, 39, 62, 63, 64 and section
67 provides for the ways of discharge of the contract.
However, there are some case laws where judgment goes into the favour
of Muslim marriage is a sacrament whereas some goes into favour of
Muslim marriage is a purely civil contract.
Justice Mahmood observed:
"Marriage among Muhammedans is not a sacrament, but pureply a
civil contract; and though it is solemnized generally with the
recitation of certain verses from the Quran, yet the Muhammedan law
doesn’t positively prescribe any service peculiar to the occasion."
He described that Muslim marriage was dependent upon declaration or
proposal of the one and the consent or the acceptance of the other of
the contracting parties.
From the above observation, Justice Mahmood couldn’t be held to
have taken the view that marriage is nothing but purely a civil contract.
As per him the dower in the Muslim marriage shouldn’t be confused
with consideration in the context of civil contract.
In case of Yusuf v. Sowaramma, it was held that there is a misconception
by the Justice, V.R. Krishna Iyer that the Muslim law does not have
any religious significance or social solemnity attach to Muslim marriage
and it is a merely civil contract.
Many of the jurists also support that Muslim marriage is not purely
civil contract and sacramental. It is the combination of both of
them.
In case of Anis Begum v. Mohammad Istafa, it is a leading case law
because C.J Sir Shah Sulaiman has tried to balance between the
sacrament and civil contract in Islamic Marriage because as per my
view, in Quran and Hadith mentioned that spouses are strictly
enjoined to love and honour to each other. So, marriage under Islam
is sacrament by Quran injunction and tradition. It is the blend of
both of them.
Taking religious aspect into account Muslim marriage us a devotional
act (ibadat). The Prophet is reported to have said that marriage is
essential for every physically fit Muslim who could afford it.
Muslim marriage is not merely a contract because:
(a) unlike a civil contract, it cannot be made contingent on future
event; and
(b) unlike civil contracts, it cannot be for a limited time (muta marriage
is an exception).
(c) unlike a civil contract, the analogy, of lien cannot be applied to a
marriage contract. Secondly, the contract of sale of goods may
be canceled by unpaid seller. He may resell the goods by
rescinding such contract, whereas, in a contract of marriage, the
wife is not entitled to divorce her husband or to remain with a
third person if a part of his dower remains unpaid.
Conclusion
On the basis of Juristic opinion, we can easily conclude, that marriage
is simply a civil contract under Muslim Law. It fulfills all the conditions of a
contract-proposal and acceptance, free consent and consideration.
But from the religious angle, Muslim marriage is a devotional act.
Marriage is not devoid of all religious and spiritual values. Along with its
secular aspect, it also partakes the elements of a sacred union of two souls
means for spiritual ends.
In the Quran and Hadith, spouses are strictly enjoined to love and
honor each other. Enjoyment and showering love and affection by each one
has been called a noble act. Marriage under Islam is sacrament keeping the
view of Quranic injunction and traditions.
In the ultimate analysis, it can be said that the marriage in Islam is
neither purely a civil contract nor a sacrament. It is devoid of none but the
blending of the two.
Q. 7. Discuss the Absolute and Relative prohibitions in a Muslim
Marriage. Give their legal effects upon the Marriage.
Or
Explain the various kinds of Muslim Marriage and give their legal
effects.
Ans. The Arabic word Nikah means "union of sexes" in law and
"marriage" in Arabic. Under Muslim rule, the word 'Nikah' is used to refer to
a marriage. The word Nikah means "to bind together." It entails a specific
contract to legalize generation.
Marriage in Islam is considered to be a social contract. The husband
and the wife and their respective families enter into an agreement whereby the
husband’s family pays an amount of money called the dower (mehr) to the girl
and her family and in return, the girl agrees to marry the boy. Therefore, this is
a social arrangement which is called nikah in Islam.
"Marriage is a contract underlying a lifelong partnership based on
mutual consent on the part of a man and woman," says Ashabah in Abdul
Kadir v. Salima.
The Privy Council stated in Shoharat Singh v. Jafri Begum, that Nikah
(marriage) is a religious ceremony under Muslim law.
Thus, according to Muslim Law, marriage is a contract to regulate intercourse,
procreation, and social life in the interest of society by establishing the rights
and responsibilities of the parties, as well as the children born from the union.
Essential of Marriage
The following are the requirements for a legal marriage:-
1. A marriage proposal should be made by or on behalf of one of the
parties to the marriage, and the proposal should be accepted by or on
behalf of the other party.
2. Both the proposal and the approval must be made at the same time.
3. The parties must be competent.
4. Two male or one male and two female witnesses must be present and
hearing during the marriage proposal and approval, and they must be
sane and adult Mahomedans. (In Shia Law, this isn't necessary.)
5. There is no need for writing or another religious ritual.
Capacity to Marry
The following are the general requirements for marriage in Islam:-
(a) Every Mahomedan of sound mind who has reached puberty is eligible
to marry. The age of puberty is fifteen years where there is no proof or
signs of puberty.
(b) By their parents, a minor and insane (lunatic) who have not reached
puberty may be validly married.
(c) The consent of the parties is required. If there is no consent, a Mahomedan
marriage that is of sound mind and has reached puberty is void.
Registration of Marriage
Marriage registration is required in Muslims since a Muslim marriage is
considered a civil contract. "Every marriage contracted between Muslims
after the commencement of this Act shall be registered as hereinafter given,
within thirty days from the end of the Nikah Ceremony," according to Section
3 of the Muslim Marriages Registration Act 1981. Nikahnama is a form of
legal document used in Muslim marriages that contains the marriage's basic
conditions and information.
Absolute and Relative prohibitions
Absolute Incapacity or Prohibition
Absolute prohibition may arises arises from:
(a) Consanguinity
(b) Affinity
(c) Fosterage
1. Consanguinity means blood relationship and bars a man from marrying:
(a) His mother or grandmother how highsoever,
(b) His daughter or grand-daughter how lowsoever,
(c) His sister whether full, consanguine or uterine,
(d) His niece or great niece how lowsoever,
(e) His aunt (fathers sister, mothers sister) or great aunt, how
highsoever, whether paternal or maternal.
A marriage with a woman prohibited by reason of consanguinity is
void. Issues from such marriage are illegitimate.
2. Affinity prohibits a man from marrying:
(a) His wife's mother or grand-mother how highsoever
(b) His wife's daughter or grand-daughter how lowsoever
(c) Wife of his father or paternal grand-father how highsoever
(d) Wife of his son or son's son or daughter's son how lowsoever A
marriage with a woman prohibited by reason of affinity is void.
3. Fosterage When a child is breast-fed/suckled by a woman other than
his own mother; she becomes the foster mother of the child. A man is
prohibited from marrying certain persons having foster relationship.
Generally a man is prohibited from marrying:
(a) His foster-mother or grandmother (however high so ever)
(b) His foster-sister (daughter of foster mother)
Such marriage is also void.
Exceptions
Under the Sunni law, there are a few exceptions to the general rule of
prohibition on the ground of fosterage and a valid marriage may be
contracted with:
1. Sister's foster mother, or
2. Foster's sisters mother, or
3. Foster's sons sister, or
4. Foster brother's sister.
The Shia jurists place fosterage and consanguinity on the same footing
and refuse to recognize the exception permitted by the Sunnis. The
above mentioned prohibitions on account of 'consanguinity', 'affinity'
or 'Fosterage' are absolute and the marriages contracted in
contravention of these rules are void.
Relative/Limited Incapacity or Prohibition:
There are certain prohibitions which are not absolute but only relative
and marriage in violation of such relative prohibitions will only be
irregular (fasid) and not void according to Sunni School. When the
irregularity is removed, the marriage becomes valid. The following are
the relative prohibitions:
a. Unlawful conjunction,
b. Polygamy or marrying a fifth wife.
c. Absence of proper witnesses
d. Differences of religion
e. Woman undergoing IDDAT
6. Unlawful conjunction: means contemporaneously marrying two women
so related to each other by consanguinity, affinity or fosterage, which
they could not have lawfully intermarried with each other if they had
been of different sexes. Thus a Muslim cannot marry two sisters, or an
aunt and her niece.
Under the Shia Law, a Muslim may marry his wife's aunt, but he cannot
marry his wife's niece without her permission. Marriage prohibited by
reason of unlawful conjunction is void under Shia Law.
7. Polygamy or marrying a fifth wife: means plurality of wives, i.e. marrying
a fifth wife. It is unlawful for a Mohammedan to have more wives than
four.
A Muslim woman cannot marry more than one husband. If a woman
marries a second husband, she is liable for bigamy under Section 494,
Indian Penal Code and the issues of such a marriage are illegitimate.
In India no Muslim marrying under or getting his marriage registered
under the Special Marriage Act, 1954, can marry a second wife during
the lifetime of his spouse.
8. Absence of proper witnesses: It is essential amongst the Sunnis that at
least two male witnesses or one male or two female witnesses must be
present to testify that the contract was properly entered into between
the parties. The witnesses must be of sound mind, adult and Muslim.
In Shia Law, a marriage contracted by the spouses themselves or their
guardians in private are held valid. Presence of witnesses is not
necessary.
9. Differences of religion: A Sunni male can marry a Muslim female (Of
any sect) or a Kitabia. Marriage with the Kitabia, i.e., a woman who
believes in a revealed religion possessing a Divine Book viz., Islam,
Christianity and Judaism is valid under the Sunni Law. But he cannot
marry an idolatress or a fire-worshiper. A marriage; however with a
idolatress or a fire worshiper is merely irregular in Sunni Law, but void
in Shia Law. A Muslim woman cannot marry any man who is not a
Muslim, whether he is Kitabia (i.e. man believing in a revealed religion
possessing a divine book) or not. According to Mulla, a marriage
between a Muslim woman and Non-Muslim male is irregular. But
according to Fyzee , such a marriage is totally void
Under Shia Law, no Muslim, whether male or female can marry a non-
Muslim in the Nikah form.
Thus a marriage between a Muslim and a non-Muslim can only take
place under The Special Marriage Act, 1954.
10. Woman undergoing Iddat : Iddat is a period during which it is incumbent
upon a woman, whose marriage has been dissolved by divorce or death
of her husband to remain in seclusion and to abstain from marrying
another husband
Under Sunni Law marriage with a woman undergoing Iddat is irregular
and not void. But under Shia law marriage with a woman who is
undergoing Iddat is void.
Classification of Marriage under Muslim Law OR Kinds of Muslim Marriage
There are two sects of Muslims all over the world divided by their
beliefs and traditions, viz., Sunni Muslims and Shia Muslims. Marriages in
both the sects are conducted in different ways with different traditions and
customs and because of which there are several forms of marriage under
Islamic law. Moreover, Islamic marriages are social contracts and legally binding
upon the parties. Hence, since this is a contract, it is classified accordingly.
The classification of marriage under Muslim laws is:
1. Sahih Nikah (Valid Marriage)
2. Batil Nikah (Void Marriage)
3. Fasid Nikah (Irregular Marriage)
4. Muta Marriage
Sahih Nikah (Valid Marriage)
The term sahih is an Urdu term for the word ‘correct’ or ‘valid’ nikah
(marriage). When all the essential conditions of a Muslim marriage are duly
fulfilled, it is called a sahih nikah or valid marriage.
It means if two Muslim persons (one being the man and other a woman)
enter into an agreement by way of offer and acceptance and the groom has
paid the mehr for the marriage to the bride, it is a valid marriage.
According to Law of Marriage (compendium of Islamic Law compiled
by All India Muslim Personal Law Board), ‘A valid marriage is one in which
all essential conditions of marriages are found.’(Section 20)
There are certain social implications of a valid marriage which can be
enlisted hereunder as follows:
1. The spouses become legally married owing to which they can legally
consummate their marriage.
2. Due to the marriage, the parties acquire the rights of inheritance over
the properties which can be inherited.
3. Although, the Muslim law does not allow maintenance to the file in
case of a divorce because it is believed that the dower paid at the time
of marriage is sufficient for her well-being. Nevertheless, the Supreme
Court has made it clear that after a valid marriage, the wife has the right
to alimony and maintenance for her and the children.
4. The right to maintenance is an independent right beside the right to
receive the promised dower.
5. The spouses have to be loyal and faithful to each other. However, a
Muslim man is allowed to commit polygamy, so it is only the wife who
needs to be loyal to the man after the marriage.
6. The Quran allows a man to reprimand or chastise his wife by reasonable
means if the wife is disobedient or disloyal towards him.
7. The kids, if any, who are born due to the consummation of a sahih
marriage are considered to be legitimate children.
8. In case of the wife being a widow or being divorced by her husband,
she is obliged under the Muslim law to perform the ritual of Iddat under
which the wife cannot remarry any other person before a period of 90
days from the date of death of the husband expires. This is to ensure
that the woman was not pregnant at the time of the husband’s death.
Effects of a valid Marriage
The following are the legal consequences of a legitimate (Sahih)
marriage:
(1) The husband and wife's cohabitation is recognized as legal.
(2) Children born from a legal marriage are legitimate and have the right to
inherit their parents' assets.
(3) Inheritance rights are created for both the husband and the wife. That
is, after the husband's death, the wife is entitled to inherit the husband's
property, and after the wife's death, the husband is also entitled to
inherit her property.
(4) A prohibited marriage relationship is established between the husband
and wife, and each of them is prohibited from marrying the other's
relations under prohibited degrees.
(5) The wife's right to dower is completely established only after the
marriage is completed.
(6) With immediate effect, the marriage grants the wife the right to
maintenance from her husband.
(7) After the dissolution of the marriage, the widow or divorced wife is
required to observe the Iddat, during which time she is not permitted to
remarry.
(8) Under Muslim law, a woman's legal status is unaffected by marriage.
Her personality is distinct from her husband's. Even after marriage, a
wife remains a member of the same school of law of which she was a
member before the marriage. That is, if a Shia woman marries a Sunni,
she retains her Shia status and is subject to Shia law after the marriage.
Both the husband and wife have the right to buy and sell their property
on their own.
Batil Nikah (Void Marriage)
According to the Indian Contract Act, 1872, an agreement which is
not legally enforceable is a void agreement. Similarly, an agreement between a
prospective bride and a groom which does not meet all the essential conditions
of a Muslim marriage is a void agreement and any marriage that takes place in
furtherance of a void agreement is called a void marriage or Batil nikah.
In Munshi v. Mst. Alam Bibi, the court observed that when there is a
permanent or perpetual prohibition from marriage due to non-adherence of a
condition, it is void marriage.
When one or more of the pre-requisites to a valid marriage are not
fulfilled by the spouses before marriage, the marriage is void and not
binding. In such marriage, the parties are free to separate from each other
at any time without obtaining a divorce and may contract another marriage
lawfully.
The following are certain instances of a void marriage under Shia
law:
(a) Marriage in violation of absolute incapacity.
(b) Marriage with the wife of another person where the marriage is still
subsisting
(c) Marrying one's own divorced wife if a legal bar exists.
(d) Marriage prohibited by reason of unlawful conjunction.
(e) Marrying more than four wives. In such a case, the fifth marriage and
so on becomes void.
(f) Marriage during the pilgrimage.
(g) Marriage with any non-Muslim.
(h) Marriage with a woman undergoing Iddat.
(i) In Tanjela Bibi v. Bajrul Sheikh, the court held that a marriage with a
woman who is pregnant from before the marriage is void.
The above-mentioned list is mere examples and not an exhaustive list
of void marriages.
The essential social and legal implications (effect) of void marriage
are:
1. The marriage is void-ab-initio, i.e., void from the very first day of the
marriage even if the marriage is consummated.
2. A void marriage does entitle the parties to any legal right or bestow any
legal duties/obligations upon them.
3. If the marriage turns out to be void, the right to receive maintenance
after divorce is lost, but can claim Dower if the marriage has been
consummated.
4. The children, if any, born from the consummation of a void marriage are
considered illegitimate and have not right of succession or inheritance.
5. The spouses do not require obtaining a decree of divorce in case of
void marriages. They can simply part without any legal formalities.
Fasid Nikah (Irregular Marriage)
In Ata Mohammed v. Saiqul Bibi, it was observed that when a marriage
is temporarily prohibited and not certainly restricted it is merely irregular or
fasid and not void. An irregular marriage has several aspects involved and
various points of view.
Irregular marriages exist only in case of Sunni Muslims whereas an
irregular marriage, under Shia law, is void marriage. When a marriage is
conducted by violating certain or partial conditions of a valid marriage, it is
called an irregular marriage.
In general, an irregular marriage is voidable marriage and not void-ab-
initio. If the irregularity can be removed from an irregular marriage, the marriage
becomes valid when it is removed. The best instance of an irregular marriage
is the marriage between a Muslim and a Christian or a Jew. If an illegitimate
marriage can be made legitimate by removing the irregularity, the marriage
becomes valid. So, if a Sunni Muslim man marries a Jewish woman and converts
her to Islam, the marriage is legitimate.
While the Shia law does not recognize irregular marriages, some
examples of an irregular marriage under Sunni law are as follows:
(a) Marriage contracted without witnesses.
(b) Marriage with a fifth wife.
(c) Marriage with a woman undergoing Iddat.
(d) Marriage with a non-scriptural woman.
(e) Marriage with the wife's sister during Iddat of the divorce wife.
(f) Marriage contrary to the rules of unlawful conjunction.
The social and legal implications of an irregular marriage depend upon
the question of whether the marriage was consummated or not. These
implications are:
Before consummation - An irregular marriage has no legal effect before
consummation. The wife is not entitled to obtain Dower from the husband in
the case, he divorces her. The marriage may be terminated by either party
before or after consummation without divorce by expressing an intention to
do so. In this case, the wife is not bound to observe Iddat, i.e. prohibition from
remarriage within 3 months after dissolution of the marriage, considering that
the marriage has not been consummated.
After consummation - Consummation of an irregular marriage gives
rise to the following consequences:
1. The wife has to observe Iddat on the dissolution of the marriage due to
divorce or death of husband.
2. The wife is entitled to get Dower from the husband.
3. The wife is not entitled to get maintenance during period of Iddat.
4. The children of an irregular marriage are considered as legitimate and
have the right to inherit property of their parents.
5. An irregular marriage, though consummated, does not create mutual
rights of inheritance between husband and wife.
Muta Marriage
Muta marriage is the fourth kind of marriage that occurs only in Shia
Muslims and not Sunni sect of Muslims. To understand this marriage, it is
essential to know the background of this marriage. Most of the Arabian
countries such as Abu Dhabi, Dubai, etc. have Shia sect of Muslims. The
people usually called the Sheikhs were involved in the business of oil-
producing, refining and exporting. Due to business agreements, they were
required to travel far places and stay there for several days or even months.
During this period, the Sheikhs required fulfilling their sexual needs and desires
but, however, Islam does not allow cohabitation with any woman other than a
person’s own wife.
Therefore, the Sheikhs used to marry the women for a temporary period
till they were in that town and at the time of leaving, they get divorced and the
dower was paid as the consideration for marrying. This concept of marriage
was recognized in Muslim personal law by the Shia sect and is called Muta
marriage.
The phrase "Mutah Marriage" translates to "pleasure marriage."
Muta marriage is a temporary arrangement between two people for a certain
period. There is no set minimum or maximum length of time; it can be a day, a
month, or a year(s). The marriage ends when the agreed-upon date expires;
however, if no such time limit was stated or written, the marriage is assumed to
be permanent. Sunni Muslims consider this form of marriage to be prostitution
and therefore do not approve of it, according to them marriage is a permanent
union and not a temporary affair.
Muta marriage is a temporary marriage between a Shia Muslim man
and a woman of Islam, Jew or Christian religion for a fixed period of time and in
return of the payment of a fixed amount of dower at the time of divorce. The
time period and the dower must be informed and accepted by the bride as well.
This marriage is not followed in Sunni Muslims which consider marriage to be
a permanent union and not a temporary affair.
Q. 8. Define Dower (mehar). Explain different kinds of Dower.
Or
What do you understand by Dower? What its various kinds.
Or
Explain the concept of Mehr (Dower) under Muslim Marriage. What
are the different kinds of Dower?
Ans. A Muslim matrimony is different from a Hindu one. A Hindu
marriage is a sacred ceremony; however, a Muslim marriage has another aspect
to it. A Muslim marriage has a contractual aspect to it. It is a civil contract
between parties. Hence, a man and woman come into a contractual agreement
to marry each other. Now-, according to the principles of contract law we
know that a contract cannot be valid unless there is a consideration.
Similarly, in a Muslim marriage, the concept of consideration finds its
place in the form of ‘dower’. The principles of ‘offer’ and ‘acceptance’ also
apply. The man offers the woman to get married and she either accepts directly
or someone on her behalf who has been authorised to do so. The other mode
of such a proposal can be by way of offering dower. And once the woman
accepts this dower, it is deemed that she has assented to the marriage.
Dower
Dower is also called ‘‘Mehr’’. Dower is in the form of consideration
which is the right of a Muslim woman. She receives consideration for
contracting to get married to the man. However, Islamic scholars believe this
to a mark of respect given to a woman.
Definition:
According to Wilson, Dower is a consideration for the surrender of
person by the wife.
According to Ameer Ali, Dower is a consideration which belongs
absolutely to the wife.
According to Mulla, Dower is a sum of money or other property which
the wife is entitled to receive from the husband in consideration of the
marriage. The word ‘consideration’ which is used under this definition is
not used with the same meaning as used under the Indian Contract Act.
Payment of Mahr is an obligation on the part of husband as a mark of
respect to his wife.
There was an argument that marriage is a civil contract and dower is the
consideration for the contract of marriage.
Therefore, in the case Abdul Kadir v. Salima, Justice Mahmood stated
that under Muslim Law ‘Dower’ is a sum of money or other property promised
by the husband to be paid to the wife in the consideration of marriage and if
the amount of money or other property is not fixed in the marriage ceremony
then also the wife has right to demand dower.
But the above opinion was considered inaccurate, because even if the
payment of dower is not specified during or before the marriage ceremony
that does not make the marriage void.
After many arguments Abdul Rahim correctly observed that Dower is
an obligation made on the part of husband as a mark of respect toward his wife
and is not a consideration for marriage and it does not affect the validity of
marriage.
When can a man not pay dower
It is believed that when a marriage is not in the nature of a civil
contract and there was no offer and acceptance along with consideration to
the marriage then the concept of dower does not apply. This is because a
dower is paid as a matter of consideration by the man and dower can also be
a way of offering his hand in marriage to the woman. But, this only applies to
the couples who ratify to a contractual relationship.
On the other hand, marriage can also be only religious and spiritual in
nature. And under such circumstances, a dower shall not apply. And the man
is not under an obligation to pay dower to a woman.
Purpose/ Object of a ‘Mehr’
There are several interpretations that the ‘Mehr’ is paid by the husband
to the wife in the form of consideration since the marriage between the two in
the nature of the civil contract. On the other hand, it is believed that where the
marriage is not conducted in a contractual manner it is conducted in a religious
manner; there the need for a dower does not really exist.
There is another set of belief that the ‘Mehr’ is paid to the woman with
the purpose of sustaining herself in a case where the husband loses his life.
Since the woman becomes the property and the responsibility of the husband,
therefore, it becomes his responsibility to support his wife. Hence, in case of
the unforeseen event of his death, the dower shall support the woman and her
child.
Classification of Dower/ Kinds of Dower
Dower can be classified into two:
i. Specified Dower (Mahr-i-Musamma)- This type of Dower is further
divided into two:
a. Prompt Dower
b. Deferred Dower
ii. Customary (Proper) Dower (Mahr-i-Misl).
Specified Dower
When the amount of dower is specified in the marriage contract, then
that dower is known as Specified Dower. The amount of dower may be settled
before or during, even after the marriage ceremony. If the marriage is contracted
by the guardian due to minority or lunacy of husband, then guardians can fix
the amount of dower and the amount fixed by the guardian is binding in nature
on boy, after attaining puberty he cannot take plea that he was not a part of
the contract when it was made and even after the marriage of minor or lunatic
boy guardians can fix the amount of dower if the boy is still minor or lunatic.
Husband can fix any amount of dower as per his will even if it does not
leave anything for the heirs after the payment of dower but according to
Hanafi School the amount of dower in no case should be less than 10 dirhams
and 3 dirhams according to Maliki School. In Shia Law there is no minimum
amount fixed for the amount of dower.
But if there are any Muslim husbands who are unable to give 10 dirhams
to their wives due to poverty then in such cases Prophet Mohammad has
directed them to teach Quran to their wives in exchange for the payment of
dower. At present there is no maximum amount of dower and minimum amount
is no longer in practice as it is very low according to the present situation.
In Sahir Hussain v. Farzand Khan [1938], it was observed: In case of
minor husband, his father has power to make the contract of dower on minor's
behalf and contract is binding on the husband and on attaining the age of
majority, he cannot take the plea that he was not party to such contract.
Where the dower is fixed by father or other guardian on behalf of minor boy,
under Sunni law he does not thereby render himself liable for its payment
unless he stands a surety and in case of Shia law whether the father is surety
or not, if he contracts his minor son in marriage and the child is poor the
liability for dower rests entirely on father and in the event of his death, must
be discharges out of his estate.
Prompt Dower (Muajjal Mahr)
In a prompt mehar as the name suggests need to be paid promptly,
which means the husband is liable to pay the mehar as soon as the demand for
it is made. The prompt mehar is usually paid just before the marriage or as
soon as the marriage is over.
This mehar is required to be paid before the consummation of marriage
is made. Hence it can be said that the man has the right to restitution of
conjugal right only after the payment of the mehar is carried out. Therefore, it
would not be wrong to infer that the mehar is a pre-condition to right to
conjugal rights.
According to Ameer Ali, if the payment of prompt dower is not made
by the husband, then wife can refuse to enter into the conjugal domicile until
the amount of prompt dower is paid.
Following are the important points of Prompt Dower are:
i. Prompt Dower becomes payable immediately during or after the marriage
ceremony and it must be paid on demand, unless the other parties have
agreed for the delay. If the dower is not paid then wife can refuse to live
with her husband until the amount is paid and in case the wife is minor
then her parents can refuse to send her to her husband’s house and
husband has to give maintenance to her wife even if she is not living
with him.
ii. If the marriage has been consummated that does not convert the prompt
dower into deferred dower. After consummation, wife cannot refuse to
live with her husband on the ground of non-payment of dower, but she
can sue her husband for the payment of dower. And if the wife refuses
to live with her husband after consummation due to non-payment of
dower, then Court can pass the decree of restitution of conjugal Rights
on the condition of payment of dower by husband.
iii. Husband can only file petition for the restitution of conjugal Rights if
the amount of dower is not paid when the marriage has been
consummated.
iv. Prompt Dower should be paid on demand, the limitation period of filing
the suit for non-payment of dower is three years. The time would begin
from the date when the demand was made and was refused by the
husband during the subsistence of marriage. If the wife does not make
any demand, then the limitation period will begin from the date of
dissolution of marriage either by death or divorce.
Case : Nasra Begam v. Rizwan Ali
The Allahabad High Court held that the right to dower comes into
existence before cohabitation and Prompt Dower may be demanded even
before the cohabitation.
Deferred Dower (muwajjal Mahr)
Deferred Dower becomes payable after the dissolution of marriage either
by death or divorce.
Following are the important points of Deferred Dower:
i. Deferred Dower is generally paid after the dissolution of marriage but
any agreement in which it is mentioned that deferred dower will be paid
before the dissolution marriage, then that kind of agreement will be
binding and will not be considered as void.
ii. Wife cannot claim for the payment of deferred dower during the lifetime
or during the subsistence of marriage but husband can treat it as prompt
dower and can pay or transfer property, and that payment will be valid
and will not be considered as fraudulent preference unless there is
actual insolvency of husband involved.
iii. In case of death of husband, widow can waive off her right to claim for
the payment of deferred dower, but this act must be done on her free
consent.
iv. The interest of wife in deferred dower is vested and it is not contingent.
Deferred dower does not depend upon the happening of certain
contingencies not even on the death of wife, in case of death of wife
her legal heirs can claim for the money payable under deferred dower.
Proper or Customary Dower
If a marriage is completed without the amount of dower fixed in the
marriage contract or marriage is completed on the condition that the wife
should not claim any dower, then the wife is entitled to proper dower. The
amount of proper dower is decided by taking into consideration the amount of
dower settled upon other female members of the father’s family.
The proper dower is regulated with reference to the following factors:
1. Personal qualifications of the wife. Like her age, beauty, virtue,
fortune, etc.
2. Social position of her father’s family.
3. Dower given to her female paternal relations.
4. Economic conditions of husband.
5. Circumstances of time.
Under Sunni law, there is no maximum limit for a proper dower but
under Shia law, the proper dower should not exceed 500 Dirhams.
When the amount of the dower has not been settled, or even when the
marriage has been contracted on an express stipulation that the wife shall not
claim any dower, she is entitled to proper or customary dower. [Nasra Begum
v. Rizwan Ali, (1980)].
Conclusion
The concept of mahr in Islamic law is beneficial for the woman. It ensures
financial security so that she is not left helpless after the death of the husband
or after the termination of the marriage. It also places a check on the capricious
use of divorce by the husband. It is also believed that the mahr is a pivotal
custom in the marriages of Muslims.
Q. 9. What are the rights of wife when dower is not paid?
Or
Explain the nature of dower? Discuss the nature and extent of a Muslim
Widow's right to retain possessi of her husband's property in lieu of her
property?
Or
Is dower debt of wife? Can she retain the possession of her husband's
property in lieu of her dower debt? Is dower heritable? Discuss.
Or
Dissuss the right of widow over the property of her deceased husband
in lieu of her dower money?
Ans. Dower or Mahr is a sum that becomes payable by husband to the
wife on marriage either by agreement between the parties or by operation of
law. Dower may be defined as sum of money or other property which the wife
is entitled to receive from the husband in consideration of the marriage. It may
be either prompt or deferred. Husband may settle any amount he likes by way
of dower upon his wife. But he cannot in any case settle less than ten dirhams.
Jagdish Narayan Sharma v. Katoridevi, 1994(3) RCR 728 (MP):
Dower or Mehar can be defined as sum of money or other property which the
wife is entitled to receive from the husband in consideration of marriage,
however gifts made to wife at the time of marriage are not part of dower or
mehar.
Object of dower is three:
Firstly, to impose an obligation on the husband as a mark of respect of
wife. Secondly, to put a check on capricious use of divorce on the part of
husband and thirdly and importantly, to provide for her subsistence after the
dissolution of her marriage, so that she may not become helpless after divorce
or death of her husband.
Nature of Dower
The concept of Mahr was introduced by the Prophet Mohammad and
he made it obligatory to husband to pay Dower to his wife in every marriage.
Dower is similar to the donatio propter nuptias in Roman law. But, in Roman
law it was voluntary and in Muslim Law it is obligatory in nature.
Dower ranks as a debt and the wife is entitled along with other creditors
to have it satisfied on the death of the husband out of his estate. If the widow
has lawfully and without force and fraud obtained in lieu of her dower actual
possession of the property of deceased husband, she is entitled to retain that
possession as against other heirs and as against other creditors of her husband
until her dower is paid.
The nature of dower can be defined as follows:
1. Contract of dower and contract of sales is frequently compared and
wife is considered as property and mahr as her price.
In the case Abdul Kadir v. Salima, Justice Mahmood compared marriage
with contract for sales and dower as the consideration for such contract
and said, Dower may be regarded as consideration for connubial
intercourse by way of analogy to the contract for sale. The right to
resist her husband so long as the Dower remains unpaid is analogy to
the lien of a vendor upon the sold goods while they remain in his
possession and so long as the price or any part of it is unpaid and her
surrender to husband resembles the delivery of the goods to the vendee.
2. According to some well-known authorities Dower is regarded as a
consideration for conjugal intercourse.
In the case, Smt. Nasra Begum v. Rizwan Ali, Allahabad High Court
held that right to claim prompt dower proceeds cohabitation.
3. Dower is an essential incident and fundamental feature of marriage and
even though payment of dower is not fixed during or before marriage
wife is still entitled to some dower from her husband.
In the case Hamira Bibi v. Zubaida Bibi, Judicial Committee held that,
Dower is an essential incident under the Muslim Law the status of
marriage, to such an extent this is so that when it is unspecified at the
time the marriage is contracted, the law declares that it must be adjudged
on definite principles.
Difference between consideration in contract and consideration in Muslim
Law
From the above definitions, we have observed the term ‘consideration’.
The ambiguity which arises is whether the term ‘consideration’ is similar to
that in contract or is different from it. From various cases, and observations in
real life, it has been affirmed that the term ‘consideration’ is different from that
used in the contract. Without consideration, a contract is generally void but if
the dower or the consideration is not mentioned during the time of marriage,
the marriage does not become void. However, the law requires dower to be
paid to the wife on marriage. Under Islamic law, regarding mahr, consideration
means an obligation imposed upon the husband by the law as a mark of
respect for the wife.
The conflict between the terms ‘mahr’ and ‘dowry’
The literal meaning of the term ‘mahr’ is dower; however, the two terms
have some distinct differences. In Muslim law, the concept of mahr is to
ensure women’s financial security. However, dowry is a social evil. Dowry is
generally asked by the kin of the bridegroom from the bride’s family as a gift to
the marriage. Under Indian law, dowry has been defined in Section 2 of
the Dowry Prohibition Act, 1961. It is thus to be noted that mahr and dowry
are two different concepts. One ensures security and the other is a social evil.
Wife’s Rights and Remedies on Non-Payment of Dower
Every woman under Muslim law has the right to claim a dower on the
commission of marriage. Like any other law, if such a right is violated, then the
woman has some remedies. Muslim law confers upon a wife or a widow to
some rights to compel to get the payment of dower:
1. Refusal to cohabit
Under Muslim law, wife has a right to refuse to live with her husband
when the amount of prompt dower is not paid, if the marriage has not
been consummated. If the wife is minor or a lunatic then her guardians
can refuse to send her to her matrimonial home until the payment of
prompt dower is done and during that time husband is bound to maintain
his wife.
In the case Abdul Kadir v. Salima, it was held that wife can refuse to
cohabit or to live with her husband and if before the consummation of
marriage husband files petition for restitution of conjugal rights then,
such appeal will be dismissed.
In case the wife is minor or lunatic then her guardian can refuse to send
her to her matrimonial home until the amount of dower is paid by her
husband and if the minor wife is already in the custody of husband,
then her guardians can take her back on the ground that the amount of
dower is not paid.
In the case of Rabia Khatoon v. Mukhtar Ahmed, (1966), it was held
that if the suit is brought after sexual intercourse has taken place with
her free consent; the proper decree to pass is not a decree of dismissal,
but a decree for restitution, conditional on payment of prompt dower.
In deferred dower, the payment of dower is a contingent event. Therefore,
the question which arises is whether the wife can refuse to the husband
is conjugal rights or not. There has been a difference of opinion
regarding this.
Famous jurist, Abu Yusuf is of the opinion that she can refuse to cohabit
if a deferred dower is not paid. However, famous jurist Imam
Mahmood, Shia Law is of the opinion that the wife cannot refuse to
cohabit in cases of deferred dower.
2. Right to dower as a debt
The Privy Council, held that the dower is like a debt and the widow is
entitled along with other creditors to have it satisfied on the death of
the husband, out of his estate. If the husband is alive, then the wife can
recover the dower by instituting a suit against him. In cases where the
dower debt is remaining unpaid, the widow can enforce her claim for
the dower debt by filing a suit against the husband’s heirs. However,
the heirs are only liable to the extent to which and in proportion to
which they inherit the property of the deceased husband.
In the case of Syed Sabir Hussain v. Farzand Hussain, a Shia Muslim
took legal responsibility for the payment of dower of his minor son that
if he fails to do pay then he will pay instead of the son, after the death
of the father payment of dower was done from his estate as he was
liable to pay his son’s dower and every heir was responsible to pay for
the dower proportionate to their share.
3. Right to retain possession in lieu of unpaid dower
Widow has right to retain the possession of the property of her
deceased husband which she has already obtained lawfully and without
any force or fraud against other heirs and creditors of the property
until the amount of dower is paid. The right to retain the property does
not give her the ownership of the property; therefore she cannot alienate
the property. The right to retain the property also arises in case of
divorce.
Right to retain the possession of the property by the widow is for
special purpose, so she has to satisfy the amount of dower as soon as
possible from that property. A widow's right to retain possession of her
husband's estate in lieu of her dower is sort of compulsion to obtain
speedy payment of the dower which is an unsecured debt. Where she
is not in possession or has lost possession she cannot claim to obtain
it because her right to retain is not in the nature of a charge on the
property like mortgage but a personal right.
In Main Bibi v. Choudhary Vakil Ahmad, (1924), Privy Council
observed : Possession of property once lawful acquired by Muslim
widow, right to retain it in lieu of dower and till payment of dower is
conferred upon her by the Muslim law. However right of retention does
not give her any title to the property therefore she cannot alienate the
property.
In Shaikh Salma v. Mohd. Abdul Kadar, (196), it was held that widow
in possession of her husband's property in lieu of dower debt is liable
to account to other sharers of income from such property in her
possession.
Features of right to retain the possession are:
a. No right to retain the possession during the continuance of marriage:
Wife cannot retain the possession of her husband’s property during
the continuance of marriage. This right only arises after the dissolution
of marriage either by death or divorce.
b. Actual possession:
The right of retention means to continue the possession of the property
until the dower debt is paid. Therefore, the wife or widow must be in
actual possession of the property after the dissolution of the marriage
and if the wife or widow is not in actual possession of the property
then she cannot retain the possession.
c. Right of retention not analogous to a mortgage:
The wife or widow do not have interest in the property, she has retained
the property as a mortgage. But in case of mortgage, the mortgagee
retains the property under an agreement made between him and the
owner of the property and in case of retention by wife or widow that
right has conferred upon him by law.
d. Not a charge:
The right to retention does not create a charge on the property as the
wife or widow is not a secured creditor. And if the property has been
mortgaged to someone by the husband when the wife/widow was
having the possession of that property, then the mortgagee can sell
the property and dispose the possession of wife/widow.
e. A possessory lien on property is no title:
Wife or widow can only satisfy the amount of dower through rents and
profits from the property, she does not get the title of the property. The
title goes to the heirs of the husband including widow. She has no right
to sell or mortgage the property to satisfy the amount of dower, she can
only alienate her share in the property not the share of other heirs. And
if she alienates the whole property then the other heirs become entitled
to recover the possession of their shares, and that share will be given
to them without the payment of dower proportionate to their shares.
Widow can acquire the possession of the property if she has been
dispossessed by the heirs under Section 9 of the Specific Relief Act,
within the period of 6 months, and if she fails to do so, then she loses
her possession over the property and if the dispossession is caused
by the trespasser, then she can file case under Article 12 of Indian
Limitation Act within 12 years.
f. Widow in possession liable to account:
Widow is bound to account the profits and rents received out the
property to the other heirs of her deceased husband while she is entitled
to charge interest on the dower which is due to her and to set it off
against the net profit.
g. Can sue heirs:
Widow can sue the heirs of her deceased husband for the recovery of
the amount of dower out of their shares.
h. Right of retention whether heritable or transferable:
There is a difference in the judicial opinion on the widow’s right of
retention is whether heritable or transferable.
Conclusion
Under the circumstance where the husband passes away the wife is
entitled to the right of lien over the property this is to ensure that her mehar is
paid by the legal heirs by way of their share to the property which is inherited
by them from her husband. Hence, these are several modes of payment of
mehar to ensure that the Muslim woman does not undergo too many hardships
in life and is properly supported after the marriage either when there is a
divorce or the husband passes away.
Q. 10. Discuss the various types of talaq pronounced by a Muslim
husband. Explain them.
Or
What are the various modes by which a Muslim husband can divorce
his wife? Can he remarry his divorced wife?
Ans. Islam is perhaps the first religion in the world which has expressly
recognized the dissolution of marriage by way of divorce. Divorce among the
ancient Arabs was easy and of frequent occurrence. In fact, this tendency has
even persisted to some extent in Islamic law, in spite of the fact that Prophet
Mohammad showed his dislike to it. The Prophet declared that among the
things which have been permitted by law, divorce is the worst. Divorce being
an evil, it must be avoided as far as possible.
It was regarded by the Prophet to be the most hateful before the God of
all permitted things; for it prevented conjugal happiness and interfered with
the proper bringing up of the children.
Divorce may be affected by the act of the husband, but in certain
special circumstances, also by wife or by mutual agreement or by the operation
of law. A Muslim spouse can seek restitution of conjugal rights by a civil suit.
A Muslim husband and wife can separate from each other as any other spouses
by a separation agreement under the general law of contract.
The Dissolution of Muslim Marriage Act, 1939 now lays down several
other grounds on the basis of any one of which, a Muslim wife may get her
marriage dissolved by an order of the court. Islam provides a modern concept
of divorce by mutual consent.
The dissolution of marriage under Muslim law can be studied under
three heads:
1. Extra Judicial Divorce or Talaq under Muslim Personal Law.
2. Judicial Divorce or Talaq under Statutory Law.
3. Judicial Seperation
EXTRA JUDICIAL DIVORCE
The Extra-judicial divorce is when it depends upon the will of husband
or wife or when it is by mutual agreement. There are different rights provided
to wife and husband. Generally, rights to give divorce are given to husband
only; the wife is at very lower pedestal regarding the right to divorce. Extra-
judicial divorce is divided into several parts:
1. By Husband- Talaq-Ul-Sunnat, Talaq-Ul-Biddat, lla and Zihar
2. By Wife Talaq-i-Tafweez, Lian and Khula
3. My Mutual Agreement- Mubarat
Talaq by Husband
Talaq: Talaq in its primitive sense means dismission. In its literal meaning,
it means "setting free", "letting loose", or taking off any "ties or restraint". In
Muslim Law it means freedom from the bondage of marriage and not from any
other bondage. In legal sense it means dissolution of marriage by husband
using appropriate words.
In other words talaaq is repudiation of marriage by the husband in
accordance with the procedure laid down by the law. The following verse is in
support of the husband's authority to pronounce unilateral divorce is often
cited: "Men are maintainers of women, because Allah has made some of them
to excel others and because they spend out of their property (on their
maintenance and dower). When the husband exercises his right to pronounce
divorce, technically this is known as talaq.
The most remarkable feature of Muslim law of talaaq is that all the
schools of the Sunnis and the Shias recognize it differing only in some details.
In Muslim world, so widespread has been the talaaq that even the Imams
practiced it. The absolute power of a Muslim husband of divorcing his wife
unilaterally, without assigning any reason, literally at his whim, even in a jest
or in a state of intoxication, and without recourse to the court, and even in the
absence of the wife, is recognized in modern India. All that is necessary is that
the husband should pronounce talaaq how he does it, when he does it, or in
what he does it is not very essential.
In Hannefa v. Pathummal, Khalid, J., termed this as "monstrosity".
Among the Sunnis, talaaq may be express, implied, contingent constructive
or even delegated. The Shias recognize only the express and the delegated
forms of taldaq.
Condition for Valid Talaq
1. Capacity: Every Muslim husband of sound mind, who has attained the
age of puberty, is competent to pronounce talaaq. It is not necessary
for him to give any reason for his pronouncement. A husband who is
minor or of unsound mind cannot pronounce it Talaaq by a minor or of
a person of unsound mind is void and ineffective. However, if a husband
is lunatic then talaaq pronounced by him during "lucid interval" is
valid.
The guardian cannot pronounce talaaq on behalf of a minor husband.
When insane husband has no guardian, the Qazi or a jud has the right
to dissolve the marriage in the interest of such a husband.
2. Free Consent: Except under Hanafi law, the consent of the husband in
pronouncing talaaq must be a free consent. Under Hanafi law, a talaaq,
pronounced under compulsion, coercion, undue influence, fraud and
voluntary intoxication etc., is valid and dissolves the marriage.
Involuntary intoxication: Talaaq pronounced under forced or
involuntary intoxication is void even under the Hanafi law.
Shia law: Under the Shia law (and also under other schools of Sunnis)
a talaaq pronounced under compulsion, coercion, undue influence,
fraud, or voluntary intoxication is void and ineffective.
3. Formalities: According to Sunni law, a talaaq, may be oral or in writing.
It may be simply uttered by the husband or he may write a Talaaqnama.
No specific formula or use of any particular word is required to constitute
a valid talaaq. Any expression which clearly indicates the husband's
desire to break the marriage is sufficient. It need not be made in the
presence of the witnesses.
According to Shias, talaq must be pronounced orally, except where the
husband is unable to speak. If the husband can speak but gives it in
writing, the talaq is void under Shia law. Here talaaq must be pronounced
in the presence of two witnesses.
4. Express words: The words of talaq must clearly indicate the husband's
intention to dissolve the marriage. If the pronouncement is not express
and is ambiguous then it is absolutely necessary to prove that the
husband clearly intends to dissolve the marriage.
Express Talaaq (by husband):
When clear and unequivocal words, such as "I have divorced thee"
are uttered, the divorce is express.
The express talaaq, falls into two categories:
a. Talaq-ul-sunnat,
b. Talaq-ul-biddat.
Talaaq-ul-sunnat has two forms:
i) Talaq-e-ahasan (Most approved)
ii) Talaq-e-hasan (Less approved)
Constructive/Implied Talaq (by husband):
a. Ila
b. Zihar
1. Talaq-Ul-Sunnat or revocable talaq.
It is the talaq, which is effected in accordance with the traditions of
Prophet and it is approved form of talaq. It is a traditional mode of
divorce, and approved by the Prophet Mohammad, and is valid
according to all Schools of Muslim law.
In fact, the Prophet always considered talaq as an evil and that he
recommended only revocable talaq; because in this form, the evil
consequences of talaq do not become final at once. There is possibility
of compromise and reconciliation between husband and wife.
Talaq-ul-Sunnat is also called as Talaq-ul-raje. It is a revocable form of
talaq because in this form, the consequences of Talaq do not become
final at once. There is possibility of compromise and reconciliation
between husband and wife. Talaq-ul-Sunnat may be pronounced either
in Ahasan or in the Hasan form.
i) Ahasan
This Arabic word "ahsan" means "best". It is also called "very
proper" form of talaq. This signifies that the talaq pronounced
in the ahsan form is very best kind of talaq. The best feature of
this kind of talaq is that, it is revocable. So, hasty divorce can be
prevented.
This is the most proper form of repudiation of marriage. The
reason is twofold: First, there is possibility of revoking the
pronouncement before expiry of the iddar period. Secondly, the
evil words of Talaq are to be uttered only once. Being an evil, it
is preferred that these words are not repeated.
Procedure to be followed in Ahasan Talaq
(a) The husband has to make a single pronouncement of Talaq
during the Tuhr of the wife. Tuhr is the period of wife's purity
i.e., a period between two menstruations. As such, the period of
Tuhr is the period during which cohabitation is possible. But if
a woman is not subjected to menstruation, either because of old
age or due to pregnancy, a Talaq against her may be pronounced
any time.
(b) After this single pronouncement, the wife is to observe an iddat
of three monthly courses. If she is pregnant at the time of
pronouncement then the iddat is till the delivery of the child.
During the period of Iddat there should be no revocation of
Talaq by the husband to make the talaq final.
When the period of iddat expires and the husband does not
revoke the Talaq either expressly or through consummation, the
Talaq becomes irrevocable and final.
However during the period of iddat the husband can revoke the
talaq. Revocation may be express or implied. Cohabitation with
the wife is an implied revocation of Talaq. If the cohabitation
takes place even once during this period, the Talaq is revoked
and it is presumed that the husband has reconciled with the
wife.
ii) Hasan
In Arabic, Hasan means "good". While Ahsan means very good.
This kind of talaq is also regarded to be proper and approved
form, in this form also, there is a provision for revocation. But it
is not the best mode because evil words of talaq are to be
pronounced three times in the successive tuhrs.
Procedure to be followed in Hasan Talaq
1. The husband has to make a single declaration of Talaq in a
period of Tuhr.
2. In the next Tuhr, there in another single pronouncement for the
second time.
3. If no revocation is made after the first or second declaration
then lastly the husband is to make the third pronouncement in
the third period of purity (Tuhr) As soon as this third declaration
is made, the Talaq becomes irrevocable and the marriage
dissolves and the wife has to observe the required Iddat.
It is only after the third pronouncement that the wife observes
the iddat penod and no revocation can be made post 3 rd
pronouncement Revocation in Hasan Talag can be made only
made during tuhr firstly between 1st and 2nd pronouncement and
secondly between 2nd and 3rd pronouncement
Ghulam Mohyuddin v. Khizer, AIR 1929
A husband wrote a talaqnama in which he said that he had pronounced
his first talaq 15th September and the third talaq would be completed
on 15th November. He communicated the same to his wife on 15th
September. The court observed that for an effective and final talaq, the
three pronouncements must actually be made in three tuhrs, only a
mention of the third declaration is not sufficient.
After revocable of marriage, the parties were not free to remarry again
unless the wife married another man who had actually consummated
the marriage, and then divorced her. On the completion of iddat, the
woman could marry her former husband. This is a penal provision
meant to chastise the husband who repudiates his wife thoughtlessly.
[Dr. Paras Diwan]
2. Talaq-ul-Biddat
Talaq-ul-Biddat is also known as Talaq-ul-Bain. It is a disapproved
mode of divorce. A peculiar feature of this Talad is that it becomes
effective as soon as the words are pronounced and there remains no
possibility of reconciliation between the parties thereby making it
irrevocable.
Biddat means disapproved, wrong innovation or to some extent,
forbidden. In common practice, this is also called "instant triple talaq".
This form of talaq was allowed by second caliph of Islam, Omar.
This form of talaq is mainly recognized and practiced by the Sunni
Muslims and is not recogised by the Shia Muslims. A peculiar feature
of this talaq is that it becomes effective as soon as the words are
pronounced and there is no possibility of reconciliation between the
parties. The Prophet never approved the same as there was no
opportunity for reconciliation and that it was not in practice during his
life time. The Prophet declared that the man was making the plaything
of the words of god and made him to take back his wife. Therefore,
talaq-ul-biddat has its origin in the second century of the Islamic era.
Talaq ul-Biddar maybe pronounced in single declaration or by triple
declaration.
i) Single Declaration
Procedure:
The husband may make only one declaration in a period of purity
expressing his intention to divorce the wife irrevocably saying
"I divorce thee irrevocably" or divorce thee in Bain". After the
pronouncement is made the talaq becomes irrevocable and
permanent. It is after this period the wife observes the iddat
period.
ii) Triple Declaration
Procedure:
The husband may make three pronouncements in a period of
purity (Tuhr) saying: "I divorce thee, I divorce thee, and I divorce
thee." He may declare h Talaq even in one sentence saying: "I
divorce thee thrice", or "I pronounce my first, second and third
Talaq." It becomes irrevocable immediately when it is
pronounced and subsequently the wife observes the iddat
period.
However it is to be noted that talaq-ul-biddat has been declared
unconstitutional by the Hon'ble Supreme Court in Shayara Bano v.
union of India (2017) 9 SCC which the court held that "that this form
of Talaq is manifestly arbitrary in the sense that the marital tie can be
broken capriciously and whimsically by a Muslim man without any
attempt at reconciliation so as to save it. This form of Talaq must,
therefore, be held to be violative of the fundamental right contained
under Article 14 of the Constitution of India. In our opinion, therefore,
the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq,
is within the meaning of the expression ‘laws in force in Article 13(1)
and must be struck down as being void to the extent that it recognizes
and enforces Triple Talaq’."
Subsequently the Government of India has passed a law banning triple
talaq and punishing any husband who pronounces triple talaq with
imprisonment upto 3 years.
3. lla
Ila means "oath" or "vow". In law, it means that, when a husband takes
an oath that he will not do sexual intercourse with his wife for four
months or above on the expiry of four months after making Ila, if the
husband has abstained from sexual intercourse during this period, the
marriage shall stand dissolved irrevocably. But if the husband resumes
cohabitation within four months, Ila is cancelled and the marriage does
not dissolve.
There is no limit prescribed for the longest period. Ila made under
compulsion or intoxication would be valid as in the case of talaq under
similar circumstances. The shortest period of vow of abstinence must
be four months. If a period of more than four months, Ila would be valid
even if it is pronounced during menstruation but if it is pronounced to
be perpetual, it would be valid only if pronounced during tuhr.
In case of sunnis such a conduct of the husband will amount to single
irrevocable divorce ad the marriage will dissolve automatically at the
expiry of 4 months In case of Shias the marriage do not dissolve
automatically rather it gives the wife the right of judicial divorce uunder
section 2(ix) of the Dissolution of Muslim Marriage Act 1939.
4. Zihar
In this mode, the husband compares his wife to a woman within his
prohibited relationship e.g. mother or sister etc. The husband would
say that from today the wife is like his mother or sister. After such a
comparison the husband does not cohabit with his wife for a period of
four months. Upon the expiry of the said period, Zihat is complete.
After the expiry of the fourth month the wife has following rights:
(a) She may go to the court to get a decree of judicial divorce.
(b) She may ask the court to grant the decree of restitution of conjugal
rights.
Where the husband wants to revoke Zihar by resuming cohabitation
within the said period, the wife cannot seek a judicial divorce it can be
revoked if:
(a) The husband observes fast for a period of two months, or,
(b) He provides food at least sixty people, or,
(c) He frees a slave.
In Masroor Ahmed v. State (Nct of Delhi) and anr., the high Court of
Delhi observed that "Ila and Zihar as modes of divorce are virtually
non-existent in India. However, lian is sometimes resorted to. If a man
accuses his wife of adultery (zina), but is unable to prove the allegation,
the wife has the right to approach the qazi for dissolution of marriage.
In India, a regular suit has to be filed. Once such a suit is filed by the
wife, the husband has the option of retracting his charge of adultery,
whereupon the suit shall fail. However, if he persists then he is required
to make four oaths in support of the charge. The wife makes four oaths
of her innocence, after which the court declares the marriage dissolved.
This is the process of dissolution of marriage by lian"
Talaq By Wife
1. Talaq-i-Tafweez
Talaq-i-tafweez is also known as Talaq-i-Tawhid. Literally, tafweez means
"delegate". A Muslim husband can delegate his power of pronouncing
talaq to his wife or to any other person.
It is known as delegated form of divorce and is recognized among both,
the Shias and the Sunnis, The Muslim husband is free to delegate his
power of pronouncing divorce to his wife or any other person. He may
delegate the power absolutely or conditionally, temporarily or
permanently. A permanent delegation of power is revocable but a
temporary delegation of power is not. This delegation must be made
distinctly in favour of the person to whom the power is delegated, and
the purpose of delegation must be clearly stated. Any agreement made
either before or the after the marriage providing that the wife would be
at the liberty to divorce herself under certain specified conditions is
vald provided the conditions are reasonable and not opposed to public
policy. It should be noted that even in the event of a contingency,
whether or not the power is to be exercised, depend upon the wife she
may choose to exercise it or she may not. The happening of the event
of contingency does not result in automatic divorce.
Capacity to delegate the power:
A husband:
(a) is a one who has sound mind, and
(b) who has attained the age of puberty may delegate his right of
pronouncing talaq. If a husband becomes insane after delegating
his power, the delegation will not be invalidated.
It is not necessary that the wife or any other person, to whom the
power is delegated, should also have attained the age of puberty.
Kinds of tafweez:
The power to pronounce talaq may be conferred in three forms of
expressions, two of which are implied forms and the third, an express
form. They are:
a. Ikhtiyar (choice of option), e.g., the husband telling his wife,
"choose" or using a similar expression (thereby intending a talaq);
delegation of power is implied. By „giving the choice is meant
giving her, the choice to get rid of the matrimonial tie. The
delegation may be made subject to certain condition such as a
husband may say if the maintenance does not reach you, you
are given the choice, etc. However in any case the delegation of
power of divorce must be within the knowledge of wife who had
accepted it.
b. Amar-ba-yad (liberty): It literally means business in hand. This
may, for example, be given by the husband telling the wife "thy
business is in they hand" (hereby intending a talaq); in case the
husband says „divorce thyself thrice or twice) and she divorces
only once, divorce would take effect.
c. Musheeat (will or pleasure): This may be given in the imperative
mood by which sareeh or express talaq may be given, e.g., by
the husband saying to the wife, "give yourself talaq if you please"
Mohd. Khan v. Mst. Shahmali, AIR 1972
Husband under a pre-marriage agreement, under took to pay certain
amount of marriage expenses incurred by his father-in-law, if he leaves
the house. The husband left the house without paying the amount of
marriage expenses. Then the wife exercised the right and divorced
herself. A valid divorce came into effect.
2. Khula
Quran, the original source of Islamic Law, provided the system of Khula.
In law it is surrender of right of husband over his wife for an exchange.
The word Khula or redemption literally means "to lay down". In law, it
means laying down by a husband of his right and authority over his
wife". The word Khula literally means "to take off clothes" and thence,
to lay down one’s authority over wife. In law, it is laying down by a
husband of his right and authority over his wife for an exchange".
Khula signifies an arrangement entered into for the purpose of
dissolving a connubial connection in lieu of compensation paid by the
wife to her husband out of her property. Khula infact is thus a right of
divorce purchased by the wife from her husband. In India, the word
khula is also spelt as khoola or khula and even khola. Khula literally
means "to take off clothes, and thence, to lay once authority over a
wife"
Conditions for khula:
Both the husband and the wife must be of sound mind and have attained
puberty. Under Hanafi law, the guardian of a minor wife may enter into
a khula on her behalf; but the guardian of a minor husband cannot
enter into a khula on his behalf. A khula may be entered into by any
party through an authorized agent who will act within the scope of his
authority.
A khula given under compulsion is not valid under the Shia law; but it
is valid under the Sunni law. Proposal and acceptance must be made at
the same meeting in express words.
Under Shia law, the Arabic language must be used in khula and presence
of two witnesses is also required. The consent to khula may be
conditional or unconditional under the Sunni law; but under the Shia
law, conditional khula is not recognized.
Such proposal may be retracted by the wife at any time before the
acceptance is made by the husband. According to Muslim personal
law 3 days time has been given by various jurists to both husband and
wife. The moment offer is accepted by the husband it stands as single
irrevocable divorce Le there marital relationship ends the moment the
husband accepts the offer.
3. Lian:
The word lian literally means "imprecation". Islamic law punishes the
offence of adultery (zina) severely, and so it takes a serious view of an
imputation of unchastity against a married woman. If a husband accused
his wife of infidelity, he was liable to punishment for defaming his wife
unless he proved his allegation. If there was no proof forthcoming, the
procedure of lian was adopted.
If the husband levels false charges of unchastity or adultery against
his wife then this amounts to character assassination and the wife has
got the right to ask for divorce on these grounds.ð Such a mode of
divorce is called Lian. However, it is only a voluntary and aggressive
charge of adultery made by the husband which, if false, would entitle
the wife to get the wife to get the decree of divorce on the ground of
Lian. Where a wife hurts the feelings of her husband with her behaviour
and the husband hits back an allegation of infidelity against her, then
what the husband says in response to the bad behaviour of the wife,
cannot be used by the wife as a false charge of adultery and no divorce
is to be granted under Lian. This was held in the case of Nurjahan v.
Kazim Ali by the Calcutta High Court.
By Mutual Agreement
Mubarat
Mubaraat means "release", which puts an end to matrimonial rights.
The word Mubaraa means an act of freeing one from another mutually. It is a
mutual discharge from marriage tie.
In mubarat both, the husband and the wife are happy to get rid of each
other. Among the Sunnis when the parties to marriage enter into a mubarat all
mutual rights and obligations come to an end. The Shia law is stringent
though. It requires that both the parties must bona fide find the marital
relationship to be irksome and cumbersome. Among the Sunnis no specific
form is laid down, but the Shias insist on a proper form. The Shias insist that
the word mubarat should be followed by the word talaaq, otherwise no divorce
would result. They also insist that the pronouncement must be Arabic unless
the parties are incapable of pronouncing the Arabic words. Intention to dissolve
the marriage should be clearly expressed. Among both, Shias and Sunnis,
mubarat is irrevocable. Other requirements are the same as in khula and the
wife must undergo the period of iddat and in both the divorce is essentially an
act of the parties, and no intervention by the court is required.
JUDICIAL DIVORCE (Faskh)
Judicial divorce is a formal separation between husband and wife
where there is no direct role of husband or wife but court separates them
according to established custom or law. In such cases, divorce does not
depend on the will and pleasure of the husband. Under Dissolution of Muslim
Marriage Act, 1939 the legislature has made provisions for the divorce on
the application of wife. There are several grounds in which judicial divorce
can be pronounced.
Section 2 of Dissolution of Muslim Marriage Act, 1939 states nine
grounds on which a Muslim wife can obtain a decree of divorce:-
Absence of Husband– whereabouts of the husband are not known from
the past four years. Dissolution of marriage decree on this ground will take
effect after six months from the date of such decree is passed, and during that
period if the husband appears in person or through an authorizes agent. Court
if satisfied from same may set aside the said decree.
1. Failure to maintain- If a husband fails to provide maintenance to his
wife for two years. There is no defence available before husband on
the ground of poverty, failing health or unemployment.
2. Imprisonment of a husband- If the husband is imprisoned for seven
years or more.
3. Failure to perform marital duties- If, without any reasonable cause,
the husband is unable to perform his marital obligations for three years.
4. Impotency of husband- husband was impotent at the time of marriage
and continues to be so. If the husband within one year from the date of
the order obtained by wife for dissolution of marriage on the grounds
of impotency on application satisfies the Court that he ceased to be
impotent. If the husband satisfies the court, then no decree shall be
passed on this ground.
5. Insanity, leprosy or venereal disease- If the husband is insane or
suffering from leprosy, or any venereal disease from a period of two
years, judicial divorce by wife can be claimed on the same ground.
6. Repudiation of marriage by wife- If a girl is married before the age of 15
years by her father or guardian, then under Muslim law she has been
provided with a right to repudiate such marriage after attaining the age
of 18 years provided that marriage is not consummated. She is entitled
to a decree of divorce for same.
7. Grounds of dissolution recognised by Mohammedan Law- Wife is also
entitled to obtain a divorce on the ground recognised valid under the
law.
8. Cruelty by husband- if the husband treats his wife with cruelty, then
she can approach the Court and claim for a decree of judicial separation
on the same ground.
Some of the ways through which grounds for cruelty could be claimed as
follows:
1. Physical assault.
2. Making defamatory statements affecting her reputation.
3. Forces her to lead an immoral life.
4. Obstructing her from practising her religion.
5. Husband having more than one wife and does not treat them equally.
In Siddique v. Amina, it was established that, husband had administered
his wife with some drug causing miscarriage. He also physically tortured her.
The court held that, it amounts to cruelty.
In Begum Subanu v. A.M. Abdul Gafoor,(1987) the Supreme Court held
that, sharing the matrimonial bed with the second wife of the husband
constituted ‘matrimonial injury’ affording her, a ground to live separately from
the husband.
In Aboobacker v. Mamu Koya,(1971) the husband used to compel his
wife to put on a Sari and see pictures in cinema halls. The wife refused to do so
because according to her beliefs, this was against the Islamic way of life. She
sought a divorce under Section 2 (viii) (e) of the Act, saying that since the
husband compels her to do something which is against her religious profession
and practice, it is mental cruelty by the husband. The Kerala High Court held
that, the conduct of the husband cannot be regarded as cruelty because; mere
departure from standards of suffocating orthodoxy does not constitute un-
Islamic behaviour.
In Umatul-Hafiz v. Talib Husain, (1945) a husband went abroad leaving
behind two wives in India. He provided maintenance for one wife from there,
but ignored the other. The court held that, the other wife was entitled to
divorce.
Judicial Separation under Muslim Law
Judicial separation is a legal instrument by which the court orders
the married couple to stay apart from each other for one year (usually) to
give the spouses the time to introspect their marriage and their decision of
divorce. Though the Muslim Law doesn’t have any codified provision for
judicial separation as such. However, over the years, the courts have
declared judicial separation before the parties divorce. This instrument
helps them decide in their best interest. The grounds for judicial separation
have been given under Section 2 of the Dissolution of Muslim Marriage
Act.
1. Absence of Husband: The wife can file a plea of judicial separation if
her husband is missing or if she is unaware of his whereabouts for a
continuous period of four years or more.
2. Failure of Husband to provide maintenance: The wife can file a plea of
judicial separation if her husband neglects to give her maintenance by
not providing for her needs and requirements for a period lasting two
years or more.
3. Imprisonment of Husband: If the husband has been convicted for a
crime punishable with a minimum of seven years of imprisonment, then
the wife can file for judicial separation.
4. Impotency of Husband: The wife can file a plea of judicial separation if
her husband is impotent and hasn’t disclosed such information before
or during their marriage.
5. Insanity, Leprosy or Venereal disease: The wife can file a plea of judicial
separation if her husband has proven to be insane for two years or
more or is suffering from leprosy or contagious venereal disease.
6. Repudiation of Marriage by wife: If the wife was married off to her
husband before attaining fifteen years of age and has repudiated herself
from the marriage till eighteen years of age, then the wife can file a plea
for judicial separation.
7. Cruelty of Husband: If the husband habitually tortures his wife and
beats her, in other words, he is treating her with cruelty, and then the
wife can seek judicial separation.
8. Suppose the husband has failed to fulfil his marit al obligations
Obtaining a plea for judicial separation is like obtaining a divorce
decree since judicial separation is considered the last step in a divorce. The
spouse who seeks judicial separation has to file a plea for the same before the
district or family court by specifying the ground/grounds on which the petition
is being claimed. If the grounds are recognised under the law, or the court
finds the grounds justifiable, the court approves the plea and orders judicial
separation. After which, the spouses need to live separately for a year (usually),
giving them time to introspect their marriage.
Conclusion
After the 2017 judgement of the Supreme Court held and declared triple
talaq unconstitutional, under Muslim law, both husband and wife are given
equal rights to dissolve their marital relationship.
When two people enter into a marital relationship, they might not know
each other so well, as they got to know each other after living together. And
after that, if there is no compatibility between the two, living apart is the best
choice to be made.
Bad relations may spoil the life of both the individuals and under Muslim law,
talaq is an ancient practice and is not recognised as a sinful act, unlike
under Hindu law.
Q. 11. Under what circumstances can Muslim wife obtain a decree for
dissolution of marriage?
Or
Can a Muslim wife divorce her husband? If so, under what
circumstances?
Or
Discuss how a Muslim wife can seek divorce from her husband inder
traditional and modern Muslim Law?
Ans. Grounds of Dissolution of Muslim Marriage - Section 2 of
Dissolution of Muslim Marriage Act, 1939 lays down nine grounds on which
a woman under Muslim Law is entiteld to decree of divorce, it says-
Section 2 in the Dissolution of Muslim Marriages Act, 1939
Grounds for decree for dissolution of marriage.—
"A woman married under Muslim law shall be entitled to obtain a
decree for the dissolution of her marriage on any one or more of the
following grounds, namely:
(i) that the whereabouts of the husband have not been known for a period
of four years;
(ii) that the husband has neglected or has failed to provide for her
maintenance for a period of two years;
(iii) that the husband has been sentenced to imprisonment for a period of
seven years or upwards;
(iv) that the husband has failed to perform, without reasonable cause, his
marital obligations for a period of three years;
(v) that the husband was impotent at the time of the marriage and
continues to be so;
(vi) that the husband has been insane for a period of two years or is
suffering from leprosy or virulent venereal disease;
(vii) that she, having been given in marriage by her father or other guardian
before she attained the age of fifteen years, repudiated the marriage
before attaining the age of eighteen years:
Provided that the marriage has not been consummated;
(viii) that the husband treats her with cruelty, that is to say,—
(a) habitually assaults her or makes her life miserable by cruelty
of conduct even if such conduct does not amount to physical
ill-treatment, or
(b) associates with women of evil repute or leads an infamous life,
or
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property or prevents her exercising her legal
rights over it, or
(e) obstructs her in the observance of her religious profession or
practice, or
(f) if he has more wives than one, does not treat her equitably in
accordance with the injunctions of the Quran;
(ix) on any other ground which is recognised as valid for the dissolution
of marriages under Muslim law: Provided that—
(a) no decree shall be passed on ground (iii) until the sentence
has become final;
(b) a decree passed on ground (i) shall not take effect for a period
of six months from the date of such decree, and if the husband
appears either in person or through an authorised agent within
that period and satisfies the Court that he is prepared to perform
his conjugal duties, the Court shall set aside the said decree;
and
(c) before passing a decree on ground (v) the Court shall, on
application by the husband, make an order requiring the
husband to satisfy the Court within a period of one year from
the date of such order that he has ceased to be impotent, and if
the husband so satisfies the Court within such period, no decree
shall be passed on the said ground."
Missing husband: Section 2 (i)
Section 2 (i) of the Dissolution of Muslim Marriages Act, 1939
provides that a woman shall be entitled to obtain a decree for the dissolution
of her marriage if the whereabouts of the husband has not been known for a
period of four years. A wife is required not to marry for a period of six
months from the date of passing of the decree. In case the husband appears
within six months from the date of the passing of the decree, and satisfies
the court that he is willing to perform his marital obligations, the court may
set aside the decree. The suit filed by the wife shall contain the following
information:
i) the names and addresses of the persons who would have been the
heirs of the husband under Muslim law if he had died on the date of the
filing of the plaint shall be stated in the plaint;
ii) notice of the suit shall be served on such persons;
iii) such persons shall have the right to be heard in the suit;
iv) the parental uncle and brother of the husband are to be made parties in
the suit even though they may not be the heir in the property of the
husband.
Failure to maintain: Section 2 (ii)
If the husband has neglected or failed to provide maintenance to the
wife for two or more years, the wife is entitled to obtain a decree for the
dissolution of her marriage. If the husband is unable to maintain his wife due
to poverty, unemployment, imprisonment, ill-health or any other misfortune,
even then the wife has a right to get the decree for dissolving her marriage
[Satgunj v. Rahmat, AIR 1945].
But the husband cannot be said to have neglected her or has failed to
provide maintenance for his wife unless he was under an obligation to maintain
her. Under Muslim law, the husband is not bound to maintain his wife who is
not faithful or obedient to her husband, or who does not perform her marital
duties.
Therefore, where a wife files a suit for the dissolution of her marriage
on the ground of failure of maintenance, and it is found that she was neither
faithful nor obedient to her husband, the suit must be dismissed. Therefore,
if the wife lives separately without any reasonable excuse, she is not entitled
to get a judicial divorce on the ground of husband’s failure to maintain her
because her own conduct disentitles her for maintenance under Muslim law.
[Rabia Khatoon v. Mukhtar Ahmad AIR 1966]
Imprisonment of husband: Section 2 (iii)
If the husband has been sentenced to imprisonment for a minimum
period of seven years, the wife may file a suit for dissolution of marriage.
But no decree shall be passed until the sentence has become final.
Therefore, the decree can be passed in her favour only after the expiry of the
date for appeal by the husband or after the appeal by the husband has been
dismissed by the final court.
Failure to perform marital obligation: Section 2 (iv)
If the husband without reasonable excuse has failed to perform his
marital obligations for a period of three years, the wife may file a suit to
dissolve her marriage.
Under Muslim law, A Muslim husband has four obligations towards his
wife:
i) to maintain her;
ii) to treat all his wives equally;
iii) to make available to her a personal apartment, and
iv) to allow her to visit and be visited by her parents and blood relations.
The first two are covered by clauses (ii) and (viii) (f) of Section 2. The
last two would be covered by this clause.
The Act does not define ‘marital obligation of the husband’.
Under Muslim law, there are several matrimonial obligations of the
husband. But for purpose of this clause, husband’s failure to perform
only those conjugal obligations may be taken into account which is
not included in any of the clauses of Section 2 of this Act. Thus, where
the husband deserts his wife or does not cohabit with her without any
reasonable excuse, it amounts to failure of the husband to perform
marital obligations.
Such failure of the husband without reasonable justification for at least
three years, entitles the wife to get a decree for dissolution of the marriage.
But, if the husband does not cohabit with wife for three years due to some
reasonable excuse e.g., illness, or remains away from her because of his
business or studies etc., the wife cannot get the decree of dissolution of
marriage under this clause.
Husband’s impotency: Section 2 (v)
If the husband was impotent at the time of marriage and continues to
be so, the wife may file a suit to dissolve her marriage. But for getting a decree,
the wife has to prove two facts:
1) that the husband was impotent at the time of the marriage, and
2) that he continues to be impotent till the filing of the suit. The wife can
get divorce on this ground only if both the above mentioned facts are
fully satisfied.
‘Impotency’ means inability to consummate the marriage. The marriage
is consummated by sexual intercourse. Impotency may be physical or mental.
Insanity, leprosy or venereal disease of husband: Section 2 (vi)
A wife married under Muslim Law can obtain divorce on the ground
that he husband is insane or is suffering from leprosy or venereal disease. The
husband’s insanity must be for a period of two or more years immediately
preceding the presentation of the suit. But the Act does not specify whether
unsoundness of mind should be curable or incurable
It is not necessary that the husband has been adjudged insane, or that
he has been committed to, confined in or placed under the supervision of a
mental disease institution. But, if there is such declaration or confinement that
may be sufficient for the proof of insanity.
The Act neither specifies the form of leprosy nor its duration. She can
get the decree of dissolution of her marriage only where the leprosy is lothsome,
i.e., the husband is unfit for social contact and is shunned by the society. For
this purpose, leucoderma (white skin) is not considered as leprosy.
Venereal disease is a disease of the sex-organs. The Act provides that
this disease must be of virulent (permanent) nature i.e., incurable. It may be of
any duration. Moreover, even if this disease has been infected to the husband
by the wife herself, she is entitled to get divorce on this ground.
Option of Puberty by wife: Section 2 (vii)
This ground for the dissolution of marriage is not based on any ‘fault’
of the husband. It is an independent provision under which, a marriage is
voidable at the option of the wife. Under Section 2 (vii), a wife can obtain a
decree for dissolution of her marriage if her marriage was contracted by her
father or any other guardian during her minority. Thus, this clause gives
her, the option to repudiate the marriage before attaining the age of eighteen
years; provided, the marriage has not been consummated. This right was also
available to the wife under the old law. But this Act has made following changes
in the law of option of puberty (Khyar-ul-Bulugh) by a wife:
1. Under the old law, the option of puberty was not available where the
minor’s marriage was contracted by father or father’s father. But now, a
wife may exercise this right even if she was given in marriage by her
father or father’s father.
2. Under the old law, the option of puberty by a wife was to be exercised
by her, immediately after attaining the age of puberty. Now, the Act of
1939 provides that, a wife can exercise this right up to the age of eighteen
years; provided, the marriage is not consummated.
Cruelty of Husband: Section 2 (viii)
Section 2 (viii) of The Dissolution of Muslim Marriages Act, 1939
provides that a Muslim wife will be entitled for divorce if her husband treats
her with cruelty. Even before passing of the Act of 1939, cruelty was recognized
as a good ground for the wife to seek divorce. Section 2 (viii) of the Act of 1939
contains various instances of cruelty. These instances are:
a. habitually assaults her or makes her life miserable by cruelty of conduct
even if such conduct does not amount to physical ill-treatment, or
b. associates with women of evil repute or leads an infamous life, or
c. attempts to force her to lead an immoral life, or
d. disposes of her property or prevents her in exercising her legal rights
over it, or
e. obstructs her in the observance of her religious profession or practice,
or
f. if he has more wives than one, does not treat her equitably in accordance
with the injunctions of the Quran;
(i) Physical and Mental Cruelty:
(ii) Concubinage
(iii) Attempts to force her to lead an immoral life:
(iv) The husband disposes off her property or prevents her from
exercising her legal rights over it:
(v) Obstructs her in the observance of her religious profession or
practice:
(vi) If he has more wives, than one, does not treat her equitably:
A Residuary Clause: Section 2 (ix)
Section 2 (ix) is a residuary clause under which; a wife may seek
dissolution of her marriage on any ground which is recognized as valid for
the dissolution of marriage under the Muslim personal law. It covers other
grounds such as Lian, Khula, Talaq-i-Tafweez, ila, Mubaraat, zihar, apostasy
from Islam. This is a residuary ground on which, a Muslim wife may seek the
dissolution of her marriage. The Act proceeds to lay down a residuary provision
in order that, the wife may not lose the benefit of any other ground which may
have escaped the attention of the Parliament.
Dissolution through conversion :( Apostasy):
Apostasy means renouncing or giving up one’s religion. Renunciation
of Islam or conversion of a Muslim to some other religion is called apostasy
(Ridda) from Islam. Under Muslim law, when a non-Muslim accepts Islam, i.e.,
when he believes that there is only one God and Prophet Mohammad was his
messenger, it is said that he has concerted himself into Islam. On the other
hand, when a Muslim abandons his faith in Islam, his act is known as an act of
apostasy.
Before passing of the Dissolution of Muslim Marriage Act, 1939,
apostasy of either party to a marriage ipso facto dissolves marriage and an
immediate dissolution of the marriage comes into existence. The date, on
which the wife renounces Islam, she ceases to be the wife and if ay person
takes her away even during the period of iddat period, the offence of adultery
under sectiom 498 of the Indian Penal Code would not be committed [Karan
Singh v. Emperor AIR 1933]. During iddat, if the woman marries another man
after apostasy, she would not be guilty of bigamy under section 494 of the
Indian Penal Code.[ Abdul Gani v. Azizul Haq]
But under Shia law, in the case of an unconsummated marriage only,
apostasy results into immediate dissolution of marriage and in the case of a
consummated marriage, after the expiry of the period of iddat, the marriage
stands dissolved.
After passing of the dissolution of Muslim Marriage Act, 1939, the
position has got a little change. According to Section 4 of the Act, "The
renunciation of Islam by a married Muslim woman or her conversion to a
faith other than Islam shall not by itself operate to dissolve her marriage"
Provided that after such renunciation or conversion, the woman shall
be entitled to obtain a decree for he dissolution of her marriage on any of the
grounds mentioned in Section 2 of the Act.
Provided further that the provisions of this section shall not apply to a
woman converted to Islam from some other faith who re-embraces her former faith.
The present law relating to apostasy may be summarized as under:
1) Apostasy by Husband: If a Muslim husband renounces Islam, the
marriage dissolves immediately. Section 4 of the Act of 1939 does not
apply to apostasy by a husband. The result is that, apostasy by the
husband is still governed by the old law under which, renunciation of
Islam by the husband operates as immediate dissolution of the marriage.
Where a Muslim husband converts to another religion, his marriage
is immediately dissolved and the wife ceases to be a Muslim wife of
that husband. As such, the wife is not governed by Muslim law and is
free to marry another person without waiting for the iddat period.
2) Apostasy by wife: If a Muslim wife renounces Islam, the marriage is not
dissolved. In other words, the apostasy by a Muslim wife does not
operate as immediate dissolution of the marriage. Moreover, even after
renouncing Islam, if the wife wants, she may obtain a decree for the
dissolution of her marriage on any of the grounds specified in Section
2 of the Act of 1939.
Exception: the provision does not apply if the wife was not a Muslim
by birth. That is to say, where the wife was a converted Muslim at the time of
her marriage, and such converted Muslim wife renounces Islam and again
embraces her original religion, then the marriage dissolves immediately. Thus,
an apostasy by a converted Muslim wife results in the immediate dissolution
of her marriage. But an apostate wife is entitled to recover her dower.[ Sarwar
Ali Khan v. Jawahar Devi (1964)]
Section 4 of the Act has no retrospective operation. Therefore, apostasy
by a wife before 1939 dissolved the marriage immediately.
Q. 12. What is an acknowledgement of legitimacy? Mention the
conditions of a valid acknowledgement.
Or
Define acknowledgement. What are the essential conditions for a
valid acknowledgement? Give its legal effects.
Ans. Once a child is born, the relationship it shares with his/her mother
and father is known as parentage. The legal relation between the mother and
the child is termed as maternity, which can be easily established through
birth. On the other hand, the relationship that a child shares with his/her
father is known as paternity.
How Maternity is Established in Muslim Law
Under Sunni Law, the maternity of a child is established in the woman
who gives birth to the child irrespective of whether the birth was the result of
a valid marriage or adultery (Zina).
But under Shia Law, only birth is not sufficient to establish maternity.
It has to be also proved that the birth was a result of a lawful marriage.
So we can say under Sunni Law, an illegitimate child has his maternity
in the woman who gave birth, and the child is entitled to inherit from mother
alone.
But under Shia Law, an illegitimate child has neither maternity in the
woman who gave birth nor paternity in the father. So in Shia Law, the illegitimate
child can inherit neither from father or mother.
How Paternity is Established in Muslim Law
A child gains paternity by either of the two ways:
1. Marriage:
It may be valid (sahih), or irregular (fasid), but not void (batil).
Paternity is established in a person said to be a father by proof or legal
presumption that the child was begotten by him on a woman who was
at the time of conception his lawful wife and was in good faith and
reasonably believed by him to be such or whose marriage being valid.
2. Acknowledgement:
If a child is born at a time when the parents are not married or a woman
bears in her womb, the child of a man but before his/her birth, she
marries another man then the paternity needs to be recognised by law
and the father should acknowledge the child legally. Once this
acknowledgement is done, he can be recognised as the legal father of
the child and the child gets a legal identity as well as legal rights.
Acknowledgement in Muslim Law
Muslim law does not recognise the institute of adoption, which is
recognised by other systems.
Muslim law recognises the institution of ‘IKRAS’ (acknowledgement)
where the paternity of a child, which means his legitimate decent from his
father, cannot be proved by establishing a marriage between his parents at the
time of conception of birth.
Acknowledgement is the process of recognising a child legally, thereby
creating legal rights. One of the landmark cases that holds immense significance
on the study of Acknowledgement of a child under Muslim law is Muhammad
Allahabad v. Muhammad Ismail [1887], wherein it was held that adoption is
not recognised in Islam. The case is validated by the Privy Council and relied
upon by Indian Courts.
Acknowledgement under Muslim law is a rule of Substantive Law and
not a rule of evidence. It means it is not a presumption under the Evidence
Act.
Adoption is not recognised under the Mahomedan law and
acknowledgement is the closest to the concept of adoption. Paternity, by a
common general practice is established by way of marriage but in cases where
the paternity of a child is not feasible to be proven by way of a wedlock
entered into, by the parents, Mahomedan Law recognises acknowledgement
as a valid method to establish the marriage and a legitimate descent for the
motive of inheritance.
Conditions for a Valid Acknowledgement of Paternity
Acknowledgement of paternity is a part of substantive Muslim law.
This must be made according to the provisions of pure Muslim law. Following
conditions are necessary for a valid acknowledgement:
(1) The child acknowledged must not be an offspring of illicit intercourse
(Zina). The sexual intercourse between the child’s mother and the
acknowledger must not be unlawful at the time when the child would
have possibly beer, conceived or born. That is to say, the child’s mother
was not within prohibited relationship of the acknowledger or was not
the wife of another person at the time of conception of the child.
The child’s mother should also not be a triply (irrevocably) divorced
wife of the acknowledger himself at the time when the child could have
been begotten, while the legal bar of remarriage was yet to be removed.
In short, a lawful marriage between the child’s mother and the
acknowledger must have been possible under Muslim law when the
child was conceived or took birth. If such a marriage was not possible
there can be no acknowledgement.
(2) The paternity of the child must be uncertain before the
acknowledgement. That is to say, the child must not be the offspring of
any other known person. If it is proved that some other person is the
father of that child, the acknowledger cannot accept it as his own child.
(3) There must be such difference in the respective age of the acknowledger
and the child which conforms to a father child relationship. If the
acknowledger is equal in age or is younger to the acknowledged person
the acknowledgement of paternity would be void on its very face
because they would not appear to be father and child. According to
Baillie, the acknowledger must be at least twelve and half years older
than the person acknowledged.
(4) The acknowledgement of paternity by a person must not only be an
acceptance of the child as his son or daughter; it should also be to the
effect that he has accepted the child as his legitimate child for all
purposes including inheritance.
There must be clear intention on the part of the acknowledged that he
has not only accepted to become father of the child but also accepted
the child as his legitimate issue. Casual love and affection towards a
child is not sufficient to confer legitimacy on that child.
(5) Under Muslim law, there is a provision that the acknowledged child has
an option to repudiate the acknowledgement upon attaining the age of
discretion and understanding. The acknowledgement of paternity is,
therefore, not valid where such a child has repudiated the
acknowledgement on attaining discretion. Repudiation of the father—
child relationship by the child negatives the acknowledgement of
paternity. For a valid acknowledgement it is necessary that the
acknowledged child has not repudiated it.
In the case of Muhammad Azmat v. Lalli Begum, it was said, It has
been decided in several cases that there need not be proof of an express
acknowledgement, but an acknowledgement of children by a
Mahomedan as his sons may be inferred from his having openly treated
them as such.
If there is a situation where a Muslim man gives a divorce to his wife
but the two keep on living together and there is a child born in that phase he
will not be regarded as a legitimate child even in a situation where the biological
father acknowledges him because at that time there was no valid marriage that
existed. The rule was established in the case Rashid Ahmed v. Anisa Khatun.
Necessity of Acknowledgement of Legitimacy
When there is direct proof of marriage and a child born out from such
marriage, the question of acknowledgement does not arise because, in such
cases, the legitimacy is ipso facto established.
If there is no such direct proof of legitimacy, then legitimacy may be
proved by indirect proof, which is called acknowledgement.
Note: Acknowledgement is made by the father only not the mother. In other
words, the doctrine applies only to cases of uncertainty about legitimacy.
Acknowledgement is made on the assumption of a lawful union of the parents
and the acknowledged child.
Acknowledgement of Paternity is Irrevocable
A valid acknowledgement of paternity once made cannot be revoked
by the acknowledger. A complete and valid acknowledgement is, therefore,
irrevocable and any subsequent retraction or denial by the acknowledger
cannot affect the legitimacy of the child acknowledged.
Basic Principles of Acknowledgement
1. Express or implied acknowledgement
It is not necessary that an acknowledgement should be express. It may
also be implied. The acknowledgement may be of a son or daughter, but
it must be made by the father only. The acknowledgement of the child
must not be casual.
Muhammad Ali Khan vs Muhammad Ibrahim Khan 1929 PC
The father made the acknowledgement of the child in a casual manner.
He never intended that his acknowledgement should have serious
effects. It was held by the Privy Council that the act of the father is not
sufficient to confer the status of legitimacy.
2. Age of the Acknowledger
The age of the parties must be such that it is possible that they may be
father and son. According to Bailie, the acknowledger must be at least
12.5 years older than the person acknowledged.
3. The child of others
The child who is acknowledged must not be known as a child of another.
4. Offspring of Zina
An offspring of Zina is one who is born either without marriage or a
mother who was the married wife of another or of void marriage.
When the man has committed Zina with a woman, and she has delivered
a son, such a son cannot be acknowledged. So the acknowledgement
must be of the child who is offspring of a legal marriage.
5. Legal marriage possible between parents of the child acknowledged
The acknowledger and the mother of the child must have been lawfully
joined in marriage at the time when the child was begotten. It is essential
to show that lawful marriage is possible between the acknowledger and
the mother of child. And the child is not the fruit of an adulterous
intercourse.
Similarly, if it is definitely proved that no marriage took place between
the parties, the issue will be illegitimate, and the acknowledgement will
be ineffective.
6. Person acknowledged should confirm acknowledgement
The child, if adult, must confirm the acknowledgement.
7. Competency of the Acknowledger
The acknowledger must be competent to make a contract, which means
he must be major and of sound mind.
Legal effects of Acknowledgement of Paternity
Legal effects of a valid acknowledgement of paternity may be
summarised as under:
(1) The child so acknowledged becomes the legitimate issue of the
acknowledger and its paternity is established.
(2) As a legitimate issue, the child is entitled to inherit the properties of the
acknowledger, its mother, and other relations.
(3) Acknowledgement of a child’s paternity also establishes a lawful
marriage between the child’s mother and the acknowledger. The child’s
mother gets the status of the wife of the acknowledger and she too is
entitled to inherit the properties of her husband (acknowledger).
Conclusion
As per the Mahomedan Law, a child can be considered as a legitimate
child if either of the two conditions are fulfilled. One, when a child is born as
an outcome of a valid marriage and the birth does not take place in the prohibited
period defined differently in different schools of Islamic law. In such a case, a
formal acknowledgement is not required and the other is when the paternity of
a child is not established so the father can acknowledge a child in compliance
with the conditions of a valid acknowledgement mentioned above. This doctrine
holds validity for both, daughters as well as sons.
Q. 13. Who are entitled to maintenance under Mohammedan law?
Discuss their Rights and Duties?
Ans. As the Muslim Law is completely uncodified, there is no specific
provision that deals with the maintenance of children. Under Muslim Law, the
term maintenance is denoted by the term ‘Nafaqah’. Under Islam, it is the
moral duty of a person to take care of his wife. Along with his wife, he is also
duty-bound to take care of his children until they become independent. He
also has a moral duty to take care of his brother, sister, parents and other
relatives, if they are in need. The conditions of a person providing such
maintenance should also be considered. If a person is not financially sound,
then no question of proving maintenance can arise.
The concept of maintenance
In Arabic, the word "maintenance" is equal to the word "Nafaqah",
which literally means ‘an amount spent by a person over his family’. According
to many Muslim legal scholars, maintenance includes all those things which
are essential to lead a life such as food, clothing and residence. They conclude
this by relying on the concept of Kinship. A person is duty-bound to provide
the basic necessities of life to his family members. Islam prescribes the three
grounds based on which one can claim maintenance from a person. And these
grounds are marriage, children and ownership of slaves.
Under the Muslim Law, one is entitled to claim ‘nafaqah’ or
‘maintenance’ if he or she is a person’s:
1. Wife
2. Children
3. Relatives such as parents, grandparents and other necessitous relations
within the prohibited degrees.
"The husband is under the obligation to provide maintenance to his
wife despite the fact whether she is capable of taking care of herself
or not. But he is not duty-bound to provide maintenance to his children
and parents if they are financially sound to take care of themselves."
Maintenance to Muslim Wife
Under Muslim law, the wife’s right to be maintained by her husband is
absolute. A Muslim husband is bound to maintain his wife of a valid marriage
even if there is no agreement in this regard. A Muslim husband is not bound
to maintain the wife of void or irregular marriage except when the marriage is
irregular for want of witnesses.
Wife’s right of maintenance is a debt against the husband
It is an independent right. The husband’s obligation to maintain his
wife exists only so long as the wife remains faithful and obeys all his reasonable
orders i.e. discharge her own matrimonial duties.
If the consummation is not possible due to wife’s own ill health or old
age or faulty organ she is not guilty of transgressing her matrimonial obligations
towards the husband and may lawfully claim maintenance from the husband.
The wife could also claim future maintenance on account to pre-nuptial
agreement viz. sustainable maintenance in the event of ill-treatment. Arrears
of maintenance cannot be claimed by any relative other than a wife. The right
of the wife to maintenance exists in spite of the fact that she can maintain
herself out of her own property.
Maintenance in case of Divorce
Divorce is a situation of dissolution of marriage, wherein, husband and
wife are no longer under the contractual obligation to perform their duties
towards each other. However, even after the dissolution of marriage, a wife is
entitled to maintenance. Under Muslim law, maintenance to wife after divorce
can be categorized into three categories:
(i) Muslim Personal Laws
(ii) Section 125, Criminal Procedure Code, 1973
(iii) The Muslim Women (Protection of Rights on Divorce) Act, 1986
Muslim Personal Law
After the dissolution of marriage, Muslim personal laws suggest that a
wife is entitled to maintenance from her husband only for the period
of Iddat. Iddat is the period, a Muslim woman observes after Talaq (Divorce).
The duration of Iddat is three mensuration cycle or if pregnant, then it extends
to the whole of pregnancy. A husband is bound to provide maintenance only
for the period of Iddat, and not beyond that. Once the Iddat period is over,
then a Muslim woman is entitled to receive maintenance from her those relatives
who can inherit her property.
In Muslim law, there are substances when a wife is not entitled to
maintenance after the dissolution of marriage. It includes:
a. If the marriage is dissolved because of the wife’s defects.
b. An apostate wife.
c. When the right to maintenance got suspended during marriage for
some reasons.
There are certain circumstances wherein a wife can enter into a valid
agreement to obtain separate maintenance. These circumstances could be
ill-treatment, dis-agreement the wife not being able to adjust to another wife
or any agreement which is opposed to public policy. For example, an
agreement to that wife would not be entitled to maintenance after divorce is
void.
Section 125, Criminal Procedure Code, 1973
Section 125 of the Criminal Procedure Code, 1973 provides for the right
to maintenance of wife, children, and parents. The act applies to the whole of
India, irrespective of religion. According to this section, a wife is entitled to
maintenance by her husband in the following conditions:
• If the wife is unable to maintain herself.
• The husband must have sufficient means to pay for the maintenance.
• If the husband has refused to maintain her.
• The wife has not refused to live with her husband except for a reasonable
cause.
• The wife not living in adultery.
• The husband and wife not living separately by mutual consent.
• The wife has not remarried after the divorce.
Under this section, only a woman who is not able to maintain herself
after divorce is entitled to maintenance. However, Muslim personal law suggests
that no matter how much wealth the wife possess, she is entitled to maintenance.
This section seems to be in contradiction to the Shariat Act,1937. In Ishak
Chandra V. Myamatbi & Ors. (1980), the issue of whether section 125 is
inconsistent with the provisions of the Shariat Act and whether the Shariat
Act should prevail over the general provisions of the new code. It was held
that the provisions granted under Section 125 of CrPC are additional rights
to divorced Muslim women. These rights do not conflict with rights that are
conferred by the Muslim Personal Laws.
Further, in the leading case of Mohd. Ahmad Khan V. Shah Bano
Begum(1985), Justice Y.Y Chandrachud explained the scope of section 125
CrPC. He reiterated the fact that a Muslim woman after divorce falls under the
category of "wife" as per the section, and therefore, entitled to maintenance.
He added that it would be unjust to hold that a Muslim husband is not under
obligation to maintain his former wife, beyond the iddat period. As a result,
the application of section 125 was extended to Muslim wives as well.
The Muslim Women (Protection of Rights on Divorce) Act, 1986th
As soon as the significant judgement of the Shah Bano case came out,
there was a hassle in the Muslim community to undo the effect of section 125
CrPC amongst the Muslim as a Muslim husband is obligated to maintain his
former wife for the period of iddat. As a result, a bill was introduced in the
Parliament to make separate provisions for the protection of Sharia as well as
Muslim women. It led to the enforcement of the Muslim Women (Protection
of Rights on Divorce) Act, 1986 on 19 May 1986.
The given act only applies to women married according to Muslim law.
It does not extend to provide provisions to Muslim women who are married
under the Special Marriage Act, 1954. In the famous case of Daniel Latifi V.
Union of India (2001), a writ petition was filed under Article 32 challenging
the constitutional validity of the Act as it provides special provisions to
women and is violative of Article 14 of the Constitution of India. The petition
was dismissed by the Supreme Court of India. Thereby, upholding the validity
of the act.
Quantum of maintenance
The quantum of maintenance for the children has not been defined
by any statute. The quantum of maintenance is decided by the court
according to the financial conditions of the father and the needs of the
children. To determine the quantum of maintenance, the Hanafi Law says
that the condition of both the husband and wife should be considered.
But under the Shafei Law, only the position of husband should be
considered.
However, Section 125 of the Criminal Procedure Code, 1973 prescribes
for a reasonable and fair amount for the maintenance of the children.
Obligation of Husband to provide Maintenance
It is the obligation of the husband to provide proper maintenance to
his wife in all circumstances whether he is in good financial condition or not.
His obligation to provide maintenance is even after the dissolution of marriage.
However, the obligation of husband extends only when the wife remains
faithful towards him and obeys all his reasonable orders.
In Baillie’s Digest of Mohammedan Law, it has been stated that:
"If and when called upon to remove his house, she refuses to do so of
right, that is to obtain payment of her dower, she is entitled to
maintenance; but if she refuses to do so without rights, as when her
dower is paid, or deferred, or has been given to her husband she has
no claim to maintenance.
If a woman is ‘nashizah’ or rebellious, she has no right to maintenance
until she returns to her husband’s house. By this expression, it is to be
understood that a woman who goes out from her husband’s house and
denies herself to him, in contradiction to one who merely refuses to
abide in her husband’s apartment, which is not necessary for the
purpose of restraint. If, however, the house her own property, and she
forbids him from entering it, she is not entitled to maintenance unless
she had asked him to remove her to his own house or to hire a house
for her. When she ceased to be a nashizah or rebellious, she is again
entitled to maintenance."
Maintenance under anti- nuptial agreements
Muslim marriage is a contract, an agreement is made between the
parties to the marriage which prescribes the rights and duties if husband
and wife. The condition of agreement should be valid otherwise the marriage
should be considered as illegal. In this agreement, the wife can stipulate
some conditions for husband and in case of breach of such conditions, she
has a right to live separately and is entitled to maintenance. Such conditions
are as follows:
1. If the husband ill-treats her;
2. Takes a second wife or concubine;
An agreement which stipulates that wife is entitled to maintenance
after divorce is also valid. But she is entitled to maintenance only during the
period of iddat and not beyond that. The husband’s liability is only till the
iddat period.
Ali Akbar v. Mst. Fatima (1929)
An allowance of Rs. 25.00 per month was fixed for Kharach-i-Pandan in
addition to the amount of maintenance which she is entitled to get from her
husband. It was held that the wife is entitled to it irrespective of the fact that
she refuses to stay with her husband. (Kharach-i-Pandan is a personal
allowance and it cannot be transferred.)
Maintenance of the Children
Children are the responsibility of their parents and they should be
taken care of. They are entitled to proper and adequate maintenance from their
parents and especially the father. As under Muslim Law, men are considered
as superior and are in the obligation to maintain his family, maintenance of the
child is his primary responsibility.
Father’s obligation to maintain his child
Father is under an obligation to maintain his legitimate child until he
earns puberty. Under Muslim Law, the father has to maintain his son only until
he attains majority and has to maintain his daughter until she gets married.
Under certain circumstances, father is bound to maintain his widowed or
divorced daughter.
Father is not bound to maintain his son or unmarried daughter if they
refuse to live with him without any reasonable cause. Under Muslim Law,
father is under no obligation to maintain his illegitimate child but an agreement
between the parties to maintain his illegitimate child is not valid.
Under section 125 of Crpc, if the father has sufficient means, he is
under obligation to maintain his child whether legitimate or illegitimate.
Pavitri v. Katheesumma, (1959)
In this case, it was stated that it is not at the discretion of the court to
allow maintenance to an illegitimate child. The court can allow only if asked
for it.
Mother’s obligation to maintain his child
Mother’s obligation to maintain her child arises when the child is
illegitimate and husband has refused to maintain the child. But under Hanafi
Law, if the father is poor and the mother is rich then, in that case, it is the
obligation of the mother to maintain the child. However, she can recover the
money when her husband gets into the condition to repay it.
Under Shefai Law, even if the father is poor and mother is rich, then the
mother is not obliged on maintaining her child. In that case, it is the obligation
of grandfather to maintain the child.
Father’s obligation to maintain his major child
Under Muslim Law, father is obligated for the maintenance of his
legitimate child only until he attains puberty. But if the child is lunatic, mentally
or physically disabled and not in the condition to maintain himself, then, in
that case, it is the obligation of the father to maintain him.
Right of child to be maintained by father despite the fact that the child is in
the custody of the mother
The position of a child who has not attained the age of discretion or
who is not of its free will or volition living away from the father is peculiar.
If such a child is kept in custody by the mother and is prevented from
returning to the father, it cannot be said that the child is at fault and that its
conduct has disentitled it to maintenance. Even if a child prefers to live
with the mother due to natural affection or attachment for her, that would
not affect the liability of the father to maintain the child. In Mst. Akhtari
Begum v. Abdul Rashid [1937] , is a case in which the right of a four year
old child was upheld despite the fact that the child was in the custody of
the mother.
The father’s obligation to maintain a daughter ceases immediately on
her marriage (the marriage should be validly solemnized).
Maintenance of grand-children
A grand-parent who is not poor is bound to maintain his grand-children
who have no father and mother or the father is necessitous. However, such
liability is subject to the child having no property. If the child has some
property and the father is necessitous, the grand-parent will be entitled to
reimbursement.
Married Daughters
As a general rule, based on case laws, the duty of maintaining sons
even after puberty is, in certain cases, is on the parents and similarly when a
daughter gets married the obligation passes into her husband’s family and
there is no duty on the parents to maintain her. But some Judges have taken
the view that marriage does not necessarily terminate the obligation of
maintaining a daughter. The father may be obliged to maintain a widowed or
divorced daughter.
Step Children
It has been held that if a man married a widow with encumbrances he is
usually expected to take over the encumbrances with the widow and feed
them [Mohd. Sultan v. Abdul Rehman, AIR 1937]. But he is not bound to
support except where there is an agreement for that purpose.
Adult Sons
In case of maintenance of necessitous adult sons there is a difference
in opinion. One opinion is that the liability rests two-third in the father and
one-third on the mother. This view has been approved by Hedaya. The other
opinion is that the father alone is liable, if both mother and father are poor.
Statutory rights of the children
The hanafi law recognizes the relationship of an illegitimate child with
the mother with mutual rights of inheritance. The Shia law does not recognize
the relationship even with the mother. The duty to maintain rests, under the
Hanafi law, on the mother and under the Shia law on neither parent. The right
is, however, available against the father under Sec. 125 of Cr.P.C.
Right of parents to maintenance
It is obligatory upon a man to provide maintenance for his father,
mother and grandfather and grandmother if they happen to be in
circumstances necessitating it. The fact that they may belong to different
religions makes no difference. Except his wife, children, parents, grand-children
and grandparents, a man are not obliged to maintain other relations belonging
to other religions.
Maintenance is due to a relationship within the prohibited degrees in
proportion to inheritance. A poor man is under no such obligation except in
the case of a wife [with an] infant child. A father and mother must provide
maintenance to their adult daughters and also to disabled adult sons in
proportion to their respective claims of inheritance.
In the event of divorce, whatever has been given to the wife by his
parents and whatever might have been given to her by her husband, all belongs
to her and she can take them with her.
The parents have the next position in the right of maintenance after the
children. The liability to maintain parents rests only on the children and is not
shared by anyone else. As between the parents the mother is entitled to
preference over the father.
There is a difference of opinion on the question whether father who is
poor but can earn is entitled to maintenance.
If the son is poor but is earning something, he may be compelled to
maintain if he has any surplus. If he has got wife and children all that he can be
compelled to do is to bring his father to live into his family but he is not
obliged to give separate maintenance.
Shia Law - the right of the two parents is equal. So also the right of the
parents and children are equal. Maintenance must in each case be divided
equally. But the parents are preferred to grandparents.
Parents and children are jointly liable for a person’s maintenance. Thus,
if a man has both father and a son who are not poor, the liability falls equally
upon them.
Proportions of liability
There is a difference as to the extent of liability of different children to
maintain the parents. Ameer Ali state that the liability is in proportion to the
shares inheritance. Another opinion is that if there is a considerable difference
in the means, maintenance is to be provided in proportion to the means. But
the better opinion seems to be that duty to support is equal. The right is
equally incumbent upon a son and a daughter.
Shia Law - the liability is apportioned according to the individual means
of the different persons who are bound to maintain.
Shafei Law – there is a difference of opinion as to whether the heirs are
jointly liable for maintenance or only in proportion to their respective shares.
Conclusion
The laws on maintenance under Muslim Law and other personal laws
are different. Under Muslim Law, the prime duty of man is to take care of his
wife. However, his duty is further extended to his children and other blood
relations. He is duty-bound to take care of his minor son. He is also bound to
take care of his major son only under special circumstances. In the case of a
daughter, he has to provide maintenance to her until she gets married.
Q. 14.Who is Guardian under Muslim law? How it appointed and what
are the types of Guardian?
Or
How many kinds of Guardians of a minor person under Muslim Law?
What are their rights and duties? Discuss.
Or
What do you understand by ‘Hizanat’? Under what circumstances a
mother becomes disqualified for custody of her minor children?
Ans. Law prescribes certain age-limit before which a person is said to
be a minor. A minor has no capacity to understand the legal consequences of
his or her activities. The legal position of a person, who has not attained the
age so prescribed, is called minority. The legal position of a person, who has
attained that age, is called the age of majority.
Under Muslim law, the age of majority is regulated by two systems:
(2) the classical Muslim law and
(3) the statutory law (Indian Majority Act, 1875).
Under the classical Muslim law, a person is said to be minor if he or she
has not attained the age of puberty. The age of puberty is fifteen years. But, as
already discussed, fifteen years is the age of majority only for marriage, dower
and divorce. Thus, for purposes of marriage, dower and divorce, a Muslim
who has not attained the age of puberty is called a minor.
A minor is supposed to have no capacity to protect his or her own
interests. Law therefore, requires that some adult person must safeguard the
minor’s person or property and do everything on his (her) behalf because
such a minor person is legally incompetent.
A person who is authorised under the law to protect the person or
property of a minor, is called a guardian. Under Muslim law guardians are
required for purpose of marriage, for protecting the minor’s person (including
the custody of the minor) and for protecting the minor’s property.
In any case, presently the Muslims are controlled by the Indian
Majority Act, 1875, apart from issues related to marriage, dower, and divorce.
Muslims will be administered by the Indian Majority act which recommends
18 years as majority age. Hence, in instances of wills, waqfs, and so on, the
minority will end on the consummation of 18 years. Until then the court has
the capacity to select a Guardian of his person or of property or both under
the Guardians and wards act in which case the period of minority is drawn out
until the minor has finished the age of 21 years.
Tahir Mohmood states that: “Guardianship of a person in
relation to a child belongs primarily to its father, the mother’s being only a
preemptive right to keep the father away for a legally prescribed period
only from a particular aspect of the guardianship of person, namely, the
custody and physical upbringing of the child’’
Appointment of guardians
When the court is satisfied that it is for the Welfare of a minor that an
order should be made for appointing a guardian of his person or property or
both as declaring a person to be such guardian, The Court may take an order
accordingly.
Section 15(1) of the Guardians and Wards Act, 1890 permits for the
appointment of a joint guardian where the court has appointed a joint guardian
and any one of them has died; the survivor continues to act as guardian.
Section 19 of the Act says that in case the superintendence of the property of
a minor has been assumed by a court of wards under any local law in force:
(i) The court shall not be able to appoint a guardian of property under the
Guardian and Wards Act.
(ii) in case the court has been empowered to appoint a guardian of the
person for the minor, the same cannot be done by a court under the
Guardians and Wards Act. State Governments are also empowered to
appoint a court of wards.
The main aim of these courts is to constitute ward courts for the purpose
of regulating, constitution, working, and powers of courts of wards. Sections
6, 19 and 21 of the Guardian and Wards Act, provide that in the following
matters, the courts should not interfere with the question of guardianship of
a minor:
Where a guardian of the minor’s person, property or both has been
lawfully appointed under a will in accordance with the law to which the minor
is subject. If a guardian is not performing his duty properly, the court may
remove him.
Section 20 of the Guardian and Wards Act 1890 imposes a duty on
the guardian to deal with the ward's property carefully and honestly.
Section 21 of the above act provides that minor not competent to act
as guardian of another minor, will not act as the guardian.
Section 24, 25 and 26 of the Guardian and Wards Act provides for the
custody of the child by one appointed under the
Act as guardian of the person. This is a duty to look to the minor
support, health and education, and such other matters as the law to which the
ward is subject required.
Section 27 of the act, deals with the duties and the limitations on the
power of guardians. The statutory Guardian of the property is required to deal
with the minor's property as a man of ordinary prudence would deal with his
own property. This is the duty of the guardian to obtain prior approval of the
court for disposing of minor’s property [Section 30 of the Act].
Section 31 lays down the procedure for obtaining the sanction of the
court for a transfer by the guardian. A Guardian can also seek the advice or
opinion of the court with regard to the management of the ward’s property.
[Section 33]
Section 41 of the above Act says that a guardian appointed by the
court or a testamentary guardian shall cease to be a guardian on the happening
of any one of the following incidents:
1. in the case of the death, removal or discharge of the guardian;
2. on attaining majority by the minor;
3. in the case of guardianship of the person, Guardian shall cease to have
any power:
(i) on the marriage of the minor, if female to a person not unfit to be
Guardian of her person;
(ii) on attaining majority by the minor;
(iii) in the case of guardianship of the person, guardianship shall
cease to have any powers-
(a) on the marriage of the minor, if female to a person not
unfit to be the guardian of her person
(b) The revival of guardianship right of the person in whose
disability another person acted as the guardian;
(iv) in case of a guardianship of property a guardian shall not
be entitled to act as guardian on the assumption of the
supe rint endenc e of the mi no r's pro pert y by a c ourt
of wards.
In appointing or declaring the guardian of a minor the court shall take
into consideration the Welfare of the child. In considering what will be for the
Welfare of the minor, the court shall have regard to the age, sex and religion of
the minor, the character and the capacity of the proposed guardian and his
nearness of kin to the minor, the wishes, if any, of a deceased parent, and any
existing or previous relations of the proposed Guardian with the minor or
his property .If the minor is old enough to form an intelligent preference, the
court may consider that preference. [Section 17, Guardians and Wards Act,
1890]
Kinds of Guardianship
Muslim law makes a distinction between Guardian of the person,
guardian of the property and guardian for the purpose of the marriage in the
case of minor.
1. Guardianship in Marriage (Wali)
2. Guardian of the Body of Minor (Hizanat)
3. Guardianship of Minor’s Property (Wilayat-e-mal). It is classified into
three parts-
a. Legal Guardian (De jure)
b. Guardian Appointed by the Court (Certificated)
c. De-facto Guardian
Guardianship in Marriage (Wali)
It is one of the essentials of a valid marriage that the parties are
competent to enter into a marriage, which means they must have attained the
age of puberty.
This general rule admits one exception- where the marriage is solemnised
on behalf of the minor by the guardian. The imposition of marriage on the
minor is called jabr, the guardian appointed to minor is called wali and the
right of guardianship is called wilayat. Therefore the authority of the father
under Muslim law to give consent for marriage on behalf of his minor children
is known as bulugh.
Under Muslim law, the father has the power to give his children of both
sexes in marriage without their consent to enter into marriage, but it is before
the Shariri stage. [Shariri or sariri stage means between 7 to 15 years of age,
the father can give consent of marriage.]
Persons Entitled
The list of the persons who can act as a guardian in the marriage of
minor in the following order:-
1. Father
2. Father’s father, how high so ever.
3. Full brother and other male relations on father’s side.
4. Mother
5. Maternal relations within the prohibited degree.
6. Kaazi or the Court.
Under Shia Law, only the father and failing him the father’s father how
high so ever, can act as a guardian in the marriage of a minor.
Ayub hasan v. Mst. Akhtari
The Shia law only acknowledges father or if not him then father’s father
as guardian of the minor for the purpose of marriage. The rule of Muslim law
is that when a remote guardian allowed a boy or a girl to marry when the nearer
one is present, the validity of the marriage is dependent upon the latter’s
ratification and consent. Therefore, the latter is considered as a proper guardian
to the minor.
In Imambandi v. Mutsaddi (1918), the court held that till the father is
alive he is the sole and supreme guardian of his minor children.
In Abdul Ahmad v. Shah Begum, a person contracted the marriage of
a minor girl by declaring himself as her guardian (wali). He was not a ‘marriage
guardian. It could also not be established that he had ever been given any
such authority by a competent marriage-guardian.
The Jammu -Kashmir High Court held that this marriage was void ab
anitio and for annulment of this marriage repudiation of marriage by the girl
through her right of option of puberty is not needed. However, it a marriage
has been contracted by a remoter guardian out of his turn, the marriage may
be validated by a subsequent ratification by the proper marriage-guardian.
Where a proper marriage-guardian, say father, is incompetent by reason
of mental incapacity to exercise his right of Jabar, the guardian neat to him
may exercise that right. Similarly, when the father is at such a distant place that
from there it is difficult for him to act as guardian, the guardian nest in order
can lawfully contract a child in marriage.
Apostasy of Marriage-Guardian
It is not clear whether a Muslim father may lawfully act as a marriage-
guardian after renouncing Islam. Under Muslim law if the marriage-guardian
renounces Islam, he has no right to contract the marriage of the minor.
In the matter of Mohin Bibi, the Bombay High Court has held that a
non-Muslim father has no right to act as a marriage-guardian. The facts of this
case were that a Shia female married a Muslim husband and a daughter was
born to them. After sometime, the husband converted to Jewism, and renounced
Islam. The daughter remained with the mother, who later on married her to a
Shia Muslim acting as the marriage-guardian for her daughter. The husband
(who had become Jew) contended in an application that the marriage contracted
by the mother was not valid because he has not given consent to it.
It was held by Macpherson, J. that "Under the Mahommedan Law, an
apostate is not entitled to exercise the right of assenting to the marriage of
his children, who have been contracted by the guardian next in order to
him; and that, therefore, the marriage of the applicant’s daughter was valid
without his assent." However, it is difficult to reconcile this decision with the
provisions of the Caste Disabilities Removal Act 1850 and all that can be said
in this regard, is that the law on this point is not certain.
Marriage- guardianship or the right of Jabar comes to an end as soon
as the child, whether male or female, attains the age of puberty. But under the
Shafie and the Maliki schools, the right of Jabar in the case of a female child
continues till she is married.
Guardian of the Body/Person of Minor (Hizanat)
Guardianship of the minor’s person means an overall supervision of
the minor’s personality. It means care and welfare of the child including the
liability to maintain it. It is more than simply the custody of the child upto a
certain age.
Under Muslim law, ‘guardianship of the minor’s person’ is called Wilayat-
e-nafs and the ‘custody of the minor’ is called Hizanat. They are sometimes
taken to mean the same thing. But, under Muslim law, these two aspects of the
guardianship are different and are governed by distinct rules. The guardianship
of a child’s person means overall supervision of the child during its minority.
Father (or his executor) or in his absence, the paternal grandfather, being the
natural guardian, are incharge of the minor‘s person.
On the other hand ‘custody of the child’ (Hizanat) simply means a
physical possession (custody) of the child upto a certain age. Although mother
is not natural guardian under Muslim law, but she has a right to the custody of
her child till the child attains a specific age. But, father or the paternal
grandfather has a control over the person of the minor during the whole
period of minority.
Tahir Mahmood states thus: "The guardianship of person in relation
to a child belongs primarily to its father, the mother’s being only a pre-
emptive right to keep the father away for a legally prescribed period only
from a particular aspect of guardianship of person, namely, ‘ the custody
and physical upbringing of the child".
It may be said therefore, that mother has a right to the custody of her
child for some time, because except her, no one else can nurse and handle a
child during its infancy. But her custody of the child is subject to the
supervision of the father who, as a legal guardian, is under an obligation to
provide means for upbringing of the child.
Mother’s Right of Custody (Hizanat) of the Child
Under all the schools of Muslim law, the general rule is that mother is
entitled to the custody (Hizenat) or the physical possession of her child upto
a certain age. This rule is based on the presumption that on account of her
peculiar relationship with the child, she is obviously the best person to give
that natural love and affection which a child requires during its infancy including
its dependence for feeding. Nature itself has given to the mother the custody
of her child’s embryo even before it comes in the worldly existence.
Where the child is a son, the mother is entitled to his custody till he
attains the age of seven years. Where the child is a daughter the mother’s
right to the custody continues till the daughter attains puberty (fifteen years).
It may be noted that mother is entitled to the custody of her child (under the
age of seven years or below puberty, as the case may be) even if she has been
divorced by the husband or has become widow provided she remains
unmarried.
In S. Rehan Fatima vs. Syad Bdinuddin Perviz, the dispute was
regarding the custody of a child aged three years six months. The Andhra
Pradesh High Court held that under Muslim law, the mother’s right to the
custody of her child continues even after the dissolution of her marriage by
Talaq. The court observed further that in absence of any other alternate
arrangement, under the Guardians and Wards Act too her right to the custody
of child continues even after the divorce.
Being a legal privilege, the mother‘s right is not lost even if she ceases
to be a Muslm. In Zaynab vs. Md. Ghouse, the Madras High Court has held
that conversion of the mother to any other religion does not deprive her of the
right of Hizanat. In this case, the court allowed to the mother the custody of
her child although she had become a Christian. It was also observed by the
court that even if the mother was living separately, she would not lose her
right to the custody of her child.
As discussed earlier, the mother is given the custody because of her
typical relationship with the child therefore, she cannot surrender it to another
person. Poverty or inability of the mother to maintain the child can neither
deprive her of the right to custody nor can she surrender this right on the
ground of her poverty. In case where the mother is poor, the father has an
obligation to provide for the child during the custody of its mother.
When Mother’s Right of Custody (Hizanat) is Lost?
A mother is considered to be disqualified for the physical possession
of the infant, and her right to the custody is lost in the following circumstances:
1. Where the divorced or the widowed mother, having custody of a child,
has remarried another husband.
2. Where the mother leads an immoral life or is of had character or is
otherwise found guilty of such conduct which is against the interest of
the child.
3. Where she is unable to take proper care of the child. -In certain cases,
the mother’s inability to take proper care of her child might be due to
her own self-created problems for example, over-business in her career
or, her modem style of life. According to Fyzee: the ancient doctors
would obviously have frowned upon the modern society mother who
goes out for bridge (playing Cards) or social service in the morning,
has lunch with a friend and comes home late in the evening after a
dance at the club".
In the absence of mother, or where she is disqualified on account of the
abovementioned grounds, the following female relations of the child are entitled
to the custody, in the order of priority given below:
1. Mother’s mother;
2. Fathers mother;
3. Mother’s grandmother;
4. Fathers grand mother
5. Full sister
6. Uterine sister;
7. Full sister‘s daughter;
8. Uterine sister’s daughter;
9. Full maternal aunt;
10. (it) Uterine maternal aunt, and
11. Full paternal aunt.
Shia Law.-Under the Shia Law, a mother is entitled to the custody of
her infant son only upto two years, and of her daughter upto the age of seven
years. lf the mother dies before the son attains two years, or the daughter
attains seven years, the custody is to be given to the father. In the absence of
the father, the father’s father is entitled to the custody of the infant child.
Father’s Right of Custody (Hizanat) of a Child
Father is entitled to the custody at the following two stages of the
child’s minority-
1. In respect of a minor boy under the age of seven years, and a girl under
puberty, the father is entitled to the custody of the child only in the
absence (or disqualification) of mother and other -female relations of
the child.
2. In respect of a boy over the age of seven years and an unmarried girl
over the age of puberty (fifteen years) the father is entitled to the
custody of the child as a natural guardian till the child becomes adult,
e.g.; attains the age of eighteen years.
The minority of a child for purposes of its custody by father is divided
in two stages. The first stage of minority is upto the age of seven years in the
case of male child, and upto puberty where the child is female. The second
stage begins after the age of seven years till the age of eighteen years in case
of a male, and after puberty upto eighteen years in the case of a female child,
provided she remains unmarried. During the first stage, the custody primarily
belongs to the mother and during the second stage it belongs to the father.
Thus, father is entitled to the custody of a minor child in two circumstances:
First, where the child is within the age limit, in which mother or female
relations are legally authorised to have the custody, but they are either
disqualified or not available.
Secondly, after the age limit beyond which the mother or other female
relations have no right to the custody of a child.
It is to be noted that in the circumstances mentioned above, the father
is entitled to have the custody and this right is available to him because he is
regarded as a natural guardian under the Muslim personal law. The court has
no power to appoint any other person to have custody of a child where the
father is alive except where the father is found by the court to be unfit or
unsuitable for this purpose. In siddiqunnisaz vs. Nizamuddin, it was held by
the Allahabad High Court that under Muslim law, the father status is the
creation of law, not requiring even a declaration; therefore, in presence of a
father, who is not unfit for guardianship, the court cannot appoint any other
person as guardian. The disqualification of a father due to which he is deemed
to be unfit for having the custody of a child is a matter of fact to be decided by
the court. In deciding Guardians and Wards Act, 1890, in the light of the
interests and welfare of the child. However, merely a second marriage by
father has not been regarded as a disqualification of the father for having the
custody of a child by the first wife.
In the absence of the father, the custody of a child belongs to the
paternal male relations in order of priority given below:
1. Nearest paternal grandfather
2. Full brother;
3. Consanguine brother
4. Full brother’s son;
5. Consanguine brother’s son;
6. Full brother of the father;
7. Consanguine brother of the father;
8. Son of father’s full brother; and
9. Son of father’s consanguine brother.
But the custody by the above mentioned male relations is subject to a
condition that no male is entitled to custody of an unmarried girl unless he
stands within the prohibited relationship to her. For example, a male child may
have the custody of a son paternal uncle’s son) but a female child cannot be
put in his the prohibited relationship and their marriage is possible under
Muslim law. The purpose of this rule is to avoid the possibility of any
exploitation of the custody of an unmarried girl.
Father, or in his absence the paternal grandfather, has a right to appoint
a testamentary guardian of the minor’s person, provided the father himself
was entitled to the custody of that child at the time of execution of the will.
In the absence of the above-mentioned male relations and any
testamentary guardian, or here they have been found unfit, the court is
empowered to appoint a guardian for the custody of the child under the
Guardians and Wards Act, 1890.
Custody of Illegitimate Child
Guardianship of an illegitimate child belongs to its mother. Therefore,
only she is entitled to have the custody of such a child as a natural guardian.
In the absence of the mother, her substitutes are entitled to the custody of an
illegitimate child. Putative father of an illegitimate child is not regarded as its
natural or legal guardian.
Custody of Minor Wife
Where a Muslim girl has been married before attaining the age of
puberty, the custody of the girl is not given to her husband till she attains the
age of puberty (ûfteen years).
In Nur Kadir v. Zuleikha Bibi, it was held that under Muslim law, the
mother or in her absence a substitute of the mother, is entitled to the custody
of a minor wife against the husband. Thus, the custody of a Muslim girl, under
age of puberty, belongs to her mother and not to her husband. But, under
Section 19 of the Guardians and Wards Act, 1890, the husband is the guardian
of his minor wife and the court cannot displace him from this position unless
he is found to be unfit. Thus, there is a conûict between the provisions of this
Act and the rules of Muslim law. However, the rule of Muslim law that the
custody of a minor wife (under the age of puberty) belongs to the mother and
not to the husband, may be reconciled by considering husband as ‘unfit’
under Section 19(b) of this Act for custody of his wife until she attains puberty.
Guardian of Property
If a minor owns movable or immovable property, a guardian is necessary
to manage it. Muslim law prescribes certain person in an order of preference
who can be Guardian of a minor's property. The guardianship of the property
of the minor under Muslim law may be classified as follows:
1. Legal (de jure) or natural guardian.
2. Guardian appointed by the court (or certified guardian)
3. De facto guardian
Legal guardian
The person entitled in the order mentioned below to be guardian of the
property of a minor are:
(i) The father,
(ii) The executor appointed by the father's will,
(iii) The father's father and
(iv) The executor appointed by the will of the father's father.
Thus, mother, brother, uncles etc. are not entitled as of right to be the
legal guardians of the property of the minor Of course, the father or father's
father may appoint any of them (Mother, brother, uncle, etc.) or any other
person as his executor or executrix and the latter shall hold as much power as
the father or father's father holds.
Except father and father's father, no other person, not even the mother,
is legally authorized to appoint, by will, any person as executor or executrix.
In Ghulam Husani Kutubuddin Maner v. Abdul Rashid Abdul Rajak
Maner,[2000] the supreme court of India has held that a mother of the minor
cannot be appointed as his guardian to accept gift on his behalf during the
lifetime of minor's father.
In Amar Ahmad Khan v. Shamim Ahmad Khan,[2012] the Jharkhand
High Court has held that on the death of a Mohammedan his property
immediately devolves on his heirs separately to the extent of share they are
entitled under personal law. Thus, immediately on death, each of his heir
becomes absolute owner of property proportionate to his share. Thus, under
Islamic law, there is no concept of jointness of ownership of properties of a
deceased Muslim.
Muslim heirs are independent owners of their specific shares and their
liability is also proportionate to the extent of their share in the estate. Under
said circumstances, one share holder has no right, title and interest to alienate
property of another share-holder.
The court further held that a mother is not a de jure guardian of her
minor children umder Muslim law and therefore has no right to sell interest of
her minor children in immovable property and such transaction is not merely
voidable but void.
Power of legal Guardians regarding immovable property
Under Muslim law, a legal guardian of the property of a minor can sell
the immovable property of the minor, when the sale is necessary for the
maintenance and when the minor has no other property. The word
"maintenance" does not exclude other necessary expenses for mental and
physical well being of a minor, acceding to the status in society of the family.
[Ahmadullah v. Mafiruddin Ahmad, AIR 1973]
Thus, the expenses of ordinary and reasonable education of a child
form part of his maintenance. In the present state of the society, which is
rapidly advancing in all direction education up to higher secondary stage
cannot be said to be extravagant. So, as to be excluded from maintenance.
Thus, in the following cases the legal guardian is authorized to deal with the
minor's property:
(1) When there are debts of the deceased, and no other means of paying
them;
(2) When the minor has no other means of livelihood and the sale is
absolutely necessary for his maintenance;
(3) When double the price of the property can be obtained by him;
(4) Where the expenses exceed the income of the property;
(5) When the property is falling into decay:
(6) When the property has been usurped and the guardian has reason to
fear that there is no chance of fair restitution;
(7) Where there are legacies to be paid, and no other means of paying
them.
The guardian has no power to carry on business of his ward, especially
if the business is one which may involve the minor's estate in speculation or
loss. From the fact that minor member was held entitled to the benefits of the
business cannot be held to have been carried on, ons behalf in the sense of
holding him liable for the debts of the business.
In India, the Guardians and Wards Act, 1890 imposes on every guardian
of property the duty to deal with the minor's property as carefully as a man of
ordinary prudence would deal with it if it were his own and entitles every such
guardian to do all acts which are reasonable and proper for the realisation,
protection or benefit of the property [section 66]. Section 28 of the Act says
that a testamentary guardian of property cannot transfer the property against
any restrictions in this behalf imposed by the will under which he functions.
Section 30 of the Act says that violation of these rules, will, in either case,
make the alienation voidable.
Guardian appointed by the court
In absence of legal guardian, the duty of appointing a guardian for the
protection and preservation of the minor's property fall in the court.
While appointing a guardian the court takes into consideration the
welfare of the minor and, as such, may appoint mother instead of paternal
uncle, as the guardian of the property of the minor [Salamat Ali v. Smt.
Majjo Razzo Begum, AIR 1985] The court also takes into consideration
the will of the father. If the mother is appointed the guardian, the fact that
she is a pardanashin lady will not be considered as an objection to the
appointment. The court must pay due regard to the wishes of the minor's
father and the interest and the welfare of the minor, whatever that may be
in a particular case and a guardian must be appointed with due regard to
these two considerations by the court. Without the previous permission
and sanction of the court a guardian of the property appointed by the
court cannot:
(i) charged immovable property of the minor;
(ii) mortgage;
(iii) transfer by sale;
(iv) transfer by gift:
(v) exchange; and
(vi) lease any part of the immovable property for a term exceeding 5 years
or for any term extending more than 1 years beyond the date with the
ward will cease to be a minor.
Thus, he can lease the immovable property even without the permission
of the court
(1) for a term not exceeding 5 years, or
(2) for a term not extending more than one year beyond the date on which
the minor will cease to be a minor, whichever is shorter.
If search guardian alienates the minor's property in contravention of
the provision, given above, such alienation will be voidable at the instance of
the minor or any other person affected thereby.
Permission for such alienation as given above must not be granted by
the court except in the case of necessity or for an evident advantage to the
ward.
Powers of legal guardian regarding movable property
Legal guardian the property of a minor has power to sell or pledge the
goods and chattels of the mind for the minors imperative necessities, such as,
food, clothing and nursing and de facto guardian has similar rights. But
guardian appointed by the court has larger power. Such a guardian is bound
to deal with the property as carefully as the man of ordinary prudence would
deal with it as if it were his own.
De facto guardians
A person, who is neither a legal guardian, nor a guardian appointed by
the court but has voluntarily placed himself in charge of the person and
property of the minor, is known as de facto guardian. A de facto guardian is a
mere custodian of the minor's person and property but has no right over either
[M. Fiaz v. Iftikar, AIR 1932]. He has only responsibilities towards the minor's
person or property or both but no rights in respect thereof. Usually de facto
guardians are relatives of the minor but without right to be the guardian under
Islamic law unless appointed by will or by the court. He is thus an officious
intermedler (fazooli) with the minor's property and has no status or position
to alienate it without court's permission [Ali Mohammad v. Ram Niwas AIR
1967].
Legal guardians and guardians appointed by the court are de jure
guardian. The mother, brother, uncle and all relations other than the father and
father's father are de facto guardians unless they are appointed executors by
the will of the father or father's father or appointed guardians by the court.
Rights and Duties of Guardian
(1) Duty to support- This is the duty of the guardian to support his ward.
He should take full care of the health, education and such other matters
as the law to which the ward is subject requires.
(2) Use the force defend minor- This is the duty of the guardian to take all
necessary steps to protect an infant child. He can use force to defend
his ward.
(3) Duty to files suits- This is the duty of the guardian to file a suit on
behalf of the minor. Order 32 of the Civil Procedure Code says that
where a minor has a guardian appointed or declared by competent
authority, no person other than such guardian shall act as the next
friend of the minor or be appointed his guardian for the suit.
(4) Duty for arranging the marriage the ward- This is the duty of the
guardian to make necessary arrangements for the marriage of his ward.
It is doubtful whether the guardian is bound to arrange marriage of his
ward.
(5) Control of guardian by the court- The courts are fully competent to
regulate the conduct and proceedings of a guardian of the minor's
person, appointed or declared by the court.
(6) Right to control the acts of the ward- A guardian possesses the right to
control the act and conduct of the ward. The father of the minor also
possesses the right to inflict correction on the child if he feels that the
ward is not obeying his reasonable orders.
(7) Duty of the father to take charge- A father is the natural guardian.
However, at the same time the mother of the child has been given right
to keep the child with her up to certain age. After crossing that age, the
father of the child is bound to take proper care of the child.
(8) Duty of the guardian not to use ward's property- This is the duty of the
guardian not to use ward's property. This is his duty not to make any
profit cut of the property of the minor. A guardian is not expected to
make profit by selling his own property to minor.
(9) Duty to take proper care- This is also the duty of the guardian to take
proper care while dealing with the property of the minor. He is bound to
deal with it as carefully as a man of ordinary prudence would deal with
it.
(10) Right of pre-emption- This is the discretion of the guardian to exercise
or refuse to exercise the right of pre-emption on behalf of the ward.
(11) Duty to maintain proper accounts- This is the duty of the guardian to
maintain proper accounts of all the receipts and expenditure incurred
by him.
Q. 15. What is Hiba? State its essential Conditions? When it
irrevocable?
Or
Define Hiba. Discuss the importance of delivery of possession in Hiba
and explain the circumstances when constructive delivery is deemed
sufficient?
Or
Discuss the essentials of a valid gift. Is delivery of possession necessary
in all cases? Explain.
Ans. In Muslim law, gifts are called "hiba". The gifts in India are
governed by Transfer of Property Act, 1872. However, the provision of Transfer
of Property Act, 1872 does not apply to Muslim law. The English term, ‘gift’ is
of a wider connotation and applies to all transactions where one transfer’s
one’s property to another without any consideration. The term hiba has a
narrow meaning.
According to Hedaya– "Hiba is an unconditional transfer of ownership
in an existing property, made immediately without any consideration."
According to Ameer Ali– "A Hiba is a voluntary gift without
consideration of property by one person to another so as to constitute the
donee the proprietor of the subject-matter of the gift."
According to Mulla– "A Hiba is a transfer of property, made
immediately and without any exchange by one person to another and
accepted by or on behalf of the latter."
According to Fyzee– "Hiba is the immediate and unqualified transfer
of the corpus of the property without any return."
The Hanafi lawyers define hiba as ‘an act of bounty by which a right
of property is conferred in something specific without an exchange’.
The Shias hold that ‘a hiba is an obligation by which property in a
specific object is transferred immediately and unconditionally without any
exchange and free from any pious or religious purpose on the part of the
donor’.
Salient Features of a Hiba
After analysing the definitions and meaning, some prominent features
of Hiba emerge as follows:
1. Hiba is a transfer of property by act of the parties and not by operation
of law. It means that any transfer of property done by the court of law
or any transfer of ownership by the Muslim law of inheritance will not
be considered as Hiba.
2. Under Hiba, a living Muslim voluntarily transfers the ownership of any
property to another living person. Hence, it is a transfer inter vivos.
3. The transferor transfers ownership of the property in absolute
interest and the transferee gets the complete title in respect of the
property given to him. Conditions, restrictions or partial rights in the
gifted property are averse to the concept of Hiba under Islamic law.
4. Hiba is operative with immediate effect and deprives the transferor of
his control and ownership over the property. Moreover, as the property
is passed immediately to the transferee, the property must be in existence
at the time when the gift is made. A gift made for a property which will
exist is future is termed as void.
5. A Hiba is a transfer of property without any consideration. If anything
of any value is taken by the transferor in return or exchange, such a
transfer of property is not a gift.
Essentials of Hiba
According to Ameer Ali, a hiba will be valid if the following conditions
are fulfilled:-
1. The manifestation of the wish to give on the part of the donor,
2. Acceptance of the gift, express or implied, by the done, and
3. Taking of possession of the subject-matter of the gift by the donee,
either actually or constructively. [Jamela vs. Abdul Rahman, 2001 Guj.
175]
Since Muslim law views the law of Gift as a part of the law of contract,
there must be:
(1) an offer (izab),
(2) an acceptance (qabul), and
(3) transfer (qabza).
In Smt Hussenabi v Husensab Hasan [1989], a grandfather made an
offer of a gift to his grandchildren. He also accepted the offer on behalf of
minor grandchildren. However, no express of implied acceptance was made by
a major grandson. Karnataka HC held that since the three elements of the gift
were not present in the case of the major grandchild, the gift was not valid. It
was valid in regards to the minor grandchildren.
1. A declaration by the donor:
There must be a clear and unambiguous intention of the donor to make
a gift. A declaration is a statement which signifies the intention of the
transferor that he intends to make a gift. A declaration can be oral or
written. The donor may declare the gift of any kind of property either
orally or by written means. Under Muslim law, writing and registrations
are not necessary.
In the famous case of Ilahi Samsuddin v. Jaitunbi Maqbul [1994] it
was held that under Muslim Law, declaration, as well as acceptance of
the gift, may be oral whatever may be nature of property gifted. When
the gift is made in writing, it is known as Hibanama. This gift deed
need not be on stamp paper and also need not be attested or registered.[
Mahboob Saheb v. Syed Ismail, AIR (1995)] In the famous case of Md.
Hesabuddin v Md. Hesaruddin[(1984)], where the gift was made by a
Muslim Woman and was not written on a stamp paper, Gauhati High
Court held that the gift was valid.
The declaration made by the donor should be clear. A declaration of
Gift in ambiguous words is void. In Maimuna Bibi v. Rasool Mian
[1991], it was held that while the oral gift is permissible under Muslim
law, to constitute a valid gift it is necessary that donor should divest
himself completely of all ownership and dominion over the subject of
the gift. His intention should be in express and clear words.
According to Macnaghten, "A gift cannot be implied. It must be express
and unequivocal, and the intention of the donor must be demonstrated
by his entire relinquishment of the thing given, and the gift is null and
void when he continues to exercise any act of ownership over it."
The declaration should be free from all the impediments such as
inducement, threat, coercion, duress or promise and should be made
with a bona fide intention.
Competency of the Donor: Capacity and Right
A person who makes the declaration of a gift is called a donor. A donor
must be a competent person to make a gift. Every Muslim, male or
female, married or unmarried, who has attained the age of majority and
has a sound mind, is a competent donor. For the purpose of making a
gift, the age of majority is the attainment of 18 years and 21 years if he
is under a certificated guardian.
Capacity to make a Hiba
Mental capacity: A person who is of sound mind and has the mental
capacity to understand the legal implications of his act is eligible to
make a gift. However, a gift made by a person of unsound mind during
lucid intervals is a valid gift. Also, the donor must be free from any
coercive or fraudulent influence while making a gift.
In the case of Hussaina Bai v. Zohara Bai [1960], the validity of a gift
made by parda-nasheen ladies was declared by the court. In this case,
a parda-nasheen Muslim lady was brought from Nagpur to Burhanpur
on an excuse that her brother-in-law was seriously ill. After reaching
the place, she had a fit of hysteria, and soon after it, she was made to
sign a gift deed without informing her of the content of the deed and no
opportunity was given to her to take an independent decision. The
court held that-
"When a gift is made by a parda-nasheen lady, it is important to
establish that the consent of the lady was free and she made the gift on
her independent advice. The burden to prove that the gift was made
free from compulsion lies on the donee. In this case, the deed was
executed from the lady under compulsion, it was not her voluntary
act, and hence, the deed was held invalid."
Financial Capacity: According to the Hanafi view, if a person is under
insolvent circumstances, he is allowed to make a gift. However, the
Kazi has the power to declare any gift as void if it is made with a view
to defraud the donee. The Indian courts have accepted the view of the
Hanafi school that from the fact of indebtedness or embarrassing
financial circumstances of the donor, it cannot be inferred that the
donor has fraudulent intentions.
So, in every gift, there must be a bona fide intention on the part of
the donor to transfer property to the donee. Evidently, if a gift is
made with a malafide intention to defraud the donee, the gift is
invalid.
Right to make a Hiba
Capacity to make a gift is not solely enough. The donor must also have
a right to make a Hiba. A Muslim has a right to gift only those properties
of which he has the ownership. If he is simply a tenant in a house, he is
not allowed to gift that house to someone because he does not have
the ownership of that house. Such a gift is considered as invalid.
However, a Muslim has a right to gift away all his properties which are
under his ownership at the time of declaration of the gift. The transfer
of the property by the donor must be in the absolute interest of the
donee. Therefore, it is imperative that the donor himself has the
ownership of that property which he intends to pass on to the donee.
2. Acceptance by the donee
For the validity of a gift, it must be accepted by the donee. Acceptance
manifests the intention of the donee to take the property and become
its new owner. Without acceptance, the gift is considered to be
incomplete. Since under Islamic law, Hiba is treated as a bilateral
transaction, therefore, it is important that the proposal made by the
donor to transfer the ownership of the property must be accepted by
the donee.
Minor: In case the donee is minor, the acceptance on behalf of a minor
can be given by the guardian of the property of the minor.
Juristic person: If a gift is made in favour of any institution or any
other juristic person, the acceptance of the gift is made by either manager
or any other competent authority.
Two or more Donees: Gift made in favour of two or more donees must
be accepted by each and every person separately. If the share of each
person is explicitly specified by the donor then, they will get the separate
possession in the same way as declared by the donor. But if the share
under a gift is not specified and no separate possession is given by the
donor, then also the gift is valid and the donees will take the property
as tenants-in-common.
3. Delivery of possession by the donor and taking of the possession by the
done:
In Muslim law, the term possession means only such possession as the
nature of the subject is capable of. Thus, the real test of the delivery of
possession is to see who – whether the donor or the donee – reap the
benefits of the property. If the donor is reaping the benefit then the
delivery is not done and the gift is invalid.
Under Muslim law, a gift may be made orally or in writing, irrespective
of the fact whether the property is movable or immovable [Ibrahim vs.
Noor Ahmed, 1984 Guj. 126]. The only formality that is essential for
the validity of a Muslim gift is "taking a possession of the subject-
matter of gift by the done either actually or constructively". [Mohammed
vs. Fakr, (1922) 49 IA 195].
The mode of delivery of possession depends completely upon the
nature of the property. Delivery of possession may either be: Actual, or
Constructive.
1. Actual Delivery of Possession: Where the property is physically
handed over to the donee, the delivery of possession is actual.
Generally, only tangible properties can be delivered to the done.
Tangible property may be movable or immovable. Under Muslim law,
where the mutation proceedings have started but the physical
possession cannot be given and the donor dies, the gift fails for the
want of delivery of possession [Noor Jahan v. Muftkhan, AIR (1970)].
However, in such cases, if it is proved that although the mutation was
not complete and the done has already taken the possession of the
property, the gift was held to be valid [Alimonassa v. Sudhir Chandra
De, AIR (1991)].
2. Constructive Delivery of Possession: Constructive delivery of
possession is sufficient to constitute a valid gift in the following two
situations:
(a) Where the Property is intangible, i.e. it cannot be perceived
through senses.
(b) Where the property is tangible, but its actual or physical delivery
is not possible.
Under Muslim law, Registration is neither necessary nor sufficient to
validate the gifts of immovable property. A hiba of movable or
immovable property is valid whether it is oral or in writing; whether it is
attested or registered or not, provided that the delivery of possession
has taken place according to the rules of Muslim Law [Ilahi Samsuddin
v. Jaitunbi Makbul. (1994)].
When the constructive delivery of possession is sufficient
When the possession of the movable property is delivered, the exact
time of delivery of possession can be easily determined. The problem arises in
the case of immovable or incorporeal properties where it is onerous to prove
the exact time of the delivery of possession. However, in India, there are two
judicial views regarding the exact time of the completion of delivery of
possession.
1. Benefit Theory: Under this view, it is believed that a constructive
delivery of possession is complete as soon as the donee starts getting
the benefits out of the gifted property. Where even after the declaration
of the gift, the donor is enjoying the benefits, the gift is not complete.
But, if the donor enjoys the benefits, it is deemed that the delivery of
possession has taken place.
This approach lays more emphasis on the facts of donee’s benefits
from the gifted property instead of the act which symbolises
constructive delivery of possession.
For example, if a donor gifts a rented house to the donee, the delivery
of possession is considered to take place from the date on which the
donee gets the rent from the tenants.
2. Intention Theory: This approach supports the view that the delivery
of possession is completed on the date on which the donor intent to
transfer the possession to the donee. The intention of the donor
can be proved on the basis of the facts and circumstances which
vary from case to case. In correspondence to the intention of the
donor, some potent facts must be established which exhibit that the
donor has physically done everything he could in the given
circumstances.
In other words, the court accepts that the delivery of possession is
deemed to have taken place only when the bona fide intention of the
donor to complete the gift is thoroughly established and it is not
important to prove that from which date the donee reaps the benefits of
the property given.
For example, if the donor and donee are living in the same house which
constitutes the subject-matter of the gift, the donor’s intention to transfer
the possession to the donee is sufficiently proved if the donee has
been authorised to manage the house.
Who may challenge the Delivery of Possession?
It is not at all necessary to prove separately in each and every case that
the delivery of possession has been completed until and unless the validity of
gift is challenged by the donor, the donee or any person legally authorised to
claim on behalf of them.
In the case of Y. S. Chen v. Batulbai [1991], a Muslim woman made a
gift of a portion of her house to her daughter. The gifted portion of the house
was occupied by a tenant who used to pay the rent regularly to the daughter
(donee) recognising her as the landlady. After some time, the tenant refused
to recognise the daughter as his landlady on the ground that the gift made in
her favour was void because there was no delivery of possession. It was held
by the court that –
"Any objection as to the validity of gift on the ground of absence of
delivery of possession cannot be raised by the tenant who is a stranger
to the transaction of a gift."
Irrevocable Gifts
Irrevocable gifts are those gifts which, after the delivery of possession,
cannot be revoked even by court. In the following cases, the gifts are
irrevocable:
1) A gift by husband to wife or by wife to husband.— i.e. where the donor
and the donee are spouses.
Shia law— Under the Shia law, a gift by husband to wife or vice-versa,
revocable even after the delivery of possession.
2) Where donor and the done are within the prohibited relationship.—
Where the donor and the donee are so related to each other that their
marriage is void on the ground of consanguinity, afûnity or fosterage,
they are within prohibited relationship. In such a case, gift by one to
another is irrevocable. For example, gift by a brother in favour of his
sister is irrevocable.
Shia law— Under the Shia law, if donor and donee are related through
blood, though not within the prohibited relationship, the gift is
irrevocable.
3) Where the donor or donee is dead.— After the death of the donor or
donee, a gift becomes irrevocable. This is obvious, because gift begins
with a declaration (offer) and the acceptance, and the parties to the
contract of gift are the donor and the donee. If, after the completion of
a gift a court attempts to invalidate it, then decree would have to be
passed against the heirs of the donee. This is not possible because
heirs of the donee or donor were not party to the transaction of the
gifts.
4) Where the donee has transferred the property to another person.—
After completion of the gift the donee becomes an absolute owner of
the gifted property. As such, the donee may transfer that property to
another person. If a gift is revoked when the donee has already
transferred the property to a third person, then interest of that third
person would be affected and he would be put to loss without any fault
of his own.
5) Where the property is lost or has been destroyed.—-After revocation
of a gift, the property should revert back to the donor but if it is lost or
destroyed there would remain nothing to be given back to the donor.
Therefore, where the gifted property is lost or is otherwise not available,
the revocation would be meaningless.
6) Where the value of the property increases subsequently— The value
of the property may increase by accretions or, by accidental discovery
of gold or coal mine or due to some other reason. After completion of a
gift, if the value of the property is increased, it is natural that the donor
would be interested in the revocation of gift. Muslim law negatives the
possibility of revocation of gift by donor due to such temptation.
7) Where the property given is changed beyond identification— Where
the shape, size and identity of the property has been changed and it is
not possible to recognise that it is the same property which was the
subject matter of gift, the gift becomes irrevocable. For example, if a
piece of gold or bag of wheat is given in gift and the donee has converted
it into ornaments and flour respectively, the original subject-matter
cannot be identified. In such a circumstance, the gift is irrevocable
because after cancellation off the gift, the same property cannot be
given back to the donor.
8) Where the gift has been made to secure religious or spiritual
benefits— Where a gift is made not out of natural love and affection,
but with religious motives, its revocation may amount breach of a
religious promise which is not permissible. A gift for religious or spiritual
purposes is called Sadqa which is irrevocable.
9) When a gift is in the form of Hiba-bil-iwaz.—That is to say, where the
donor has accepted something as consideration of the gift; the transfer
becomes irrevocable. As is discussed in the following lines, Hiba-bil-
iwaz is not a gift at all; it is treated either as a sale or an exchange,
therefore, it is irrevocable.
Conclusion
A gift is a contract consisting of a proposal or offers on the part of the
doner to give a thing and acceptance of it by the donee. So, it is a transfer of
property immediately and without any exchange. There must be a clear intention
by the donor to transfer the possession to the doner for a valid gift. It can be
revoked by the doner. And the provisions for the same have also been
mentioned.
Q. 16. Explain the Doctrine of Musha. Can there be a gift of Musha?
State the exception of the Doctrine of Musha.
Ans. The word Mushaa has been derived from the Arabic word ‘Shuyua’
which literally means ‘confusion’. Under Muslim law, Mushaa signifies an
undivided share in a joint property. Mushaa is therefore, a co-owned or joint
property.
Hedaya lays down this doctrine in the following words:
"A gift of part of thing which is capable of division is not valid unless
they said part be divided off and separated from the property of the
donor; but a gift of part of an indivisible thing is valid…………………"
Need for Doctrine of Mushaa
If one of the several owners of this property makes a gift of his own
share, there may be a confusion as to which portion or part of the property is
to be given to the donee In other words, there may be a practical difficulty in
the delivery of possession if gift of a joint property is made by a donor
without partition of the gifted share.
To avoid any such confusion and difficulty at the stage of delivery of
possession, the Hanafi jurists have evolved the principle of Mushaa. Where
the subject-matter of a gift is co-owned or joint property, the doctrine of
Mushaa is applied for examining the validity of the gift.
Under the Hanafi doctrine of Mushaa, gift of a share in the co-owned
property is invalid (irregular) without partition and actual delivery of that part
of the property to the donee. However, if the co-owned property is not capable
of partition or division, the doctrine of Mushaa is inapplicable.
Shia Law: Shia law does not recognise the doctrine of Mushaa. Under
the Shia law, a gift of a share of divisible joint property is valid even if made
without partition.
Kinds of Mushaa
A Mushaa or unified property might be of two sorts:
(a) Mushaa indivisible i.e., a property in which the partition or division is
not possible and
(b) Mushaa divisible i.e., property which is capable of division.
Mushaa Indivisible
Gift of Mushaa indivisible is valid. There are certain properties which
are by nature indivisible. The physical partition or division of such properties
is not practical. Moreover, if against the nature of such properties, their partition
or division is affected at all, their identity is lost; they do not remain the same
properties which they were before the partition. For example, a bathing ghat,
a stair case or a cinema house etc. are indivisible Mushaa properties.
If, on the bank of a river or tank, there is bathing ghat which is in the co-
ownership of two or more persons, then each owner has right to deal with his
share as he likes including the right to make a gift of his share.
But, if a sharer attempts to separate his share, the utility of the ghat
would be finished. Where a stair case is co-owned by, say two persons, then
each being the owner of half of the stair-case, is entitled to make a Hiba of his
share.
But, if the stair-case is divided into two parts, it would either be too
narrow to be used by any one, or the upper half may come in the share of one
and the remaining lower half in the other’s share. In both the cases the stair
case would become useless for both of them and also for the donee.
The doctrine of Mushaa is not applicable where the subject-matter of
gift is indivisible. According to all the schools of Muslim law, a gift of
Mushaa indivisible is valid without any partition and actual delivery of
possession.
Kasim Hussain v. Sharif-un-Nissa: A who owns a house, makes a gift
to B of the house and of the right to use the staircase by him jointly with the
owner of an adjoining house. The gift of A’s, undivided share in the stair case
though it is a gift of a Mushaa is valid, for a stair case is not capable of
division
Mushaa-Divisible:
Under Hanafi law, gift of Mushaa-divisible property is irregular (fasid)
if made without partition. A co-owned piece of land, house or a garden, is
Mushaa-divisible. The land may be divided and the specific share may be
separated by a visible mark of identification.
Similarly, a co-owned house may be divided by a partition wall without
changing its identity. In other words, a Mushaa-divisible may be divided
easily without changing the nature and without affecting the utility of the
property.
Where the subject-matter of a Hiba is Mushaa-divisible, the Hanafi
doctrine of Mushaa is applicable and the gift is not valid unless the specific
share, which has been gifted, is separated by the donor and is actually given
to the donee. However, under the Hanafi doctrine of Mushaa, the gift without
partition and actual delivery of possession is not void ab initio, it is merely
irregular (fasid).
The result is that where such a gift has been made, it may be regularised
by a subsequent partition and by giving to the donee the actual possession
of the specified share of the property. It is evident, therefore, that the doctrine
of Mushaa is limited, both in its application as well as in its effects.
The operation of the rule is subject to following limitations:
(a) The rule of Mushaa is not applicable where the property is indivisible.
(b) Where the property is divisible, the doctrine is applicable but only
under the Hanafi School. In other words, the doctrine of Mushaa is
applicable only where the donor is a Hanafi-Sunni.
(c) Even under the Hanafi school, if a gift is made against the rule of
Mushaa the gift is not void, it is merely irregular (Fasid).
(d) Hanafi law recognises certain exceptions to this doctrine and in those
exceptional cases the gift is valid, though made in violation of this
doctrine.
Exceptions to the Doctrine of Mushaa
The doctrine of Mushaa is limited in its application and is subject to
certain exceptions where the doctrine is not applicable. Exceptions to the
doctrine of Mushaa are given below:
(1) Gift of Mushaa to Co-heir:
Donor and the donee are co-heirs, if they are entitled to inherit
simultaneously the properties of a person. Gift of undivided property
is valid even if made without partition where donor and donee are co-
heirs. If a person dies leaving behind a son, a daughter and the mother,
then the son, daughter and mother are all co-heirs as they all are entitled
to inherit the properties of the deceased.
Thus, after the death of a Muslim male, his widow and his daughter are
the co-heirs; therefore, the widow (i.e. mother of the daughter) can
make a lawful gift of her undivided share in the lands to her daughter
without separating her share physically. In Mahomed Buksh v. Hosseini
Bibi, a Hanafi woman died leaving her mother, son and a daughter, as
her only heirs.
The mother of the deceased made a gift of her share to the son, without
separating her 1/6 share in the properties of the deceased. It was held
by the Privy Council that the gift of the undivided 1/6 share by
grandmother to her grandson or to the granddaughter or to both jointly,
was valid even without partition.
(2) Gift of Share in Zamindari:
Where a part of the erstwhile Zamindari or Taluka was gifted away by
one of its co-sharers, the doctrine of Mushaa was not applicable. In the
Zamindari systems, it was possible that two or more persons were the
co-sharers having their definite shares of which they used to be
respective owners.
If any of them made a gift of his share, the gift was valid without actual
delivery of possession and without physical partition of the gifted
share from the rest of the property. Similarly, a gift of Kaimi raiyati land
(undivided share) was held valid although there was no actual division
of the share before the gift was made.
(This exception is only of academic interest because the Zamindari
system has now been abolished in India.)
(3) Gift of a Share in Landed Company:
The Hanafi doctrine of Mushaa originated with an object of
avoiding confusion at the stage of taking the possession by donee.
In the landed companies or big commercial establishments where
the ownership consists of several definite shares, gift of a share
by separating the share physically from the rest, would create
confusion and inconvenience and this would be against the very
purpose of this doctrine. Therefore, in such cases, the doctrine is
inapplicable.
In Ibrahim Goolam Ariffv. Saiboo, the donor owned a large number of
shares in six limited liability companies together with several pieces of
freehold land and some buildings thereon in Rangoon. He notionally
divided the whole property into one thousand shares and made a gift
of 100 such shares each to four donees and also 25 such shares each to
the two other donees.
The whole property could be, inconveniently though, physically
partitioned from the rest. But no such partition was made by the donor.
It was held by the Court that the gift was valid without actual division
because the property was not conveniently divisible.
The Court further observed that it would be inconsistent to apply the
doctrine of Mushaa to shares in the companies because the doctrine
originated for very different kinds of properties.
(4) Gift of Share in Freehold Property in Commercial Town:
Where a freehold landed property situates in commercial towns or
in big cities, its frequent partition is disfavoured. In big cities the
houses are well planned and the partition may require approval of a
fresh map which may take considerable time. Therefore, where a
part of such property is gifted, the gift is complete without any prior
partition.
Gift of a part of a house situated in Rangoon was held valid
without prior partition because the house was situated in a large
commercial town. Similarly, it has been held that the doctrine of
Mushaa has no application in commercial towns like Lahore,
Bombay or Calcutta.
Q. 17. Define and Explain `Hiba-bil-iwaz' and `Hiba-bi-Sharti-ul-
Iwaz'. What is the difference in between these two?
Ans. Hiba-bil-iwaz – Hiba means gift and Iwaz means consideration.
Hiba Bil Iwaz means gift for consideration already received. It is thus a
transaction made up of two mutual or reciprocal gifts between two persons;
one gift from donor to donee and one from donee to donor. The gift and
return gift are independent transactions which together make up Hiba bil
Iwaz.
It has almost all the incidents of a contract of sale. `Hiba-bil-iwaz' has
as per Asaf A.A. Fyzee has two separate parts; i.e.
(a) Hiba (original gift by the donor to the donee) and
(b) an iwaz (return gift by the donee to the donor). In short, the `Hiba-bil-
iwaz' means a gift with return.
Therefore, when both things i.e. Hiba (Gift) and Iwaz (return) is completed
the transaction is called `Hiba-bil-iwaz'.
In India, it was introduced as a device for affecting a gift of Mushaa in
a property capable of division. So a Hiba Bil Iwaz is a gift for consideration
and in reality it is a sale. Thus, registration of the gift is necessary and the
delivery of possession is not essential and prohibition against Mushaa does
not exist.
For example, À' makes a gift of a cow to `B' and later B makes a gift of
a horse to À'. If `B' says that the horse was given to him by À' by way of
return or exchange, then both are irrevocable. The law requires the completion
of all the formalities of a valid Hiba in such transaction.
In the case of Rohini Bukhish v. Muhammad Hassan (1888), it was
held by the court that the fundamental conception of `Hiba-bil- Iwaz' in
Mohammedan Law is that is a transaction made of two separate acts of the
donation i.e. it is a transaction made up of mutual or reciprocal gift between
two persons each of whom is alternatively the donor of one gifts and the
donee of the other. The matter was described by Bailee in these words, `The
transaction which goes by the name of `Hiba-bil-iwaz' in India is therefore, in
reality not a proper Hiba-bil-iwaz of either kind but a sale and has all incidents
of the latter contract.
There are two conditions for a valid `Hiba-bil-iwaz' -
(1) Actual payment of consideration (Iwaz) on the part of done. In
Khajoorunissa vs Raushan Begam 1876, held that adequacy of the
consideration is not the question. As long is the consideration is bona
fide, it is valid no matter even if it is insufficient.
(2) A bona fide intention on the part of the donor to divest himself in
present of the property and to confer it upon donee.
A and B, two Muslim brothers are tenants-in-common. A died leaving B
and his widow W. After A's death B executed a deed whereby he granted two
of the villages to W, and W executed a writing whereby in consideration of the
grant to her. She gave up her claim to her husband's estate in favour of B. The
transaction was hiba-bil-iwaz and was valid though possession was not
delivered (Muhammad Faiz Ahamad Khan v. Gulam Ahamad Khan 3 All
494).
In Gulam Abbas vs Razia AIR 1951, Allahabad HC held that an oral
transfer of immovable property worth more than 100/- cannot be validly made
by a muslim husband to his wife by way of gift in lieu of dower debt which is
also more than 100/-. It is neither Hiba nor Hiba bil Iwaz It is a sale and must
done through a registered instrument.
Therefore, the absence of consideration is not necessary in such Hiba
but the amount, whatever it is, must be actually and bonafidely paid.
Hiba-ba-shart-ul-iwaz –
Hiba means gift, Shart means stipulation and iwaz means return. Thus,
Hiba ba Shart ul Iwaz means a gift made with a stipulation for return.
According to Ameer Ali, "when a gift (Hiba) is made by someone with
a stipulation (shart) for return (Iwaz), such transaction is called `Hiba-ba-
shart-ul-iwaz’."
In `Hiba-ba-shart-ul-iwaz' a gift is not followed by a voluntary
return but it is made with stipulation. Unlike in Hiba bil Iwaz, the payment
of consideration is postponed. Since the payment of consideration is
not immediate the delivery of possession is essential. The transaction
becomes final immediately upon delivery. When the consideration is
paid, it assumes the character of a sale and is subject to presumption
(Shufa). As in sale, either party can return the subject of the sale in case
of a defect.
It has the following requisites -
1. Delivery of possession is necessary.
2. It is revocable until the Iwaz is paid.
3. It becomes Irrevocable after the payment of Iwaz.
4. Transaction when completed by payment of Iwaz, assumes the character
of a sale.
Tyabji said that in such Hiba the two (gift and return) go hand in hand,
not one before the other and the return is in completion by both parties. He
said that kind of property that can also be given by way of return gift (iwaz)
and the return gift must be made with all the formalities necessary for a Hiba.
Once `Hiba- ba-shart-ul-iwaz' is completed by delivery of possession,
neither of the party to it can, afterwards, revoke it.
For example, À' made gift of his house to `B' and put him in possession.
`B' then gives À' a horse in an Iwaz and À' accepted it. After some time À'
purports to sell the house to someone. Such sale will not be effective because
gift with condition of return, once completed cannot be revoked in any
circumstances. `Hiba-ba-shart-iwaz' is also subject to the right of preemption.
In general, Hiba bil Iwaz and Hiba ba Shart ul lwaz are similar in the
sense that they are both gifts for a return and the gifts must be made in
compliance with all the rules relating to simple gifts but there is difference
between the two.
Difference between Hiba bil Iwaz and Hiba ba Shart ul lwaz
There are following differences between them:
Hiba-bil-iwaz Hiba-ba-shart-ul-iwaz
(1) In such Hiba the iwaz (return) is (1) In such Hiba, lwaz (return) is not
not even in the contemplation of the merely in contemplation of the
parties at the time of original gift. parties but it is expressly stipulated
for.
(2) It bears the character of gift (2) It bears the character of sale
throughout and does not partake the because the item can be returned if
character of sale even when Hiba is it is defective.
given.
(3) In such Hiba, no sooner the (3) It is not so.
possession of subject matter of Hiba
is given to donee is iwaz, then it
becomes a sale.
(4) Delivery of possession of subject (4) Delivery of possession is
matter of gift is not necessary. necessary.
(5) There is not such condition. (5) It can be revoked at any time
before the delivery of possession
and if it is completed, a Hiba cannot
be revoked.
Q. 18. Explain the following:
1. Conditional gift/hiba
2. Sadaqah
3. Areeat
Ans. Conditional or Contingent Hiba
The contingent or conditional gifts are those gifts whose operation
depends upon the occurrence of a contingency. A contingency is a possibility,
a chance, an event which may or may not happen.
A gift must always unconditional. When a gift is made with condition
that obstructs its completeness, the gift is valid but the condition become
void. Under Islamic law, conditional or contingent gifts are void.
Thus, a gift made by a person in favour of another for life, and in the
event of his death without leaving a male issue to X; the gift is contingent
with respect to X. Where a Muslim made a gift to his wife for life, and after her
death to such of his children as might be living at his death, the gift was held
to be contingent.
Gifts with Conditions and Life Estates:
"All our masters are agreed that when one has made a gift and
stipulated for a condition that is Jasid or invalid, the gift is valid and the
condition is void".
In Muslim law, gift is not rendered invalid, by involving an invalid
condition. Hanafi law clearly lays down that in such a case the gift is valid and
the condition is void.
For instance, where a person makes a gift of his house by saying that
the donee will retain it for his life, and after his death it will revert to the donor,
the gift is valid and the condition is void.
Where the donee was given absolute right in the property by the gift
deed and it was also stated that after the death of the donee property shall go
to another person, this condition was held invalid.
Under Shia law, if the condition attached to a gift is subsidiary, then
both the gift and the condition are valid.
On the point as to how far Muslim law recognizes life estates and
limited estate, there are several Privy Council decisions. In Md. Raza v. Abbas
Bandi, the Privy Council held that where a restraint on alienation is partial,
both the gift and the condition are valid.
Ameer Ali gives the reason thus: Where the intention is clear to transfer
the entire right of property in the corpus of the gift, a mere reservation of
interest in its rents and issues, or any profit accruing there from or a subordinate
share in its enjoyment does not affect the validity".
In the leading case on the subject, Nawab Umjad Ali Khan v. Muhamadee
Begum, father made a gift of government promissory notes to his son
endorsing and delivering them to the latter with the condition that the son
should pay him for his life the recurring income of the promissory notes. The
gift and the condition both were held valid.
The Privy Council observed: "But as this arrangement between the
father and the son is founded on a valid consideration, the son’s undertaking
is valid and could be enforced against him in the courts in India as an
agreement raising a trust and constituting a valid obligation to make a
return of the proceeds during the time stipulated".
This was a case under Shia law. This principle was held applicable to
the Sunnis also in Md. Abdul v. Fakhr Jahan; Mohideen v. Madras State.
Sadaqah
Sadaqah or Saddka- It is an Islamic term that means "voluntary charity".
This concept encompasses any act of giving out of compassion, love,
friendship (fraternity), religious duty or generosity. Sadaqah is not restricted
to giving part of our wealth or material possessions or any special deed of
righteousness. Islam considers all good deeds as sadaqah that increase our
eeman.
In the case of this gift, as it is generally understood, love and affection
can prevail towards the donee, or like a return for services provided by the
donee in the past, or maybe a simple act of gratuitousness or benevolence, or
in the future, it can be expected by favor or reward. In addition to these
materialistic or human desires, the purpose may also be religious merits or
simply the public benefit. The supply of possession is an obligatory requirement
for the validity of the Sadaqah and it admits no exceptions other than a simple
gift. Thus, Sadaqah is not valid if the subject of a gift is an indivisible share in
the property.
To be able to enjoy Allah's tremendous rewards for every sadaqah that
we give, we need to observe the following teachings:
1. Sadaqah must be done sincerely for the pleasure of Allah and not out
of riya' (show off) to gain praise or recognition from others.
2. It is better to conceal what we give or do as sadaqah.
3. Sadaqah must be from halal (lawful) source.
4. Begin charity with your dependents.
5. Not to delay giving of sadaqah nor show lethargy or negligence in
giving sadaqah.
6. Do not count the sadaqah you give.
7. Seek only the desire to see Allah, which is the supreme success in
Paradise. Do not expect favour or reward from any person for the
sadaqah you give.
'Sadaqah' is mainly a religious gift. Supply of ownership shall be an
obligatory prerequisite for the validity of Sadaqah. A simple gift can be
withdrawn, but Sadaqah cannot be withdrawn.
Ariyat
'Ariyat' is a gift of the right to use the product for a certain period on
a particular estate and may be revoked to the grantor's delight. Indeed, it is
more like a license. It is personal and neither inherited nor transferable. They
are revocable and confer no right on the grantor in the corpus, but only on the
revenues derived from the property or profit. For a simple gift, all incidents of
ownership of the property will be transferred. It shall be a transfer of property
itself.
The four essentials of an areeat are that
a. can be revoked;
b. it must be a transfer of ownership in the property;
c. it must be for a definite period, and
d. it does not devolve upon the heirs of the donee on his death.
Q. 19. What is Waqf? How it is created? Can a Muslim create a waqf
in favour of his children? Discuss with the help of decided cases?
Or
What are the essentials of a valid waqf? Discuss in whose favour waqf
can be made?
Or
Define Waqf? How can it be created?
Ans. The literal meaning of the word waqf is ‘detention’. In the legal
context, waqf means detention of a property so that its produce or income
may always be available for religious or charitable purposes. When a waqf is
created, the property is detained or, is ‘tied up’ forever and thereafter becomes
non-transferable.
Ameer Ali describes the law of Waqf as, "the most important branch
of Muslim Law, for it is interwoven with the entire religious life and social
economy of Muslims Waqf in its literal sense means detention or stoppage ."
Abu Hanifa defined wakf as "the tying up of the substance of a property
in the ownership of the wakif and the devotion of the usufruct, amounting to
an aryia, or commodate loan for some charitable purpose." This means that,
according to him, the ownership in wakf property continued to be vested in
the owner, and its usufruct was spent for the charitable or pious purpose.
Also, he believed that the tying up of the property was not of a permanent
nature. His two disciples, however, took a different view.
The Shia law defines a wakf in a different manner. According to Sharia-
ul-Islam, a wakf is a contract, the fruit or effect of which is to tie up the original
of a thing and to leave its usufruct free.
The Wakf Act, 1913, Section 2, defines wakf. Accordingly, it means
the permanent dedication by a person professing the Mussalman faith of any
property for any purpose recognized by the Mussalman law as religious,
pious or charitable. Thus the purpose must be religious, pious, or charitable,
the dedication of property must be permanent, and the usufruct must be
utilized for the good of mankind. [Kani Ammal vs. Tamil Nadu Wakf Board
[1983 AP 188]
It is observed in M Kazim vs A Asghar Ali that technically, waqf means
dedication of some specific property for a pious purpose or secession of
pious purposes.
Wakf Act, 1954 defines Wakf as, "Wakf means the permanent
dedication by a person professing the Islam, of any movable or immovable
property for any purpose recognized by Muslim Law as religious, pious, or
charitable."
The Waqf (Amendment) Act, 2013 has substituted the definition of
‘Waqf’ in Section 3(r) of the Act 1995. It defines Waqf as the permanent
dedication by any person of any movable or immovable property for any
purpose recognised by the Muslim Law as religious, pious or charitable.
A waqf can be either in writing or can be made by an oral presentation.
In the case of an oral agreement, the presence of words emphasising on the
intention of the parties is a prerequisite.
Essential Conditions for a Valid Waqf
The essential conditions for a valid waqf are as follow:
1. Permanent dedication: The dedication of waqf property must be
permanent and Waqf himself must devote such property and give it for
any purpose recognized by Muslim law, like religious, pious or
charitable. If the wakf is made for a limited period it won’t be a valid
wakf and also there should be no condition or contingency attached
otherwise it will become invalid. The motive behind Wakf is always
religious.
There are actually three aspects in this requirement. There must be a
dedication, the dedication must be permanent, and the dedication can
be of the property. There is no prescribed form of dedication. It can be
written or oral but it must be clear to convey the intention of dedication.
According to Abu Yusuf, whose word is followed in India, mere
declaration of dedication is sufficient for completion of Wakf. Neither
delivery of possession or appointment of Mutawalli is necessary.
In Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad, the dedication
of house by a Muslim for use of all travelers irrespective of religion
and status was held not to be a Wakf on the ground that under Muslim
law a Wakf should have a religious motive and it should be only for
benefit of Muslim community, and if it is secular in character, the charity
should be to the poor alone.
When a Wakf is constituted, it is presumed that a gift of some property
has been made in favor of God. This is ensured through a legal fiction
that waqf property becomes the property of God.
The dedication must be permanent. A temporary dedication such as for
a period of 10 years or until death of someone is invalid.
A Muslim wakf must be created for an unlimited period. In short,
perpetuity is an essential feature of a wakf. Even in the case of a family
wakf, the ultimate benefit must be expressly or impliedly reserved for
the poor or for any other purpose of a permanent character. [Rahlman
vs. Bagridan, 1936 Oudh 213]
The subject of Wakf can be any tangible property (mal) which can be
used without being consumed. In Abdul Sakur vs Abu Bakkar 1930, it
was held that there are no restrictions as long as the property can be
used without being consumed and thus, a valid Wakf can be created
not only of immovable property but also of movable property such as
shares of a company or even money. Some subjects that Hanafi law
recognizes are immovable property, accessories to immovable property,
or books
The subject of the Wakf must be in the ownership of the dedicator,
wakif. One cannot dedicate someone else's property.
2. Competency of the Waqif:
Who Can Create a Waqf? : The person who constitutes the waqf of his
properties is called the ‘founder of waqf or, Waqif. The waqif must be a
competent person at the time of dedicating the property in waqf. For
being a competent waqif a person must possess the capacity, as well as
the right to constitute the waqf.
As regards the capacity of a Muslim for making a waqf, there are only
two requirements:
(i) soundness of mind and,
(ii) majority.
A person of unsound mind has no capacity to create any waqf because
he or she is incapable of knowing the legal consequences of the
transaction. Waqf constituted by an insane or minor person is void.
Waqf by Non-Muslims: The dedicator must profess Islam i.e., believes
in the principles of Islam’, he need not be a Muslim by religion. The
Madras and Nagpur High Courts have held that a non-Muslim can also
create a valid waqf provided the object of waqf is not against the
principles of Islam.
Patna High Court has also held that a valid waqf may be constituted by
a non-Muslim. However, according to Patna High Court, a non-Muslim
waqf may constitute only a public waqf; a non-Muslim cannot create
any private waqf (e.g. an Imambara).
3. Right to make waqf:
A person having the capacity but no right cannot constitute a valid
waqf. The subject matter of wakf should be owned by wakif at the time
when wakf is made. Whether a person has the right to constitute a waqf
or not depends on the fact whether the dedicator has a legal right to
transfer the ownership of the property or not.
A widow cannot constitute any waqf of the property which she holds
in lieu of her unpaid dower because she is not an absolute owner of
that property.
Where the waqif is, a pardanashin lady, the beneficiaries and the
mutawalli have to prove that she had exercised her independent mind
in constituting the waqf and had fully understood the nature of the
transaction.
Amount of property: a person can dedicate his entire property, but in
the case of the testamentary wakf, more than one-third of property
cannot be dedicated.
4. For any purpose recognized by Muslim Law- The purpose is also called
the object of Wakf and it can be any purpose recognized as religious,
pious, or charitable, as per Muslim Law. It is not necessary that a
person must name a specific purpose. He can also declare that the
property may be used for any welfare works permitted by Shariat In
Zulfiqar Ali vs Nabi Bux, the settlers of a Wakf provided that the
income of certain shops was to be applied firstly to the upkeep of the
mosque and then the residue, if any, to the remuneration of the
mutawalli. It was held to be valid however, it was also pointed out that
if a provision of remuneration was created before the upkeep of the
mosque, it would have been invalid.
The following are some of the objects that have been held valid in
several cases - Mosques and provisions of Imam to conduct worship,
celebrating birth of Ali Murtaza, repairs of Imambaras, maintenance of
Khanqahs, burning lamps in mosques, payment of money to fakirs,
grant to an idgah, grant to colleges and professors to teach in colleges,
bridges and caravan sarais.
In Kunhamutty vs Ahman Musaliar AIR 1935, Madras HC held that if
there are no alms, the performing of cereme es for the benefit of the
departed soul is not a valid object.
Some other invalid objects are building or maintaining temple or church,
providing for the rich exclusively, objects which is uncertain.
5. Property vests in god – Once the dedication of the property is made to
the wakf, the ownership of the wakf is transferred to god. [Md. Ismalia
vs. Thakur Sabif Ali, 1962 SC 1722]. Under the Shia law also the
property of wakf vests in god. Thus, it seems to be that in respect of
wakf property in god there is no distinction between a Shia wakf and
Sunni wakf or a public wakf or private wakf.
6. Wakf must be Irrevocable – The irrevocability is another characteristic
feature of a wakf. Once constituted validly, a wakf cannot be revoked.
If in a wakfnama a condition is stipulated that the wakif reserves to him
the right of revoking the wakf or the wakf will stand revoked on the
happening of any event, then such a wakf is void. [Asoobai vs. Noorbai,
(1906) 8 Bom LR 18]
7. Wakf properties are Inalienable – Once a property is dedicated to the
god, they can’t be alienated. However this rule is not absolute and in
some circumstances, it is permissible that a mutawalli may alienate the
wakf properties, a mutawalli may sell or grant a lease of the wakf
properties with the prior permission of the court. When a wakfnama
allows selling wakf properties in some circumstances, then the mutawalli
has the power to alienate wakf properties in those circumstances.
Shia Law - Besides the above requirements, Shia law imposes some
more requirements for a valid Wakf. There are -
1. Delivery of possession to the first person in whose favour the Wakf
has been created is essential.
2. Dedication must be absolute and unconditional.
3. The property must be completely taken away from the wakif. It means
that the wakif cannot keep or reserve any benefit or interest, or even
the usufructs of the dedicated property.
Doctrine of Cypres
Cypres literally means "as near as possible", the doctrine lays down
that if a charitable intention has been expressed by the dedicator, a wakf (or
trust) will not be allowed to fail because the object specified by the settlor has
failed; in such a case the income will be applied for the benefit of the poor or
to objects as near as possible.
How is wakf created?
Muslim law does not recognize any form of creating a wakf. A wakf may
be made in writing or may be oral. There must be appropriate words to show
an intention to dedicate the property. The use of the word wakf is neither
necessary nor conclusive. To constitute a wakf it is not necessary that the
word ‘wakf’ should be used. A grant to the Kazi is compulsory for the purposes
of his performing religious or pious duties to constitute a wakf.
1. By an act inter vivos – It means during the lifetime. Thus a wakf is
created during the lifetime of the wakif and takes effect from that very
time.
2. By will– It stands in contradiction with the wakf. It takes effect after the
death of the wakif and also called testamentary wakf. A wakf by will
cannot operate upon more than one-third of net assets, without the
consent of the heirs.
3. During death illness (Marz-ul-maut) – The wakf made during the deadly
illness will operate only to the extent of one-third of the property without
the consent of the heirs of the wakif.
4. By immemorial user – wakf may be established by evidence of
immemorial user. For e.g., when a land has been from time immemorial
use for the purpose of a burial ground, it is a wakf by the immemorial
user.
Registration of Wakfs (Section 36, The Wakf Act, 1995)
The Act makes registration of every wakf compulsory. Mutawallis of
wakfs are required to move an application for registration of wakfs. Such an
application can also be made by a wakf or his descendants or a beneficiary of
a wakf. The application should state the following particulars:
1. a description of the wakf properties sufficient for the identification
thereof;
2. the gross annual income from such properties;
3. the amount of land revenue, cesses, rates and taxes annually payable
in respect of the wakf properties;
4. an estimate of the expenses annually incurred in the realisation of the
income of the wakf properties;
5. the amount set apart under the wakf for—
(a) the salary of the mutawalli and allowances to the individuals;
(b) purely religious purposes;
(c) charitable purposes; and
(d) any other purposes;
(e) any other particulars provided by the Board by regulations.
The Board may require the applicant to supply any further particulars
or information that it may consider necessary.
On receipt of an application for registration, the Board may, before the
registration of the wakf make such inquiries as it thinks fit in respect of the
genuineness and validity of the application and correctness of any particulars
therein and when the application is made by any person other than the person
administering the wakf property, the Board shall, before registering the wakf,
give notice of the application to the person administering the wakf property
and shall hear him if he desires to be heard.
Object of Wakf or in whose favour waqf can be made
The main essential for the validity of the wakf, is its object. If the object
is unlawful, the wakf would be void. So, the object of the wakf should be
recognized as religious, pious, or charitable under Muslim Law.
According to the Islamic texts, certain objects are declared as valid
objects for wakf. Those are:
1. Celebrating the birth of Ali
2. Construction of free boarding house for the Mecca pilgrims
3. Burning lamps in the mosque
4. Reading Quran in public places and at private houses
5. Grant to college and provisions for professors to teach in the colleges
6. Distribution of alms to poor persons and assisting them to perform
pilgrimage to Mecca
7. Repairs of Imambaras
8. Mosque to conduct worships
Invalid objects of wakfs
There are certain objects that are declared invalid according to the
Islamic texts. So, these objects are not recognized as valid objects for wakfs
by the Muslim Law.
1. Objects prohibited by Islam, like constructing a church or a temple
2. Uncertain objects
3. Provision for the repair of the wakf’s secular property is invalid
4. Wakf in favour of strangers, even though it is a substantial gift to
charity
Can a wakf be created for one's family/Children?
Wakf on one's children and thereafter on the poor is a valid wakf
according to all the Muslim Schools of Jurisprudence. This is because, under
the Mohammedan Law, the word charity has a much wider meaning and
includes provisions made for one's own children and descendants. Charity to
one's kith and kin is a high act of merit and a provision for one's family or
descendants, to prevent their falling into indigence, is also an act of charity.
The special features of wakf-alal-aulad is that only the members of the wakif's
family should be supported out of the income and revenue of the wakf property.
Like other wakfs, wakt alal-aulad is governed by Muhammadan Law, which
makes no distinction between the wakis either in point of sanctity or the legal
incidents that follow on their creation. Wakf alal aulad is, in the eye of the law,
Divine property and when the rights of the wakif are extinguished, it becomes
the property of God and the advantage accrues to His creatures. Like the
public wakt, a wakf-alal-aulad can under no circumstances fail, and when the
line of descendant becomes extinct, the entire corpus goes to charity.
The institution of private wakf is traced to the prophet himself who
created a benefaction for the support of his daughter and her descendants
and, in fact, placed it in the same category as a dedication to a mosque.
Thus, it is clear that a wakf can be created for one's own family, However,
the ultimate benefit must be purpose which is recognized as pious, religious
or charitable by Islam.
Conclusion
Wakf means detention of the property which is permanent, binding,
and enforceable by the law, and if a person feels that it is violated, can seek
remedy from the Civil Court. Wakf once created is transferred to god forever
and its usufruct is used by the poor people or used for the benefit of the
mankind. The wakif creates a wakf, who should be a major person with
soundness of mind and the object thereby used to create a wakf, must be a
lawful object and must be used for purposes that are recognized by the Muslim
Law.
Q. 20. What are the requirements of a valid will? Is bequest to an
unborn child valid?
Or
Discuss the power of a Muslim for making will regarding property as
well as person?
Or
How much property can be bequeathed under Muslim Law? To whom it
can be made? Discuss.
Or
Explain the limitations imposed by Muslim Law on the right to make a
will of one's property?
Ans. In Muslim law, the testamentary document called the will is referred
to as Wasiyat .Will or Wasiyat is a document made by the legator in favour of
legatee which becomes effective after the death of the legator. Under Muslim
law no person is entitled to make will of the whole property. Limitations are
imposed in making will. Wills are declared lawful in the Quran, though the
Quran itself does not provide for the testamentary restriction of onethird. The
permissibility of bequests up to one-third is traced to a Hadis of the Propeht
which has been stated by Sa’d Ibn Abi Waqqas and reported by Bukhari.
"A will is 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."
(Section 3 Indian Succession Act). Wills have been declared legal by Koran.
Frman says that "It is an instrument by which a person makes a
disposition of his property to take effect after his demise and which is in its
own nature ambulatory and revocable during his life."
Fatwa-i-Alamgiri defines a will to be "a conferment of a right of
property in a specific thing or in gratuity, to take effect on the death of the
testator."
A Will or Testament or Wasiyat has been defined as "an instrument by
which a person makes disposition of his property to take effect after his
death."
Tyabji defines Will as "conferment of right of property in a specific
thing or in a profit or advantage or in a gratuity to take effect on the death of
the testator."
Thus, will denotes the last desire of a person for the distribution of his
properties after his demise.
Thus, a will is constituted of two elements -
(a) conferment of right in a property,
(b) which is to take effect after the death of the testator.
The distinguishing feature of a will is that it becomes effective after the
death of the testator and it is revocable.
Unlike any other disposition (e.g. sale or gift), the testator exercises full
control over the property bequeathed till he is alive: the legatee or beneficiary
under the Will cannot interfere in any manner whatsoever in the legator's
power of enjoyment of the property including its disposal or transfer (in that
case the Will becomes revoked).
Object and Significance of Wills
The object of Wills according to the tradition of the Prophet is to
provide for the maintenance of members of family and other relatives where
they cannot be properly provided for by the law of inheritance.
At the same time the prophet has declared that the power should not be
exercised to the injury of the lawful heirs.
A bequest in favour of an heir would be an injury to the other heirs as
it would reduce their shares and would consequently induce a breach of the
ties of kindred.
Thus the policy of the Muslim law is to permit a man to give away the
whole of his property by gift inter vivos, but to prevent him, except for one
third of his estate, from interfering by Will with the course of the devolution of
property according to the laws of inheritance.
A Will offers to the testator the means of correcting to a certain extent
the law of succession, and enabling some of those relatives who are excluded
from inheritance to obtain a share in his property, and recognizing the services
rendered to him by a stranger.
The importance of the Islamic will is clear from the following two
hadith:
1. Sahih al-Bukhari: "It is the duty of a Muslim who has anything to
bequest not to let two nights pass without writing a will about it."
2. Ahmad and Ibn Majah: "A man may do good deeds for seventy years
but if he acts unjustly when he leaves his last testament, the wickedness
of his deed will be sealed upon him, and he will enter the Fire. If, (on
the other hand), a man acts wickedly for seventy years but is just in
his last will and testament, the goodness of his deed will be sealed
upon him, and he will enter the Garden."
Formality of a Will
As a general rule, no formality is required for making a Will. No writing
is necessary to make a Will valid, and no particular form, even verbal declaration
is necessary so long as the intention of the testator is sufficiently ascertained.
Where the Will is reduced to writing it is called a ‘Wasiyatnama.’ If it is in
writing it need not be signed. It does not require attestation and if it is attested
there is no need to get it registered.
Instructions of the testator written on a plain paper, or in the form of a
letter, that in clear cut terms provide for distribution of his property after his
death would constitute a valid Will.
In case, a Will is oral, the intention of the testator should be sufficiently
ascertained. In comparison to a Will in writing which is easier to prove, the
burden to prove an oral Will is heavy.
In Mazhar vs. Bodha, 21 All 91 a letter was written by a Muslim shortly
before his death, containing directions for the disposition of his property, was
accepted to constitute a valid will.
A will may be oral or in writing. When the will is in writing, no specific
form is laid down. It may not even be signed by the testator or attested by the
witnesses. [Ramjilal vs. Ahmed, 1952 MB 56] However, it is necessary that
the intention of the testator should be clear and unequivocal.
When a will is oral, no form of declaration is necessary. Obviously, the
burden of establishing an oral will is very heavy, and an oral will must be
proved with utmost precision and with every circumstance of time and
place. [Venkat vs. Namdeo, (1931) 58 IA 362]
Requisites of a Valid Will
a. The testator (legator) must he competent to make the Will.
b. The legatee (testatrix) must be competent to take the legacy or bequest.
c. The subject (property) of bequest must be a valid one.
d. The bequest must be within the limits imposed on the testamentary
power of a Muslim.
Testator and his Competence (Who can make Will)
In order to constitute a valid Will, the competency of the legator is the
foremost requirement. A legator is considered to be capable to make a Will if
he holds the following discussed features.
o He must be a Muslim
A Will made by a Muslim only is considered as an authentic Will under
Islamic law. If a legator is Muslim at the time of execution of the Will then only
the Will is governed by the Muslim Personal Law.
In a case where a Muslim has married under the Special Marriage Act,
1954, the Will made by such Muslim is regulated by the provisions of
the Indian Succession Act, 1925 and not by the Muslim Personal Law.
A situation may arise where the legator is a Muslim when he executed
the Will but afterwards renounced Islam, thus recognized as a non-muslim at
the time of death. A Will created by such a Muslim is considered as a valid Will
under Muslim law.
Since there are two schools of Muslim with different views, so, it must
be noted that a Will is governed by the rule of that school to which the legator
belongs at the time of the declaration of the Will. For example, if a legator is a
Sunni Muslim at the time of the creation of the Will, then the Sunni Laws of
Will is pertinent.
1. Soundness of mind
When the Will is being made, the legator must be sane. Under Muslim
law, it has been quoted that a legator must possess a perfect ‘disposing
mind’ at the time of execution of a Will. In other words, a legator must
be competent to understand his actions and the legal consequence of
what he is doing not only for the particular time period when the Will is
being made but also sustains the same till his death.
If a legator is of sound mind when the Will is declared and subsequently
turns insane and remains the same till death then, the Will made by
such legator becomes void. On the other hand, if a legator executed a
Will while he is insane then also the Will is considered as null and void
even if he recovers the insanity afterwards and remains the same till
death.
A Will made by an insane during his lucid interval will remain valid only
if the insanity does not last for more than a period of 6 months. An
insane person cannot ratify the Will after reattaining his sanity.
2. Age of majority
The legator must attain the age of majority at the time of execution of
the Will. In general, the age of majority under Muslim law is regulated
by the Indian Majority Act, 1875, with the exception in the case related
to marriage, dower and divorce.
Under the Indian Majority Act, the age of majority is specified as 18
years in ordinary case and 21 years if the person is under the supervision
of Courts of Wards. Any Will executed by a minor is considered to be
void. The validity of such Will is suspended till the legator attains
majority. Therefore, in order to create a valid Will, a legator should be of
18 years or 21 years as the case may be. As soon as the legator turns
into a major and ratifies the Will, the Will becomes valid in nature.
Legatee and his Competence (To whom Will can be made)
Besides competency of legator, there is one more essential requirement
of a valid Will and that is the competency of the legatee. The following are the
characteristics of a legatee who is capable of taking a Will executed by a
legator.
1. He must be a person in existence
A legatee is competent to take a Will on condition that he must be
living at the time of death of the legator. This is because a Will comes
into effect only after the death of the legator and not when it is made by
the legator. Thus, a legatee has to be a person in existence at the time of
death of the legator.
A Will can be declared in favour of a non-muslim, minor or an insane
person. What is important is that a legatee must be in existence and
competent to hold the property. The age, sex, caste, religion, gender
and state of mind is insignificant in order to become a lawful legatee. A
charitable or religious institution is also capable legatee and any Will in
favour of it is lawful.
2. Child in mother’s womb
A child in a mother’s womb is treated as a living person and thus, is a
competent legatee under Islamic law under two conditions. Firstly, he
must be in existence in the mother’s womb at the time of declaration of
the Will. Secondly, the child must be born alive within six months from
the date of execution of Will under Sunni law and within 10 months
under Shia law.
3. Murderer of Legator
A Will comes into effect only after the death of legator. Thus there is a
possibility that an avaricious and impatient legatee may cause the death
of the legator in order to grab the property as soon as possible.
A legatee kills or causes the death of the legator either intentionally or
unintentionally is not allowed to take the Will and generally disentitle
to take the property. However, under Shia law, if a legatee causes the
death of the legator either unintentionally, negligently or accidentally,
then he is qualified to take the property and the Will is treated as a valid
Will.
4. Consent of Legatee
Before transferring legal title to the legatee under a Will, it is important
to take the consent of the legatee to know whether he wants to accept
the Will or not. The acceptance can be expressed or implied. A legatee
has a complete right to disclaim the Will. So, if a legatee declines to own
any property bequeathed to him, then the Will is considered to be
incomplete and invalid.
5. Joint Legatee
Sometimes, legator issues Will jointly in favour of several legatees. In
such circumstances, the legatees are known as joint legatees. A Will
can be made in favour of joint legatees in two ways-
Where the share is specified
If the share of all the legatees is specified explicitly by the legator
himself under the Will, then there arises no point of confusion regarding the
share. The property Will be distributed as per the ratio mentioned by the
legator in the Will and each legatee Will get the respective share allotted to
him.
For example, if a legator executes a Will in favour of his three sons,
mentioning that the ratio of the distribution of S1: S2: S3 should be 3:2:1
respectively. Here the property Will be distributed among the three sons in
the same ratio as specified by the legator.
Where the share is not specified
It might be possible that under some cases, the share of each legator is
not explicitly described. In such cases, applying the general rule, the property
is supposed to be divided equally among the legatees. When a Will is made in
favour of a class of persons, such class is treated as a single legatee only and
each person gets the equal property.
For example, if a legator makes a Will under which the property is to be
given to a mosque and the poor people of the locality of the legator, then half
of the bequeathable property Will be given to the mosque and the remaining
half Will be distributed equally among the poor people in the locality.
Subject Matter of Will (Bequeathable Property) and its Validity
The testator must be the owner of the property to be disposed by will;
the property must be capable of being transferred; and, the property must he
in existence at the time of testator's death, it is not necessary that it should be
in existence at the time of making of Will.
Any kind of property, movable or immovable, corporeal or incorporeal,
may be the subject-matter of a Will.
In order to be a valid bequest the grant in the bequeathed property
must be complete or absolute. A bequest has to be unconditional. If any
condition is attached, say the legatee shall not alienate the subject of legacy,
the condition is void and the bequest is effective without condition.
Likewise, a bequest in future is void, and so does a contingent bequest.
However, an alternative bequest of property (i.e. to one or failing him to
the other person) is valid. Thus, when the testator willed that his son if existing
at the time of his death will take the bequest, if not in existence his son’s son
will, and failing both it will go to a charity, was held valid.
Creating of ‘life estate’ is not permissible under Sunni law; the bequest
of a life estate in favour of a person would operate as if it is an absolute grant.
Under Shia law, however, the bequest of a life estate in favour of one
and a vested remainder to another after his death is valid.
Testamentary Power and its Limits (Bequeathable one-Third)
Contrary to the general rule, there are certain restrictions on the
testamentary powers of a Muslim. There are two types of restrictions:
1. With respect to the extent of the property that can be bequeathed
If a Muslim desire to make a Will of his property, he is allowed to do so
only to the extent of one-third of the bequeathable property. This extent
of one-third is calculated after the expenses of his debts and funeral
etc. Any bequest exceeding the limit of one-third Will not come into
effect unless the heirs of the legator give their consent to it. In case the
heirs do not give their consent, then the bequest Will be valid to the
extent of one-third only and the remaining two-thirds Will be transferred
through intestate succession.
A Muslim who does not has any heir may bequest his property to
anyone and in whatsoever amount he may desire to give. But if a
Muslim bequest his property to a non-heir or a stranger, then the consent
of the legal heirs is of utmost significance if the property exceeds the
one-third of his total property.
The reason is to protect the rights and interests of the legal heirs which
may adversely affect in case of such bequest. If heirs give their consent
to give an entire property to a stranger, the Will is valid otherwise it is
valid to the limit of one-third.
2. With respect to the legatees to whom the property is given
Furthermore, the second restriction comes into action only where the
legatee is one of the heirs of the legator. Whether the property
bequeathed is one-third or less, the consent of the other legal heirs of
the legator is a dominant factor in order to establish a valid Will. The
ground of this rule is that a legator may make a bequest in favour of one
of the legal heirs giving more precedence to him which may result in a
feeling of jealousy and enmity among the other heirs.
On the other hand, Shia law doesn’t discriminate between an heir or a
non-heir. A bequest can be made in favour of anyone till the extent of
one-third of the property is treated to be valid. Thus, it can be concluded
that Shia law provides ample powers to make a Will as compared to
Sunni law.
Consent of Heirs
Consent by heirs under Sunni law, shall be given only after death of the
testator, while in Shia it may be before or after the death of the testator.
Consent must be definitive, whether express or implied by positive conduct,
and mere silence on the part of an heir will not amount to implied consent.
The attestation of the Will by the heirs and acquiescence in the legatee
taking possession of the property has been held to be sufficient consent.
In cases where only some of the heirs give their consent the shares of
those consenting will be bound, and the legacy in excess is payable out of the
consenting heir’s share. The consent of heirs who are insolvent has been held
effective in validating a bequest.
Consent once given cannot be later rescinded. Similarly, consent cannot
be given after an heir has previously repudiated it.
Bequest to Heirs and Non-heirs
Where the testator makes a bequest to heir as well as non-heir by the
same legacy, in absence of the consent of heirs, the legacy will not be invalid
in its entirety but will take effect with respect to non heirs. The rule is that as
far as possible, the Will, will be given the maximum effect that it is capable of.
Conclusion
A Will is a device which confers right to property to legatee in a gratuity
manner, postponed till the death of the legator. It provides an opportunity for
a legator to correct the law of succession to some extent. This is because it
empowers some of the relatives to obtain a share in the property who are
legally from excluded from inheritance under Islamic law. The Islamic law of
Will allows a person to devolve his property upon a person of his own choice.
But simultaneously, it maintains a rational balance between the law of
inheritance and devolution of property under a Will.
21. What are the kinds of Waqfs? Discuss the 'Waqf-alal aulad' in the
light of any famous decided case?
Ans. Waqf is an important social institution of Islam. It is a permanent
dedication by aMuslim of some specific property for religious and pious
purpose. Every Muslim of sound mind may dedicate his property by way of
waqf. It may be made verbally orin writing. The real purpose of making a waqf
is to acquire merit in the eyes of theLord; all other purposes are subsidiary.
Meaning
Literal meaning is "tying up or detention".
Definition
Waqf Act 1954
According to Sec 3 (i), "waqf means the permanent dedication by a
personprofessing Islam of any moveable and immovable property for any
purpose recognized by the Muslim Law as pious, religious or charitable."
Imam Abu Hanifa
Waqf is the detention of a specific thing in the ownership of the waqf
or appropriator, and the devoting or appropriator’s of its profits or usufruct in
charity on the poor or other good objects.
Thomas Patrick Hughes
Waqf means literally "Standing, stopping, halting". A term which in the
language of the law, signifies the appropriation or dedication of property to
charitable uses and service of God.
Qadi Abu Yusuf and Imam Muhammad
Waqf is the tying up of the substance of a thing under the rule of the
property ofAlmighty God, so that the proprietary right of the waqf becomes
extinguished andis transferred to Almighty God for any purpose by which its
profits may be appliedto the benefit of His creatures.
Classification of Waqf
a. According to Ameer Ali, waqf may be divided into three classes.
i For the affluent and the indigent alike.
ii. For the affluent and thereafter for the indigent alike.
iii For the indigent alone.
b. As regards relationship
i The waqif (but only in Hanafi Law)
ii The family or decedents of the waqif (Waqf’ Ala’l-awlad)
iii Unrelated persons
The law on the subject of waqf is in favour of descendents may be
divided conveniently two parts: the law before, and the law after the
Waqf Act 1913.
The Law before the Waqf Act 1913
Case Law
Abul Fata Mahmod Ishak v. Russomoy Dhur Chowdhry
The result of this decision was that if the gifts to charity were
substantial, notillusory, the waqfs were held valid; but where the waqfs
were founded for theaggrandizement of a family, or where the gifts
to charity were illusory or merelynominal, the waqfs were held to be
void
The Law after the Waqf Act 1913
This act purported to restore the law of the shari’at in India and to
overrule the law as laid down by the Privy Council.
c. A non Muslim
A non-Muslim is entitled to take the benefit of a waqf, provided that he
is not analien enemy.
Kinds of Waqf
Following are the kinds of waqf:
I. Private Waqf : It is waqf which is made for private individual.
II. Public Waqf : It is dedicated to the public at large. It is made purely for
somereligious or pious purpose.
III. Quasi Waqf : It is partly public and private
Public Wakf
A public waqf is not created solely for the settlor's family. It is for
the general religious and charitable purposes. In Wali Mohd. (dead) L.R.S.
V. Smt. Rahmat Bee and others, the offerings of prayers are not confined
to prayers at the tomb of the grantor or his family members. The grant
was by the head of the order and relates to prayers at a number of tombs
in the graveyard. It is, therefore, clear that a waqf of public nature was
created. Therefore, the direction for the conduct of Fateha at the
graveyard and to use the Rouse for those purposes is certainly valid
object of a waqf.
1. A public waqf is one for public, religious or charitable purposes.
2. A private waqf is one for the settlor's own family and descendants and
is technically called, waqf-ulal-aulad. Truly speaking, it is a family
settlement by way of waqf.
It was considered at one time that "to constitute a valid waqf there
must be dedication of property solely to the worship of God or to religious
or charitable purposes."
In other words, a private waqf was in no case valid. But this extreme
view is how no longer tenable, and a private waqf may now be made subject to
certain limitations.
Private Wakf
FAMILY WAQF : WAQF-ALAL-AULAD
A waqf may either be public or private. A public waqf is that in which
the beneficiaries are public generally. Where the beneficiaries are only the
members of the founder’s family or his descendants, the waqf is private. A
private-waqf is also called as a family-waqf or a waqf-alal-aulad. Through a
family-waqf, the founder may make provisions for the maintenance of his
children and descendants of coming generations.
Law Under the Waqf Validating Act, 1913
The family waqf is now being governed by the Mussalman Waqf
Validating Act, 1913. This enactment has removed the strict judicial conditions
for the validity of a family-waqf. Under this Act, it is now lawful for a Muslim
to constitute a waqf-al-al-aulad for the benefit of his family or children without
any concurrent and substantial gift to charity. The relevant provisions
regarding family-waqfs are given in Sections 3 and 4 of the Act. A brief account
of these provisions may be stated as under:
Section 3 of the Act
Section 3 of the Act lays down that it shall be lawful for any person,
professing Mussalman faith to create a waqf which in all other respects is in
accordance with the provisions of Muslim law, for the following, among other,
purposes:-
• for the maintenance and support wholly or partially of his family,
children or descendants, and
• where the person creating a waqf is a Hanafi Mussalman, also for his
own maintenance and support during his life time or for the payment of
his debts out of the rents and profits of the property dedicated:
Provided that the ultimate benefit is in such cases expressly or impliedly
reserved for the poor or for any other purpose recognised by the Mussalman
law as a religious, pious or charitable purpose of a permanent character.
Shia Law
The Waqf Validating Act, 1913 makes no difference between Shia and
Sunni law in respect of family-waqfs. The provisions of the Act are equally
applicable to both. But, Section 2(b) is applicable only to Hanafi Muslims.
Accordingly, a waqf for the benefit of one’s own self may be created only by
a Hanafi settlor. If the settlor is Shia, he cannot constitute any waqf for his
own benefits such as for his own maintenance or for payment of his debts.
Private Wakfs are those which provide benefit to private individuals,
including the settler's family or relations. Such a wakf is termed as wakf-alal-
aulad. The Mutawalli manages the wakf but he cannot alienate the property.
He is, however, more than a manager or superintendent, as he does not hang
on the pleasure of anybody else or to anybody. Under Muslim Law a private
wakf is subject to the same restrictions as any public wakf as the Law makes
no distinction between public and private wakfs. Both are subject to the rules
of divine property where the rights of the wakf are extinguished and it becomes
the property of God. Both the wakfs are created in perpetuity and the properly
becomes inalienable. Like public wakfs, a private wakf can under no
circumstances fail and when the line of descent becomes extinct, the entire
corpus goes to charity.
It may be clarified here that the term ‘private’ is used to connote wakfs
for private individuals. It does not include wakfs which are of public nature,
such as, a mosque. According to Muslim Law, there is nothing like a "Private
Mosque". A person can set apart an apartment for his own prayers, but if he
allows others to say their prayers in it, it assumes & public character. The test
whether a building is a mosque, it is enough to make it "wakf" provided that
public prayers are even once said with the permission of the settler.
According to Abu Yusuf, wakf is the detention of a thing in the implied
ownership of Almighty God in such a way that its profits may be applied for
the benefit of human beings, and the dedication when once made, is absolute,
so that the thing dedicated can neither be sold, nor given or inherited. In India
the view of Kazi Abu Yusuf is adopted.
In Jewun Dass v. Shah Kubeer-Ooddin, the Privy Council held that
after the creation of wakf, the right of the wakif is extinguished and the ownership
is transferred to the Almighty.
Fatawa-i-Alamgiri declares that "decrees in this country are given
according to Abu Yusuf."
In a recent case, Kassimiah Charities v. Secy. Madras State Wakf
Board“, the meaning of wakf was taken as the detention of the corpus in the
ownership of God in such a manner that its profits may be applied for the
benefits of His servants. The objects of dedication must be pious or charitable.
Hence, the three dominant characteristics of ‘wakf' can be summarized as
under:
1. In the first instance, the motive must be religious; a merely secular
motive would render the dedication a gift or a trust, but not a wakf.
2. Secondly, it must be of a permanent nature. A pious gift which is not a
permanent foundation may be a Sadaqa but cannot, in law, be termed as
a wakf.
3. And lastly, the usufruct is to be utilized for the good of mankind.
Quasi wakfs
Quasi-public wakfs are those, the primary object of which is partly to
provide for the benefit of particular individuals or class of individuals which
may be the settler's family, and partly to public, so they are partly public and
partly private.
Q. 22. Who is mutawalli? How he is appointed? Explain the powers of
Mutawalli in relation to Waqf property?
Ans. Mutwalli - Mutwalli, according to Muslim Law, is a Manager or
Superintendent of a wakf-property. He is not a trustee and as such the wakf-
property never vests in him. A Mutwalli can also not be the owner of a wakf
property because once it is dedicated for the purpose of wakf, it belongs to
Àlmighty'. In other words, a Mutwalli is a servant of God to manage the wakf-
property for the good of `His' creature. The rights and duties of a Mutwalli are
almost analogous to those of the trustee yet there is quite difference in between
these two. A Mutwalli has not only to bear the legal responsibilities but also
to perform moral and religious duties.
In Allah Rakhi v. Shah Mohammad (1934), the judicial committee called
Mutawalli as ‘procurator’. It is not correct to say that holder of the post of a
Mutawalli is not the holder of a mere office but is the holder of a property.
Who can be appointed as MUTWALLI?
Any individual who is of sound mind, who has attained the age of
majority and the person is capable of performing the functions which are to be
discharged under a particular waqf, can be appointed as Mutawalli of a waqf.
Both male and female of any religion can be appointed as a mutawalli. The
mutawalli must be capable of performing the particular duties under the wakf.
If religious duty or spiritual functions are a part of the duties of a mutawalli, a
female and non-muslim cannot be appointed as a mutawalli. Thus a woman or
a non-muslim cannot be Sajjadanashin (spiritual head), Khatib (one who reads
sermons), Mujawar of a dargah, an Imam of a mosque (one who leads
congression) or a mulla. A foreigner cannot be the trustee of any wakf property
in India.
In Shahar Bano vs Aga Mohammad(1907), Privy Council held that
there is no legal restriction on a woman becoming a mutawalli if the duties of
the wakf do not involve religious activities.
Any person of sound mind who has attained the age of majority can be
appointed as a mutawalli. [Syed Hasan v. Mir Hasan (1917)]
A minor may be a mutawalli where the office of mutawalli is hereditary
and the person entitled to succeed is a minor, or where the line of succession
is laid down in the wakf-nama and the office falls on a minor. [Piran vs. Abdool
Karim, (1891)]
Who can appoint MUTWALLI?
The wakif enjoys the full power of appointment of mutawalli. But if a
wakf is created without the appointment of a mutawalli, then
1. according to Imam Abu Hanifa and Imam Muhammad, the wakf fails;
2. according to Abu Yusuf, the dedication is valid and the wakif becomes
the first mutawalli;
3. according to Shia law, the wakf is valid and has to be administered by
the beneficiaries
Generally, the wakif appoints a mutawalli. He can also appoint himself
as a mutawalli. If a wakf is created without appointing a mutawalli, in India, the
wakf is considered valid and the wakif becomes the first mutawalli in Sunni
law but according to Shia law, even though the wakf remains valid, it has to be
administered by the beneficiaries. The wakif also has the power to lay down
the rules to appoint a mutawalli. The following is the order in which the power
to nominate the mutawalli transfers if the earlier one fails –
1. By the founder
2. Failing him, by the executor of the founder
3. Failing him, by the Mutawalli on his death-bed
4. Failing him, by the Court. The power of appointment is vested in the
District Court. When the court appoints a mutawalli, it will take into
consideration:
(a) the direction, if any, given by the founder (the court has the
discretion to disregard any direction of the wakif it feels that to
do so will be to the manifest advantage of the wakf)
(b) Preference should be given to a member of the wakif’s family
over an utter stranger.
(c) In a contest between wakif’s lineal descendant and one who is
not a lineal descendant, the court is free to exercise its discretion.
5. In some circumstances, a mutawalli may be appointed by a
congregation. But a mutawalli appointment by this method is possible
only in the case of a local wakf such as the mosque or a graveyard for
the members of a particular locality.
Powers of Mutwalli
A mutawalli may do all acts that are reasonable and proper for the
protection of the waqf property and for the administration of the waqf under
the circumstances of the case. In regard to his powers and duties, his position
is akin to that of a trustee. Being a manager or superintendent of the waqf , he
has the following rights –
(1) A mutawalli has the power of management and administration of wakf
properties. Since the properties vest in him, in those cases where they
are not in his possession, he can sue for possession.
(2) He has the full power of utilizing the wakf property for the purpose
which the wakf has been created. But he has no power of alienating the
wakf property unless the wakf deed specifically authorizes him to do
so.
(3) Mutawalli has the right to use the usufruct for the best interest of
waqf. Mutawalli is having the authority to take all reasonable decisions
and actions in good faith and ensure that the end beneficiaries are
getting all the called benefits from the waqf. Mutawalli is not the owner
of the property so he is prohibited from selling the property.
(4) Mutawalli can take authorisation from the Court in regards to sell and
borrow money by showing the Court the existence of appropriate
grounds or existence of such emergency.
(5) Mutawalli can also file a suit to protect the interest of the waqf.
(6) Mutawalli is entitled to remuneration as given by waaqif. If the
remuneration is very small then he can apply to the court for getting it
enhanced.
(7) Power of alienation with the permission of the court– It is now well
settled that a mutawalli can alienate the wakf properties with the prior
sanction of the court. Thus, if a mutawalli wants to sell, mortgage or
exchange the wakf properties, he must obtain prior permission of the
court. An alienation made by a mutawalli without the prior permission
of the court is not void ab intio. It is merely voidable. [Saheb Khan vs.
Madar Sahab, 1954 Orissa 239] An authorized alienation can be
challenged by any beneficiary it is not necessary to bring a
representative suit. [Thangachi vs. Ahmed Hussain, 1957 Mad 194].
(8) Power of granting lease – Ordinarily, a mutawalli cannot grant a lease
of the wakf property for more than three years if it is agricultural land,
and more than one year if it is non-agricultural property. A lease for
longer duration may be granted if the wakf-deed specifically permits
him to do so. Leases for longer periods may be given with the prior
permission of the court. The court has the power to sanction leases in
the interest of wakf, even if the wakf-deed specifically prohibits a
mutawalli to do so.
(9) He can appoint his successor on death bed; in case the founder and
executor of that wakf are dead and there is no scheme of succession
after outgoing Mutwalli.l
(10) He can appoint Deputy Mutwalli for his help.
A Mutwalli, however, cannot –
(1) Incur a debt - If a person advances a loan to a Mutwalli for carrying out
the purpose of a wakf, he cannot get remedy against the wakf properties.
If a decree is at all, passed against Mutwalli on account of any such
loan, it will not be binding on wakf properties.
(2) Grant lease - of wakf property for more than three years in case of
agricultural land and for more than one year in case of non-agricultural
land.
(3) Alienate the wakf property - unless the wakf deed specially authorises
him to do so or with the prior permission of the court.
(4) Sale the wakf property - or any of its part unless specifically authorised
by wakf-deed and with the prior permission of the Court. In Ahmad
Arif vs Wealth Tax Commissioner, SC held that a mutawalli has no
power to sell, mortgage, or lease wakf property without prior permission
of the Court or unless that power is explicitly provided to the mutawalli
in wakfnama.
(5) Take any beneficial interests in Waqf properties.
(6) Enhance the salary or allowance of officers or servant of Waqf unless
specifically authorised.
Removal of MUTWALLI
A mutawalli can be removed by following ways-
1. By Court- Once a mutawalli is duly appointed, he cannot be removed
by the waaqif. But the court will remove a mutawalli who-
a. denies the waqf character of property and sets up an adverse
title to it in himself, i.e., he claims it to be his own private property;
b. with sufficient funds in his hand neglects to repair the waqf
premises and allows them to fall into disrepair.
c. knowingly and intentionally causes damage or loss to the waqf
property or misdeals with (commits breach of trust).
In Bibi Sadique Fatima v. Mahmood Hasan (1978) the Supreme
Court held that use of waqf money for purchasing some property
in the name of his wife would amount to breach of trust.
d. proves unfit to discharge his duties;
e. if he fails to keep accounts;
f. when he allows the Waqf property to fall into decay by not
executing proper repair of the Waqf property;
g. if he fails to carry out the instructions of the founder of Waqf;
h. if he becomes insolvent;
i. where a mutwalli otherwise exceeds his powers in dealing with
the property, or
j. where the mutwalli suffers from any physical or mental incapacity.
2. By the Waqf Board- Under Section 64 of the Waqf Act, 1995, the Waqf
Board can remove the mutawalli from his office under the condition
mentioned therein.
3. By the Waaqif- Abu Yusuf was of the opinion that even if the waaqif
has not reserved a right to remove mutawalli in the waqf deed he can,
nevertheless removes him. Imam Mohammad however opined that
unless there is such a reservation, the waaqif cannot do so. The latter
view has been adopted in Fatwa-e-Alamgiri and is approved generally
in India.
Q. 23. What do you understand by right of pre-emption? In whom is
this right vested? What formalities are needed for acquiring this right?
Or
When and how can the right of pre-emption be claimed under Muslim
Law? Why the right of pre-emption is treated as a weak right?
Or
How one can claim pr-emption? Discuss the Constitutional Validity of
this right?
Ans. The idea of ‘pre-emption’ finds its origin in the Mohammedan
Law, and was unknown in India till the advent of Moghal rule. This was
administered as general law of land and applied to both Hindus and Muslim.
Later, it was introduced by the Britishers on the grounds of justice, equity and
good conscience even on the Muslims.
The word pre-emption is a right of substitution conferred on someone
either by statute, custom or contract. The right is to step into the shoes of
the vendee preferentially, on the terms of sale already settled between the
vendor and vendee. [Vijayalakshmi vs. B. Himantharaja Chetty, (1996) 9
SCC 376]
In the words of Mulla, "The right of Shuffa or Pre-emption is a right
which the owner of the immovable property possesses to acquire by purchase
another immovable property which has been sold to another person."
In Govind Dayal v. Inayatullah, I.L.R. 7 All. 775 Mohmood J. defined
the right of Preemption as " a right which the owner of certain immovable
property possess as such for quiet enjoyment of that property, to obtain in
substitution for the buyer, proprietary possession of certain other immovable
property not his own on such terms as those on which such later immovable
property is sold to another person."
The Muslim law of pre-emption is to be looked at in the light of the
Muslim law of succession.
Right of Pre-Emption and it’s Essentials
The right of ‘pre-emption’ or Shuffa is given to the owner of immovable
property to acquire another immovable property that has been sold to some
other person. It is the purchase by one person before all others. Therefore, it
is a right of substitution and not of re-purchase [Bishan Singh v. Khazan
Singh AIR 1958 ]. The objective behind this right is to maintain privacy and
prevent strangers to come in neighbour or in a family.
The pre-emption has also been defined by Justice Syed Mahmood as a
right given to the owners of an immovable property for quiet enjoyment of
that immovable property to obtain in substitution for the buyer, possession of
certain other immovable property, on such term that as those on which such
latter immovable property is sold to any other person [Govind Dayal v.
Inayatullah].
However, to exercise the right of pre-emption, there are certain conditions
that need to be satisfied. Those conditions are-
1. ownership over an immovable property,
2. sale of the property which is not of the person exercising the right of
pre-emption,
3. there should be some relation with respect to the property between the
pre-emptor and the seller of the land,
4. possession of the other property is given to the pre-emptor on the
same terms as on which the other person is given the right.
To exercise the right of pre-emption, pre-emptor has to perform certain
formalities. The pre-emptor has to declare his intention to assert the right
immediately after getting information regarding the sale (this is called talab-i-
mowasibat). The talab-i-mowasibat can also be made by the person
authorized by pre-emptor or by de facto guardians in case the pre-emptor is a
minor [Shamsuddin v. Aliauddin, (1913)]. Such declaration of the intention
should be made in the presence of two witnesses (this is known as talab-i-
ishhad). After that, the legal action gets initiated i.e. talab-i-tamlik. However,
the third stage to exercise the right is not mandatory while establishing the
right of preemption.
In Audh Behari Singh v. Gajendhar Jaipuri, AIR 1954 SC 41Supreme
Court observed: "The correct legal position seems to be that law of preemption
imposes limitation or disability upon ownership of a property to the extent
that it restricts the owner's unfettered right of sale and compels him to sell the
property to the co-sharer or neighbour as the case may be."
In Indira Bai v. Nand Kishore, AIR 1991 SC 1054 Supreme Court
held that right of preemption is a weak right and it can be defeated by estoppel.
Even in Muslim Law which is the genesis of this right, it is settled that the
right of preemption is lost by estoppel and acquiescence.
Nature of preemption under Muslim law
Personal Right:
The Calcutta and Bombay High Courts have held that right of pre-
emption is a personal right of the pre-emptor. These High Courts have held
that it is merely a right of repurchase from the vendee who is treated as the full
owner for all practical purposes till the right of pre-emption is exercised. The
right comes into existence only when ownership of the adjacent property has
completely passed on to the vendee i.e., when the sale is complete. Therefore,
it is a personal right against the owner of another property. Similarly, the
Bombay High Court had also held that the right was not an incident relating to
property but an option which is exercised by a Muslim owner after the
completion of a sale by owner of another property.
Pre-emption is Weak Right:
The right of pre-emption is a weak right. Claim of pre-emption operates
against the concept of ownership. In effect, the claim of pre-emption hints
directly against the absolute right of a person to own and possess a property.
In presence of this right, a bona fide purchaser has to give up his ownership
compulsorily in favour of the pre-emptor. It may be stated, therefore, that pre-
emption imposes a limitation or disability upon the ownership of a property
merely on the ground of future possible inconvenience of the pre-emptor. As
such, the right of preemption is feeble (weak) as well as defective right. This
means that the right is transitory in nature. The right may be lost in the event
of any slightest delay in its enforcement. Moreover, the right is defective in
the sense that it may be defeated by all lawful means e.g. by showing that
there was a gift or exchange and not a sale to the vendee.
When does the right arises
There are two circumstances under which the right of pre-emption
arises:
In case of sale
The right to claim pre-emption arises when the property is subjected to
a valid sale. Merely an intention to sell can’t be ground for claiming the right
of pre-emption. The sale excludes inheritance, gift, waqf, bequest of a lease in
perpetuity and sale includes exchange. The sale must be bonafide.
When the sale is complete
Mere intention to sell can’t give rise to the right to claim. The right to
make a claim arises when the sale is completed. According to Muslim law, a
sale is considered to be completed when the purchaser pays to the vendor
and the possession is transferred/ delivered by the vendor. It might not be
necessary that the execution of an instrument of sale is according to
the Transfer of Property Act 1882. Section 54 of TPA states that, sale of
property of the value of Rs. 100 and upwards is not complete unless made
through a registered instrument. Further, the High Court of Patna and Calcutta
stated that the right of pre-emption doesn’t arise until registration is completed
as per TPA.
It has been held in various cases that the court should look into the real
nature of the transaction. A deed which is called a gift, if it is, in fact, a sale
then, the right of pre-emption will arise. [Bhagwan Dutt vs. Brij, 1938 Oudh
27]
The right of pre-emption arises only in two types of transfer of property
– sale, and exchange. When it arises in respect of a sale, then the sale must be
complete, bonafide and valid. [Najam-un-nissa vs. Ajaib Ali, (1900) 22 All
342].
When right is lost
The right of pre-emption is lost in the following manner:
1. Omission to claim or waiver; or excessive delay in demanding it: when
the person entitled to this right, either expressly or impliedly waived it
or omits to assert immediately his right.
2. Death of pre-emptor: the right to pre-emption dies with the death of
pre-emptor, where the pre-emptor dies before enforcing it, under the
Hanafi law. Under Shafi’s and Shiite law, the right to pre-empt delegates
upon the pre-emptor’s heirs in the proportion of their right of inheritance.
3. Forfeiture of right: the right of pre-emption is forfeited in the following
conditions:
a. Where the pre-emptor releases it for consideration,
b. Tries to dispose of the subject of pre-emption to a stranger,
c. Partition is made of a property in respect of which the right of
pre-emption can only be claimed by coparceners,
d. There is some statutory disability with the pre-emptor as regards
the purchase of land in question concerned.
4. By release – The right of pre-emption is lost if the pre-emptor releases
the property for consideration to be paid to him. However, the right of
pre-emption will not be extinguished, if, before the completion of the
sale, the property was offered to the pre-emptor, but he refused to buy
it since the right of pre-emption accrues only after the completion of
the sale.
5. By misjoinder – If the pre-emptor joins himself as a co-plaintiff with a
person who is not entitled to claim pre-emption, then the right is lost
and the suit must be dismissed.
Formalities Necessary for the Exercise of the Right of Pre-emption
The Muhammedan law of pre-emption is a law of technicality, and the
existence of the right depends upon the full and complete observance of
formalities. Non-observance of any of the formalities will be fatal to the suit of
pre-emption. The two essential formalities are called "two demands". Fyzee
says that there are three demands, though admits that the "third demand" is
not really a demand.
First demand or talab-i-muwasibat
This requirement lays down that the pre-emptor asserts his claim
immediately on hearing of the sale, but not before. This is called talab-i-
muwasibat or the first demand. No specific form of asserting this demand has
been laid down. It is imperative that the first demand must be made as soon as
the fact of sale becomes known to the pre-emptor. Any improper or
unreasonable delay will imply an election not to exercise the right of pre-
emption. [Baijnath vs. Ramdhari, (1908) 35 Cal 402]
The first demand need not be made in the presence of witnesses. The
first demand to be valid must be made when the sale has been completed. If a
demand is made before the completion of the sale, it is totally ineffective.
Second demand or talab-i-ishhad
The pre-emptor should, as soon as practicable, affirm the intention of
asserting his right by making the second demand wherein he refers to the fact
that he had already made the right demand. This is called the second demand.
No specific form of asserting this demand has been laid down.
It is imperative that the second demand should be made in the presence
of two witnesses and in the presence of the vendor (if he is still in possession
of the property), or in the presence of the buyer.
Third demand or talab-i-tamlik
The occasion of talab-i-tamlik will arise only if the claim is not conceded,
and, therefore, the pre-emptor files a suit to enforce his right. Thus, the third
demand is not an essential formality.
Who can Pre-empt or the Classification of Pre-emptors
1. The shafi-i-sharik or a co-owner in the property.
2. The shafi-i-khalit or a participator in appendages. This expression
means a person who is entitled to such easements as a right of way, or
discharge of water.
3. The shafi-i-jar or owner of an adjoining property.
The right of pre-emption arises from full ownership, and it is immaterial
that a pre-emptor is not in possession of his property. It is the ownership and
not possession which gives rise to the right of pre-emption.
Pre-emption on the basis of co-sharers (Shafi-i-Sharik)
The owner of an undivided share in the immovable property previously
inherited from a deceased person. In the case where the other co-owner sells
his share to someone without first offering it to his co-sharer, then the co-
owner has a right to claim it back from the outsider. Nothing except sale will
bring to life the right of pre-emption. The right of pre-emption can’t be accessed
in the case of lease or mortgage. According to Shia law, pre-emption can be
claimed only when there are two co-sharer.
Pre-emption on the basis of a participator in immunities and appendages
(Shafi-i-Khalit)
The pre-emptor is known as a participator in immunities and appendages
There are three ways in which a person may be considered to be a Shafi-i-
Khalit:
1. he may be the owner of a dominant heritage;
2. he may be the owner of a servient heritage;
3. the property sold, also the property of the pre-emptor may be a
dominant heritage to a third person’s property.
Pre-emption on the basis of neighbourhood or vicinage (Shafi-i-Jaar)
The owner of adjoining immovable property, which is a neighbour. The
right of pre-emption on the ground of the vicinage doesn’t extend to the
estate of large magnitude; it is confined to houses, gardens, and small pieces
of land. Where more than one pre-emptor belongs to different categories, the
first category or class excludes the second, and the second excludes the third.
Constitutional Validity
Before the 44th Constitutional Amendment Act, 1978
In the case of Pyare Mohan v. Rameshwar (1980), the Court observed
that the right of pre-emption is a very weak right and a bona fide purchaser
cannot buy land which he is legally entitled to own.
Before 1978, the Indian Constitution also recognizes the right to property
as a fundamental right under section 19(1)(f). Therefore, pre-emption is not
favoured by the law as it seizes the property merely on the apprehension of
inconvenience.
The law of pre-emption infringes the fundamental right to hold and
dispose of property, guaranteed under Article 19(1)(f) of the Constitution.
Article 19(1)(f) of the Constitution of India states that all citizens have
the fundamental right to acquire, hold and dispose of the property. Also, as
per clause 5 reasonable restrictions can be imposed, in the interest of the
general public.
Though, the right to pre-emption was in direct contravention with the
fundamental right to property. However, the challenge to the right was justified
on the basis of article 19(5). It was contended that reasonable restriction can
be put on the fundamental right to property. Also, holding it unconstitutional
will go against one of the important principles of Islamic law as the practice of
pre-emption is a part of Muslim personal law.
Several High courts held that pre-emption on the ground of vicinage is
void, being an unreasonable restriction under Article 19(1)(f), but pre-emption
between co-sharers (shefi-i-Sharik) or owners of dominant and Shafi-i-khalif,
is protected by clause (5) i.e., reasonable restriction. In 1962, the Supreme
Court got an opportunity to decide the question of constitutionality in the
case of Bhau Ram v. Baji Nath.
In Bhau Ram v. Baij Nath Singh (1961), the Supreme Court held that
pre-emption by vicinage, restricts the right to dispose of property and not in
the public interest, the restriction imposed was not reasonable. Additionally,
it divided society based on caste and religion which is prohibited by Article
15 of the Constitution of India.
Later, in the year 1965, in the case of Sant Ram v. Labh Singh, the
Court with similar line holds the customary practice of pre-emption by vicinage
is unconstitutional.
After the 44th Constitutional Amendment Act, 1978
The entire debate over the constitutionality got altered after 1978 due
to the introduction of 44th amendment and application of the previous laws
has to be deal with carefully [Phulchand v. Lata Neemchand]. It rendered the
right to property merely a constitutional right under Article 300A and not a
fundamental right. However, the legality of pre-emption continues to remain
under judicial scrutiny. Since, the right to property was there as a constitutional
right, its reasonableness was checked under article 14 and 15 of the
constitution.
After the amendment, the validity of the Punjab Pre-emption Act, 1923
was challenged in two important cases. Firstly, in the case of Atam Prasad v.
State of Haryana [1986], the Supreme Court has to deal with s. 15(1)(c) of the
Punjab Pre-emption Act, which provided for the right of pre-emption to the
co-sharer or kinfolks of the vendor. In that case, the Apex Court held pre-
emption on the basis of consanguinity is unconstitutional. Secondly, in the
case of Krishna v. State of Haryana,[1994] the constitutional validity of
section 15(1)(b) was challenged, and the court declared that the pre-emption
on the basis of co-sharer is constitutionally valid.
In the case of Razzaque Sanjansaheb Bagwan v. Ibrahim Haji
Mohd (1998), the right of pre-emption was claimed on the ground by vicinage,
having property adjacent to the suit house. The Supreme Court observed and
held that the law of pre-emption constructed on vicinage is void and
unconstitutional; hence, the claim was dismissed.
When pre-emption by vicinage was made unconstitutional, this
approach of the judiciary was criticized by saying that such moves is uprooting
old institution of Islamic Jurisprudence. However, it is important to note that
the only form of pre-emption that was held unconstitutional is the pre-emption
on the basis of vicinage that is recognized by customary and statutory
provisions and not Islamic law. Also, no interference has been made by the
judiciary on the right of pre-emption based on co-ownership.
Q. 24. Differentiate between following:
1. Sadqah and Wakf
2. hiba and Wakf
3. trust and Wakf
4. Muslim Women(Protection of Rights on Divorce) Act 1986
and Section 125 Code of Criminal Procedure
Ans. Difference between Sadaqah and Wakf
Sadqah Waqf
1. The legal estate and not merely the The legal estate or the
beneficial interest passes to the ownership is not vested in the
charity to be held by the trustees trustee or the mutawalli but is
appointed by the donor. transferred to God.
2. Both the corpus and the usufruct The trustees of a waqf cannot
is age given away. Therefore, the alienate the corpus of the
trustee has the right to sell away property, except in the case of
the property itself. necessity with the prior
permission of the Court or when
authorised by the settlor to do
so.
3. It is in the form of a donation or It is an endowment.
a gift.
Difference between Hiba and Wakf
Hiba Wakf
1. The dominion over the object The right of waqif is extinguished
passes from one human being to and passes in favour of the
another. Almighty.
2. Delivery of possession is essential. In a waqf inter vivos, no delivery
of possession is essential. It is
created by the mere declaration
of endowment by the owner.
3. There is no limitation with regard It is contracted only for religious,
to the object for which it has been charitable or pious purposes. A
created. waqf for family purposes should
also be charity.
4. The property passes from one The right of waqif is absolutely
person to another and the absolute extinguished and passes in
right is transferred. favour of the Almighty, and a
mutawalli is appointed to
administer the waqf. The
beneficiaries have only the
interest in the trust to the extent
mentioned in the trust.
Difference between Trust and Wakf

Trust Waqf
1. The existence of a religious motive There should exist a religious
is not necessary for trust. motive behind creating a waqf.
2. A trustee may be beneficiary. A settlor, except a Hanafi one, is
not entitled to keep aside
any benefit for himself.
3. There has to a lawful object. The object has to be one which is
charitable, pious or religious
according to the Muslim
faith.
4. Involves double ownership- The ownership of the waqf is
equitable and legal. The property extinguished and the ownership
vests in the trustee. is vested in God.
5. The trustee has superior powers Mutawalli is a mere receiver and
of alienation because he is the legal manager.
owner.
6. A trustee does not have the power Mutawalli has the power
to demand remuneration. to demand remuneration.
7. It is not necessary that a trust Property is inalienable,
may be perpetual, irrevocable or
inalienable. irrevocable and perpetual.
8. Indian Trusts Act, 1882 applies to Indian Trust Act, 1882 is not
trust. applicable to
Muslim Women(Protection of Rights on Divorce) Act 1986 and Section 125

Code of Criminal Procedure
Muslim Women (Protection Section 125 Code of Criminal
of Rights on Divorce) Act 1986 Procedure
Jurisdiction Application is filed in the area Application where the husband is,
where divorced woman resides or resides or where he last resided
with his wife
Relief Reasonable and fair provision Allowed a monthly allowance, not
available and maintenance, or the amount exceeding Rs.500. No provision for
of mahr or dower paid, all maintenance by children, relatives
properties given at the time of or Wakf Board after Iddat
marriage or after marriage. If period.
unable to maintain herself, after
Iddat period relatives ordered to
pay maintenance and if no
relatives exist then Warf board
pays.
Punishment Imprisonment which may Imprisonment which may extend
on failure to extend to one year. to one month.
pay
Applies to Only to divorced woman To every married or divorced
woman.
Alteration/
allowance No such Provision. On change of circumstances
Alteration maybe made.
Maintenance Woman to be maintained by No such provision.
after Iddat her children or parents or
relatives or the Warf board.
Q. 25. Explain the general rules regarding inheritance under Muslim

Law?
Or
Discuss the inheritable property. When is it open?
Ans. We are living in a constitutional civilized society, but we have
no Uniform Civil Code in India except in Goa. Every religion practiced in India
has governed by its respective personal laws. Islamic Law of inheritance is a
mixture of the pre-Islamic customs and the rules introduced by the Prophet.
The Muslim Law of Inheritance derives its principles from four principal
sources of Islamic Law. They are as follows-
(a) The Holy Quran
(b) The Sunna (it is the practice of the prophet)
(c) The Ijmaa (it is the consensus of the learned men of the community on
what should be the decision over a particular subject matter)
(d) The Qiyas (it is the deduction based on analogy on what is right and
just in accordance with God).
Inheritance means the transfer of property to the living person from
the deceased along with any other transferable rights. Inheritance has a
different meaning in Islam. There is no particular definition of Inheritance in
the Quran but many Scholars have defined it in their own ways.
According to Sir Abdur Rahim, inheritance is the transfer of the rights
and obligations of the deceased person to his/her heirs.
Under the Indian legislative Scheme, the rules that govern inheritance
under Muslim law depend on the kind of property involved. Like, in case of
non-testamentary succession, the Muslim Personal Law (Shariat) Application
Act, 1937, will govern it. On the other side, in the case of testamentary
succession (it means, the person has created his will before the death); in this
case, the Shariat law of Muslim applies for the inheritance of the property of
the deceased, which is as applicable to Shia and Sunni.
In cases where the subject matter of the property is an immovable
property, specifically situated in the state of West Bengal or property falling
within the jurisdiction of the Madras and Bombay HC, the Indian Succession
Act, 1925, shall bound on the Muslims. This exception is only applicable to
testamentary succession.
Types of Heirs:-
There are two types of heirs under Muslim law – the Sharers and the
Residuary. Firstly, the Sharers are the ones who are entitled to a certain share
in the property of the deceased and, secondly, the Residuary (as the word
Residuary itself say) are the ones who would take up the share in the property
that is left over after the Sharers have taken their part from the property.
Total 12 relations fall under the category of Sharers in Muslim Law:
1. Husband,
2. Wife,
3. Daughter,
4. Daughter of a son (or son’s son or son’s son and so on),
5. Father,
6. Paternal Grandfather,
7. Mother,
8. Grandmother or the male line,
9. Full sister,
10. Consanguine sister,
11. Uterine sister, and
12. Uterine brother.
General Principles of Inheritance under Muslim Law
Unlike Hindu law, there is no provision of distinction between
individuals i.e. self-acquired or ancestral property. Each property that remains
within the ownership of a person can be inherited by his successors. Whenever
a Muslim dies, all his property whether acquired by him during his lifetime or
inherited from his ancestors can be inherited by his legal heirs. Consequently,
on the death of every such legal heir, his inherited property and property
acquired by him during his lifetime shall be transferred to his heirs.
The general principles associated with the Muslim Law of inheritance
are as follows –
1. Nature of heritable property: The meaning of heritable property is that
property which is available to the legal heirs for inheritance. After the
death of a Muslim, his properties are used for paying funeral expenses,
debts and wills. After the payment of these expenses, the remaining
property is called heritable property.
For the purpose of inheritance, the Muslim Law does not make any
difference between corporeal and incorporeal or movable and immovable
property. Any property which is in the ownership of the deceased at
the time of his death would be considered as heritable property.
Under the Shia law, a childless widow is entitled to get her share (1/4) in
the inheritance only from the movable property left by her deceased
husband.
2. Joint or Ancestral property: Unlike Hindu law, the Islamic law of
Inheritance does not recognize the concept of joint family or
coparcenaries property. Whenever, a Muslim dies, his properties will
pass on his heirs in definite share of which the heir becomes the absolute
owner. Similarly, on the death of such legal heir, the property owned by
him will devolve among his legal heirs and this same process continues.
Unlike Hindu law, there is no provision for Ancestral or Joint-family
property. And there is also not distinction between Self-acquired or
ancestral property.
3. Birthright under the Muslim Inheritance Law: Islamic Law follows
the principle of ‘nemo est haeres viventis’ i.e. nobody can become an
heir to a living person. This means under Muslim law, the legal right to
inheritance of property arises only upon the death of the deceased and
not upon the birth of the child. Another point to note is that an heir can
only gain a share in the property of the deceased if the heir outlives the
deceased. However, if the heir apparent dies before the deceased then
he or she will gain no right to inheritance and thereby their family
members cannot take up their share in place of them.
Under the Hindu law, a coparcenary gains interest or right in the
property of the deceased the moment such a coparcenary is born. This
right to property by birth is called Janmaswatvavad. But because there
is no concept of a joint family under Muslim law, there is no concept of
the right to property by birth either.
4. Doctrine of Representation: The Doctrine of Representation is a well-
recognized doctrine under the Roman, English and Hindu laws of
Inheritance. According to the Doctrine of Representation, the son of a
predeceased son represents his father for the purpose of inheritance.
The Muslim Laws of Inheritance does not recognize the Doctrine of
Representation because, under Muslim Law, the nearer excludes the
remoter. In simple words, if there are two heirs who claim the inheritance
for a common ancestor, the heir who is neared to the deceased will
exclude the remoter.
The justification is given by the Muslim Jurists for denying the right of
representation on the ground that a person has an inchoate right to the
propriety of his ancestor until the death of the ancestor. Subsequently,
they argue that there can be no claim through a deceased person in
whom no right could have been vested by any possibility.
5. Rights of Females: Under the Muslim law of Inheritance, both men and
women have given equal rights. On the death of an ancestor, nothing
can restrict both girl and boy child to become the legal heirs of the
inheritable property. However, it is generally found that the quantum of
share of female heir is half of that of the male heirs. The reason behind
this is that under Muslim law a female shall receive Mehr and
maintenance from her husband during marriage ceremony. Whereas, a
male will only have the property of the ancestors for Inheritance and
male have the duty of maintaining their wife and children.
6. Rights of a Widow: Under the Shia law, a Muslim widow who does not
have any children shall be entitled to inherit one-fourth share of the
property of the deceased husband. However, a widow with children or
grandchildren is entitled to one-eighth of the deceased husband’s
property. In cases where a Muslim man gets married during a period
when he is suffering from some mental illness and without consummating
the marriage, then the widow shall not be entitled to any right over her
deceased husband’s property. However, in case if her ill husband
divorces her and subsequently, he dies from that illness, then the widow
is entitled to a share of her husband’s property until she remarries.
7. Rights of Inheritance of a child in womb: Under Muslim law, a child in
the womb of a mother at the time of his/her father’s death shall only
entitle to inherit the property if he or she is born alive. In case, if the
child is born dead then the share, which vested in him, will cease to
exist and it will be presumed that it has never existed.
8. Right of Inheritance of the stepchildren: The stepchildren are not
entitled to any right to inherit the property of their stepparents. Similarly,
the stepparents are also not entitled to inherit the property from
stepchildren. However, the stepchild is competent to inherit the property
of his Natural Father or Natural Mother. Moreover, the stepbrothers (or
stepsisters) can inherit each other’s property.
9. Escheat: It refers to the transfer of right to the government to take
ownership of estate assets or unclaimed property. It occurs when a
Muslim person dies with no wills and no heirs, then the property of a
deceased shall go to the government. The State is then considered the
ultimate heir of Property.
10. Per-Capita and Per-Strip Distribution: Under Sunni law, the
distribution of the assets is per-capita.
Under the Shia law, if there are several heirs of the same class but they
descend from different branches, the distribution among them is per
strip.
11. Primogeniture: Primogeniture is a principle of inheritance under which
the eldest son of the deceased enjoys certain special privileges. Muslim
law does not recognise the rule of primogeniture and all sons are treated
equally.
However, under the Shia law, the eldest son has an exclusive right to
inherit his father’s garments, sword, ring and the copy of Quran, provided
that such eldest son is of sound mind and the father has left certain
other properties besides these articles.
12. Simultaneous Death of two Heirs: When two or more persons die in
such a circumstance that it is not ascertainable as to who died first (i.e.
who survived whom) then, both of them cease to be an heir for each
other. In other words, where two or more heirs die simultaneously and,
it is not possible to establish as to who died first then under Muslim
law, all the heirs are presumed to have died just at one moment. The
result is that such heirs are regarded as if they did not exist at all; the
inheritance opens omitting these heirs.
13. Missing Persons: According to the texts of Hanafi law, a missing person
was supposed to have been dead only after ninety years from the date
of his birth; till then the inheritance of his properties did not open. But,
now this rule has been superseded by Section 108 of the Indian
Evidence Act, 1872.
14. Marriage under the Special Marriage Act, 1954: Where a Muslim
contracts his marriage under the Special Marriage Act, 1954, he ceases
to be a Muslim for purposes of inheritance. Accordingly, after the death
of such a Muslim his (or her) properties do not devolve under Muslim
law of inheritance. The inheritance of the properties of such Muslims
are governed by the provisions of the Indian Succession Act, 1925 and
Muslim law of inheritance is not applicable.
Q. 26. How many kinds of heirs under Sunni Law? Discuss. Enumerate
those persons who are deprived or excluded from inheritance?
Ans. THE SUNNI (HANAFI) LAW OF INHERITANCE
Classification of Heirs
The legal heirs of a Sunni Muslim are classified into following
categories:
The Primary Class
(a) Sharers or Quranic Heirs
(b) Residuary Class or Agnatic Heirs
(c) Distant Kindred or Uterine Heirs
The Subsidiary Class
(A) The Principal Classes
The following three classes of heirs may be termed as principal classes
of legal heirs. The heirs included in any of the following classes are related to
the propositus by blood except the husband and widow who are related
through marriage.
(1) Sharers or Quranic Heirs
A Sharers are those heirs who are entitled to get a prescribed share
from the heritable property. The Sharers and their respective shares in
the property of a deceased are given in Quran. The Sharers are, therefore,
also called as Quranic heirs. In the distribution of property, the Sharers
get preference over the other class of heirs, therefore, first of all the
respective share is allotted to each Sharer. It may be noted that Sharers
are those heirs whose respective shares are given in Quran; therefore,
their shares cannot be altered by any human effort.
(2) Residuaries or Agnatic Heirs
Residuaries are those heirs who inherit only the residue of the property
after, allotment of respective shares to the Sharers. Obviously, the
Residuaries have no specific, share of their own. After giving the
property to the Sharers in their fixed shares, if there remains some
property that ‘remaining property’ (residue) is available to the
Residuaries. The residue may differ from case to case. If there are no/
Sharers, the whole is inherited by the Residuaries. Residuary heirs
are also termed as Agnatic heirs because they inherit through male
relations.
(3) Distant Kindred or Uterine Heirs
All those persons who are related to propositus through blood but
could not be included as heirs in the class of Sharers or of Residuaries,
are called distant kindred. If a popositus has neither Sharers nor
Residuaries, the properties are inherited by his Distant Kindred. Distant
Kindreds cannot inherit in presence of any Sharer or Residuary. The
heirs included in this class are also termed as uterine heirs.
(B) The Sharers:
Class I Heirs
Relations by Affinity
I. Husband
(i) The husband gets 1/2 if there is no (a) child or, (b) child of son
how low soever (hereinafter-called h.l.s.)
(ii) The husband gets 1/4 if there is (a) child, or (b) child of son h.l.s.
II. Widow
(1) The widow gets 1/4 if there is no (a) child, or (b) child of son
h.l.s.
(2) The widow gets 1/8 if she is with (a) child, or (b) child of son
h.l.s.
(3) If the propositus had-left more than one widow, all the widows
share equally out of the 1/4 or 1/8 share, as the case may be.
Relations by Blood
III. Father
(1) Father without (a) child or, (b) child of son h.l.s is treated as
Residuary i. e. ceases to be a Quranic heir and is entitled to get
the residue after allotment of shares to other Quranic heirs.
(2) Father together with (a) child, or (b) child of son h.l.s. gets 1/6.
In other words, in the absence of children the father becomes a
Residuary whereas in presence of the children his share is 1/6.
IV. True Grandfather
(1) True grandfather is entitled to inherit only in the absence of
father. That is to say, if the propositus dies leaving behind both,
father and a true grandfather, the true grandfather cannot inherit.
(2) If there is no father, the true grandfather inherits like a father.
That is to say, if there is no father, the true grandfather would
become Residuary in the absence of children. But, in presence
of the children a true grandfather gets 1/6.
V. Mother
(1) The share of mother is 1/3 in the absence of:
(a) child, or
(b) child of a son h.l.s., or
(c) two full sisters, or
(d) two full brothers, or a
(e) one brother plus one sister, whether full, consanguine or
uterine.
(2) The share of mother is 1/6 in the presence of:
(a) child, or
(b) child of son h.I.s., or
(c) two full sisters or
(d) two full brothers, or
(e) one brother plus one sister whether full, consanguine or
uterine.
(3) If mother is with father and there is also widow (or husband) the
mother gets 1/3 of what remains after deducting the share of
widow (or husband). In this peculiar combination the mother
(without children) does not get 1/3 of the whole property because
in that case father’s share would become half of mother which is
against the general principle that share of a male should be
double the share of female.
VI. True Grandmother
(1) The true grand-mother inherits only where she is not excluded
by the presence of any of the relations given below.
(2) If not excluded, the share of true grandmother is 1/6 whether she
is one or more than one. Two or more grandmothers get 1/6
jointly.
(3) A maternal grandmother is excluded from inheritance in the
presence of:
(a) mother, or
(b) a nearer maternal or paternal true grandmother.
(4) A paternal grandmother is excluded from inheritance in the
presence of:
(a) mother, or
(b) father, or
(c) a nearer true-grandmother whether maternal or paternal.
In other words, a maternal true-grandmother gets her 1/6 share
only in the absence of mother and any nearer grandmother. A
paternal true-grandmother gets her 1/6 share only in absence of
mother, father and any nearer true grandmother.
VII. Daughter
(1) The share of one daughter is 1/2.
(2) If there are two or more daughters, the share is 2/3 to be divided
equally among them.
(3) Daughter together with son, is treated as agnatic heir i.e. inherits
as Residuary.
VIII. Son’s Daughter
(1) The son’s daughter inherits only in the absence of :
• two or more daughters, or
• son, or
• higher son’s son, or
• two or more higher son’s daughter.
In other words the son’s daughter is entirely excluded from
inheritance in presence of the above relations.
(2) In the absence of above relations, the son’s daughter gets 1/2 if
single and, 2/3 if more than one.
(3) If son’s daughter is together with one daughter, the share of
son’s daughter is 1/6 whether such son’s daughter is single or
more. For example, if there is a daughter and two son’s daughters,
the share of son’s daughters would be 1/,6 which would be
divided equally among them i.e. each son’s daughter would get
1/12.
(4) Son’s daughter together with son’s son is treated as agnatic heir
i.e. inherits as Residuary.
IX. Full-Sister
(1) The share of one full sister is 1/2.
(2) The share of two or more full sisters is 2/3 to be divided equally
among them.
(3) If full sister is together with full brother, she becomes an agnatic
heir and inherits as Residuary.
(4) A full sister is excluded from inheritance in the presence of:
• child, or
• child of son h.l.s., or
• father, or
• father’s father.
X. Consanguine-Sister
(1) The share of one consanguine sister is 1/2.
(2) The share of two or more consanguine sisters is 2/3 to be divided
equally among them.
(3) With one full-sister, the share of consanguine sister is 1/6 whether
single or more.
(4) The consanguine sister is excluded from inheritance in the
presence of :
• child, or
• father, or
• father’s father, or
• two full sisters, or
• one full brother.
(5) With consanguine brother, the consanguine sister becomes
agnatic heir and inherit as Residuary.
XI. Uterine- Brother
(1) The share of one uterine brother is 1/6.
(2) If there are two or more uterine brothers, their share is 1/3 to be
equally divided among them.
(3) Uterine brother is excluded from inheritance in the presence of :
• child, or
• father or
• father’s father.
XII. Uterine-Sister
The share and the conditions under which an uterine sister inherits a
property is the same as that of uterine brother. That is to say
(1) The share of one uterine sister is 1/6.
(2) If there are two or more uterine sisters their share is 1/3 to be
divided equally among them.
(3) Uterine sister is excluded from inheritance in the presence of (a)
child, (b) child of a son, (c) father, and (d) father’s father.
Allot the shares in the following cases:
• A Sunni Muslim dies leaving behind his (a) father, (b)
father’s, father, (c) mother, (d) mother’s mother, (e) two
daughters and (f) son’s daughter.
• The propositus leaves behind her (a) husband and (b)
father as her legal heirs.
• A Sunni Muslim dies leaving behind the (a) mother, (b)
two sisters and (c) father.
• If the only heirs of a propositus are mother and father,
The Residuaries :
Class II Heirs
The Residuaries constitute Class H of the heirs of a Sunni propositus.
Where a propositus has no Sharer at all, the whole property is inherited by the
Residuaries. Secondly, if there are Sharers but after giving the property to
them, there remains a residue and among heirs there are also the residuaries,
the residue is distributed among such Residuaries. It may be noted that in
certain combinations the Sharers themselves are treated as Residuaries e.g.,
daughter with son, sister together with brother. A father without children (of
the propositus) is treated as Residuary.
It is significant to note that residuary heirs have no fixed share. Their
shares depend upon the amount of property left as residue which may vary
from case to case.
Descendants
Son
(i) When there is no daughter, the son takes the entire residue.
(ii) When the son is together with a daughter, the son gets double the
share of daughter.
Son’s son h.l.s.
Nearer son’s son excludes the remoter,
Two or more son’s sons inherit equally,
Son’s daughter together with son’s son becomes Residuary but the
son’s son gets double the share of Son’s daughter.
Ascendants
Father
As a Residuary., the father gets the entire residue.
True Grandfather
A true grandfather also takes the entire residue but a nearer true
grandfather excludes the remotor.
Collaterals : Descendants of Father
Full Brother
(i) If there is no full sister, the full brother inherits the entire residue.
(ii) If there is also a full sister, the full brother inherits with her but his share
is double the share of a sister.
Full Sister
In the absence of full brother and other Residuaries enumerated in the
preceding lines from (1) to (4), the full sister is treated as Residuary provided
there is (1) daughter(s) or (2) son’s daughter h.l.s. or (3) one daughter and a
son’s daughter h.l.s.
Consanguine Brother
A consanguine brother inherits together with consanguine sister but
the share of consanguine brother is double the share of consanguine sister.
Consanguine sister
In the absence of consanguine brother and any of the Residuaries
given above from ( 1) to (6) the consanguine sister is treated as Residuary and
takes the residue provided there is (1) daughter(s) or (2) son’s daughter(s)
h.l.s. or (3) one daughter and a son’s, daughter(s) h. l. s.
Full Brother’s sons
Consanguine Brother’s son In default of the above mentioned
Full Brother’s Son’s son Residuaries they take entire residue
Consanguine Brother’s Son’s son in order of priority.
Collaterals : Descendants of T.G. F.
Full paternal uncle
Consanguine paternal uncle
Full paternal uncle’s son
Consanguine paternal uncle’s son
Full paternal uncle’s son’s son
Consanguine paternal uncle’s son’s son
The Distant Kindreds:
Class III Heirs
In the absence of Sharers and Residuaries, the properties devolve upon
the Distant Kindreds or the Uterine Heirs of the propositus. However, there is
an exception to this general rule. Where the only heirs are the husband (or
widow) and the Distant Kindreds, the Distant Kindreds get the residue after
allotment of share to husband (or widow). In other words, normally the Distant
Kindreds are excluded by Sharers and Residuaries but in the exceptional
situation, the Distant Kindreds are entitled to inherit together with a Sharer
husband (or widow).
RULES OF EXCLUSION
(a) Homicide
A person who causes the death of another, is disqualified for inheriting
the properties of the said deceased. It is a rule of common prudence
that law cannot allow a person to derive benefits out of his own wrongs.
Under Hanafi law, an heir who causes the death either intentionally or
negligently, is a disqualified heir and cannot inherit properties of the
deceased. Thus, even if the death is caused due to negligent or
accidental act of an heir, the heir is debarred from inheritace.
Shia Law
Under the Ithna Asharia law, an heir is excluded from inheritance only
where the death is caused intentionally. If the death is caused
accidentally or negligently, the Ithna Asharia heir is not debarred from
inheritance
(b) Illegitimacy
Under Sunni law, an illegitimate person is not entitled to inherit the
properties of his (or her) father. But an illegitimate person is competent
to inherit the properties of mother. It is to be noted that under Sunni
law, an illegitimate child is entitled to inherit not only the mother’s
properties but through her also the properties of mother’s other relations.
In Bafatun v. Bilaiti Khanum, a Sunni female died leaving her husband
and an illegitimate son of her sister as her sole surviving heirs. The
husband took 1/2 of her assets and the remaining 1/2 was inherited by
her sister’s illegitimate son who was the only distant relative of the
deceased. It was held by the court that under Sunni law, an illegitimate
son was competent to inherit his mother and through his mother could
inherit also the properties of his mother’s sister. However, an illegitimate
child is not entitled to inherit mother’s those relations who became
relatives by any subsequent remarriage of the said mother.
(c) Difference of Religion
Under the Islamic texts, a non-Muslim is excluded from inheriting the
properties of a Muslim. But under the Muslim law as administered in
India, difference of religion is not any disqualification for inheritance.
A legal heir of the deceased Muslim cannot be debarred from inheritance
on the ground that such heir was not a Muslim at the time of death of
the deceased.
Under the Caste Disabilities Removal Act, 1850, renunciation of religion
by any heir does not affect his (or her) rights of inheritance under the
personal law to which that heir belonged before conversion.
Accordingly, a converted heir will continue to be governed by the
Muslim law of inheritance.
However, it may be noted that religion of the propositus i.e. deceased,
is an important factor because the properties devolve under the personal
law to which the propositus belonged just before his death.
In P. Chandrashekhar v. Govt. of Mysore, a Hindu woman converted to
Islam died as a Muslim. She had no heir under Muslim law. Her Hindu
brother claimed inheritance. It was held by the court that her Hindu
brother could not inherit because he was not an heir under Muslim law.
(d) Exclusion of Daughters under Custom or Statute
At certain places daughters are sometimes excluded from inheritance
under any local custom or under some specific enactment. For example,
among the Gujars and Backkerwals of Kashmir, there is a custom that
daughters cannot inherit in the presence of any male descendant of the
grandfather. Similarly, under the Watan Act, 1886, enforced in Bombay,
a daughter is excluded from inheritance in the presence of a paternal
uncle.

Leading Case 1.
Danial Latifi v. Union of India (2001) 1 SC 740
Leading Case 2.
Shabana Bano v. Imran Khan, AIR (2010) SC 305
Leading Case 3.
Mohd. Ahmed Khan v. Shah Bano Begum, AIR (1985) SC 945
Leading Case 4.
Shayara Bano v. Union of India and Ors., (2017) 9 SCC 1
Leading Case 5.
M/s Shabnam Hashmi v. Union of India AIR 2014 SC 1281
Leading Case 1
Danial Latifi v. Union of India (2001) 1 SC 740
Introduction
The case of Danial Latifi v. Union of India was a landmark case in the
Indian legal history in multiple aspects. Not only did the Court find itself in a
quagmire (difficulty) dealing with the issue of intrusion of the legislature into
the personal law of Muslims through legislation enacted after the
watershed Shah Bano Begum case, but the judges were also in unchartered
territories, in deciding on the extent of rights of Muslim women upon divorce
to seek maintenance from their former husbands after the period of iddat had
ended.
Background of the Case:
In Mohd. Ahmed Khan v. Shah Bano Begum, the Supreme Court was
concerned with the issue of interpreting Section 127(3)(b) of The Code of
Criminal Procedure, 1973.
This particular clause mandated that: “(3) Where an order has been
made under section 125 in favour of a woman who has been divorced by, or
has obtained a divorce from, her husband, the Magistrate shall, if he is
satisfied that – (b) the woman has been divorced by her husband and that
she has received, whether before or after the date of the said order, the whole
of the sum which, under any customary or personal law applicable to the
parties, was payable on such divorce, cancel such order…”
In essence, this meant that an order of maintenance granted in favour
of any divorced woman under section 125 of the same statute, could be
struck down and cancelled by the magistrate if such woman had received any
amount as was payable on divorce under the personal laws of the parties. The
question that arose now was whether the payment of the Mehr amount to the
wife upon or after divorce would qualify in this scenario and absolve the
husband from his obligation to maintain the divorced wife under section 125.
Facts of the Case:
1. The case was challenged before the Supreme Court to validate the
constitutional validity of the Muslim Women.
2. The above act (Protection of Rights on Divorce) was passed to pacify
a particular section of the society in accordance with the intention of
keeping ineffective the decision which was made in Mohd. Ahmed
Khan v. Shah Bano Begum.
3. During Shah Bano’s Case the husband had appealed against the
judgement which was given in M.P. High Court, Court directed him to
pay to his divorced wife Rs. 179 Per Month and enhancing the small
sum of Rs 25 per month originally granted by the Magistrate.
4. In the above case the couple had been married for about 43 years
before. The ill and elderly wife was thrown out of the husband’s house.
5. For 2 Months husband paid maintenance of Rs 200 Per Month, after
that payment by his husband was ceased so his wife under Section 125
Cr.P.C. filed Petition and said that his husband has immediately dissolved
the marriage under Triple Talaq Provision of Muslims.
6. He had Paid Rs 3000 as deferred Mahar and some maintenance for the
Iddat Period. Therefore petition was dismissed on grounds that she
had received the amount due to her on divorce under the Muslim law
applicability.
7. Most Important point of the case was that wife had matrimonial
relationship for more than 40 years and also she have borne 5 children
so she was incapable to take any career independently that is remarriage
was one of the impossible act of the case.
8. His husband, an advocate with income of RS 5000, provided Rs 200 per
month, to his wife who had shared half of her life and also matured his
5 children, was in desperate need of money for survival.
Concept of Mehr
Mehr, meaning dower in English, is the payment made by a groom to
his bride-to-be at the time of marriage, although the time of actual payment
can vary as per the type of Mehr. While prompt dower requires the payment to
be made immediately on demand of the wife, in cases of deferred dower, this
sum is paid at a particular event in the future until which it has been deferred.
The payment of dower is usually deferred to the time of divorce or the death
of the wife. The Mehr does not have to be in the form of money, rather it can
also consist of property, jewellery, furniture or other goods as may be specified
at the time of marriage.
In Shah Bano, the Court pointed out that the concept of Mehr was
more closely connected with marriage than with divorce, although a significant
portion of Mehr is payable at the time the marriage is dissolved, usually by
death or divorce. Further, it was opined that “it is a sum payable on divorce
within the meaning of Section 127(3)(b) CrPC and held that Mehr is such a
sum which cannot ipso facto absolve the husband’s liability under the Act.”
The Court then proceeded to consider the question of whether the payment
of Mehr can serve as an alternative to maintenance. The contention advanced
by the husband, in this case, was that Muslim law exempted him from any
responsibility towards his divorced wife beyond payment of any Mehr due to
her along with an amount to cover maintenance during the iddat period. It was
put forth that section 127(3)(b) conferred statutory recognition on this principle
of Muslim law.
The decision in Shah Bano
It was noted that if Mehr is not such a sum, then it cannot absolve the
husband from the rigour of section 127(3)(b), but even in that case, Mehr is a
part of the resources available to the woman and is taken into account when
considering her eligibility for a maintenance order and the quantum of
maintenance. Thus, it was concluded in the Shah Bano case that the divorced
women were entitled to apply for maintenance orders against their former
husbands under section 125 and such applications were not barred under
section 127(3)(b).
After referring to various textbooks on Muslim law, it was held that the
divorced wife’s right to maintenance ceased on the expiration of the customary
iddat period but the Court observed that the general propositions reflected in
those statements did not deal with the special situation where the divorced
wife was unable to maintain herself. In such cases, it was stated that it would
not only be incorrect but also unjust to extend the scope of the statements in
situations where a divorced wife is unable to maintain herself. It was opined
that the application of these statements of law must be restricted to those
cases where there is no possibility of vagrancy or destitution to the divorced
wife.
Muslim Women (Protection of Rights on Divorce) Act, 1986
After the Shah Bano case, the Parliament enacted the Muslim Women
(Protection of Rights on Divorce) Act, 1986. The Statement of Objects &
Reasons for the Act reads as follows:
“The Supreme Court, in Mohd. Ahmed Khan vs. Shah Bano Begum &
Ors. has held that although the Muslim Law limits the husband’s
liability to provide for the maintenance of the divorced wife to the
period of iddat, it does not contemplate or countenance the situation
envisaged by Section 125 of the Code of Criminal Procedure, 1973.
The Court 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. The Court, therefore, came to the
conclusion that if the divorced wife is able to maintain herself, the
husband’s liability ceases with the expiration of the period of iddat
but if she is unable to maintain herself after the period of iddat, she is
entitled to have recourse to Section 125 of the Code of Criminal
Procedure.”
The iddat period is defined under Section 2(b) of the Act to mean, in
the case of a divorced woman – (i) three menstrual courses after the date of
divorce, if she is subject to menstruation; (ii) three lunar months after her
divorce, if she is not subject to menstruation; and (iii) if she is pregnant at the
time of her divorce, the period between the divorce and the delivery of her
child or the termination of her pregnancy whichever is earlier.
The relevant portion of Section 03 of this Act reads as follows: “Mehr
or other properties of Muslim woman to be given to her at the time of divorce
— (1) Notwithstanding anything contained in any other law for the time
being in force, a divorced woman shall be entitled to — (a) a reasonable
and fair provision and maintenance to be made and paid to her within the
iddat period by her former husband.”
As held in the Shah Bano case, the true position is that if the divorced
wife is able to maintain herself, the husband’s liability to provide maintenance
to her ceases with the expiration of the period of iddat; but if she is unable to
maintain herself after the period of iddat, she is entitled to have recourse to
section 125. Thus, it was held that there is no conflict between the provisions
of section 125 and those of the Muslim Personal Law on the question of the
Muslim husband’s obligation to provide maintenance to his divorced wife,
who is unable to maintain herself.
However, section 3 of the Act did not seem to reflect this position of
law. It was not clear from the interpretation of the wordings of the provider
whether the divorced wife was entitled to seek maintenance and other
reasonable provisions from her husband if she was destitute and unable to
maintain herself properly. From the terms used in this section, it was implied
that the husband was liable for maintenance only in the period of iddat and
not beyond that, which was contrary to the position established in the Shah
Bano case and opposed to the very objects and reasons stated behind the
enactment of this Act.
Contentions of the Parties:
Petitioner:-
1. The purpose of Section 125 of Cr.P.C. was to meet a situation wherein a
divorced wife was likely to get benefitted from divorce so taking into
consideration the Article 21 of the Constitution of India which is related
to Protection of Life and Personal Liberty. Sec 125 of Cr.P.C. was enacted
to prevent such situations.
2. There could be violations of Article 14 & Article 21, if remedies of
section 125 in relation with Muslim Women are not applied.
3. If the applicability of the provisions of sec 125 of Cr.P.C. were not
applied in relation to Muslim women who are deprived then it will be
against the secular character of constitution of India.
Defendant:-
1. The Parliament could change sec 125 of Cr.P.C. so as to set aside its
application and apply personal law instead.
2. In a matter of Policy, the legislature wants to apply sec 125 Cr.P.C. to
Muslim women then it can be amended, withdraw or change its
implementation and its provisions.
3. Section 125 of Cr.P.C. is not made to create right of maintenance which
may be outside the scope of personal law, hence it could not stand as
an act.
The decision of the Court:
The Court held that “A careful reading of the provisions of the Act
would indicate that a divorced woman is entitled to a reasonable and
fair provision for maintenance. It was stated that Parliament seems to
intend that the divorced woman gets sufficient means of livelihood after
the divorce and, therefore, the word provision indicates that something
is provided in advance for meeting some needs. In other words, at the
time of divorce, the Muslim husband is required to contemplate the future
needs and make preparatory arrangements in advance for meeting those
needs.”
Elaborating further, it was opined that reasonable and fair provision
may include provision for her residence, her food, her clothes, and other
articles. It was held that the wording of the section would mean that the
husband is bound to pay maintenance to the wife before the expiration of the
iddat period and if he fails to do so then the wife is entitled to recover it as
provided in section 3(3). However, it has not been provided anywhere that the
reasonable and fair provision and maintenance is limited only for the iddat
period and not beyond it. The Court declared that the liability of a husband to
maintain his wife would extend to the whole life of the divorced wife unless
she gets married for a second time.
Ratio Decidendi:
The Court, while upholding the validity of the Muslim Women
(Protection of Rights on Divorce) Act, 1986, came to the following conclusions
on the various issues raised by the parties in the course of the hearings:
1. That, a Muslim husband is liable to make reasonable and fair provision
for the future of his divorced wife. Such provisions obviously include
maintenance for the wife as well. The scope of making reasonable and
fair provisions extends beyond the iddat period and must be made by
the husband within the iddat period in terms of Section 3(1)(a) of the
Act.
2. That, the liability of a Muslim husband towards his divorced wife arising
under Section 3(1)(a) of the Act to pay maintenance and make reasonable
provisions is not confined just to iddat period.
3. That, a divorced Muslim woman who has not remarried and who is
not able to maintain herself after iddat period can proceed as
provided under Section 4 of the Act against her relatives who are
liable to maintain her in proportion to the properties which they
inherit on her death according to Muslim law. If the relatives are
unable to provide maintenance, the State Wakf Board may be directed
to pay the same.
4. That, the provisions of the Act do not offend Articles 14, 15 and 21 of
the Constitution of India.
Conclusion:
Thus, through this landmark judgement, the Supreme Court of India
struck a fine balance between upholding the constitutionality of the Act and
preserving the rule laid down in the Shah Bano case previously. A very wide
net of interpretation was cast around Section 3 of the Act, which enabled the
Court to declare that the husband’s liability does not extinguish on the
expiration of iddat, rather in cases of vagrancy and destitution of the wife, the
husband will have to maintain her and make reasonable and fair provisions for
her even beyond such a customary period. Not only did the Court appear
progressive in determining the rights of women, but they also kept themselves
from meddling into the personal laws of the Muslim community. However, the
Court must be criticised for exercising too much restraint and adopting an
overly-cautious approach in this case where they refused to delve into many
issues in a bid to avoid controversy.
Leading Case 2
Shabana Bano v. Imran Khan, AIR (2010) SC 305
Introduction
The hue and cry of the Muslim society after the renowned Shah Bano
case[1985], made the Central Government frame Muslim Women (Protection
of Rights on Divorce) Act, 1986. This Act shaped a statutory obligation
upon the husband and families of the Muslim divorced women to provide her
with maintenance, in case she is incapable of sustaining by herself[Section 3,
Muslim Women (Protection of Rights on Divorce) Act, 1986]. The accurate
interpretation of the Act provides that, the divorced women are eligible for
maintenance within the ‘iddat period’[Section 2 (b), Muslim Women
(Protection of Rights on Divorce) Act, 1986.].Further the Apex Court in Danial
Latifi case[2001] held that Muslim husbands have to make rational and
equitable provisions for the future of the wife he is divorcing within the ‘iddat
period’ itself.
Background of the Case
The case was an appeal after its past judgement of Family Courtand the
High Court. The Family Court partially permitted the appellant’s appeal as-
1. The respondent shall be paying Rs.2000/- per month as alimony to the
petitioner from 26.4.2004, date of institution of the petition to the date
of divorce, i.e. 20.8.2004 and then after from 20.8.2004 to the period of
iddat and,
2. The respondent will be paying for the cost of the suit of both parties.
This case was then appealed to the High Court for revision which was
dismissed by the high court on the technical ground that, the Family Court
Act, 1984, which confer jurisdiction on the family court over district court
and subordinate civil courts has to be interpreted in a restricted manner.
The Supreme Court accepted the appeal moved by the Appellant
and overturned the reasonings given by the High Court. In reference to
the Iqbal Bano judgment[2007] the Apex Court stated that proceeding
under Section 125 CrPC is civil in nature and is completely on the discretion
of the court to treat the application under this Section like any other petition
under the Act.
Facts of the Case:
1) The Appellant (Shabana Bano) was married to the respondent (Imran
Khan) on 26/11/2001, according to the appropriate and necessary
Muslim rites. As per the appellant, after the marriage, the respondent
and his family treated her with cruelty and were continuously
demanding dowry from her.
2) After a while, when the appellant got pregnant, the respondent took
her to her parent’s house. Along with this he also threatened her that,
if his dowry requirements aren’t met then he wouldn’t take her back.
The Appellant delivered a baby in her parental house, and even after
that the respondent didn’t think it fit to take her back to her matrimonial
house.
3) The Appellant therefore requested for a particular amount of
maintenance, from her husband, which he denied instantly. The dispute
then went to the family court, and after that towards the Gwailor Bench
of High Court of Madhya Pradesh. Being dissatisfied with the judgment
given by both the courts, the appellant has now therefore approached
the Supreme Court.
Issue:
Whether a Muslim divorced wife would be entitled to receive the amount
of maintenance from her divorced husband under Section 125 of the Cr.P.C.
and, if yes, then through which forum?
Arguments:
Appellant: The counsel for appellant argued before the court that the
appellant was entitled to receive the sum of maintenance. According to
appellant, the respondent earned a monthly sum of 12,000 and out of which he
should provide a sum of Rs. 3000 to her on month to month as maintenance.
The claim of maintenance was brought through Section 125 of The Code of
Criminal Procedure, 1973. Also, the apex court in various previous judgments
had allowed the concept of maintenance to a divorced Muslim woman, even
after the completion of ‘iddat’ period.
Respondent: The counsel for respondent argued before the court that,
there is no specific statute, which states that a Muslim husband is liable to
pay maintenance to his divorced wife, even after the completion of ‘iddat’
period. Apart from that it was the contention of the respondent that, the
appellant has been earning Rs. 6000 per month by giving private tuitions, and
therefore didn’t require the sum of maintenance. Another argument presented
by the respondent was that there were no provisions under Muslim Women
(Protection of Rights on Divorce) Act, 1986, to provide maintenance
Related Provisions
Section 125 of Code of Criminal Procedure, 1973(CrPC): Order for
maintenance of wives, children and parents. In case his wife is unable to
maintain herself, ”wife” includes a woman who has been divorced by, or has
obtained a divorce from, her husband and has not remarried.
Section 20 of the family Act, which makes the situation crystal clear
that the provisions of the Act shall have an overriding effect on all other
enactments in force dealing with the issue of maintenance,
Judgement:
The Court observed that Section 5 of the Muslim Women Act deals
with the possibility to be governed by the provisions of Section 125-128 of
the Cr.P.C. Section 7(1)(f) of the Family Courts Act, 1984 provides Family
Courts with the authority to try suits or proceedings for maintenance. Also,
Section 20 of the Family Act provides that the Act shall have a superseding
effect on all other enactments in force dealing with this matter. Thus, a Family
Court recognized under the Family Act shall entirely have jurisdiction to
arbitrate upon the claims filed under Section 125 of Cr.P.C.
Proceedings under Section 125 Cr.P.C. are civil in nature. The Court
noticed that there was a divorced woman in the case in question; still, it was
open to accepting the petition under the Act bearing in mind the beneficial
character of the legislation. The appellant’s petition under Section 125
Cr.P.C. would be sustainable in front of the Family Court as long as the appellant
does not remarry. The sum of maintenance to be awarded under Section 125
Cr.P.C. cannot be delimited to the iddat period only. The Family Act being a
beneficial piece of legislation, the benefit thereof must be given to the divorced
Muslim women. Thus, the matter was remanded to the Family Court, Gwalior
for its disposal on merits in accordance with the law. Even if a Muslim woman
has been divorced, she would be eligible for the entitlement of maintenance
from her husband under Section 125 of the Cr.P.C, after the expiry of the period
of iddat also.
Reasoning of the Court:
The rational of the court, upon which the judgment was given, is historic
as well as mesmerising. The belief that, the family law statutes and legislations
are meant for the welfare of the deprived person was once again proved by the
Hon court. The broad question before the court was that, whether a divorced
Muslim woman can claim maintenance from her husband, even when the
‘iddat’ period is over? As stated, the court decided that Yes, a divorced Muslim
woman can claim maintenance, even after the ‘iddat’ period.
There were various reasons for the court to arrive at this conclusion.
The two precedents, which the court took into consideration, and which helped
immensely, while solving the dispute were, “Danial Latifi and another v. Union
of India, (2001) 7 SCC 740 (Const. Bench) and Iqbal Bano v. State of U. P. and
another, (2007) 6 SCC 785”. In both of these cases the significance of Section
125 of Cr.P.C. is highlighted. These two cases further explain how this section
is a beneficial legislation for a divorced woman. The judges thus observed
that, “in light of the findings already recorded in earlier paras, it is not
necessary for us to go into the merits. The point stands well settled which we
would like to reiterate”. Thereby, they re-iterated what was already discussed
in the cases, and declared in their judgment that a divorced Muslim woman
can claim maintenance, even after the ‘iddat’ period.
Conclusion
From this case, it can be inferred that even after a Muslim woman has
been divorced, she would be eligible to claim maintenance from her husband
under Section 125 of the Cr.P.C. after the expiry of period of iddat also.
Leading Case 3
Mohd. Ahmed Khan v. Shah Bano Begum, AIR (1985) SC 945
Introduction:
The Supreme Court in this revolutionary case dealt with the issue of
maintenance to be given to an aggrieved divorced Muslim woman by her
husband after the divorce. The Supreme Court referred to the holy Quran
as the authoritative text with a great emphasis on the friction between
Section 125 Code of Criminal Procedure Code and Muslim Personal Law.
While the appeal of the husband to not provide maintenance was denied,
the same received substantial resistance and was claimed to be against
the Islamic law. The then Government declared the law to only be valid in
the iddat period. The case was later upheld by the apex court in further
decisions.
Background
Section 125(1) of the Criminal Procedure Code, deals with the answer
to the question as to “Who can Claim Maintenance?”
1. Wife from his husband,
2. Legitimate or illegitimate minor child from his father,
3. Legitimate or illegitimate minor child (physical or mental abnormality)
from his father, &
4. Father or mother from his son or daughter.
Essentials conditions for granting maintenance include the following
points:
1. Sufficient means for maintenance are available (person who has to give
the maintenance should have means to give the same).
2. Neglect or refusal to maintain after the demand for maintenance (if the
person defaults or omits to provide maintenance or if he denies his
obligation of maintaining then it amounts to neglect or refusal
respectively).
3. The person claiming maintenance must be unable to maintain himself/
herself (only if the person is unable to maintain themselves).
4. Quantum of maintenance (depends on the standard of living).
Facts of the case:
1. The plaintiff, SHAH BANO BEGUM, and the respondent, MOHD.
AHMED KHAN, who was an affluent and well known advocate in
INDORE, was married in 1932. And then they had 5 children from the
marriage.
2. After 14 years, the respondent took a younger woman as his new wife.
3. In 1975, the plaintiff who was 62 years old at that time was disowned by
her husband and was thrown out along with her children from her
matrimonial house.
4. In April 1978, the respondent stopped giving maintenance of rupees
200 per month as he promised before. The plaintiff filed a suit in lower
court, against her husband (respondent), under section 125 of CODE
OF CRIMINAL PROCEDURE (CrPC).
5. In November1978, the respondent gave divorce to the plaintiff by
articulating “TRIPLE TALAQ” and which was irrevocable.
6. After the respondent pronounced the irrevocable “TRIPLE TALAQ”
he took a safeguard that since because of this divorce the plaintiff has
been terminated from being the respondent’s legal wife and due to that
the respondent was not accountable to furnish her with maintenance
or alimony. Except the amount prescribed under Islamic law which was
in total of rupees 5,400 as “MEHR”.
7. The lower court gave the judgement in the favour of plaintiff and directed
the respondent to give the maintenance of rupees 25 per month to the
plaintiff. Then
8. The plaintiff appealed in high court as to alter the amount of maintenance
decided by the lower court.
9. The high court gave the judgement in which it increased the amount of
maintenance from rupees 25 to rupees 179.20 every month. Then
10. The respondent appealed in the Supreme Court by saying after divorce
he cannot keep any form of alliance or connection to his divorced
wife as it is not allowed by the Islamic law, and it is “HARAM” in
‘ISLAM’ so he is not legally entitled to maintain, his divorced wife,
plaintiff.
11. On 3 February 1981, the two-judge bench composed of Justice
MURTAZA FAZAL ALI and A. VARADARAJAN who first heard the
case matter, and gave the judgement that held that section 125 of
CrPC, applies on Muslims also.
12. Then the respondent appealed to a larger bench.
13. Muslim bodies, All India Muslim Personal Law Board and Jamiat Ulema-
e-Hind joined the case as intervenor.
Issues:
1. Criminal Procedure Code (II of 1974), Section 125. Whether the “WIFE”
definition includes a divorced Muslim woman?
2. Criminal Procedure Code (II of 1974), Section 125. Whether it overrides
personal law?
3. Criminal Procedure Code (II of 1974), Section 125. Whether a Muslim
husband’s obligation to provide maintenance for a divorced wife is in
or not in the conflict between section 125 and Muslim Personal Law?
4. Criminal Procedure Code (II of 1974), Section 127(3) (b). What is the
sum payable on divorce? The meaning of Mehar or dower is not summed
payable on divorce?
Contentions of the Parties:
The plaintiff contentions was that according to section 125 of Code of
Criminal Procedure says that any person having sufficient means neglects or
refuses to maintain his wife, children or parents who are unable to maintain
themselves, a Judicial Magistrate First Class may order such person to pay
maintenance to them. And essentials for a wife who can claim maintenance
are:
a. A wife who is unable to maintain herself can claim maintenance from
her husband even if she is minor.
b. Only a legally married wife can get maintenance and second wife or
mistress cannot get maintenance. A woman is not entitled to
maintenance merely because she had stayed together with a person.
c. A wife who has been divorced and has not remarried is entitled to
maintenance.
And the plaintiff was unable to maintain herself and she was legally
married to him and has been divorced by her husband and has not remarried
so, she was entitled to claim the maintenance by her husband.
But the contentions of the respondent was that as according to
the Islamic law, after irrevocable divorce “TRIPLE TALAQ” which was
his prerogative under Islamic law, the plaintiff had ceased to be his wife
and therefore he was under no obligation to provide maintenance for her
as except prescribed under the Islamic law which was in total of Rs. 5,400
as “MEHR”. And he cannot keep any form of alliance or connection to
his divorced wife as it is not allowed by the Islamic law, and it is
“HARAM” in ‘ISLAM’ so he is not legally entitled to maintain, his
divorced wife, plaintiff.
Judgment
1. The verdict was given by C.J, Y.C Chandrachud, and the appeal of
Mohd. Ahmed Khan was dismissed.
2. Supreme Court said Section of the code applies to all citizens
independent of their religion and consequently Section 125(3) of Code
of Criminal Procedure is pertinent to Muslims as well, without any
sort of discrimination. The court further stated that Section 125 overrides
the personal law if there is any conflict between the two It makes clear
that there’s no strife between the provisions of Section 125 and those
of the Muslim Personal Law on the address of the Muslim husband’s
obligation to provide maintenance for a divorced wife who is incapable
to maintain herself.
3. Supreme Court in this case duly held that since the obligation of Muslim
husband towards her divorced wife is restricted to the degree of “Iddat”
period, indeed though this circumstance does not contemplate the rule
of law that’s said in Section 125 of CrPc., 1973 and subsequently the
obligation of the husband to pay maintenance to the wife extends
beyond the iddat period in the event that the wife does not have
sufficient means to maintain herself. It was further stated by the court
that this rule according to Muslim Law was against humanity or was
wrong because here a divorced wife was not in a condition to maintain
herself.
4. The payment of Mehar by the husband on divorce is not sufficient to
exempt him from the duty to pay maintenance to the wife.
5. After a long court procedure, the Supreme Court finally concluded that
the husbands’ legal liability will come to an end if a divorced wife is
competent to maintain herself. But this situation will be switched in the
case when the wife isn’t able in a condition to maintain herself after the
Iddat period, she will be entitled to get maintenance or alimony under
Section 125 of CrPC.
Case laws Stated
1. Fuzlunbi v. K. Khader Vali and another [(1980) 4 S.C.C. 125]
2. Bai Tahira v. Ali Hussain Fissali Chothia & ANR. [(1979) 2 S.C.C. 316]
3. Nanak Chand v. Chandra Kishore Aggarwal & others [A.I.R. 1970 S.C.
446]
4. Mst Jagir Kaur & ANR v. Jaswant Singh [A.I.R. 1963 S.C. 1521]
5. Hamira Bibi v. Zubaida Bibi [A.I.R. 1916 P.C. 46]
6. SyedSabir Husain v. Farzand Hasan [A.I.R. 1938 P.C. 80.]
Reasoning
• Either Section 125 of the Code applies to Muslims and does the “WIFE”
definition includes a divorced Muslim woman or not?
The SC after referring to Section 125 of CrPC said that ”The religion
professed by a spouse or by the spouses has no place within the scheme
of these provisions. It would be irrelevant within the application of
these provisions if the spouses are Hindus, Muslims, Christians, Parsis,
pagans, or heathens. The rationale for this can be self-evident, in the
sense that Section 125 is a part of the CrPC, not of the Civil Laws
which define and govern the rights and commitments of the parties
belonging to specific, religions, similar to the Hindu Adoptions and
Maintenance Act, the Shariat, or the Parsi Matrimonial Act. Section
125 was enacted to provide a fast and summary remedy to a category
of persons who are unable to maintain themselves…” (Para 7)
“Clause (b) which is the Explanation to section 125(1), which defines
‘WIFE’ as including a divorced wife, contains no words of limitation
to justify the exclusion of Muslim women from its scope. Section 125 is
truly secular in character.” (Para 7)
Hence, the code applies to any or all religions including Muslims.
Para 9 of the judgment asserts that “‘Wife’ means a wife as defined,
irrespective of the religion professed by her or by her husband.
Therefore, a divorced Muslim woman, unless remarried, is a ‘wife’
under section 125 of the code. The statutory right available to her
under it is unaffected by the provisions of the personal law applicable
to her.”
This clears the very fact that “Wife” includes divorced women too.
• Either Section 125 of CrPC overrides personal law or not?
The Court in replying to the present question gave the illustration of
the Islamic Law concerning polygamy: It is too well-known that “A
Mahomedan may have as many as four wives at the same time but not
more. If he marries a fifth wife when he has already four, the marriage
isn’t void, but is irregular”. Subsequently, the court stated “The
explanation confers upon the wife the right to refuse to live together
with her husband if he contracts another marriage, leave alone three
or four other marriages. It shows, indubitably, that section 125
overrides the personal law if is any there conflict between the two.”
• Is there’s any disagreement between the provisions of Section 125
and those of the Muslim Personal Law on the liability of the Muslim
husband to provide for the maintenance of his divorced wife?
Answering this proposition court stated- “The argument of the
appellant that, according to the Muslim Personal Law, his liability
to provide for the maintenance of his divorced wife is prescribed
only to the period of iddat, even if she is unable to maintain herself,
has, therefore, to be rejected. The true position is that, if the divorced
wife can maintain herself, the husband’s liability to provide
maintenance for her ceases with the expiration of the period of iddat.
If she is unable to maintain herself, she is entitled to take recourse
to section 125 of the CrPC. The result of this discourse is that there’s
no strife between the provisions of section 125 and those of the
Muslim Personal Law on the question of the Muslim husband’s
commitment to providing maintenance for a divorced spouse who is
unable to maintain herself.”
• Is the payment of Mehar by the husband on divorce is adequate enough
to exculpate him of any obligation to pay maintenance to the wife?
Quoting the ruling given in Bai Tahira where Justice Krishna Iyer held
that “…The payment of illusory amounts (referring to ‘Mehar’) by
way of customary or personal law requirement is to be considered
within the reduction of maintenance rate but cannot annihilate that
rate unless it’s a reasonable substitute.” (p.82, Bai Tahira), the SC in
this case held “…there is no escape from the conclusion that a divorced
Muslim wife is entitled to apply for maintenance under section 125
and that, Mehar isn’t a sum which, under the Muslim Personal Law, is
payable on divorce.”
Aftermath
Article 44 of the Directive Principles in the Constitution, directs the
state to provide for its citizens a Uniform Civil Code throughout the territory
of India. C.J Chandrachud while giving judgment stated the need to implement
the same. He said “A common civil code will help the cause of national
integration by removing disparate loyalties to laws which have conflicting
ideologies. A beginning has to be made if the Constitution is to have any
meaning.” This simulated the debate on the Uniform Civil Code in India.
Shah Bano’s case judgment was criticized by many Muslims especially
Muslim scholars. They considered this decision in conflict with the rules of
the Quran and Islamic Laws/Islam. Subsequently, the Parliament of India in
1986 decided to enact the Muslim Women (Protection Of Rights Of Divorce)
Act, 1986. Protecting the rights of the divorced Muslim Women and of those
who have got divorced from their husbands, was the main objective of this
act. Under this act:
1. Muslim divorced women ought to be entitled to an adequate and
reasonable sum of maintenance till the Iddat period.
2. When a divorced woman keeps up a child born by her anytime,
sometime recently or after the divorce, the spouse is under a legal
obligation to supply a certain whole of maintenance for the child to a
period of 2 yrs.
3. From the birth date of a child. The women are also authorized to get
“Mehar” or “dower” and get back all the properties or estate which is
given to her by her guardians, companions, relatives, husband, or
husband’s friends.
Conclusion
Though the court took a long time the decision of rejecting the appeal
is very historic because it keeps up the truth and faith of the individuals in the
judiciary. This judgment has marked the significance of maintenance which
ought to be given to the divorced Muslim women who are not in the condition
to earn and maintain themselves. The Shah Bano judgment pulled in a lot of
opposition with authoritative bodies being against the decision for the reason
of it being against the provisions of Islamic law, but SC passed the impartial
judgment and at last, it had maintained the trust and faith of citizens in the
judiciary. This lead to enactment of the Muslim Women (Protection of Rights
on Divorce) Act, 1986 which given Muslim women receiving a huge, one-time
payment from their husbands amid the period of Iddat, instead of a maximum
month to month payment of ¹ 500 – an upper limit which has since been
expelled.
Leading Case 4
Shayara Bano v. Union of India and Ors., (2017) 9 SCC 1
Facts of the Case:
In Shayara Bano and others v. Union of India, Shayara Bano was
married to Rizwan Ahmed for 15 years. In 2016, he divorced her through
instantaneous triple talaq ( talaq-e-biddat ). She file a writ petition in the
supreme court asking it to hold 3 practices:
• Talaq-e-biddat
• Polygamy
• Nikah halala
Unconstitutional as they violate Article 14, 15, 21, 25 of the constitution.
Talaq e biddat is a practice which gives a man the right to divorce to his
wife by uttering talaq three times in one sitting without his wife’s consent.
Nikah halala is a practice where a divorce women who wants to remarry her
husband would have to marry, and obtain divorce, from the second husband
before she goes back to her first husband. And polygamy is a practice which
allows Muslim men’s to have more than one wife.
On 16th of February 2017, the Supreme Court asked Shayara Bano,
the Union of India comma various women’s rights bodies, and all India
Muslim personal law board to give written submission on the issue of talaq-
e-biddat, nikah halala and polygamy. The Union of India and the women’s
right organisation like Bebaak collective and Bhartiya Muslim Mahila
Andolan supported the Ms Bano’s plea that these practices are
unconstitutional. The AIMPLB has argue that an uncodified Muslim personal
law is not subject to constitutional judicial review and that these are essential
practices of the Islamic religion and protected under article 25 of the
constitution.
After accepting the Sahara Bano’s petition, the Apex court formed a
five judge constitutional bench on 30th March 2017. The first hearing was on
11th May 2017. On 22nd of August 2017, the five judge bench pronounced its
decision in the triple talaq case declaring that the practice was unconstitutional
by a 3:2 majority.
Issues:
1. The validity of triple talaq.
2. Whether Triple Talaq is an essential religious practice?
3. Whether the practice of triple talaq violates any fundamental rights?
Arguments by the Parties:
Arguments of Shayara Bano ( Petitioner):
In Shayara Bano v. Union of India, Mr Amit Chadha. Senior advocate
representing Shayara Bano began by arguing that triple talaq is not a form of
divorce recognised by the Muslim personal law ( shariat ) application act,
1937. He pointed out that several high courts and supreme court decision
have restricted the unilateral tar of Muslim men to divorce women and criticize
the practice of triple talaq has it does not have Quranic sanction. Moreover,
these judgement affirms that the Quran permits divorce for reasonable cause
an if preceded attempt at reconciliation. He urged the court to strike down
triple talaq as allowing an un-codified power to Muslim men to divorce violate
Article 14 and 15 of the constitution.
He concluded by suggesting that if triple talaq is struck down, the law
of divorce for Muslims would be the dissolution of Muslim marriage act, 1939
that could apply equally the entire Muslim community, irrespective of gender.
Arguments by respondent :-
In Shayara Bano v. Union of India, Mr Kapil sibal first clarify that the
shariat act 1937 does not codify substansive Muslim personal law but restate
that the Sharia shall apply as a rule of decision to Muslim overriding any
custom or usage to the contrary. He asserted that object of the act was to
overcome customs that discriminated against women in matter of inheritance.
Moreover, since marriage is private contract and Islamic law, no state legislation
can change it.
Mr. Sibal refer to the constituent assembly debates to argue that the
definition of law under article 13 does not include personal laws. He pointed
out that the assembly rejected amendment that sought to include “and anything
else” to the definition of law it considered and rejected the inclusion of such
law under article 13. He suggested that the explicit mention of personal law in
the concurrent list and its absence in article 13 demonstrate the constitution
maker’s intention to exclude personal law.
You can turn to the right to freedom of religious practice under article
25 clause 2. He argued that the constitution empowers Parliament to make
social reform law on secular activities associated with religious practices.
Hence, only after Parliament pass the law on the subject can a court assess its
validity. Mr. Sibal suggested that collection of money in a temple an example
of such secular activity.
Mr. Sibal concluded arguments by claiming that Muslim women are not
discriminated against triple talaq rule and may even benefit from immediate
relief from bad marriages. He proposed four options for Muslim women to
protect herself from the discriminatory use of triple talaq :
1. She may register the marriage under the special marriage act, 1954
2. she can insert conditions into the nikahnama to prohibit her husband
from exercising a triple talaq
3. she delegate the right to talaq to herself
4. insist on the payment of a high mehar amount to deter the exercise of
triple talaq.
Judgment:
The Supreme Court laid down this judgment on August 22, 2017 in 3:2
majority holding the practice of Triple Talaaq unconstitutional. The majority
judgment was written by Justice Nariman for himself and on the behalf of
Justice Lalit, while Justice Joseph concurred by the majority opinion Chief
Justice Kehar for himself and on behalf of Justice Nazeer wrote the minority
opinion. While the majority upon lengthy discussion came to the conclusion
that Triple Talaq is not an essential religious practice but minority bench
found this practice to be an essential religious practice.
Under Article 25 of the Constitution the state cannot take away the
essential religious practice of a person. Therefore, if a practice which is arbitrary
and not an essential religious practice it will be hit by the exception laid down
under Article 25. Therefore, the whole issue was whether or not the practice is
an essential religious practice of Islam.
Therefore, as per majority it was held that the Triple Talaqor Talaq-e-
biddatis not protected by the exception laid down in Article 25 i.e. the court
found the said practice not an essential element of Islamic religion. The court
justified its point of view in the sense that although it si practiced by the
Hanafi School but it is considered sinful in it. Triple Talaqis against the basic
tenets ofQuoran and whatever is against Quoranis contrary to Shariat
therefore, what is bad in theology cannot be good in law. The majority bench
relied on its earlier decision Shamim Ara, which held that this practice of
Triple Talaq is against both theology and law and just because it is followed
by a large number of people it cannot be validated. Therefore, such practice is
declared unconstitutional and set aside.
Article 25 in it carries the right of every person to freely practice and
propagate any religion of choice and such practice is only restricted in the
context of the following exceptions:
1. Public Order
2. Health
3. Morality
4. Other Provisions of Part III of the Constitution
Although the said practice has no relevance to the first three exceptions
but it is surely against other provisions of Part III namely Article 14. The said
practice is in violation of the Fundamental Right of equality since it is against
the rights of women as they have no say in the declaration of divorce unlike
in other religions. Nariman & Lalit JJ. held that the impugned practice is a tool
by which marital tie can be broken on whims of Husband without any attempt
of reconciliation to save it. This form of Talaq therefore, is in violation of
Article 14 and liable to be struck down by the courts.
What is an essential religious practice? It depends on the background,
history and tenets of the religion. If some practice is not prohibited then it
does not necessarily mean that such practice is an essential religious practice.
Essential religious practices are those on which the religion is founded
upon. Essential religious are those which are fundamental to the profession
and propagation of the religion. If taking away of a practice causes a
substantial change in the religion then such practice can be called as ‘an
essential religious practice.’ Only such practices are protected in Article
25(1). The usurpation of religious practices through state intervention will
result in violation in rights mentioned in Article 25(1) & not with the
usurpation of circumstantial and non-essential practices. The fact that
majority of Islamic countries have done away with the said practice also
reflects that the said practice is not one which will be called as an essential
religious practice.
However, Justice Khehar, writing the minority opinion held that such
practice is an essential religious element of Islam. The Minority bench of the
court justified this stance on the ground that this practice is followed by a
large population of people. Since this practice has the sanction of religious
denomination and followed by an overwhelming majority of Muslim
population, the said practice is declared to be constitutional and an essential
religious practice.
Justice Kehar was, as far as the exceptions mentioned in Article 25(1) of
the Constitution, of the opinion that the impugned practice is not violative of
any of these exceptions since Shariat or Muslim Personal law is not based on
any state legislative action.
Critical Analysis
The Triple Talaq judgment is widely appreciated throughout the
jurisdictions as a protection shield against the social evil such as this
practice promoted. The majority bench on the face of it criticized the
government for not making relevant laws to prohibit such a regressive
practice. This act allowed the husband to end the marital tie on his whims
and fancies, thereby making the life of the women hell. The Muslim women
have since many years demanding the protection from such a regressive
and bad practice and finally it was the apex court which gave them the
appropriate remedy.
Justice Nariman at the outset said that as soon as he would find any
violation of Fundamental Right, he will strike down the practice. There was no
question that the said practice was an essential religious practice or not since
majority of Islamic nations have already banned the practice & in India only
Hanafi School practices it. Therefore, it cannot be said that the practice is one
of religious importance. The majority finding the said practice in violation of
Article 14 as well as of the exceptions laid down in Article 25(1) struck down
the regressive act with 3:2 majority. The bench observed that merely because
the practice is widespread and continuing from time immemorial it cannot be
held as an essential religious practice. Hinduism also after finding Sati Pratha
regressive removed it from the religion. Sati was also practiced widespread
and practiced since time immemorial. Therefore, the court arrived at a very
correct judgment.
The majority started its judgment by the phrase “what is bad in theology
cannot be good in law”. This statement makes it clear the stance of the
majority bench on the impugned act. One does not need to dwell down into
the details and should understand that if Triple Talaq had been a essential
religious practice of Islam then in that case it would not have been banned in
almost all Islamic nations. Further, the said practice is only practiced in Hanafi
School who itself considers it sinful. Therefore, the majority bench correctly
held such practice as unconstitutional.
The minority judgment written by CJ Kehar on the behalf of himself
and Justice Nazeer was flawed in every aspect. The hon’ble judges should
have considered that fact that:
Firstly, an essential religious practice would not have been banned by
the Islamic nations.
Secondly, an essential religious practice cannot be stated as sinful by
the religion itself.
Thirdly, merely because one community of the religion follows the
practice, then such practice cannot be termed as an essential religious.
The minority bench ignored the atrocities that are committed by the
said practice. It is the duty of the courts to dispense justice and the courts
should not be deterred by mere technicalities in dispense justice. The minority
judgment is per incuriam as the judges said that however bad the practice be,
if it is an essential practice it cannot be struck down. The whole reasoning of
the minority bench is irrational, unfair and unjust. If the two judges have also
ruled in the favor of majority the impact would be altogether different.
However, thanks to the justified reasoning provided by the majority
bench India finally did away with the regressive and backward practice of Triple
Talaqor Talaq-e-biddat.
Conclusion
After so many abortive attempts finally, a petition filed by Shayara
Bano, Ishrat Jahan, Aafreen Rehman, Gulshan Parveen was successful in
bringing justice to many unheard voices of India. The majority decision
restored the trust that the common people possesses for the institution of
Judiciary. The judgment proved that the democratic notions such as equality,
liberty etc. would not bend down against any philosophy even if it is a religion.
The courts finally brought justice to those women who have been a victim
of Triple Talaq. Men after enjoying and extracting pleasure out of women
used to abandon them easily by the virtue of Triple Talaq. Now, after the
pronouncement of the judgment the situation has changed and made such
incidents impossible.
No husband can now abandon his wife by ending marital tie on his
whims and fancies. The court ensured that the ideas of equality especially
gender equality is not a mere theoretical ideology. However, the opinion of
minority bench worries the nation. If the Chief Justice of India is giving primacy
to practices such as Triple Talaq ignoring the widespread atrocities, then
there is some serious rethink required by the Judges of the apex court.
Leading Case 5
M/s Shabnam Hashmi v. Union of India AIR 2014 SC 1281
Background
Political Background
It is an Indian Social Activist and human rights campaigner. She
started her social activism campaigning about adult literacy in 1981. Since
1989, she has spent most of her time in combating communal and
fundamentalist forces in India. In 2003 she was one of the founders of
ANHAD which administers. It’s FCRA license was cancelled based on
inputs from intelligence agency for using foreign funding to work against
the public interest. She has campaigned against communalism and violation
of human rights in the name of fighting terrorism. She was involved in
exposing what she alleges are terror links of Hindutva forces but also
forces but also fought for the rights of Battla house encounter suspects
who later allegedly joined ISIS. Shabnam Hashmi was amongst nintey-one
women from India who figured in the list of 1,000 women who have been
nominated globally for the Nobel Peace Prize – 2005. Hashmi has focused
on issues of women’s political participation, adoption, gender justice,
democracy and secularism.
The decision of Lakshmi Kant Pandey v. Union of India is a very high
watermark in the development of the law relating to adoption.
International background-
In Unites States, through ICA, the legal transfer of parental rights from
birth parents takes place. ICA opens another pathway to children to receive
he care, security and love that only a permanent family can provide.
Adoption was unknown to common law, and is a creature of statute,
the first of which was the Adoption of Children Act, 1926, now replaced by the
Adoption Act, 1976. The English Court only has the jurisdiction, if the applicant,
is in any part of the United Kingdom and the child is in England.
Judicial Background
Adoption is always been a very crucial subject of discussion. In the
regard Bomabay High Court and the Kerala High Court in various cases have
explained the importance of adoption and right to adopt a child. The Hon’ble
Supreme Court in this case has referred Article 21 and Article 44 of the
Constitution. The Hon’ble Court has explained the importance of fundamental
rights and right to have adopted child.
Facts of the Case:
1. Specific guidelines were needed for adoption.
2. Shabnam Hashmi, is an Indian Social Activist and human rights
campaigner. She started her social activism campaigning about adult
literacy in 1981.
3. She has filed a writ petition under Article 32 of the Constitution..
4. She has requested the court to lay down optional guidelines enabling
adoption of children by persons irrespective of religion, caste, creed
etc.
Issues Raised
1. Whether adoption of a child is a fundamental right?
2. In case of contradiction between personal law and secular law, what is
going to be prevailed?
3. Whether caste, creed and religions affects the adoption procedure?
Arguments
Peitioner’s argument
1. Petitioner requested the court to lay down optional guidelines enabling
adoption of children by persons irrespective of religion, caste, creed
etc. And further for a direction to the respondent Union of India to
enact an optional law the prime focus of which is the child with
considerable like religion etc. taking a hint seat.
2. It was also highlighted that as per guidelines of 2011 and JJ Rules, 2017
there is undue delay in processing of adoption cases at the level of
Child Welfare Committees, the Adoption Recommendation Committees
as well as the concerned courts.
3. It was also argued by the Petitioner that the JJ Act, 2000 is a secular law
enabling any person, irrespective of the religion he professes, to take a
child in adoption.
4. It was also argued that the court should direct the states and UT under
JJ Act, 2000 to implement Section 41 of the Act and to follow CARA
guidelines.
5. It was also argued that Right to adopt a child is a fundamental right.
Respondent’s argument
1. It is contented that Islamic Law doesn’t recognize an adopted child to
be at par with a biological child. As per Islamic law, it processes what is
known as the “Kafala” system under which the child is placed under a
‘Kafil’ who provides for the well being of the child remains the true
descendant of his biological parents and not that of the “adoptive”
parents.
2. It was also contended that this system is recognized in UN Convention
on Rights of the Child and therefore, directions should be issued to all
the Child Welfare Committees to keep in mind and follow the principles
of Islamic Law before declaring a Muslim child available for adoption
under Section 41(5) of the JJ Act, 2000.
Judgment
Summary of court decision and judgment
In 2014, the judgment of Shabnam Hashmi provided the adoption as the
Fundamental Right. It was permitted that any person irrespective of religion
can adopt a child under the Juvenile Justice (Care and Protection of Children)
Act, 2000. Shabnam had only guardianship rights over a girl adopted by her
as granted by the court because as per the Muslim Law, adoption is not
allowed. She claimed that adoption should be allowed on humanitarian grounds
and as a Fundamental Right as well. After the finality of this case, the judgment
has permitted all the future intended parents to go for adoption process (can
adopt a child) under the Juvenile Justice (Care and Protection of Children)
Act, 2000 irrespective of religion and it was also held that this act is of secular
nature for the purpose of adoption of children under the prescribed procedure.
Analysis
The prayer made in the writ petition appears to have been substantially
fructified by the march that has taken place in this sphere of law, gently
nudged by the judicial verdict in Lakshmi Kant Pandey v. Union of India,
(1984) 2 SCC 244, and the supplemental, if not consequential, legislative
innovations in the shape of the Juvenile Justice (Care And Protection of
Children) Act, 2000 as amended in 2006 (the JJ Act, 2000) as also the Juvenile
Justice (Care and Protection of Children) Rules promulgated in the year 2007
(the JJ Rules, 2007). The JJ Act, 2000, as amended, is an enabling legislation
that gives a prospective parent the option of adopting an eligible child by
following the procedure prescribed by the Act, Rules and the Central Adoption
Resource Agency (CARA) guidelines, as notified under the Act.
The Act does not mandate any compulsive action by any prospective
parent leaving such person with the liberty of accessing the provisions of the
Act, if he so desires. Such a person is always free to adopt or choose not to do
so and, instead, follow what he comprehends to be the dictates of the personal
law applicable to him. To us, the Act is a small step in reaching the goal
enshrined by Article 44 of the Constitution. Personal beliefs and faiths, though
must be honoured, cannot dictate the operation of the provisions of an enabling
statute. An optional legislation that does not contain an unavoidable imperative
cannot be stultified by principles of personal law which, however, would
always continue to govern any person who chooses to so submit himself
until such time that the vision of a uniform Civil Code is achieved. The same
can only happen by the collective decision of the generation(s) to come to
sink conflicting faiths and beliefs that are still active as on date.
While it is correct that the dimensions and perspectives of the meaning
and content of fundamental rights are in a process of constant evolution as is
bound to happen in a vibrant democracy where the mind is always free,
elevation of the right to adopt or to be adopted to the status of a Fundamental
Right will have to await a dissipation of the conflicting thought processes in
this sphere of practices and beliefs prevailing in the country. The legislature
which is better equipped to comprehend the mental preparedness of the entire
citizenry to think unitedly on the issue has expressed its view, for the present,
by the enactment of the JJ Act, 2000 and the same must receive due respect.
The present is not an appropriate time and stage where the right to adopt and
the right to be adopted can be raised to the status of a fundamental right and/
or to understand such a right to be encompassed by Article 21 of the
Constitution.
Conclusion
Judiciary through its decisions has provided the welfare mechanism to
the uniformity of Adoption such as Shabnam Hashmi. The state should
encourage the practice of adoption instead of promoting surrogacy so that
uniform law of adoption can help the needy child to get a home. As of now, the
judiciary has provided the uniformity of adoption through its judgment and
now, it is duty of the legislature to provide Uniform law for adoption which is
the need of the hour.


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FAMILY LAW -II (MUSLIM LAW)

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According to syllabus of Dr.

Bhimrao Ambedkar Law University, Jaipur 1

Q. 8. What do you understand by ‘Muta Marriage”? Describe its legal

Long Answers Questions

Difference between Trust and Wakf

Muslim Women(Protection of Rights on Divorce) Act 1986 and Section 125

Q. 25. Explain the general rules regarding inheritance under Muslim

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