FAQ
(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 `Ahadis' 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 has 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 `Abu 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 `Umar' who was appointed the first Kazi (Quadi). During his days the powers and jurisdiction of the Quadi (Kazi) was properly defined. After `Umar', 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 qiytas (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 specially 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 `Al-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 `Ijma'. His contribution was known as `Ashshafi'. Imam Shafi was noted for his balance of judgment and moderation of the views. He allowed greater scope of `Ijma' (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 thousands 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 number 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 (a) Taqulid (following or imitation) and (b) 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 day - 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 `Islamic law' of evidence also remained in force till passing of Evidence Act 1872.|
Shia School |
Sunni School |
|
1. Marriage |
|
|
(i) Muta or temporary marriages are lawful. |
(i) Muta marriages are not lawful. |
|
(ii) Only the father and grandfather are recognised as legal guardians for marriages. Marriages contracted by others have no legal effect. |
(ii) Besides father and father's father how highsoever, brothers, other paternal relations, mother and maternal uncle, etc., are also recognised as legal guardians for marriage. |
|
(iii) Presence of two witnesses is essential at the time of dissolution of marriage, while at marriage, they are not essential. |
(iii) Two witnesses are not necessary at the time of dissolution of marriage, but are necessary at the time of marriage. |
|
(iv) Marriage cannot be cancelled on the ground of inequality between the two parties. |
(iv) Marriage can be cancelled on the ground of inequality between the two parties. |
|
(v) They do not recognise the doctrine of valid retirement, i.e., 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. |
(v) The doctrine of valid retirement is recognised. |
|
(vi) Re-marriage after the third triple repudiation is never legalised. |
(vi) Such re-marriages are legalised. |
|
(vii) Ten months is the longest period of gestation. |
(vii) The period of gestation is two years. |
|
(viii) Marriages are either valid or void. |
(viii) Marriages may be irregular also besides being valid or void. |
|
2. Dower |
|
|
(i) The minimum amount for dower is not fixed. |
(i) Ten dirhams is the minimum amount of dower. |
|
(ii) Presumption of 500 dirhams as the maximum in case there is no stipulation. |
(ii) No upper limit. |
|
(iii) Presumption of prompt dower in absence of any Stipulation. |
(iii) The part is prompt and the part is deferred. |
|
Talaq |
|
|
1) Talaq must be pronounced orally and the words of Arabic language to be used. |
1) Talaq can be given orally or in writing |
|
2) Witnesses are required while doing so |
2) Witnesses are not required |
|
3) Talaq pronounced in state of intoxication or by force is void |
3) Talaq given in state of intoxication or under pressure is not held void. |
|
4) `Talaq-ul-Sunnat' is recognised as best form of Talaq |
4) `Talaq-i- Biddat' and `Talaq-ul-Sunnat' both are recognised. |
|
Guardianship |
|
|
The mother of a daughter upto the age of 7 years and of son upto 2 years is legally entitled as "Guardian" |
Mother of a daughter upto age of 7 years and of a son upto age of attaining puberty is entitled to guardianship. |
|
Maternity |
|
|
If a child is born as a result of illicit relation of mother, the child is treated as motherless. |
Maternity of a child is recognised from such mother who gave birth to child without having any consideration of the reasons of birth. |
|
Waqf |
|
|
Without delivery of possession of property the `Waqf is invalid. |
Mere declaration is enough for valid `waqf' |
|
Pre-Emption |
|
|
Right of pre-emption is recognised only in case of co-sharer who are two in number. |
Besides co-sharer a participator in the appendages or neighbour owner of property can claim right of Pre-emption. |
|
10. Wills |
|
|
(i) A person in an absolute owner of the one-third of his estate and can bequeath that one-third without the consent of the other heirs. |
Consent of the heirs essential. |
|
(ii) In case of the legatee's death in the lifetime of the testator, the legacy passes to his heirs unless it is revoked by the testator. |
It lapses. |
|
11. Inheritance |
|
|
(i) There are only two classes of heirs namely sharers and residuaries. |
Three classes
: |
|
(ii) According to the law of primogeniture, the eldest son gets the deceased father's garment, the signet-ring, the sword and the Quran. |
The doctrine of primogeniture is not recognised. |
|
(iii) A Shia childless widow is not permitted to take any share in her husband's immovable property. |
There is no such distinction between real and personal property and the childless widow can inherit even the immovable property. |
|
(iv) Only the husband and not the wife is entitled to return. |
Both husband and wife can take by return. |
|
(v) A man is excluded from inheritance if he has intentionally caused the murder of the person whom he is going to inherit. |
He is excluded from inheritance, no matter, the murder was intentional or unintentional. |
(1) Quran
(2) Sunna
(3) Ijma
(4) Quiyas.
Secondry or formal Sources of Muslim Law(5) Customs (Urf)
(6) Judicial Precedents.
(7) Legislation.
(8) Good Conscience and Equity.
(1) The Quran. - The Primary source of Muslim law is revelation which has been of two kinds - express and implied. The Quran is composed of such express revelations as were made in the very words of God to Mohammed when he was bestowed with the office of the Prophet and Messenger of God. It is divided into 114 Chapters and is composed of about 6237 Ayats. It is in the form of series of communications addressed by God to the Prophet. The communications were declared to the people on a large number of different occasions in the last twenty three years of the life of the Prophet. It deals with variety of subjects and very small part of it comes into the domain of law. The law- making verses are about 200 in number and are scattered in different parts of the Holy Book. (2) The Sunnas - 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. They are of three kinds -(1) Sunnat-ul-fiel, i.e., traditions about what the Prophet did himself.
(2) Sunnat-ul-qual, i.e., traditions about what he enjoined by words.
(3) Sunnat-ul-taquir, i.e., that was done in his presence without his disapproval.
`Hadis' or `Ahdis' are one of the form of Sunnatul Taqrir. These Abadis form the foundation of the law during the period of the first Caliphs who were the companions and relations of the Prophet. This is the second source of the Mohammedan Law. (3) The Ijma - `Ijma' means the opinion of the companions of the prophet Mohammad. Under this collective name are included the explanation, elucidations and the decisions of the disciples of the Prophet. Sir Abdur Rahim has defined it as "the agreement of the jurists among the followers of Mohammed in a particular age on a particular question." After the death of Prophet and as the expansion of the Islamic influence took place a large number of fresh facts and new problems cropped up which could not be decided by reference only to Quran and Ahadis. The jurists then took the recourse through the principle of Ijma, that is the consensus of opinion of jurists on any question. The Ijma is of three kinds -(1) Ijma of the Companians of Prophet, (2) Ijma of jurists, (3) Ijma of People.
Ijma is the third source of Mohammedan Law. (4) Qiyas - Qiyas means "measuring accord", or `equality'. In Muslim jurisprudence it means common sense. According to Jung -"It is a process of deduction applying the law next of the text, and nevertheless covered by the reason of the text."
This source of no value to persons belonging to the school of Ahamad Ibna Hanbal, the great Traditionist. The Shias also do not accept Qiyas because they are of the opinion that if law needs to be enlarged it must be by the Imams and none else. Secondry of formal Sources of Muslim Law (5) Customs (Urf) : (a) Meaning. - 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. But customs are still applicable in matters of agricultural lands, charities and religious and charitable endowments. (6) 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. (7) Legislation. - There have been many legislative enactments which have considerably amplified, altered or modified the original Muslim Law.Examples : (i) The Guardians and Wards Act, 1890.
(ii) The Mussalman Waqf Validating Act, 1913.
(iii) The Mussalman Waqf Act, 1923.
(iv) Child Marriage Restraint Act, 1929.
(v) Shariat Act, 1937.
(vi) The Dissolution of Muslim Marriages Act, 1939.
(vii) The Muslim Women (Protection of Rights on Divorce) Act, 1986.
(8) Good Conscience and Equity. - Sometimes analogical deductions failes 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.(a) Charities which are other than waqf.
(b) Agricultural land.
(c) Testamentary succession in certain communities.
The text of the Shariat Act 1937 - This Act was known as Muslim Personal Law (Shariat Act) of 1937. It was enforced on all the Muslims residing in India. Section 2 - Section 2 of this Act deals with all questions (see questions relating to Agricultural land) regarding intestate succession special property of females including personal property inherited or obtained under contract or gift or any other provision of Personal Law on the dissolution of marriage including Talak, Ila, Zihar, Khula and Mubarat, maintenance, dower, guardianship, gift, trust and trust property, Waqf (other than charitable institutions and religious endowments). The rule of decision on all such issues shall be based on Muslim Personal Law (Shariat) when both the parties are Muslim. Section 3 - This section aims at compelling the Muslim communities to give up right contrary to the Mohammedan law and to be governed exclusively by the law of the Shariat. According to this section a person belonging to Muslim community can declare on the prescribed form according to prescribed procedure that he wishes to obtain the benefit of provisions of this Act. In case of refusal of such declaration by the competent authority, an approval could be made. Section 4 - Section 4 empowers State Govt. to make rules to carry into effect the purposes of this Act. Section 5 - Section 5 states that - `The District judge may on petition made by a Muslim married woman dissolve a marriage on any ground recognised by Muslim Personal Law (Shariat)'. A provision regarding dissolution of marriage by courts in certain circumstances was made in this section but it was repealed by Act VII of 1939 i.e. the Dissolution of Muslim Marriage Act, 1939, Section 6. Section 6 - Some acts and regulations already in force at the time when Shariat Act came into existence were repealed because they were inconsistent with the present Act.(i) Mohammedans by birth and
(ii) Mohammedans by conversion.
So all Mohammedans are governed by the Mohammedan Law, even if they are converts to Islam. Conversion to Islam makes the Islamic Law applicable. Previous religious and personal law is substituted by Islam. Conversion to another religion basically requires change of faith. To say the least it is a matter of convection. According to Mulla's Principle of Mohammedan Law, any person who professes Mohammedan religion, that is, he acknowledges that there is, but one God and that Mohammad is his prophet is Mohammedan. Such a person may be Mohammedan by conversion or by birth. According to Tayabji's Principles of Mohammedan law A non-Muslim who has attained majority and is of sound mind may embrace Islam in either of two modes:-(a) he may simply declare that he believes in the oneness of God and the Prophetic character of Mohammad, or
(b) he may go to a mosque, to a person who is well versed in Islamic theology (Alim), where he utters Kalma (Lailaha-ill-Allah/Muhammad-ur- Rasoolullah) before Imam, whereupon he is given a Muslim name by the Imam. A convert must formally profess to be a Mohammedan. It is however, necessary that the conversion must be bona fide; the court will not permit any one to commit a fraud upon the law by pretending to be a convert to Islam in order to elude the personal law by which he is bound.
"It is the rule of Mohammadon law the correctness of which is not capable of any doubt that it applies not only to person who are Muslim by birth but by religion also. Accordingly a person converting to Mohammedanism changes not only religion but also his personal law."
Therefore the effect of conversion to Islam is to bring about a complete change as regards the rights of inheritance. Succession to the estate of a convert to Mohammedanism is governed by Mohammedon law. In Vohra Bai Khatija Isahhai v. Vohra Karim Bhai, AIR 1974 Guj 4, it was held that in case of a Hindu convert to Islam, succession and inheritance are governed by Mohammedan law and not by Hindu Law. Similarly reference may be made to Chandra Sekharappa v. Govt. of Mysore, AIR 1953 Mys. 621 wherein it was held that where a Hindu who had a Hindu wife and children embraced Islam and married a Muslim woman and had children by her, his property would pass on his death to his Muslim wife and children and not to his Hindu wife or children because under Muslim law, a Hindu cannot succeed to the estate of a Muslim. Therefore in this case property of person who was earlier Hindu and was having Hindu wife and children but converted to Mohammedonism and got married with Muslim woman and had two sons from such Muslim wife; will pass, on his death to his Muslim wife and children. His Hindu wife and children will get nothing.(a) Absolute incapacity, which arises from (i) consanguinity (ii) affinity and (iii) Fosterage.
(b) Relative incapacity which arises from cases which render the marriage invalid so long as the cause which creates the bar exists and the moment it is removed the in capacity ends and marriage becomes valid. Unlawful conjunction, fact of marrying fifth marriage, absence of proper witness, difference of religion and marrying with woman undergoing Iddat are all cases of relative incapacity.
(c) Prohibitory incapacity arises when Muslim woman has more than one husband and when Muslim woman marries non-Muslim.
Fourthly Mehr or dower is settled by husband upon his wife in consideration of the marriage. He may settle any amount he likes but the same cannot be less than ten dirhams. Wife is entitled to claim prompt dower on demand at the time of marriage. However deferred dower is payable on dissolution of marriage by divorce or death. Fifthly Under Mohammedan Law marriage is not permanent tie and any Muslim of sound mind who has attained puberty may divorce his wife whenever he desires without assigning any reason or cause. Thus it becomes clear that marriage among Mohammedans is purely a civil contract.(i) His mother or grandmother, how high so-ever;
(ii) High daughter or grand daughter, how low-soever;
(iii) His sister - full consanguine or
(iv) His niece or great niece how low-soever;
(v) His aunt or great aunt (it includes aunt from father's side or mother's side as well).
The above categories of marriages are void on the ground of consanguinity. (b) Affinity - A Muslim is prohibited from marrying with all such (relative) woman with whom he has relationship of affinity. In case any marriage is done with any of the following relations, it is deemed, in law, as void -(i) Wife's mother or grandmother, how high-soever.
(ii) Wife's daughter or grand daughter how low-soever.
(iii) Son's wife or son's son's wife, how low-soever.
A woman can also not marry with her daughter's husband or daughter's daughter's husband. The above category of marriages are prohibited due to the violation of the rules of affinity. In Fatima Bi Ammal v. A.A. Mahommed Mohideen (1971) 2 MLJ 451, it was observed that the law imposes certain prohibitions based on consanguinity and affinity. If a man marries a woman in violation of such prohibition the marriage is void and the offspring is illegitimate. There is Quoranic injunction also against a man having at the same time two wives who are so related to each other by consanguinity, affinity or fosterage that if either of them had been male they could not have lawfully intermarried, as for instance two sisters or aunt and niece. (iii) Fosterage. - When a child under the age of two years has been suckled by a woman, other than its own mother, the woman becomes the foster mother of the child. It is as much a prohibition in marriage as consanguinity because the act of suckling is regarded as equal to the act of procreation. For example, man is prohibited from marrying his foster-mother, foster- mother's daughter. But under Sunni law one can marry -(1) Foster sister's mother or sister's foster mother.
(2) Foster-son's sister.
(3) Foster brother's sister.
(4) Foster brother's mother.
(5) Foster sister's foster mother etc.
The Shias refuse to recognise the above exceptions because they place fosterage and consanguinity on the same footing. Under Shia law, the marriage with any of the foster relations is void without any exception. Irregular marriages (Fasid) - Certain kinds of marriages in Muslim law are called irregular (Fasid) though their validity is not affected. The following marriages are considered as irregular -(i) Marriage without witnesses.
(ii) Marriage with a woman undergoing `Iddat'.
(iii) Marriage prohibited by reason of difference of religion.
(iv) Marriage with two sisters or contrary to the rules of unlawful conjunction.
(v) A marriage with fifth wife.
(vi) Marriage done in intoxication.
(vii) Marriage done with the non `kitabi' woman.
(viii) Marriage with the consent of guardian.
(ix) Marriage of a Muslim woman with a non-Muslim.
There are certain other grounds on the basis of which a marriage becomes irregular. They are - (1) The doctrine of Equality in marriage - If there is unequal status of husband in comparison to the status of his wife the marriage is irregular. In Hanafi law these factors are considered necessary for determining equality.(a) Family (b) Islam (c) Profession (d) Freedom (e) Good character (f) Means.
(2) Illicit intercourse - If a person does illicit intercourse with a woman or commits an act of `undue familiarity' it is not deemed valid in Muslim Law. Some women's relations are forbidden to him although he may marry the woman herself. (3) Pilgrimage - Ithana-Ishari and Shafi's school are of the opinion that he who comes from sacred places like `KABA' and put on pilgrim's dress, may not enter into a contract of marriage while on the pilgrimage. (4) Divorce - If a Muslim divorces his wife once, he cannot re-marry with such woman (wife). She will have to marry some other man after completing the period of `Iddat' and such marriage must be consented. After the consummation of such marriage she must be divorced and only then she can re-marry with her former husband. Legal effects -(1) Irregular marriage has no legal effect if it has not been consummated.
(2) Consummation effects marriage.
"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
"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,
(vii) that she having been given in marriage by her father or other guardian before she attained the age of 15 years repudiated the marriage before attaining the age of 18 years provided that the marriage has not been consummated."
So Section 2(vii) of the above Act has removed the restriction on the exercise of the option of puberty in the case of a minor girl whose marriage has been arranged by her father or grandfather. It has no effect in the case of a minor male given in marriage by his father or grandfather. In other words, when a minor male has been contracted in marriage by his father or grandfather, the contract of marriage is valid and binding, and it cannot be repudiated by the minor male (husband) on attaining puberty. However, if he is given in marriage by any other guardian, he (husband) can exercise his option of puberty until he has ratified the marriage either expressly or impliedly as by payment of dower or by cohabitation.(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.(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.
Difference between `Muta-marriage' and Nikah - Differences between regular marriage (Nikah) and `Muta-marriage' are as under -(1) The regular marriage (Nikah) is recognised by Shias and Sunnis both whereas Muta marriage is recognised only by Shiaties.
(2) Marriage or Nikah is a permanent contract while muta marriage is temporary and a time being enforceable contact.
(3) Regular marriage gives a right of inheritance to spouse on the property of each other, while in Muta marriage it is not so.
(4) The relation once established between a wife and husband due to regular marriage is dissolved only on divorce or death of any of them, whereas Muta marriage is automatically dissolved on the expiry of the specified period.
(5) The woman becomes entitled to get the full amount of dower, no sooner her regular marriage is solemnized properly, but the payment of dower (Mehr) in Muta marriage depends upon the consummation of such marriage. In case marriage is not consummated in Muta marriage, the wife is entitled only for half dower.
(6) Regular marriage can be dissolved only through divorce and the payment of dower is very necessary before doing so but in case of Muta marriage, it can be terminated only on the expiry of the prescribed time.
(7) The dower can either be `expressed' or `implied' in regular marriage, while in Muta marriage, it is always expressed.
(8) In case divorce takes place after some time in the regular marriage the wife is entitled to get maintenance during the period of `Iddat' while in Muta Nikah, a woman has no right to take any maintenance after dissolution of such marriage.
(i) An agreement that parties shall not follow Muslim Law of inheritance is in contravention of Section 2 of the Shariat Act 1937, therefore it is illegal and thus not enforceable.
(ii) A stipulation negativing the husband's freedom for pronouncing divorce is illegal because such condition is against the principles of Islam.
(b) Under Muslim Law, solemnization of Marriage requires certain essential forms and formula. These essentials are that there should be a proposal made by or on behalf of one of the parties to the marriage and acceptance of the proposal by or on behalf of the other, in the presence and hearing of witnesses who must be sane, adult and Muslim. This proposal and acceptance must be made at one meeting. Under Sunni law, the proposal and acceptance must be made in the presence of two male or one male and two female witnesses. Absence of witnesses does not render the marriage void but voidable. Under Shia law witnesses are not necessary at the time of marriage. However, when the guardian of a minor contracts marriage on his or her behalf, such marriage requires two adult witnesses. Therefore marriage between M and W is not void but only voidable.i) 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.
ii)Iddat of Widowhood: When a person dies leaving a widow, she is prohibited from marrying before the expiration of 4 months and 10 days.
iii) 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.(1) Dower is not exactly a consideration for marriage in the sense of a consideration for any other contract. It is an obligation imposed by the law on the husband as a mark of respect for the wife.
(2) It is a consideration for conjugal intercourse. The right to cohabitation comes into existence at the same time and by the reason of some incident of law as the right to dower.
(3) Dower is an essential incident of marriage with the result that even if no dower is fixed the wife is entitled to some dower from the husband. In fact, even a stipulation that a wife will not be entitled to any dower will be invalid.
But the notion of dower given above is not correct. Fitzerald says, "It would be incorrect to describe Muslim dower purely as the bride's price." Classification of Dower :- The dower may be classified into:- (1) Specified Dower, (Mehar-i-Musamma). Specified dower is again divided into -(a) Prompt dower (Muajjal Mahr)
(b) Deferred dower (Muwajjal Mahr)
(2) Customary Dower (Mehr-in-misl) (1) SPECIFIED DOWER - It is also called `Al-mahruil Musamma'. Specified dower is fixed at the time of marriage. The kazi who performs the ceremony of marriage enters the amount of dower in the register. The amount of dower is fixed either at the time of marriage or later on. In case, the contract of marriage of a minor son is entered into by the father or guardian, the amount of Mehr so fixed by father or guardian is binding on the minor. There are difference of opinions amongst the various schools regarding determining the personal liability of father or guardian for dower on behalf of minor. According to Hanafi law, the father is not personally liable for the Mehr. However, in Ithana-Ashari law, he is held responsible. In Sahir Hussain v. Farzand Khan, AIR 1938 P.C. 80, 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. When the dower is specified it may be payable (1) on demand, or (2) on death of husband or divorce. The former is known as prompt dower (Mahr- i-Muajjal), and the latter as deferred dower (Mahr-i-Muwajjal). When dower is fixed, it is usual to split it into two equal parts and to stipulate that one shall be paid at once on demand and the other on the death of the husband or in case of divorce. (a) Prompt dower. - The following points must be noted regarding prompt dower :(i) Prompt dower is payable immediately on the marriage taking place and it must be paid on demand, unless delay is stipulated for or agreed. It can be realised at any time before or after the marriage.
(ii) Prompt dower does not become deferred after consummation of marriage and a wife has absolute right to sue for recovery of prompt dower even after consummation. On the consummation of marriage, the only thing that goes against her is that she cannot resist the restitution of conjugal rights of the husband if the prompt dower has not been paid by him. Instead of refusing to decree the suit for restitution of conjugal rights to which she is entitled if marriage is consummated, the court may pass a conditional decree for restitution on payment of prompt dower.
(iii) It is only on the payment of the prompt dower that the husband becomes entitled to enforce the conjugal rights, unless the marriage is already consummated. The right of restitution arises only after the dower has been paid. Until the marriage is consummated, the wife has a right to refuse him conjugal union unless the prompt dower is paid.
(iv) As the prompt dower is payable on demand, limitation begins to run on demand and refusal. The period of limitation for this purpose is three years. If during the continuance of marriage the wife does not make any demand, the limitation begins to run only from the date of the dissolution of marriage by death or divorce.
(b) Deferred Dower - This is payable on dissolution of marriage either (i) by the death of either of the parties or (ii) by divorce. In a case in which no specific proportion of prompt and deferred dower has been fixed by agreement at the time of the marriage of by custom -(i) the whole is regarded as prompt according to Shia Law.
(ii) part is regarded as prompt and the remaining part as deferred according to Sunni Law; the proportion is regulated by the status of the parties and the amount of the dower as settled. The court has however the power to award the whole as prompt.
On the dissolution of marriage -(i) if the marriage was consummated, the wife is entitled to the immediate payment of the whole of the unpaid dower, both prompt as well as deferred, and
(ii) if the marriage was not consummated, she is entitled to only half of the specified dower.
If the dower is not paid to the Muslim wife, she and after her death, the heirs may sue for it. The period of limitation for a suit to recover prompt dower is three years. In case of "deferred" dower "the period of limitation is three years, from the date when marriages is dissolved by death or divorce." (2) Customary or Proper dower. - 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 Alld. 118)]. It is also termed `dower of her equals'. It is at the discretion of the court as to what it considers proper dower for the woman, but the court is generally to be guided by these consideration :(i) the social position of the family of woman's father;
(ii) her own personal qualification;
(iii) the powers that have been given to her female paternal relations, i.e., her consanguine sisters, her paternal aunts, the daughters of her, paternal uncles or her father's sisters;
(iv) the position of the husband must not be altogether excluded from consideration as unequal marriage often take place. (Azeemooddin v. Bibi Husaini, 1942 AWR 110);
(v) when a wife bases her claim on a contract which she fails to establish, the court is bound to decree such amount as dower as is admitted by her husband (7 Lah. 447).
Shia Law. - Under Shia Law, the Proper Dower should not exceed 500 dirhams. 500 dirhams was the amount fixed as dower on the marriage of Fatima, the Prophet's daughter.(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'.(a) The marriage has been proved.
(b) Dower has not been proved.
(c) She was a convert to Islam and hence a non-Muslim before marriage.
When the marriage has been proved, she become entitled to `dower'. But the dower has not been proved, in other words, it is not specified. Hence, in the absence of specified dower she becomes entitled to `proper dower' which is to be fixed at the discretion of the court. Ordinarily for its guidance in exercising this discretion, the court should consider the dower usually settled on to her female members of her father's family. But in this case, the widow being a convert, the court can have no such guidance because the female members of her father's family were non-Muslims. The only alternative is to fix an amount considered reasonable with reference to the means of the husband and the status of the wife.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 can not alienate the property.Divorce
BY HUSBAND
(i) Talaq (ii) Ila (iii) Zihar
BY WIFE
Talaqetafwiz
BY MUTUAL CONSENT
(i) Khula (ii) Mubarat
BY JUDICIAL DECREE
Under Dissolution of Muslim Marriage Act 1939
In order to pronounce a valid `Talaq', husband under Shia law must be of sound mind who has attained the age of puberty is competent to pronounce `talaq'. The pronouncement must be in presence of at least two witnesses and under Sunni Law every Muslim man is capable of giving Talaq who is adult and sane. Talaq may be affected in any of the following modes on revocation point of view: (1) Talaq Ul Sunnat (2) Talaqul Biddat (1) Talaq Ul Sunnat ; It has been sub divided into :(a) Ahsan (b) Hasan
(a) Ahsan Talaq in Ahsan form is very best kind of Talaq. To be in ahsan form the proceedings of divorce must satisfy following conditions:
(i) Husband must pronounce the formula of divorce in a single sentence.
(ii) Pronouncement of divorce must be in state of purity.
(iii) Husband abstain from intercourse for the period of Iddat.
A pronouncement made in Ahsan form is revocable during `Iddat' and becomes irrevocable on expiry of period of Iddat. (b) Hasan To be in `hasan' form, the proceedings must satisfy following conditions.(i) There must be three successive pronouncements of formula of divorce.
(ii) In case of Menstruating wife, the first pronouncement should be made during the state of purity (Tuhr) and the second during next state of purity and third on next.
(iii) In case on non-menstruating, wife, pronouncement should be made during the successive intervals of 30 days.
(iv) No sexual intercourse should take place during these periods of state of purity (Tuhr).
Such divorce becomes irrevocable, on third pronouncement, irrespective of `Iddat'. (2) Talaqul biddat ; It is most irregular form of mode of Talaq. Sunni law recognises such mode of Talaq but they think it to be sinful. Shias do not recognise this form of divorce. Following are the requirements in Talaqulbiddat: Three pronouncements made during single period of purity (Tuhr) in one sentence. Such Talaq becomes irrevocable immediately when it is pronounced irrespective of `Iddat'. Under the Talaqulbiddat once a definite complete separation has taken place then parties so separated cannot remarry without the formality of the woman marrying another man and being divorced from him. Ali Mohammad v. Mst. Rehman Meo, 1972 PLR 869. Husband filed written statement in proceeding u/s 488 CrP.C. stating that he had divorced his wife and nothing to do with her written statement held amounts to Talaqul biddat.1. Khula
2. Mubarat
1. Khula - Sometimes the divorce of a spouse takes place with the mutual consent of both the parties. The word `Khula' literally means `To take off clothes' and thence `To lay down one's authority over a wife'. Prior to Islam the wife, had no right to ask for the divorce. Such a right was conferred upon her only through `Koranic legislation'. It has been written in `fatava' i-Alamgiri' that when married parties disagree and they are apprehensive, they can not observe the bounds prescribed by the `Divine-laws', i.e. when the duties imposed on the spouse on account of their conjugal relations can not be performed, the wife can release herself from the tie of her marriage by giving up some property in return. In consideration of it the husband has also to give her a Khula. This practice is adopted in the case of Talaq-ul bain. This form of divorce has been recognised in section 28 of Special Marriage Act (Act 43 of 1954). Essential conditions - The following are the essential conditions for `Khula' :-1. Common consent of the husband and wife.
2. Some `return' or consideration (lwaz) from the wife to husband, if she desires to separate her from husband through such divorce.
The speciality of divorce by `Khula' is that (a) wife begs from her husband to release her from the tie of marriage (b) such request is made for certain consideration which is usually a part of the whole of the Mehr. (b) Mubarat - The term `Mubarat' denotes "the act of freeing one another mutually". In such a divorce spouse feel happy at the prospects of getting rid of each other. In the divorce of Mubarat, the offer for the dissolution of marriage may proceed from wife or it may proceed from the husband. However once it is accepted the dissolution of marriage is deemed complete and operates as a Talaq-i-bain. The legal effect of Khula and Mubarat - The legal effect of Khula and `Mubarat' is that, once it is completed the divorce between a spouse becomes irrevocable. A marital life, thereafter, can not be resumed. A form called re-marriage is then necessary. If `Iddat' is incumbent on the wife, in absence of agreement to contrary, she and her children are entitled for maintenance during such period. Difference between `Khula' and `Mubarat' - There are following differences between Khula and Mubarat -|
Khula |
Mubarat |
|
1. When the desire for separation is expressed from the side of wife, it is called Khula. |
1. Where the desire for separation is expressed from any side, it is called Mubarat. |
|
2. Consent of Husband is necessary. |
2. Mutual consent is necessary. |
|
3. It is effected by an offer from wife to compensate the husband, if she is released by him from the marital tie. |
3. It can be effected by the offer of any of the spouse. |
|
4. Consideration is essential for Khula marriage. It may be whole or part of Mehr. |
4. No such consideration. |
|
5. The contract of marriage if dissolved, is irrevocable. |
5. Irrevocable. |
|
6. The observance of period of `Iddat' is necessary. |
6. It is followed in Mubarat also. |
(a) Three consecutive pronouncements of Talaq made during single period of purity (Tuhr) in one sentence.
(b) A single pronouncement of Talaq made during `tuhr' indicating an intention to dissolve the marriage.
Talak in the form of `Talakul biddat' becomes irrevocable immediately when it is pronounced irrespective of the fact that period of iddat has been undergone or not. Under the Talakul biddat, once a complete and definite Divorce has taken place parties to marriage can not remarried without the formality of the woman marrying another man and being divorced from him. In the case hand, Muslim wife was given divorce in "Talaqul biddat" form by her husband by pronouncing word `Talaq' thrice to her. As stated above, such divorce becomes irrevocable immediately on the pronouncement of Talak three times in one sentence. Such Talaq can not be revoked by husband on apology by his wife for her misbehaviour. Therefore in the case in hand, marriage of husband and wife was dissolved by divorce. Parties could have remarry only when wife after undergoing the Iddat period, marries to another man and divorced by him also. But in this case, this formality has not been gone through by the parties, therefore, marriage between them stand dissolved, after the pronouncement of Talak by husband. However, facts of the case in hand indicate that after the apology by Muslim wife for her misbehaviour, parties kept on living as husband and wife and continued cohabitation and a son was born to woman from him. Son was got admitted in the school by Muslim husband showing himself to be his father and also brought up the son as such. After the death of Muslim husband, when brother of such Muslim husband filed suit claiming exclusive right over his estate, question of legitimacy of son is raised. As stated above, a irrevocable Talak had taken place between Muslim husband and wife, therefore if even after the talaq parties cohabit and son has born, such son will not be legitimate son in the eye of law. Because Muslim law of acknowledgement of paternity does not allow acknowledgement of legitimation. It only provides for declaration of legitimacy and does not allow legitimation of an illegitimate child. Therefore the fact that son was got admitted in the school by Muslim husband as his father and brought up the son as father of such son does not confer legitimacy to such son when he is an illegitimate son. Therefore action brought by brother of deceased Muslim husband will succeed. Facts of this case are identical to case Rashid Ahmad v. Anisa Khatoon, AIR 1932 PC 25 wherein their lordships observed "According to Hanafi law of Sunnis `Husband' could not marry with his wife after the pronouncement of Talaq unless another marriage of such wife had intervened. It was therefore held that fact of subsequent treatment of divorced wife as wife and birth of child during subsequent period can not undo the divorce and make the child legitimate. Thus child born after the triple divorce was held to be illegitimate."(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.(a) The acknowledgement must not be merely of sonship but a legitimate sonship.
(b) The age of parties must be such that it is possible that they may be father and son.
(c) The child so acknowledged must not be known to be child of another.
(d) The child, if adult, must confirm acknowledgement.
(e) It is essential to show that a lawful marriage is possible between the acknowledge and child's mother and the child is not the fruit of adulterous intercourse.
(f) The acknowledgement must be with distinct intention of conferring the status of legitimacy.
In Mohd. Allahadad Khan v. Mohd. Ismail, (I.L.R. 1887) 10 All.289 father of Allahdad Khan died leaving behind two sons and three daughters. Eldest son Allahdad Khan filed suit against younger brothers and 3 sisters that he was eldest son of deceased and therefore entitled to 2/7 of share in estate. Defence was, that plaintiff was only step son of father having been born of their mother before she married with their father (deceased). Plaintiff contended that even if he failed to prove that he was son of deceased but he had been acknowledged as such by deceased on several occasions and therefore entitled to succeed as his son. He filed certain letters in which he had been referred to by deceased as a son. Justice Mehmood held that acknowledgement under Muslim Law is a rule of substantive law and not a rule of evidence. It confers status of sonship and right to succeed. Such acknowledgement always proceeds on the assumption of valid union between the parents of acknowledged son.|
According to Hanafi Law |
within 2 lunar years. |
|
According to Shafi'i and Maliki law |
within 4 lunar years. |
|
According to Shai law |
within 10 lunar months |
(1) In olden days three was imperfect knowledge of gestation and pregnancy.
(2) If a woman gives birth to an illegitimate child, such child is excluded from inheritance and the mother of such child was punished for the offence of "Zina" (illicit inter-course).
(3) As per Ameer Ali the ancient jurists were actuated by sentiments of humanity and not any indifference to the laws of nature, their chief desire being to prevent the abuse of the provisions of law regarding divorce and the disavowal of children."
The presumption of marriage does not arise from a long cohabitation if the woman was a prostitute and even if she was brought to home of a person as his wife. Conflict with the provisions of Section 112 of Indian Evidence Act with Muslim Law. According to Section 112 of the Indian Evidence Act 1872, a child born during the continuance of a valid marriage, Or Within 280 days after its dissolution the mother remaining unmarried, is the conclusive presumption of legitimacy, unless there was no access when he (the child) could have been begotten. Conflict between those two set of rules :-|
Muslim Law |
Section 112 of Indian Evidence Act |
|
(1) A child is illegitimate if born within less than six months after marriage unless the father acknowledges it. |
(1) A child born even a day after marriage is legitimate unless parents had no access to each other at any time during he which could have been begotten. |
|
(2) A child born after 6 months from the date of marriage is presumed to be legitimate unless putative father disclaims the child by lian. |
(2) A child is legitimate under either system; subject to lian in one case and proof of non- access with other even if the child is born after 6 months from the date of marriage and within 280 days of termination of marriage. |
|
(3) The child is presumed to be legitimate if born within two years after the termination of marriage unless such legitimacy is disproved by lain. |
(3) A child is legitimate according to Hanafi Law if born between 280 days and 2 years after the termination of marriage. |
(1) Natural Guardian
(2) Testamentary Guardian
(3) Guardian appointed by Court.
(1) Natural Guardian - Muslim law-givers have not used the term of natural guardian in Muslim Law but all schools of Sunnis and Shia-school recognize the father of a minor as legal guardian. In other words it is recognition of natural guardianship. However, mother is not recognized as natural guardian even after the death of the father of a minor. A mother or any other female member is not entitled to the custody of a minor, as was decided in Imambandi v. Mutsadi, (1918) 45, Cal. 887). He (father) is the sole and supreme guardian of his minor children. He has also a right to control and upbringing and the movement of his minor children. A father neither has a right of guardianship not the custody of illegitimate children. According to Sunni School, a Muslim father is the only guardian of the minor children and after his death, it is passed on to his legal executors. According to Shia schools, the guardianship of a minor passes on to the grandfather after the death of father. It appears that Shias do not recognize the natural guardianship of any body, even of the brother, except father and grandfather. So far as the position of a Muslim woman about guardianship is concerned she can have the custody of a minor only for the period prescribed in Muslim law. (2) Testamentary Guardian - It is a rule in Sunnis that a father of a minor can make a testamentary appointment of a guardian and in his absence his executor or the grandfather can do so. In Shias, a father can make appointment of a testamentary guardian only when grandfather is absent. No other person has any power of making an appointment of a testamentary guardian of her illegitimate children. Mother can, however, appoint a testamentary guardian in following two cases -(a) When child's father has appointed her as executor by his will.
(b) When she wishes to appoint an executor in respect of her own property, which will devolve after her death, on her children.
In these cases, a mother can appoint a testamentary guardian of the property of her minor children legitimate or illegitimate. A non-Muslim mother can also be appointed as valid guardian according to Sunnis but among Shias it is not valid. Shias believe that a non-Muslim woman cannot be a guardian of a person as well as property of a Minor. A non-Muslim alien also cannot be appointed as testamentary guardian and if such appointment is made, it will be `null or void'. Another characteristic of the testamentary guardianship is that a person who bears a notoriously bad character in the public walk of the life i.e. Profligate, cannot be appointed as guardian. In the case such person is appointed as guardian by mistake, all acts done prior to his removal will be deemed valid, provided that they may not be contrary to the interest of minor. Appointment of testamentary guardian - A testamentary guardian may be appointed orally or in writing, Muslim Law does not prescribe any specific formalities for the same. As per `Fatwa-i-alamgiri', it is necessary that in each case, the intention to appoint a testamentary guardian must be clear and unequivocal. The testamentary disposition made by a testator may be valid but appointment of the testamentary guardian of the minor may be invalid. The testator must have the capacity to make the `will' at the time when it was executed i.e. he should be major and of sound mind. When an executor is appointed by a testator, it is the duty of the executor to administer the estate and assets of the testator (2) to carry out the wishes of testator with utmost fidelity and (c) to act as guardian of minor. It is necessary that the appointment of testamentary guardianship must be accepted. Such acceptance can either be express or implied. Such guardianship if once accepted cannot be renounced - save with the permission of the court. (3) Guardian appointed by Court - Under the Guardian and Wards Act, 1890, a District Judge may appoint a guardian of a minor child's person and property - whenever it is considered necessary by him for the welfare of the minor. While making such appointment, the District Judge will take into consideration the age, sex, wishes of the child as well as the wishes of the parents and the personal law of minor. Prior to the enforcement of this Act, a Kazi was entrusted with the power to appoint a guardian of a Muslim minor when the natural guardian or testamentary guardian had failed. Now the powers of Kazi have been abrogated after passing of this Act.(a) Mother's mother or
(b) Father's mother
(c) Full sister or
(d) Uterine sister
(e) Consanguine sister or
(f) Full sister's daughter
(g) Uterine sister's daughter or
(h) Consanguine sister's daughter or Maternal or Paternal Aunt.
Mother or other female relation (as stated above) will lose right to "Hizanat" if(i) If she leads immoral life or
(ii) She neglects to take proper care of child or
(iii) If she marries to a person not related to child within prohibited degree
(iv) If she goes and resides at distance place.
In default of mother or other female relations "Hizanat" under Sunni Law belongs to(i) Father or
(ii) Paternal grandfather or
(iii) Full brother or
(iv) Consanguine brother or
(v) Full brother's son or
(vi) Consanguine brother's son or
(vii) Full brother of father etc.
However male relation as stated above will not be entitled to custody of an unmarried girl unless he stands in prohibited degree relationship with such girl. If there be none of the above said guardian of a minor, then court shall appoint guardian of such child. Under Shia Law failing mother, the father and failing father, paternal father of minor child is entitled to "Hizanat" of minor child. In Sunni Law custody of a boy over the age of 7 years and of an unmarried girl who has attained puberty, shall be with the father and in Shia law father is entitled to custody of male child over the age of two years and female child over the age of seven years.(1) Powers on the immovable property.
(2) Powers on the movable property.
(3) Powers to purchase and sale the property.
(1) Powers on the immovable property - The powers on the immovable property of a minor are exercised by a guardian according to his own capacity. For example, a legal guardian have more powers in this regard than the guardian appointed by court or a `de facto' guardian.(a) The powers of a legal guardian - A legal guardian, normally cannot sell the immovable property of a minor. He can however do so (1) when he can obtain its double value or (2) when it becomes necessary for the maintenance of the minor (3) when there are debts and legacies for which there is no other means for their payment or (4) when the property is likely to fall or destroy.
(b) The powers of a de facto guardian - A `de facto guardian' cannot sell the property of a minor. Even then if he does so, such sale will be of nullity. He (de facto guardian) can also refer the dispute if any, relating to the property, to arbitration. In this connection, in the case of Johra Bibi v. Mohammad Sadak (AIR 1951, Mad 992), it was held that even the mother of a minor, without getting herself appointed as a legal guardian, can not refer the matter to arbitration. Even the sale-deed executed by a mother as a `de facto' guardian on the property of her minor is held void and inoperative as already decided in the case of Venkama Naidu v. Chisty (AIR 1951 Mad. 399).
(2) Powers on movable property of minor - A legal guardian can sell or charge the movable property for the minor's bare necessities like food, clothings and nursing. A `de facto' guardian can also exercise the same power. The guardian appointed by court can deal with the property of minor, as carefully as would a man of ordinary prudence, if it were his own. In brief, he has more powers in this regard than the guardians of other two categories. (3) Power to purchase immovable property - The guardian of a minor has no right to enter into an agreement for the purchase of immovable property on behalf of the minor. It was held in the case of Mir Sarwarajan v. Fakhruddin (1912, 39, IA) that, if he does so, such an agreement, will be void. Sometimes, a question arises whether an agreement, entered into by a minor through his guardian for the purchase of a property, has any legal force and recognition for the specific performance of such agreement. This problem was resolved in Amir Ahmed v. Meer Ali AIR 1959 Hyd. 120 when it was held "if the agreement is entered into by a minor through a person other than dejure guardian, the reply will be negative. If it is done through dejure guardian the reply is yes.(i) Parties
(ii) Subject matter
(iii) Transfer
(iv) Acceptance
(v) Absence of consideration
(vi) Voluntarily
(1) Parties - There are two parties to a gift. One who donates a thing or property is called `donor' and other who accepts it is called `Donee'. Every person, who is competent to transfer the property under Section 7 of Transfer of Property Act, can validly make a gift. The minors cannot do so. The donation should be for a specific person or for a group of persons or for an institution etc. The donation made for public at large and without any definite object is not valid. A gift by a married woman is valid and subject to same legal consequences. A gift by a Pardanashin lady is valid, but is case of a dispute the burden of proving that it was not induced by undue influence and the donor understood the nature of the transaction while making it, lies on the donee. (2) Subject matter - The subject matter of the gift must be movable or immovable property which is actually in existence at the time of making gift. The future goods or property cannot be donated or given as gift. (3) Transfer - The ownership of a thing or property is transferred to donee from donor no sooner it is donated. If the subject matter of donation is immovable property its transfer will take place through registered documents and by giving physical possession. (4) Acceptance - The gift must be accepted by the donee or by some one duly authorised by him. The donation without the acceptance of donee is not held valid. The consent of donee must also be given during the life time of donor. (5) Absence of consideration - Donation is such a transfer with obligation in which consideration has no place. The term consideration has the same meaning as has been given in Indian Contract Act and does not include natural love and affection. The gift made due to some spiritual or moral basis or due to natural love and affection is always held valid in law. If any condition is imposed with gift, the gift will be valid and the conditions so imposed will be invalid. (6) Voluntarily - The gift must be made voluntarily. The term voluntarily does not mean unfettered `free-will' of a person. When a person has some property of his own and donates it to other person or persons without any pressure or influence for a specific object, without any consideration and with his free will, the gift so made by him will be held legally valid. If the donor is `Pardanashin' woman her total acts and conducts must be taken into consideration for assuming that she had a full opportunity to express her `free-will' for the gift.(a) There must be clear, unambiguous and specific declaration of gift by Donor to Donee.
(b) There must be acceptance of gift expressly or impliedly by or on behalf of donee.
(c) That there must be delivery of possession of subject of the gift by donor to donee.
Section 149 of the Mulla's Principles of Mohammedan law also provide: "It is essential to the validity of a gift that there should be (1) A declaration of gift by the donor (2) Acceptance of the gift express or implied by or on behalf of donee (3) Delivery of possession of the subject of the gift by donor to donee in accordance with the provisions of Section 150. If these conditions are complied with the gift is complete and if any of three conditions mentioned above is not satisfied, there can not be a valid gift. In Abdul Manan v. Md. Murad Ali and others, 1999 Family Law Cases 108 Patna High Court also discussed the essentials of a valid gift and provided following essentials for validity of gift (a) Declaration of Gift by Donor (b) Acceptance of Gift by donee (c) Delivery of possession of property gifted by donor to donee. Thus it is clear that above state conditions must be fulfilled for the validity of a gift. Delivery possession of subject to be gifted must be effected from Donor to Donee. Where the subject matter of gift is in the possession of a person holding the property adversely to the donor, the gift is not valid unless donor either recovers possession or does all that he can, which is necessary to put the donee in possession. In Maqbool Alam v. Mst. Khodaija, AIR 1966 SC 1194 Supreme Court held that if the gifted property is in wrongful possession of a trespasser, a mere declaration and acceptance of gift would not make it complete; there must be either delivery of possession or some overt act by the donor to put it in the power of the donee to obtain possession. Coming now to case in hand, donor C has done all that he can do to complete the gift. He is party to the suit filed by donee (D) and admits the claim of donee and fact of gift. Therefore C by admitting the gift to D has made D to obtain possession from A and thus C has given constructive possession of property gifted to D and therefore gift of C to D is valid.(a) Donor must make declaration of gift
(b) Donee must expressly or impliedly accept the gift made by donor.
(c) Donor must make delivery of possession property gifted to donee.
So donor should divert himself completely of all ownership and dominion over the subject of the gift. For completing the gift of immovable property two things are essential:(a) that donor must physically depart from immovable property
(b) Donee formally and actually enters into the possession of such property.
In the case in hand, there is nothing to show that possession of house was delivered by donor to donee. Nor the title deed was delivered to donee. The mutation has also not been effected in favour the donee in revenue and municipal record and donor is still paying house-tax thus in records, house still stands in the name of donor. There is no actual and formal delivery of possession from donor to donee therefore gift is incomplete hence not valid.(1) In a property incapable of division or
(2) In property capable of division.
(1) Mushaa in a Property Incapable of Division: A gift of an undivided share in property (Mushaa) which is not capable of division is valid. In Kasim Hussain v. Sharief unnissa, (1833) 5 All. 385, A who owns a house makes a gift to B of the house and of right to use stair case by him jointly with the owner of adjoining house. Gift of A is undivided share in stair case, though it is a gift of Mushaa, is valid as stair case is not capable of division. (2) Mushaa in Property Capable of Division: Property is capable of division gift of Mushaa will be irregular though not void under Hanifi law. It means it can be rendered valid by subsequent partition and delivery. Exceptions to the general rule - The following are the exceptions to the general rule regarding gift of the Musha -(1) If the gift is made by one co-sharer to the other, the doctrine of `Musha' will not apply. In the case of Md. Bukh v. Hossenil (1889) 15 IA 81 a Muslim died leaving his widow `W', son `S' and a daughter `D'. After getting succession to the property of deceased, widow `W' made a gift of her undivided share in the inherited property to `S' and `D'. The gift was held valid by the court. In such case only so much is necessary that the donor should divest himself or herself totally of his or her proprietary rights.
(2) The gift of a share in Zamindari or a taluka can be made. In the case of Ismail v. Idrish, it was held that the gift of an undivided share in Karmi land is valid.
(3) If the gift of a share in freehold property in a large town is made. In the case of Gulam Arif v. Saidoo it was held that the gift of one-third of the house owned by donor was valid.
(4) When the gift is a share in the landed property. In Ibrahim v. Saidoo it was held it would be proper to apply this doctrine i.e. Doctrine of Musha to shares to very different categories of property.
(1) Actual payment of consideration (Iwaz) on the part of donee; and
(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). 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 - When a gift (Hiba) is made by some one with a stipulation (shart) for return (Iwaz), such transaction is called `Hiba-ba- shart-ul-iwaz" (Ameer Ali). In `Hiba-ba-shart-ul-iwaz' a gift is not followed by a voluntary return but it is made with stipulation. 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, `A' made gift of his house to `B' and put him in possession. `B' then gives `A' a horse in an Iwaz and `A' accepted it. After some time `A' purports to sell the house to someone. Such sale will not be effective because gift with condition of return, once completed can not be revoked in any circumstances. `Hiba-ba-shart-iwaz' is also subject to the right of preemption. Difference between these two Hibas - There are following differences between them :-|
Hiba-bil-iwaz |
Hiba-ba-shart-ul-iwaz |
|
(1) In such Hiba the iwaz (return) is not even in the contemplation of the parties at the time of original gift. |
(1) In such Hiba, lwaz (return) is not merely in contemplation of the parties but it is expressly stipulated for. |
|
(2) It bears the character of gift throughout and does not partake the character of sale even when Hiba is given. |
(2) It bears the character of sale because the item can be returned if it is defective. |
|
(3) In such Hiba, no sooner the possession of subject matter of Hiba is given to donee is iwaz, then it becomes a sale. |
(3) It is not so. |
|
(4) Delivery of possession of subject matter of gift is not necessary. |
(4) Delivery of possession is 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. |
(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.
(i) Gift to non-heir He cannot make gift a more than 1/3 of his property in favor of non-heir unless the other heir 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.
In view of the above discussion it is clear that death bed gift made by Rehman in favour of his wife of all of his property is not valid and not enforceable and therefore other legal heirs of Rehman will be entitled to the property of Rehman in accordance with Succession Rules under Muslim Law.(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 can not 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 can not revoke it. Difference of opinion between Shias and Sunnis about revocation :- There are difference of opinions between Sunnis and Shias about revocation of a gift in following respects - Shiaties recognised that :-(1) It can not be revoked if it has been made by a husband to wife or by a wife to her husband.
(2) A gift made to a relation, whether within prohibited degrees or not, can not be revoked.
(3) It can be revoked by a mere declaration of donor and the proceedings ofthe court of law are not required.
However Shafi and Maliki (Sunnis) believe that if a gift has not been made under pressure or misconception it cannot be revoked whether the delivery of possession was given or not. (b) Irrevocable gifts - As per Asaf A.A. Fyzee, the following gifts can not be revoked :-(1) When a gift is made to a person who is so closely related by consanguinity that if the parties differed in sex, a marriage between them would be unlawful.
(2) By a wife to the husband or by the husband to a wife.
(3) When the donor or donee dies.
(4) When the thing given is lost or destroyed.
(5) When the thing given has been transferred by the donee by gift, sale or otherwise.
(6) When thing has increased in value, whatever be the cause of such increase.
(7) When the donor has accepted a return (Iwaz) for the gift
(8) Where the motive for the gift is religious or spiritual - for such a case a gift amounts to "Sadaqa"
(i) conferment of right in a property,
(ii) which is to take effect after the death of the testator.
Nature. - The transfer of right under a will is not a immediate disposition but is deferred till testator's death; while an immediate transfer of interest of right is essential in a gift. Conditions of a valid will. There are two conditions of a valid will. 1. There should be a distinct and express intention to give, and 2. The disposition must be intended by the testator to take effect after his death. If these two conditions are established, then no particular form is necessary for a valid will. Muslim Law does not prescribe any particular formality for valid will. The only requirement is that there must be manifestation of the intention to transfer the ownership of some of his properties upon legatee without consideration. It may be Oral Will or In writing. The provision of Indian Succession Act do not apply to Muslims Will. Who can make a will. - Subject to the limitations on the testamentary powers, every Muslim who is -(i) of sound mind, and
(ii) has attained majority under the Indian Majority Act (18 years; or if guardian has been appointed of his person or property by the court or he is under the supervision of Court of Wards, then 21 years),
is capable of disposing of his property by will. 3. Will by a lunatic. - Such a will is void ab initio and can not be validated by ratification. Similarly, if a person of sound mind becomes permanently of unsound mind after making bequest, the bequest will become invalid. 4. Will of an apostate. - The testator must be a Muslim at the time of making the will. According to Maliki School, apostacy annuls such a will but according to the Hanafis, the will would be effective if it is lawful according to the sect from which he has apostacized. 5. Will of a person condemned to death - Such a person cannot be deprived of the power of making a will. 6. Will by Insolvent - A person making a will should be solvent, if his liabilities exceed his assets, the bequest will not be effective unless the creditors discharge the estate from the payment of their debts.(1) There is restriction to the extent of the property
(2) There is restriction as to person to whom the bequest may be made.
Limits As Regards To Property :- A Muslim may not make a will of more than 1/3 of property what remains of his estate after payment of funeral expenses and debt, provided heir's consent is not obtained after the death of testator. Therefore a Muslim can make a valid bequest in favour of non-heir or stranger only to the extent of 1/3 of net assets remaining after payment of funeral expenses and debts. It is however important to point out :-(a) A Muslim cannot create by will an estate repugnant to the Law
(b) It is not necessary that the thing should be in existence at the time of testator's death.
(c) A bequest may be made of any thing which is capable of being transferred.
Limits as regards to person - (1) Bequest in favour of an heir - The general rule in this regard is that the bequest in favour of an heir is invalid unless the other heirs consent to it after the death of the testator. A bequest to a non-Muslim (b) also valid according to all schools except that of Shafi. This general rule seems to be justifiable on the grounds that :(a) It prevents a testator from interfering with or defeating the rule of inheritance.
(b) A bequest in favour of an heir to the exclusion of other heirs would be an injury to the latter and it would reduce their shares.
(c) It would consequently, induce a breach of the ties of kindred.
Such a consent should be given after the death of the testator. Before the death of the ancestor, under Sunni Law, the person gets no interest in the property. Under Shia Law the consent may be before the testators death. (2) Bequest in favour of an heir and stranger - When the bequest is made to an heir and also to a stranger, the bequest to the heirs in valid unless assented to by other heir, bequest to the stranger is valid to the extent of 1/3rd of the property. (3) Bequest to an unborn person - A bequest to an unborn is void according to Sunni Law. It is valid if it is made to a child in the womb provided it is born within 6 months of the date of the will. Under Shia Law, a bequest to a child in womb is valid if it is born in the longest period of gestation, i.e., 10 months. (4) Bequest to a testator's murder - A bequest to a person who causes the death of the testator whether intentionally or accidentally, is void under Sunni Law. Under Shia Law, such bequest is void only when the murder was intentionally done. If it was done accidentally by him, it will not be void. Revocation of Will 1. A testator may at any time, revokes his will. The revocation may be-(i) expressed verbally, or
(ii) expressed in writing, or
(iii) implied i.e., by some act which shows an intention to revoke it. Some of the instances of implied revocation are -
(a) A bequest of a piece of land is revoked, if the testator subsequently builds a house.
(b) A bequest of house is revoked if the testator sells it or makes a gift of it to another.
(c) It is completely after the nature of property.
(a) Limitation in respect of person in whose favour the bequest is made.
(b) Limitation as regard to extent to which a Muslim can dispose of his property.
A. LIMITATION AS REGARDS THE PERSON Under Sunni law bequest in favour of an heir even to the extent of one-third is not valid unless the other heirs give consent to it expressly or impliedly after the death of Testator. Under Shia law a testator may give a legacy to heir so long as it does not exceed one-third of his estate, such a legacy is valid even without the consent of other heir. But if the legacy exceed one- third it is not valid unless other heirs consent to it. So only case in which testamentary disposition is binding upon heirs when bequest does exceed one- third of whole estate and when it is not exceeding to one-third of estate of testator made to a person who is not an heir. B. LIMITATION AS REGARDS THE PROPERTY : The general rule with regard to the extent of property that may be disposed of by will is that no Muslim can make a bequest of more than one-third of his net assets after payment of (1) Funeral Expenses and death bed charges (2) Expenses of obtaining probate letter of administration or succession certificate etc. (3) Wages due for services rendered to testator within 3 months preceding his death by labour, domestic servant etc. (4) Any debt of testator in any form payable to creditor. So after deducting above said expenses or liabilities, whatever will be left can be disposed of to the extent of one-third of it by way of will. In view of the above discussion it is clear that a will in question is not valid because it exceeds the legal third and also it is made in favour of an heir without consent of other heirs. Therefore debt of one lac to a creditor and payment of Rs. 50,000 as Dower to wife of Deceased will be made first and then Balance will be divided among heirs of deceased in accordance with provision of succession under Muslim law.(1) The motive of a wakf must always be religious. It is generally temporal.
(2) The wakf property belongs to God. Therefore, such dedication must be permanent and irrevocable.
(3) Wakif cannot take any benefit of Wakf property.
(4) A property which is capable of being endowed in perpetuity can only be the subject matter of Wakf.
(5) A `Mutawalli' is appointed to manage the wakf property for that purpose, he is merely a procurator manager or superintendent. The wakf property is never vested in him, as such he can never be a trustee.
So for the creation of a `Waqf' there must be a substantial dedication of usufruct of the property to religious, pious and charitable purpose as understood by Muslim law and it should be a permanent dedication of property. In Punjab Waqf Board v. Shakur Masih, 1997 Family Law Cases 177 (SC) Supreme Court observed : "In Section 191 of Mulla's Principles of Mohammedan law it is provided that it is essential for the validity of Waqf that the appropriation should not be made to depend on a contingency. Therefore a bequest creating waqf contingent upon the life time of any body is invalid". It observed by Supreme Court in para No.4 of the Judgement "Waqf means permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by Muslim law as religious, poiuse or charitable." Kinds of Waqf : Under Muslim Law waqfs have been classified into two categories:1. Public waqfs, and
2. Private waqfs.
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-al-alaulad'. "A waqf in favour of one's own family and descendants is called waqf-al-alaulad." Before Waqf Validating Act, 1913, "private waqf, i.e. waqf-al-aulad, was held to be void. The Privy Council laid down in Abdul Fata Mohammed Irshad v. Russomoy Dhur Chowdhry, that "if the primary object of waqf is the aggrandisement of family and the gift to charity is illusory whether from the small amount or from its uncertainty and remotedness, the waqf is invalid and no effect can be given to it." Law after the Waqf Validating Act, 1913 - The above said decision of the Privy Council created dissatisfaction among the Muslims of India, who made strong representation to the effect that the law as laid down was a departure from the Muslim Law. Accordingly the Waqf Validating Act of 1913 was passed, under which a Mohammedan can create a waqf for the benefit of his descendants, provided that the ultimate gift is reserved for charity. Salient features of the Waqf Act of 1913 1. Under this Act, a Muslim can tie up his property in perpetuity for the support of his family, children and descendants, provided he makes a provision that the ultimate benefit goes to a charitable object of a permanent nature. 2. Such reservation of ultimate benefit may be made either expressly or impliedly. 3. It is no more necessary that there should also be a concurrent gift to charity. 4. It validates, in the case of a Hanafi Muslim a provision for the payment of the debts of the settlor out of the rents and profits of the property dedicated. Before the Act, he could not make a condition that his personal debts should be paid from the property. It is now declared by Section 3 of the Mussalman Waqf Validating Act, 1913, that it is lawful for a person professing the Mussalman faith to create a waqf which in all other respects is in accordance with the provisions of the Mussalman law, for the following among other purposes:(a) for the maintenance and support wholly or partially of his family, children or descendants.
(b) where the person creating a waqf is a Hanafi Mussalman, also for his own maintenance and support during his lifetime 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 recognized by the Muslim Law as a religious, pious or charitable purpose of a permanent character.
Section 4 of the above Act lays down, "No such waqf is to be deemed to be invalid merely because the ultimate benefit reserved therein for the poor or other religious, pious or charitable purpose of a permanent nature is postponed until after the extinction of the family, children or descendants of the person creating the waqf. Mutawalli The manager or superintendent of the waqf is called mutawalli. Under the Muslim system, in case of a waqf, all rights of ownership to the property vest in God. The mutawali has no right in the property. He is merely a superintendent or manager. Any person who is of sound mind, has attained the age of majority and is capable of performing the functions to be discharged under a particular waqf, can be appointed as mutawalli of the waqf. Waqf without Mutawalli If a waqf is created without appointment of Mutawalli the waqf according to Shia law is valid and has to be administered by the beneficiaries. However according to Immam Abu Hanifa if waqf is created without appointment of Mutawalli waqf fails. According to Abu Yusuf waqf without designating Mutawalli is valid and the Waqif becomes the first mutawalli. Mutawalli can be appointed by the following, in the given order:1. by the founder
2. failing him, by the executor of the founder
3. failing him, by the mutawalli on his death-bed
(a) can lay-down a scheme for the administration of the trust and for the successor to the office of Mutwalli and
(b) may nominate the successor by name or
(c) can indicate the class together with their qualifications from whom Mutwallis may be appointed.
A Mutwalli's son be appointed by the court also. This happens only when(a) A person appointed as Mutwalli dies or
(b) he refuses to act in the trust or
(c) when the office of Mutwalli is vacant and no provision in the deed of wakf is found regarding succession to the office.
In brief, a new Mutwalli can be appointed(a) by the founder of the wakf
(b) by his executor or
(c) by a Mutwalli on his death-bed as a successor for the time being or
(d) by the court.
When the Mutwalli is appointed by the court, the following rules will be kept in consideration while making such appointment.(i) The directions of the wakf cannot be disregarded except for the manifest benefits of the endowment.
(ii) A stranger can not be appointed so long as there is any member of the founder's family in existence and he is qualified to hold the office.
(iii) If there is a contest between the lineal descendent of the founder and one who is not a lineal descendent, the court is not bound to appoint him as `Mutwalli'. However, the court has discretion to appoint the other claimant as Mutwalli in such cases.
Powers of Mutwalli - (1) A Mutwalli has a power of management and administration of wakf properties. (2) He can apply the income of the wakf property for the purpose of which the wakf was created. (3) He can alienate the wakf property if he has been specifically authorised to do so in the wakf-deed. (4) He can sale, mortgage or exchange the wakf property with the prior permission of the court. (5) He can grant a lease of wakf property upto three years if it is agricultural land and upto the period of one year if it is non-agricultural. If a lease is granted by him for longer period, it can be valid only when -(a) he was specifically permitted to do so by wakf-deed itself; or
(b) he has obtained prior permission of the court.
(6) 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. (7) 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. (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 a Mutwalli. - The Mutwalli may be removed :-(a) by the settler, if he reserved such power in the Waqfnama.
(b) in other cases, by the court alone, when -
(i) he is found guilty of breach of trust or misfeasance with the Waqf property. For example, use of waqf money by the Mutwalli for purchasing some property in the name of his wife would amount to breach of trust [Bibi Sadique Fatima v. Mahmood Hasan, AIR 1978 SC 1362];
(ii) proves unfit to discharge his duties;
(iii) if he claims an adverse possession of the Waqf property, i.e., he claims it to be his own private property;
(iv) if he fails to keep accounts;
(v) when he allows the Waqf property to fall into decay by not executing proper repair of the Waqf property;
(vi) if he fails to carry out the instructions of the founder of Waqf;
(vii) if he becomes insolvent;
(viii) where a mutwalli otherwise exceeds his powers in dealing with the property, or
(ix) where the mutwalli suffers from any physical or mental incapacity.
(a) permanent dedication of any property, dedication implies intention to create Waqf and
(b) Declaration to this effect. Therefore mere declaration to create Waqf by owner is sufficient to complete Waqf. Neither appointment of Mutawali nor delivery of possession to him is essential,
(d) dedicator (Waqif) should be a person professing Mussalman faith and of sound mind and not a minor,
(e) Dedication should be for the purpose recognised by Mussalman law as religious, pious and charitable.
In Mohd. Shah v. Fashiuddin, AIR 1956 SC 713 There must be a substantial dedication of the usufruct of property to religious pious or charitable aims as understood by Muslim law. Such dedication must be perpetual and subject of Waqf may be any tangible property capable of being used without being consumed. According to Shia Law, four conditions are required to valid `Waqf' :(i) there must be perpetual dedication
(ii) it must be unconditional
(iii) Possession must be given of thing appropriated (Unlike Sunni Law under which mere declaration is sufficient).
(iv) Waqif should not reserve any benefit or interest in dedicated property.
Before passing of `Waqf Validating Act 1913' Private Waqf or `Waqf alalaulad) were considered to be void. It was necessary for constituting a valid Waqf under Muslim law that dedication of property must be solely to the worship of God and to charitable purpose and Waqf in favour of one's own family and descendants were not considered a valid Waqf. In Abdul Fata Mohmd. Irshad v. Russomoy Dhur Choudhary, (1894) 22 I.A 76 Privy Council laid down that if the primary object of Waqf is the aggrandisement of family and the gift to charity is illusory the Waqf is invalid and no effect can be given to it.1. Preemption 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, 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. Ans. (b) Right of preemption arises only in case of sale and only when such sale is complete. It does not arise in cases of transfer of immovable property without consideration such as by way of gift. The ground of preemption arises when the sale is complete but it continues, not only upto the date of suit of preemption but till decree is passed. Privy Council in Digamber Singh v. Ahmad, (1915) 37 ALL 129(PC)held that these four grounds on which claim for pre emption may be based are:(a) By statute i.e. if there is any special Act of legislature relating to preemption.
(b) By Custom in the absence of statutory law, the right may be claimed on basis of custom.
(c) By contract
(d) By Muslim Law
Under Mohammedan Law the right of preemption may be claimed by following classes of persons:(i) Co-sharer in property (Shafii Sharik)
(ii) Participator in the immunities and appendages of the property (ShafiiKhalit)
(iii) Neighbour or owner of adjoining immovable property (ShafiiJar)
Class I is entitled to preference over Classes II and III and Class II over Class III. In order to be entitled to the right of preemption, a preemptor or authorised agent should make the following demands (talabs): (i) He should immediately on receiving information of the sale declare his intention to assert his right (This is called the talabimowasibat, the first demand). (2) He should, with the least delay possible, affirm his claim for preemption in the presence of at least two witnesses after sufficiently specifying the property and referring to the first demand, either in the presence of the vendor or the vendee or on the premises which are the subject of the sale. (This is called talabiishhad, or talabitaqreer, the second demand). These demands are conditions precedent to the exercise of the right.(i) She has attained puberty, i.e, the age at which she can render to the husband his conjugal rights, and
(ii) She places or offers to place herself in his power so as to allow free access to herself at all lawful times and obeys all his lawful commands.
Even, if the husband is minor (incapable of consummating the marriage) and the wife is adult she is entitled to maintenance. If the minor husband has no source of income, the father of the minor is liable for her maintenance, though he has a right to recover from his son. A wife, whose marriage is not consummated may abandon the matrimonial home or may refuse sexual intercourse to the husband if he has not paid prompt dower to her. In such circumstances, she is entitled to claim maintenance from her husband [Ahmad Giri v. Mst. Begha, (A.I.R. 1955 J and K 1]. She is not entitled to maintenance under following circumstances :-(i) If she abandons the conjugal domicile without any valid cause.
(ii) If she refuses access to her husband.
(iii) If she is disobedient to his reasonable commands.
(iv) If she is minor on which account marriage cannot be consummated.
Order for maintenance. - If the husband neglects or refuses to maintain his wife without any lawful cause, the wife may sue him for maintenance. She is not entitled to a decree for past maintenances, unless the claim is based on specific agreement. She may also take shelter of Section 125 of the Criminal Procedure Code, 10973 under which the court may allow a monthly allowance for her maintenance not exceeding five hundred rupees or under the "Dissolution of Muslim Marriage Act' 1939, Section 2(ii), a wife is entitled to dissolution if the husband has failed or neglected to provide maintenance for period of two years. Duration of Rights of Maintenance - A Muslim wife is entitled to get maintenance from her husband on divorce till the period of `iddat' such right is terminated on husband's death. In such cases she becomes entitled for inheritance in the property of her deceased husband. Although under Muslim Personal law a husband is not bound to maintain his wife after the expiry of the `Iddat' of the divorced wife but u/s 125 Cr.P.C. he is bound to maintain her even beyond the period of `Iddat' provided she remains unmarried. In Mohd. Ahmad Khan v. Shah Bano and Othrers, AIR 1985 SC 945 Supreme Court observed that the religion preferred by a spouse or spouses has no place in the scheme of Section 125 Cr.P.C. which is a measure of social justice founded on an individual's obligation to the society to prevent vagrancy and destitution. If there is any conflict between Personal Law and Section 125 Cr.P.C. then it is clear from language of the Section that it overrules the Personal Law. It was held that a Muslim woman who cannot maintain herself is entitled to maintenance from her husband till the time she re-married. Judges rejected the plea that maintenance to a divorced Muslim wife is payable only till "Iddat" period under Muslim personal law. Judgment of Supreme Court in Shah Bano's case created a controversy. Many Muslim leaders opposed this verdict as being opposed to the Shariat. They contended that maintenance by a former husband to a divorced with after the period of Iddat is against Islamic religion. As a consequence of this opposition, the Parliament enacted Muslim Women (Protection of Rights on Divorce Act, 1986). The provisions of this Act relating to maintenance of a divorced Muslim woman may be summarised as follows :-(1) The divorced woman is entitled to a reasonable and fair provision and maintenance during the Iddat period from her former husband [Section 3(1)(a)].
(2) Where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children (Section 3(1)(b)).
(3) Where a divorced woman has not remarried and is not able to maintain herself after the iddat period, she is entitled to get maintenance from her such relatives who would inherit her properties upon her death [Section 4(1)].
(4) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned above or such relatives or any one of them have not enough means to pay the maintenance the liability to maintain her is cast upon the Waqf Board of the State in which she resides [Section 4(2)].
Maintenance under agreement. - A wife is entitled to recover maintenance from the husband on the basis of an agreement made between the parties or their guardians provided that such an agreement is not opposed to any law or to public policy or the policy of Mohammedan Law. Thus an agreement by a Mohammedan with his second wife that he would allow her to live in her parent's house and pay her maintenance is not against public policy and hence valid. But an agreement for future separation between husband and wife is void as being against public policy under Section 23 of the Indian Contract Act.|
Sunni Law |
Shia Law |
|
1. Rule of Premogeniture : |
|
|
The Sunni Law does not recognise the doctrine of `Premogeniture.' |
The Shia Law recognises it to 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 is not recognised in Sunni law. The Sunnis prefer agnates to cognates. |
The Shia law adopts the principle of consanguinity and not of agency. The Shias prefer the 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 Quranic shares except that, on the authority of the ijma and qiyas, they introduce into the list of shares, the true grandfather, the true grandmother and the son's daughter. |
The Shias keep the Quranic list intact but re-arrange it in a group division on the basis of propinquity. |
|
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 Kindred are postponed to sharers and residuaries. |
They inherit along with sharers and residuaries. |
|
7. Doctrine of Increase : |
|
|
Under the Hanafi law the doctrine of `Increase' extends to all the sharers alike. |
Under the Shia law, the doctrine applies only against the daughter and sister. |
|
8. Movable and Immovable Property : |
|
|
There is no distinction between movable and immovable property left by the deceased. |
In one case, viz., in the case of a childless widow, the Shia law 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 sharers, except the husband or wife share in the return and even the husband of wife gets the residue on the total failure of other heirs. |
Under the Shia law, the wife can never get benefit by the return and the mother, and uterine brother and sister are excluded from the share under certain conditions. |
|
10. Devolution of the Residue : |
|
|
If deceased leaves behind a single daughter and father, according to the Sunnis, the residue goes to the father. |
According to Shia, residue is divided amongst the sharers by return. |
(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.
Rule of Exclusion - The exclusion from inheritance may be of two kinds -(a) Imperfect exclusion
(b) Perfect exclusion
(a) Imperfect exclusion - Imperfect exclusion means exclusion from one share and admission to another. For example, a sister is a Quranic heir. If she has some brothers, she will be excluded from Quranic heir and will be admitted as `agnate-heir' only. (b) Perfect exclusion - The term perfect is applicable to the cases where a person is otherwise not entitled to inherit although the is related to the person dying (Probositus). There are certain legal causes which exclude him or them from inheritance. The following persons, however, come in the category of perfect exclusion - (1) Primary heirs are never excluded from inheritance. The category of such heirs are `Husband and wife, father and mother, son and daughter's etc. These exclude others on certain occasions but they are never excluded. (2) All other heirs can be excluded by some one else. For example, a brother. He can be excluded by the son or by father. The legal causes for the perfect exclusion from inheritance - They are mainly -(1) Difference of religion.
(2) Homicide.
(3) Slavery.
(4) Illegitimacy.
(1) Difference of religion - The difference of religion is one of the important causes of perfect exclusion from inheritance. In ancient Islamic Law, a `non-Muslim' could inherit from a Muslim but it is not applicable in India. A mere difference of religion due to apsotasy or otherwise does not operate as legal bar. However, a Hindu is governed by Muslim Law if earlier he converted himself to Islam and dies as Muslim. In such case, the Muslim successor will inherit into his (deceased) property in accordance with Muslim Law but his Hindus collaterals cannot claim the property by virtue of the Caste Disability Removal Act, 1850. The reason being the law of succession of Hindus or Muslims depends on their personal laws. (2) Homicide - Any person (Muslim) who causes the death of another intentionally or unintentionally excluded perfectly from inheritance in the property of deceased as Hanfi Law. Shi'aties (Ishra-Ashiri) however, exclude only those who intentionally commit the Homicide of others. (3) Slavery - A slave cannot inherit from `Free-man'. For example, a Muslim dies leaving one son, one slave and a free-man. In absence of son, the whole property will go to "Freeman" rather than to slave. (4) Illegitimacy - A illegitimate son or daughter (bastard) cannot inherit from father. He or she can inherit from mother only. In the case of Bafatun v. Kaanum, 1903, Cal. 30, 683, a Hanafi woman died leaving her husband and an illegitimate son of her sister. In that case, husband got one-half and the illegitimate son got another half, because he (bastard) was related to the deceased through his mother. The Shi'aties (Ishna-Ashiri), however do not permit illegitimate child to inherit either from father or mother. They treat such child as `Nullus- filius'. (5) Sex - Daughters are sometimes excluded by custom or by statute. In such cases, the shares of the other heirs are calculated as if the daughters did not exist. (6) Alien enemy - An `alien-enemy' is also excluded from inheritance. The other methods of exclusion are as follows :(1) By Law - According to Bombay Wards Act, the widows are not entitled to inherit as long as all male successors are in existence. The male successors exclude widow by operation of law ; and
(2) By Custom - In Coimbatore, there is a custom in Labhdhyons that females are excluded by males.
(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.(a) in a situation, when something remains after allotting shares to the sharers, or
(b) in a situation, when there is no sharer.
3. Distant Kindred. - All relations by blood who do not fall under any of the above two classes, belong to this class. They get in the absence of above two classes of heirs. 4. Successors by contract. - i.e. a person who derives his right of succession under a contract with the deceased. 5. Acknowledged Kinsmen. - i.e., a person of unknown descent in whose favour the deceased has made an acknowledgment of kinship, not through himself but through another. 6. Universal legatee. - i.e., a person to whom the deceased has left the whole of the property by will. 7. In the absence of the above classes of heirs, the estate devolves on to the State. (Sharers, residuaries and distant kindreds are those who are related by blood to the ancestor, while the remaining four are unrelated by blood).(i) Son.
(ii) Son's, how-low-soever.
Class II. Ascendants :(i) Father,
(ii) True grandfather, how-high-soever.
Class III. Descendants of father :(i) Full brother,
(ii) Full sister.
(iii) Consanguine brother
If father of two persons is same, but mothers are different, these persons would be consanguine brother and consanguine sister or consanguine brothers.
(iv) Consanguine sister,
(v) Full brother's son,
(vi) Consanguine brother's son.
(vii) Full brother's son's son.
(viii) Consanguine brother's son's son.
Class IV. Descendants of the true grandfather :(i) Full paternal uncle,
(ii) Consanguine paternal uncle,
(iii) Full paternal uncle's son,
(iv) Consanguine paternal uncle's son,
(v) Full paternal uncle's son's son,
(vi) Consanguine paternal uncles son's son and so on.
(i) Daughter's children and their descendants.
(ii) Children of son's daughter, how-low-soever and their descendants.
Class II. Ascendants of the deceased :(i) Father's grandfather, how-high-soever,
(ii) Father's grandfather, how-high-soever.
Class III. Descendants of the parents :(i) Full brother's daughters and their descendants.
(ii) Consanguine brother's daughters and their descendants.
(iii) Uterine brother's children and their descendants.
(iv) Daughters of full brother's sons h.l.s. and their descendants.
(v) Daughters of consanguine brother's sons h.l.s. and their descendants.
(vi) Sister's (full, consanguine or uterine) children and their descendants.
Class IV. Descendants of immediate grand-parents (true or false) :(i) Full paternal uncle's daughters, and their descendants.
(ii) Consanguine paternal uncle's daughters and their descendants.
(iii) Uterine paternal uncles and their children and their descendants.
(iv) Daughters of full paternal uncle's sons, h.l.s. and their descendants.
(v) Daughters of consanguine uncle's sons, h.l.s. and their descendants.
(vi) Paternal aunts, (father's sister), whether full, consanguine or uterine and their children and their descendants.
(vii) Maternal uncles (Mother's brother) and aunts (Mother's sister) and their children and their descendants.
(viii) Descendants of remoter ancestors h.h.s. (true or false).
|
Sharers |
Shares |
Conditions |
|
1. Father |
1/6 |
When there is a child or child of a son h.l.s. otherwise he inherits as residuary. |
|
2. True grandfather |
1/6 |
(i) When there is a child or child of a son h.l.s., and |
|
|
|
(ii) there is no father or nearer true grandfather. |
|
|
|
[If no child and no father or nearer true grandfather, then he is residuary]. |
|
3. Husband |
1/4 |
When there is a child or child of a son h.l.s. |
|
Husband |
1/2 |
When no child or child of a son. |
|
4. (One) Wife |
1/8 |
When there is a child or child of a son h.l.s. [when there is no child or child of a son wife takes 1/4]. |
|
Wives (collectively) |
1/8 |
When there is a child or child of a son h.l.s [When there is no child or child of a son wives collectively take 1/4]. |
|
5. Mother |
1/6 |
(i) When there is a child or child of a son h.l.s.; or |
|
|
|
(ii) When there are two or more brothers or sisters, or even one brother and one sister, whether full, consanguine or uterine. |
|
Mother |
1/3 |
When no child (child of a son, h.l.s) and not more than one brother or sister, if any. [If there is also (i) wife or husband, and (ii) the father, then only 1/3 of what remains after deducting the wife's or husband's share]. |
|
6. True grandmother |
1/6 |
A. Maternal. - When no mother and no nearer true grandfather either paternal or maternal. |
|
|
|
B. Paternal. - When no mother, no father, no nearer true grandmother either paternal or maternal, and no intermediate true grandfather. |
|
7. One daughter |
1/2 |
When no son. |
|
Daughters |
2/3 |
When no son. |
|
(Together) |
(Collectively) |
[With the son, daughter becomes residuary]. |
|
8. Son's daughter |
1/2 |
When no (1) son (2) daughter (3) higher son's son, (4) higher son's daughter or (5) equal son's son. |
|
If more than one |
2/3 collectively. |
[When there is only one daughter or higher son's daughter, but no (i) son or (ii) higher son's son, or (iii) equal son's son, she takes 1/6]. |
|
9. Uterine brother |
1/6 |
When (i) no child, and (ii) no child of son, and |
|
If more than one |
1/3 collectively |
(iii) When no father or true grandfather. |
|
10. Uterine sister |
1/6 |
No child, no child of a son, no father or true grand-father |
|
If more than one. |
1/3 |
ditto |
|
11. Full sister |
1/2 |
When (i) no child,
and |
|
If more than one |
2/3 collectively |
[When full brother she becomes a residuary]. |
|
12. Consanguine sister |
1/2 |
When (i) no child, |
|
|
|
(ii) no child of son h.l.s., and |
|
|
|
(iii) no father, and |
|
If more than one- |
2/3 collectively |
(iv) no true grandfather, and |
|
|
|
(v) no full brother, and |
|
|
|
(vi) no full sister or (vii) no consanguine brother. |
|
|
|
[If there is only one full sister and she succeeds as a sharer then she will take 1/6 provided she is not otherwise excluded from inheritance. [With the consanguine brother, consanguine sister becomes a residuary]. |
|
(ii) 2 sons |
4/7 |
(each taking 2/7). |
|
3 daughters |
3/7 |
(as residuaries, each taking 1/7). |
(i) Daughter.
(ii) Son's daughter h.l.s.
(iii) Full sister.
(iv) Consanguine sister.
All the four females inherit as residuaries with corresponding males of a parallel grade. None of these except the son's daughter h.l.s. can succeed as a residuary with a male lower in degree than herself.1. Whoever is related to the deceased through any person shall not inherit while that person is living. Thus, the father excludes brother and sister.
2. The nearer in degree excludes the more remote. The exclusion of the true grandfather by the father, of the true grandmother by the mother, of the son's son by the son rests on this principle.
3. A person excluded may exclude other.
1. "Whoever is related to the deceased through any person, shall not inherit while that person is living." Thus the father excludes brother and sister because the brother or sister is related to the deceased through father, i.e. without father they would not have existed.
Example. - (i) Father excludes grandfather.
(ii) Mother excludes grandmother.
(iii) Son excludes son's son.
It should be noted that this rule of propinquity applies only when the heirs belonged to the same class. If they belong to different classes, this rule will not apply. Limitations and exceptions. - This rule of propinquity does not apply in the following cases : (i) If the heirs do not belong to the same class. - The rule of propinquity may apply as between the members of a class but it does not apply as between different classes of heirs. A nearer sharer excludes a remote sharer but a nearer sharer will not exclude a residuary more remote e.g., a daughter is nearer than the brother or brother's son who are residuaries but they cannot be excluded by the former. (ii) Father, though nearer in degree, does not exclude mother's mother nor does the mother exclude the father's father.|
(i) Husband |
1/9 : 3/6 reduced to |
3/7 |
|
2 full sisters |
2/3 : 4/6 " |
4/7 |
|
|
7/6 |
7/7 : 1 |
|
(ii) Husband |
1/4 : 3/12 reduced to |
3/15 |
|
Father |
1/6 : 2/12 " |
2/15 |
|
Mother |
1/6 : 2/12 " |
2/15 |
|
3 Daughter |
2/3 : 1/12 " |
8/15 |
|
|
15/12 " |
15/15 |
|
(iii) Widow |
1/4 reduced to |
4/13 |
|
Mother |
1/4 " |
4/13 |
|
Full sister |
1/2 " |
6/13 |
|
|
12/13 |
13/13 : 1 |
|
|
exceeds unity. |
|
|
(i) Husband |
1/4=3/12 |
=3/12 |
|
Daughter |
1/2=6/12 |
=5/12 |
|
Father |
1/3=4/12 |
=4/12 |
|
|
13/12 |
|
|
(ii) Widow |
1/4 no change |
1/4 |
|
Mother |
1/3 |
1/3 |
|
Full sister |
1/2 reduced to |
5/12 |
|
|
13/13 |
12/12=1 |
|
|
exceeds unity. |
|
(i) The specified shares of the sharers do not exhaust the whole of the property, i.e., the sharers of the sharers fall short of unity, and
(ii) There are no residuaries, (it does not matter if there are distant kindreds).
In the above circumstances, the residue returns or reverts to the sharers in proportion to their shares. Exceptions. The husband or wife of the deceased is not led to a share in the return so long as there is any other heir even a distant kindred. Thus the wife or husband will not share the return-(i) if there is any other sharer, or
(ii) if there is any distant kindred.
If there is neither any sharer, nor any residuary, nor any distant kindred, then the wife or husband will get the residue by return.|
(i) Mother |
1/6=1/5 increased to |
1/5 |
|
Daughter |
1/2=3/6 " |
3/5 |
|
Son's daughter |
1/6=1/6 " |
1/5 |
|
|
5/6 |
|
|
(ii) Widow |
1/4 |
1/4 |
|
3 U. sisters |
1/3 increased to 2/3 x 3/4 |
= 1/2 |
|
Father's mother |
1/6 " 1/3 x 3/4 |
= 1/4 |
|
|
9/12 |
|
(i) Husband or wife is not entitled to return if there is any other heir. If husband is the only heir; he gets residue by return but the wife does not get by return if she is the sole surviving heir. The residue goes to the Govt. But the Lucknow Bench of Allahabad High Court has held that the rule now in force is that the widow is entitled to take by return.
(ii) The mother does not get the share in the return if the deceased leaves her and -
(a) Father, and
(b) One daughter, and also
(c) Two or more brothers, (full or consanguine) or one brother and two sisters.
Ans. (b). `False Grand father' means a male ancestor between whom and deceased a female intervenes e.g. father of mother, father of mother's father, father of the mother's father etc. `True grand father' means a male ancestor between whom and the deceased no female intervenes e.g., father's father, father's father's father etc. `True grand mother' means a female ancestor between whom and the deceased no false grand father intervenes e.g., father's mother, father's father's mother etc.